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Thursday, September 5, 2013

More on Harhoff (and a note about the Stakic Trial Chamber)

There are new developments in the Harhoff disqualification situation.  As others have reported, multiple parties have filed requests for clarification or reconsideration, including the Office of the Prosecutor, the other judges on Harhoff's trial chamber panel, and even Harhoff himself.  Clearly the situation is not over.

In this post, I want to consider some additional issues that I didn't discuss in my first post.

First, what was the meaning of Harhoff's reference in his letter to a personal or professional dilemma caused by the recent tribunal decisions that troubled him? The two judges on the disqualification panel who voted in favor of disqualification interpreted the phrase to mean that he would have trouble following the established tribunal jurisprudence as indicated by the Appeals Chamber.  In other words, Harhoff was having a moral dilemma because he was considering ignoring the law.  This strikes me as an unlikely interpretation of the statement.  It is more likely that Harhoff was considering either resigning his position, because he could no longer support an organization or institution whose law was becoming badly distorted, or he was considering making some other form of public statement of protest (such as the very letter he wrote) or a law review article.  Speaking out has consequences (as he learned) and that itself could be the source of the dilemma to which he refers.

Second, even if the statement were, hypothetically, to refer to a problem with applying this specific area of the law, would this be grounds of disqualification?  Certainly, there is no issue here with regard to the recent trial chamber decision in Stanisic and Simatovic, since there is no way that one Trial Chamber decision could be considered binding precedent on another trial chamber judge.  So let's consider the Appeals Chamber decisions in Perisic, for example.  The ICTY claims not to apply stare decisis, so previous decisions are, as a technical matter, always subject to revision.  That being said, Appeals Chamber decisions are binding precedent for lower Trial Chamber decisions, and a Trial Chamber judge should follow Appeals Chamber statements regarding the law.

But what should a Trial Chamber judge do if he thinks a set of rules are wrongly decided?  Isn't the only option to forge a new path and issue a contrary ruling, thus making a statement that if the Appeals Chamber is going to insist on its current path, it will need to reverse the decision.  Isn't this exactly what happened in the Stakic Trial Chamber?  Specifically, in Stakic the Trial Chamber refused to apply JCE, which at that point was clearly the law of the tribunal; the Trial Chamber noted that JCE was highly controversial and not explicitly referenced in the ICTY Statute.  Consequently, the Stakic Trial Chamber decided to apply co-perpetration based on Roxin's Control Theory.  On appeal, the Appeals issued a rather terse opinion rejecting this approach.  What was interesting was the reasoning of the Appeals Chamber.  It did not bother to justify the JCE approach, but rather simply reasserted that JCE was the settled approach of the tribunal and that the Trial Chamber's refusal to apply JCE was inconsistent with the settled approach.  Get with the program, they said basically.

Now here's the issue.  If you think that Harhoff should be disqualified for bias, do you also think that the entire Stakic Trial Chamber majority (Schomburg, Vassylenko, Argibay) should have been disqualified from future cases for its refusal to apply JCE?  But no one suggested this at that time (or at least I've never heard it said before).  So this seems inconsistent.  And the Stakic case is a situation where the Trial Chamber actually disagreed with settled Appeals Chamber rulings, rather than simply imply in a vague way that they might do so in the future (which is supposedly what Harhoff did).  So it seems that the argument for disqualification should apply in greater force for all of the Stakic Trial Chamber majority judges than it does for Harhoff.  

If this is the standard, then Trial Chamber judges are never going to be able to disagree with Appeals Court rulings and push the law forward in new directions.  Incidentally, although the Stakic Trial Chamber approach was never followed at the ICTY (after it was rejected by the Appeals Chamber), it became an important legal precedent for the adoption of the Control Theory at the ICC, thus resulting in a substantial development in the law.

Sunday, September 1, 2013

A (Partial) Defense of Judge Harhoff

On August 28, 2013, a three-judge panel of the ICTY voted to remove Judge Frederik Harhoff from the case against Vojislav Seselj.  The defendant had filed a motion to remove Harhoff on grounds of bias or perceived bias, stemming from a letter that Harhoff circulated via email to 56 contacts.  The panel, in a 2-1 vote, agreed that Harhoff had to go.

Most of you know the background to this story, but I'll repeat it for those who haven't heard it. Harhoff's letter, which quickly leaked to the public, complained about recent decisions at the ICTY that have changed the requirements for prosecution under aiding and abetting.  These ICTY trial and appeals judgements resulted in acquittals in the cases of Prosecutor v. Perisic, and also more recently in Prosecutor v. Stanisic and Simatovic.  These acquittals were highly controversial and sparked intense discussions in both the legal community (over the correct requirements for aiding and abetting) and the popular press (about why the tribunal was acquitting Serbian government officials who assisted Bosnian Serb forces committing atrocities).

Harhoff's letter contained at least two criticisms.  First, he suggested that these cases were wrongly decided.  Several legal scholars have also complained bitterly about these cases.  

The Appeals Chamber rationale for the decisions was that Serbian government officials could only be convicted if their assistance was specifically directed to the atrocities and illegal activities committed by the Bosnian Serb forces, who were also involved in the "lawful" activity of regular armed conflict.  The defendants in these cases argued that they had the right to logistically support the Bosnian Serbian war effort (or at the very least that such support was not criminal) and that they shouldn't be blamed for the fact that the Bosnian Serb forces violated the rules of war by committing illegal atrocities against civilians.  So the Appeals Chamber concluded that a conviction was only appropriate in these "distant" support cases if the defendant specifically directed the assistance to the illegal activities as opposed to the regular war-fighting of the troops. 

Second, Harhoff made the explosive and controversial allegation that the President of the ICTY, Judge Meron, had buckled to American and Israeli pressure to change the legal standards regarding aiding and abetting.  The implication here is that American and Israeli governments often send cash or weapons (either covertly or explicitly) to foreign fighters, and American and Israeli officials were worried that international legal standards might generate criminal liability for them if the foreign fighters ended up committing atrocities.  

While this allegation is indeed incendiary, it is important to remember that Harhoff was removed, not for libeling Judge Meron, but for bias or perceived bias against the defendant in the Seselj case. What was the panel's evidence of bias (either actual or perceived)?  Here is the key paragraph from Harhoff's letter:

"Right up until autumn 2012, it has been a more or less set practice at the court that military commanders were held responsible for war crimes that their subordinates committed during the war in the former Yugoslavia from 1992-95, when the Daytona Agreement brought an end to the war in December 1995."

The key phrase here is "set practice."  According to two judges on the panel (the third, Judge Liu, dissented from the decision), this phrase indicated bias because it did not include "reference to an evaluation of the evidence in each individual case."  In other words, the panel concluded that Harhoff was either biased or appeared so because he was suggesting that military commanders should be convicted as a matter of course, regardless of the evidence.

In all due respect to the panel's majority, this is not a convincing interpretation of the text of the letter, especially because it ignores the very next paragraph:

"The responsibility then was either normal criminal responsibility as either (1) contributing to or (2) responsibility for the top officers with command responsibilities in a military system of command authority where these failed to prevent the crime or punish the subordinates.There is nothing new in this. We had also developed an extended criminal responsibility for people (ministers, politicians, military leaders, officers and others), who had supported an overall goal to eradicate ethnic groups from certain areas through criminal violence, and which in one way or another contributed to the achievement of such a goal; it is this responsibility that goes by the name of 'joint criminal enterprise'."

This section makes clear that Harhoff was not suggesting that all commanders should be convicted.  That's a very weak interpretation of the letter.  Rather, what Harhoff was saying is that the tribunal had a set of legal standards, expressed in the second of the two paragraphs that I quote above, and that these legal standards were upset by the Perisic and Stanisic and Simatovic line of cases. This, of course, is an entirely plausible legal analysis.  Perisic and Stanisic and Simatovic applied the specific direction standard, which in some previous cases had not been applied (or at least not in the same way), and this represented a jurisprudential development that some have agreed with and others have not.

Of course, reasonable people can disagree over whether the specific direction requirement is correct.  We can also disagree over whether it is part of the mens rea or actus reus of the legal standard (the Appeals chamber considers it part of the actus reus even though it sounds like a mental element according with "purpose").  We can also disagree over whether the specific direction requirement applied in the Perisic and Stanisic and Simatovic cases is more consistent with the standard originally stated in the old Tadic opinion (where the phrase specific direction was first mentioned in dicta).  However, I think it is relatively uncontroversial to note that the these cases upset the jurisprudence of the ICTY on aiding and abetting.  That's what made these cases such a subject of intense debate in legal circles.  That's what Harhoff meant when he said that there was, until these recent cases, a set practice regarding assistance.  The jurisprudence was one way, now it has been changed, and he doesn't like it.  And he said so.  That doesn't demonstrate bias against a defendant, it just demonstrates his disagreement with President Meron on a matter of legal substance.  

There are plenty of other aspects of Harhoff's letter that I am not willing to defend.  It was ill advised to write a casual letter to a large group of individuals; he should have written a law review article argued with precision and clarity.  He cobbled together the mental elements of aiding and abetting, JCE, and command responsibility, without making clear that his chief complaint was newly inconsistent mens rea requirements across different modes of liability. His suggestion that President Meron bowed to political pressure strikes me as both scandalous and unlikely.  First, American government officials just don't pay that much attention to ICTY jurisprudential developments. Second, there are plenty of other governments that are more likely to be concerned about this issue, especially in Europe, where French and Italian governments sometimes support rebel forces that might commit war crimes (e.g. Libya).  So the idea that this is an American or Israeli "problem" strikes me as unlikely.

Also, I'm not willing to take a stand one way or the other about the correctness of the specific direction requirement; I'm still trying to decide which view of the law is correct based on the on-going legal debates.  (See James Stewart here and here; Kevin Heller here and here).  All very stimulating.

However, I just don't see evidence of bias or perceived bias here.  What I see is a judge with a deep disagreement over the jurisprudence in recent cases -- a disagreement that plenty of others have voiced.  And there's nothing biased about a judge who makes their view of the law known in advance -- if that were prima facie evidence of bias, then every judge at the ICTY would be guilty of bias by virtue of having written law review articles, or even participated in previous cases where these legal issues were decided or applied.  If this were the standard, only new judges with no history of judging past cases, could sit on trials.