Judge thrown off Yugoslavia war crimes tribunal for criticising 'change of direction' in verdicts

Danish judge Frederik Harhoff suggested in an email that Israel and the US were behind a series of acquittals of senior Croat and Serb defendants. The email was leaked to the media

Belgrade

For the first time since its creation 20 years ago, the International Criminal Tribunal for the former Yugoslavia (ICTY) has disqualified one of its judges after he condemned a “change of direction” in the tribunal’s verdicts, and suggested Israel and the United States were behind it.

Last June, Danish judge Frederik Harhoff wrote what he described as a private email to 56 of his colleagues in which he harshly criticised a series of acquittals of senior Croat and Serb defendants and accused the tribunal’s president Theodor Meron – an American and former Israeli diplomat – of exerting “tenacious pressure on his colleagues” in these cases. The email was quickly leaked to the media.

He argued the acquittals went against the ICTY’s set practice of holding military commanders responsible for war crimes committed by their subordinates.

“Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed,” he wrote, before adding “Well, that begs the question of how this military logic pressures the international criminal justice system? Have any American or Israeli officials ever exerted pressure on the American presiding judge” to “ensure this change of direction?”

The court’s decision to remove Judge Harhoff came after a complaint by Serbian far-right leader Vojislav Seselj following the release of the email. The court found that Judge Harhoff had “demonstrated an unacceptable appearance of bias in favour of conviction.” Judge Harhoff, who has contested the ruling, is not sitting on the bench of any other cases at the ICTY. Mr Seselj has been on trial for 10 years and the verdict in his case had been expected on 30 October. Following Judge Harfoff’s removal though, the court decided last week to postpone it to an unspecified date.

Kevin Jon Heller, an associate professor in international criminal law at Melbourne Law School, said the court’s decision to remove Judge Harhoff was to be expected, and “absolutely the right decision.”

“How can you accuse the president of a tribunal of being a puppet of the Israeli and the US governments without offering any kind of evidence,” he said, calling the email “fundamentally unethical” and the accusations “appalling, widely speculative and implausible.”

Mr Heller said that Judge Harhoff’s complaint and subsequent removal was “probably the worst scandal” of the tribunal’s history, even more so than A US diplomatic cable from 2003, which was published by WikiLeaks, in which a US ambassador described Judge Meron as “the tribunal's pre-eminent supporter of United States government efforts.”

To Richard Dicker, Human Rights Watch’s International Justice Programme Director, “part of the challenge international courts face is that they’re mandated to deliver justice fairly and impartially on a highly politicised landscape, where state actors have a lot of interests at stake.” He said it was then “imperative” for these officials to “remain immune from whatever influence that may be exerted by state actors.”

While Mr Dicker preferred not to speculate over Judge Harhoff’s accusations, he admitted the email raised a legitimate question, especially concerning the acquittal last February of former Yugoslav army chief General Momcilo Perisic, which he called a “step in the wrong direction.”

“It creates a very dangerous and undermining precedent” of “immunising senior officials” when it comes to aiding and abetting liability, that he said had already been applied with the following acquittals of former Chief of the Serbian State Security Service Jovica Stanisic and his deputy Franko Simatovic.

In May, the ICTY found that their assistance to special units that “murdered, persecuted, deported and forcibly transferred non-Serb civilians” from Bosnia and Herzegovina and Croatia between 1991 and 1995, was not “specifically directed” towards the commission of crimes.

What these series of decisions put in place, said Mr Dicker, is a “very high standard” for conviction on aiding and abetting, which requires a senior accused to have “specifically known” that a crime would have been committed,” and “practically rules out conviction of senior accused not present.” Leaders are generally not at the front lines, and are “smart enough not to put their criminal instructions into writing,” he added.

This could potentially have consequences if, for example, an international court ever looks into crimes committed in Syria, where aiding and abetting liability would likely be needed to link senior officials to the crimes committed by the Shabiha militias, loyal to Syrian President Bashar Al-Assad.

While Mr Dicker insisted other international courts are not bound by the ICTY’s decisions, he hoped their judges wouldn’t be influenced by these “regressive” rulings, and that the ICTY wouldn’t continue in this direction.

“There will be other cases involving aiding and abetting coming to the Appeals Chamber at the ICTY, and one hopes that the judges there will get it right,” he concluded.

Start your day with The Independent, sign up for daily news emails
ebooks
ebooksA special investigation by Andy McSmith
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Customer Account Manager

£27000 - £33000 per annum: Recruitment Genius: This fast growing cloud based I...

Ashdown Group: Product Marketing Manager - Software & Services

£35000 - £45000 per annum + Benefits: Ashdown Group: Product Marketing Manager...

Recruitment Genius: Exhibition Sales Executive - OTE £35,000

£16000 - £35000 per annum: Recruitment Genius: An expanding B2B exhibition and...

Recruitment Genius: QA Technician

£16000 - £18000 per annum: Recruitment Genius: This leading manufacturer of re...

Day In a Page

General Election 2015: The masterminds behind the scenes

The masterminds behind the election

How do you get your party leader to embrace a message and then stick to it? By employing these people
Machine Gun America: The amusement park where teenagers go to shoot a huge range of automatic weapons

Machine Gun America

The amusement park where teenagers go to shoot a huge range of automatic weapons
The ethics of pet food: Why are we are so selective in how we show animals our love?

The ethics of pet food

Why are we are so selective in how we show animals our love?
How Tansy Davies turned 9/11 into her opera 'Between Worlds'

How a composer turned 9/11 into her opera 'Between Worlds'

Tansy Davies makes her operatic debut with a work about the attack on the Twin Towers. Despite the topic, she says it is a life-affirming piece
11 best bedside tables

11 best bedside tables

It could be the first thing you see in the morning, so make it work for you. We find night stands, tables and cabinets to wake up to
Italy vs England player ratings: Did Andros Townsend's goal see him beat Harry Kane and Wayne Rooney to top marks?

Italy vs England player ratings

Did Townsend's goal see him beat Kane and Rooney to top marks?
Danny Higginbotham: An underdog's tale of making the most of it

An underdog's tale of making the most of it

Danny Higginbotham on being let go by Manchester United, annoying Gordon Strachan, utilising his talents to the full at Stoke and plunging into the world of analysis
Audley Harrison's abusers forget the debt he's due, but Errol Christie will always remember what he owes the police

Steve Bunce: Inside Boxing

Audley Harrison's abusers forget the debt he's due, but Errol Christie will always remember what he owes the police
No postcode? No vote

Floating voters

How living on a houseboat meant I didn't officially 'exist'
Louis Theroux's affable Englishman routine begins to wear thin

By Reason of Insanity

Louis Theroux's affable Englishman routine begins to wear thin
Power dressing is back – but no shoulderpads!

Power dressing is back

But banish all thoughts of Eighties shoulderpads
Spanish stone-age cave paintings 'under threat' after being re-opened to the public

Spanish stone-age cave paintings in Altamira 'under threat'

Caves were re-opened to the public
'I was the bookies’ favourite to be first to leave the Cabinet'

Vince Cable interview

'I was the bookies’ favourite to be first to leave the Cabinet'
Election 2015: How many of the Government's coalition agreement promises have been kept?

Promises, promises

But how many coalition agreement pledges have been kept?
The Gaza fisherman who built his own reef - and was shot dead there by an Israeli gunboat

The death of a Gaza fisherman

He built his own reef, and was fatally shot there by an Israeli gunboat