The Disqualification of Judge Frederik Harhoff: Implications for the Integrity of the International Criminal Tribunal for the former Yugoslavia

Badar, Mohamed and Florijančič, Polona (2020) The Disqualification of Judge Frederik Harhoff: Implications for the Integrity of the International Criminal Tribunal for the former Yugoslavia. In: Integrity in International Justice. Nuremberg Academy Series, 4 . Torkel Opsahl Academic EPublishers, Brussels, pp. 951-981. ISBN 9788283481907, 9788283481914

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Abstract

In 2013 a leaked email by Judge Harhoff put into question the integrity of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’). As a result of what he perceived to be a change in the ICTY jurisprudence concerning aiding and abetting and joint criminal enterprise liability after the acquittals in the Gotovina and Markač Appeal Judgement, the Perišić Appeal Judgement, and the Stanišić and Simatović Trial Judgement, Harhoff made the following statements in his 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… However, this is no longer the case. 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… The result is now that not only has the court taken a significant step back from the lesson that commanding military leaders have to take responsibility for their subordinates’ crimes (unless it can be proven that they knew nothing about it) – but also that the theory of responsibility under the specific ‘joint criminal enterprise’ has now been reduced from contribution to crimes (in some way or another) to demanding a direct intention to commit crime (and so not just acceptance of the crimes being committed). Most of the cases will lead to commanding officers walking free from here on…As a result, Harhoff was declared biased and removed from the Šešelj case. Six years on, two things are clear. Harhoff’s disqualification was unjust - there was no bias on his part which would have justified his removal from the Šešelj case. Furthermore, his concerns about a dangerous change in the jurisprudence were legitimate and his views have been vindicated in subsequent rulings.There was another element to Harhoff’s letter however, i.e. speculations about possible external and internal pressures put on fellow judges by the President of the Court, Theodor Meron, as the reason behind the change in jurisprudence. The Judge posed the rhetorical question: “how does this military logic pressure the international criminal justice system? Have any American or Israeli officials ever exerted pressure on the American presiding judge … to ensure a change of direction? We will probably never know.”While the disqualification decision omits any reference to said speculations, they seem to be the de facto reason behind the removal of Harhoff from the Šešelj case and effectively the ICTY. If this is indeed the case, such a response sends a very negative signal about the Tribunal that apparently preferred to sweep serious concerns under the rug rather than allow investigations or open discussions about them, perpetuating the culture of silence and discouraging whistleblowing and honest criticism from within.

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