Opinion 21 Jun 13

Hague Judge’s Criticism ‘Could Damage Tribunal’s Credibility’

A leaked email from a Hague Tribunal judge suggesting recent high-profile acquittals could have been the result of political pressure has caused intense debate across the former Yugoslavia, experts say.

Marija Ristic
BIRN
Belgrade
Frederik Harhoff, a Danish judge at the International Criminal Tribunal for the Former Yugoslavia, ICTY

Frederik Harhoff, a Danish judge at the International Criminal Tribunal for the Former Yugoslavia, ICTY, became the centre of controversy after a private email he wrote criticising the court’s recent acquittals of Serbian and Croatian wartime commanders was published by international media last week.

In the email, Harhoff wrote that he had heard that the Tribunal’s president, Theodor Meron, an American, allegedly put pressure on other judges to approve the acquittals in recent months of Croatian generals Ante Gotovina and Mladen Markac, Yugoslav general Momcilo Perisic and Serbian security officials Jovica Stanisic and Franko Simatovic.

Harhoff also accused the Tribunal of changing its policy on convictions.

The ICTY has not made any public statement about the letter. In a press conference that followed its publication, ICTY spokesperson Magdalena Spalinska and prosecution spokesperson Aleksandar Kontic responded by saying ‘no comment’ when asked about the letter.

Human rights experts from the Balkans who gave their opinions to BIRN, however, are divided over the letter but agree that it could affect the Tribunal’s credibility.

‘The UN must investigate the judge’s allegations’

Mario Mazic, director of the Zagreb-based Youth Initiative for Human Rights

Mario Mazic, director of the Zagreb-based Youth Initiative for Human Rights:

“Judge Harhoff’s statements caused a severe public commotion a good reason. It is hard to believe that a judge at an international tribunal would succumb to such statements without valid reasons.

“I don't agree that the Tribunal changed the law in the judgments he is mentioning, especially in terms of the specific direction issue that is a long-established practice at the ICTY. Nonetheless, they are surprising on several grounds, as the extent of 'beyond reasonable doubt' seems unreasonably high in some of them.

“However, leaving all the legal issues aside, the mention of political pressure on the judges alone can bring the non-biased nature of a criminal tribunal into question. This may result in undermining the credibility of the Tribunal.

“In my opinion, simply for the severity of this issue, the ICTY and the organisation backing it, the UN, should implement an investigation into whether these statements are true or not. Such an approach would emphasise the importance of the Tribunal’s political ‘neutrality’ and stress its commitment to fair and professional criminal processes.

“On the other hand, the absence of such actions could contribute to a situation where the ICTY's legacy is permanently questioned from a political, rather than a legal and factual standpoint.”

‘It’s hard to believe that a top judge was pressurising the court’

Nora Ahmeaj, director of Kosovo’s Centre for Research, Documentation and Publication

Nora Ahmeaj, director of Kosovo’s Centre for Research, Documentation and Publication:

“There was no doubt that the ICTY—defective as it may be—is determined to make its mark on the world’s emerging legal order, thus bring justice for the victims of war crimes committed in the former Yugoslavia.

“I am not fond of conspiracy theories, although the latest acquittal of two former Serbian secret service men who served during the Milosevic regime raised a flow of comments and accusations that the ICTY had turned blind.

“There might have been numerous factors, internal and external, that brought the judges to a decision that harmed the victims and the process of reconciliation in the region. The consequences are yet to be seen. Hence, more accurateness combined with an unemotional and less conspiracy-based intervention from civil society and human rights defenders is needed, in order to better protect human rights and ensure that victims of war receive some degree of decent and humane treatment.

“There’s no doubt that an interesting power dynamic might have been developed within the Tribunal’s staff’s decision-making, and there is the fact that the judges represents the states that nominated them to the Tribunal. However, I simply find it difficult to believe that the judge Theodor Meron has been pressuring the court to acquit officials accused of war crimes.

“I tend to believe that an 83-year-old judge would do his job with high integrity and carry out his function ethically, and that all judges – Meron included – were driven by legal considerations.”

‘The judge’s criticism raises questions about the court’s objectivity’

Vehid Sehic, president of Bosnian rights group Citizens Forum Tuzla

Vehid Sehic, president of Bosnian rights group Citizens Forum Tuzla:

“It is difficult to objectively assess the work of the Hague Tribunal from this point in time. But one thing is certain, if it had not been founded, the question is whether anyone from the region would have been prosecuted, would national courts have prosecuted anyone for the violation of international law? Did it bring justice? Partially, yes. Did it contribute to reconciliation? No. It was not its purpose, although it was often emphasised as such.

“The main expectation from it was to establish facts about war crimes beyond reasonable doubt and based on that, make a just court decision and help us objectively understand what was happening and try to build mutual trust which the war destroyed.

“The latest verdicts from the Hague Tribunal caused major debates among experts but also among victims, especially after the email from the Danish judge, which has some additional weight because he is still a judge at the Tribunal.

“You had opinions about impartiality of the court before, that the establishment of facts was hindered and mostly by the Tribunal’s prosecution, opinions primarily from Carla del Ponte and Florence Hartmann, and they even published books about it, but they did it only after their mandate in the prosecution expired and thus their opinions on the court’s work do not have nearly as much credibility as the email from the Danish judge Frederik Harhoff, which could question the objectivity and professionalism of some of the judges at the Hague Tribunal and thus the court itself as an institution.

“One gets the impression that with some of the verdicts, the Hague Tribunal wants to neutralise a very negative public perception, where it has been seen, or is still seen, as  anti-Serb, anti-Croat or anti-Bosniak and not as an anti-criminal court.”

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