Comment 30 Aug 13

The Hague Sweeps Up Its Own Mess

By dismissing a controversial judge from Serbian Radical Party leader Vojislav Seselj’s case for alleged bias, the Hague Tribunal is trying to reassert control over its battered image.

Jelena Subotic

The Tribunal really had no choice.

Judge Frederik Harhoff wrote an incendiary letter on June 6 this year, accusing Theodor Meron, the president of the International Criminal Tribunal for the Former Yugoslavia, ICTY, of unduly applying pressure on Tribunal judges during proceedings, steering decisions in favour of acquittals and, most damagingly, acting under pressure from the United States and Israel to loosen up precedents on wartime command responsibility.

Harhoff then sent the ‘private’ letter to 56 of his colleagues, one of whom promptly leaked it to a Danish newspaper.

The defence team for Vojislav Seselj, as any good defence team would, filed a motion to disqualify judge Harhoff from this case, on grounds of bias.

The special chamber appointed to hear this complaint issued a decision on August 29 agreeing with Seselj’s argument and dismissing Judge Harhoff from the case for “unacceptable appearance of bias in favour of conviction”.

To say that judge Harhoff’s decision to publicly air his personal grievances with the Tribunal was unprecedented would be a gross understatement. His accusations – without much evidence to support them and based on his own inferences and ‘hallway rumours’ – have been very damaging to the credibility of the Tribunal and played into a garden variety of conspiracies that have followed the international court since its inception.

His letter provided fodder for those who argued that the ICTY is administering ‘victors’ justice’ and acting on orders from major state powers (the US and Israel always feature on the top of such lists).

Judge Harhoff also portrayed the president of the Tribunal as a puppet of his state (Meron is American), an accusation that implies national bias and allegiance which, again, many sceptics of international justice have used since the early days of the court.

Judge Harhoff’s letter further implied that the jurisprudence of the Tribunal is changing, under Meron’s bullying orders, in favour of acquittals, and that the fight against impunity for the worst human rights abuses is losing momentum.

This allegation found a friendly reception among many human rights activists and scholars who have agonised over recent acquittals of Croatian generals Ante Gotovina and Mladen Markac, Kosovo Liberation Army commander Ramush Haradinaj, Yugoslav general Momcilo Perisic and Serbian security officials Jovica Stanisic and Franko Simatovic.

It is unclear what exactly judge Harhoff tried to accomplish with his j’accuse screed. It is quite possible that he wanted to garner sufficient outrage against president Meron to merit his replacement at the helm of the Tribunal. In so doing, however, he breached the decorum and protocol of a major international court, a betrayal of practice that no serious institution would tolerate.

But following the fate of many revolutionaries throughout history, this revolutionary blew up on his own petard and has most likely ended his tenure in The Hague. It is very difficult to see how he can now serve on other cases after the Tribunal proclaimed that he appeared to have showed bias against defendants.

Any defence team worth its pay would immediately file a similar complaint against him, and the Tribunal would not want to waste more time ruling on Harhoff’s appearance of bias in every single case.

In fact, the defence teams in the appeals case of Simatovic and Stanisic, as well as in the case of Rasim Delic, have already filed such complaints.

Judgement time for the judge

So, where does this leave us?

First, the implications for the Seselj case. Judge Harhoff will be replaced with a new judge, yet to be appointed by the Tribunal. The new judge will need some time to familiarise himself or herself with the evidence and testimony gathered so far in the case.

This will undoubtedly considerably delay the verdict, currently scheduled for October 30. The Tribunal would be wise to give the new judge ample time to catch up and not rush the verdict to this already somewhat arbitrarily set date.

The implications for the Tribunal itself are more complex. It is left in a no-win position. Judge Harhoff’s letter only capped the mounting dissatisfaction with the court from various and often mutually contradictory directions. Dismissing the judge will only fuel accusations of ‘silencing the leaker’, while ignoring his behaviour would have only further damaged the pursuit of fairness for all defendants.

Too often the protection of due process, this fundamental principle of justice, has been forgotten in the meta-debates about international justice and the political legacies of violence.

The Tribunal, therefore, really had no choice.

A court is just a court

Stepping away from this specific case, this entire mess – and it is a pretty big mess – is a useful reminder of a few larger themes worth pondering.

The fundamental problem the ICTY has faced from day one is the fundamental paradox of international criminal justice: a few select individuals are prosecuted for, in effect, crimes of the state. This mismatch between state crimes and individual punishment is what has produced so much grief and anguish in the human rights community and has made the ICTY’s legacy so difficult to measure.

The ICTY is just a court. It is not a historical commission, it is not a research institute, it is not an educational organisation. It is a court. Its purpose is to administer justice to few individuals on the basis of evidence gathered against them, evaluate this and no other evidence, and administer appropriate punishment.

The problem with this simple mandate is that, in the absence of other robust mechanisms of transitional justice, the ICTY has become the mechanism of transitional justice in the region.

The human rights community – and the ICTY itself – has endowed it with magical powers of providing a credible historical transcript of atrocities, of leading to reconciliation, of changing the cemented views of the past.

The ICTY never could, and never should, have borne all these responsibilities. It is, again, just a court.

Instead of focusing on the internal bureaucratic drama at the ICTY, our efforts are better spent on developing sustainable non-legal mechanisms of transitional justice, which include truth commissions, but also broad education and media reform and memorialisation projects.

There are many forms of justice. Justice at The Hague is only one small part of this major effort.

Jelena Subotic is associate professor of political science at Georgia State University in Atlanta. She is the author of ‘Hijacked Justice: Dealing with the Past in the Balkans’.

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