Prostitution Of Justice A-la-Judge-Frederik-Harhoff Style

ICTY Judge Frederik Harhoff

ICTY Judge Frederik Harhoff

Well, it’s been a most interesting (for want of a stronger word) week around interpretations of ICTY judgments that acquitted of war crimes some senior Croat and Serb military leaders, particularly in the past 18 months. Personal, but damming thoughts of Danish Judge Frederik Harhoff, which one can take or leave, have been leaked into the public arena and one cannot but stand abhorred!

Why on earth would a Judge of the Tribunal come out with his criticism of the same Tribunal and by doing so interfere with, or influence the process and the outcome of those ICTY cases which have yet to exhaust their right of appeal!?

Absolutely shocking! A Judge effectively denying uncontaminated justice/due process to parties within his own court! I hope Harhoff is made to suffer consequences for his poisoning of the mind-set of both the ICTY prosecutors (who would undoubtedly grow extra wings of false righteousness on the basis of Harhoff’s wicked public pondering) and the defendants who will surely feel intimidated by such poison. Harhoff should not sit on any bench, let alone the ICTY, a moment longer.

Judge Frederik Harhoff wrote a letter last week in which he criticised the ICTY President, US judge Theodor Meron. The letter seems to have been an email sent to a number of recipients, and it’s not clear to whether it was originally written in English, says Marko Milanovic of EJIL Talk.

Milanovic writes: “Harhoff is a judge on the International Criminal Tribunal for the former Yugoslavia. His criticism amounts to a severe and dramatic accusation against the tribunal as a whole. He maintains that the American president of the tribunal has exercised ‘persistent’ and ‘intense’ pressure on his fellow judges to allow top-ranking officers to go free.
Harhoff’s five-page letter (PDF), the precise contents of which are confidential, was addressed to 56 people, including several lawyers. In the letter, Harhoff scrutinises and criticises a series of judgements acquitting Serbian and Croatian leaders.
‘The most recent of these judgements have occasioned a deep professional and moral dilemma for me, one that I have never before experienced. The worst of it is the suspicion that some of my colleagues have been exposed to short-term political pressure and this completely changes the premises of my work to serve the principles of justice and reason”, Harhoff writes in the letter. He makes it clear that the development “has awoken deep concerns both in myself and other colleagues in the corridors of this tribunal’.

‘It would seem’, writes Judge Harhoff, ‘that the military establishment’ in leading states such as Israel and the US ‘felt that the tribunal was getting too close to top-ranking military commands.’
He continues:
‘Has an Israeli or American official influenced the American President of the tribunal to effect a change of course?’ Harhoff writes in the letter.

Judge Harhoff states in his letter that the public ‘will probably never’ be told to what extent his suspicion that the American President of the tribunal has influenced the result of the case for political reasons is true:
‘But the report of the American president of the tribunal’s persistent pressure on his colleagues in the Gotovina and Perisic cases does more than suggest that he was fairly intent on arriving at an acquittal and especially that he was lucky in being able to persuade the ageing Turkish judge to change his mind at the last minute.’
The ‘ageing Turkish judge’, Harhoff refers to is the 77-year-old Mehmet Güney, who voted in November to release the two Croatian generals Gotovina and Markac.
Harhoff says that the new precedent ‘will in future and in the majority of cases allow the top-ranking person to go free. This means that American (and Israeli) commanders in chief can breathe a sigh of relief…’. Harhoff adds ‘I am left with the distinctly unpleasant impression that the tribunal has shifted course as a result of the pressure from ‘the military establishment’ of certain powerful countries’.

Marlise Simons, of New York Times, gives a further insight into possible motives behind Harhoff’s letter: political lobbying within ICTY towards elections of its President, due in autumn 2013?  She writes: “A spokesman at the court declined to comment on the letter. Other judges and lawyers were willing to speak, provided that their names were not used.
By their accounts, a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the scheduled election for tribunal president this fall. Until now, Judge Meron had been expected to be re-elected”.

Judge Harhoff writes 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 from 1992-95, when the Daytona Agreement brought an end to the war in December 1995.

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”.

But then the court’s Appeals Chamber suddenly back-tracked last autumn with the three Croatian generals and ministers in the Gotovina case. They were acquitted for the Croatian army’s war crimes while driving out Serbian forces and the Serbian people from major areas in Croatia – the so-called Krajina area in August 1995 (home to generations of Serbians)”.

Oh my God! This is a judge saying this! He just simply does not accept the fact that the Croatian generals were acquitted on appeal of “join criminal enterprise” (i.e. driving out Serbian forces and Serbian people)! And he is a Judge in the same Tribunal!

Luka Misetic, defence attorney for Croatian General Ante Gotovina has registered his comment on Harhoff’s letter :

Marko Milanovic writes: ‘Needless to say, this is one of the worst scandals to engulf the ICTY in its history, regardless of whether Harhoff’s accusations have a basis in fact or not.’
I find it troubling that something can be deemed a scandal ‘regardless of whether Harhoff’s accusations have a basis in fact or not.’ If something has no basis in fact, it is not a ‘scandal,’ it is defamation. I agree with Professor David Kaye, who noted that Harhoff’s email “reflects a ‘conspiracist attitude, tinged with anti-semitism, is obnoxious.’ Moreover, Harhoff doesn’t offer any evidence for these claims.
I also note the inconsistency of Harhoff’s claims: on the one hand, Judge Orie allegedly succumbed to ‘American pressure’ to acquit Jovica Stanisic and Franko Simatovic, yet on the other hand Orie’s conviction of Ante Gotovina was allegedly overturned by the Appeals Chamber ‘under American pressure.’ Which one is it? Is Orie subject to ‘American pressure’ as claimed in the Stanisic case, or is he the victim of ‘American pressure’ as in Gotovina?
Moreover, Harhoff’s claim that Judge Meron put pressure on Orie to finish the Stanisic judgement by the end of May is probably true. However, there is a big distinction to be made between ‘finishing the case,’ and actually interfering as to the actual decision in the case. The ‘pressure’ by Meron was not imposed by the Americans, but rather the Security Council, which noted in a resolution that the ICTY Appeals Chamber will only hear cases in which the Notice of Appeal is filed by 30 June 2013. Any cases in which the Notice of Appeal is filed on 1 July 2013 or thereafter will be heard by the new Residual Mechanism. This is likely the reason why both the Stanisic and Prlic cases were decided in the last week of May 2013, i.e. so that both cases could be heard by the ICTY Appeals Chamber. This reflects Security Council pressure on Meron to implement the Completion Strategy (which Meron as President of the ICTY is duty bound to implement), and certainly does NOT mean that Meron actually put pressure on any Trial Chamber concerning the RESULT to be reached in these cases. The fact that Harhoff is not familiar with Security Council deadlines concerning the ICTY’s completion strategy, and instead through rumor and innuendo impugns the reputations of both Meron and the ICTY, reflects at the very least a profound ignorance on Harhoff’s part.
Finally, it is ironic that Harhoff attacks the ‘specific direction’ finding in the Perisic case as proof of a ‘US / Israeli conspiracy’ to protect military commanders, given that Harhoff himself adopted the ‘specific direction’ standard in his recent judgement in the Zupljanin case. (See paragraph 786 here).
If Harhoff really had a problem with the ‘specific direction’ standard, he shouldn’t have adopted it in Zupljanin. Rather, he should have written a well reasoned dissent, explaining the legal reasoning behind his objection to the ‘specific direction’ standard. Instead, Harhoff to his discredit chose to follow the Appeals Chamber’s lead while ‘on duty’ as an ICTY judge, but when off duty chose to impugn the integrity of his ICTY colleagues in a frivolous email to over 50 of his friends.
Shame on him. Harhoff should be reminded of the old adage: ‘When you point a finger of accusation at someone else, remember that you have three fingers pointing right back at you. Luka Misetic”

Having all above in mind: what hope does democracy have, what hope does humanity have when we have among us judges who prostitute the rule of law (as set by courts) so; cheapen justice and due process; fuel conspiracy theories that have not, up until now, found a voice among the judiciary!

There have been ample criticisms of the ICTY Trial Chamber’s decisions in the past years, and I myself have certainly not shied away from them. Dishing out of political decisions rather than justice has been a consensus between many independent analysts and commentators. However, when an ICTY judge joins the ranks of public analysts and commentators on the judgments of his own court then there is cause for alarm; due process of justice, which is inseparable from independence of the bench, is profoundly compromised. Furthermore, it gives cause to question every decision, every judgment, ever delivered by the ICTY, every indictment ever delivered by the ICTY Prosecution.

Not only that, it would seem that the world does not need due process any more: if it were up to Harhoff, all we need is an indictment, no trial, no appeal, – straight to prison! Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)


tartine_confitureDov Jacobs, Assistant Professor in International Law and International Criminal Law at Leiden University


  1. Reblogged this on Croatia Business Report.

  2. Once again Ina,you were right!

  3. Where has the voice of this “squeaky clean” judge when in 1995 the international politics gave the ethnically cleansed parts of Bosnia and Herzegovina to Serb aggressor / Serbian Republic? Perhaps making sure that the Danish members of UN peacekeeping forces there don’t end up indicted for war crimes of not doing a damn thing in stopping the horrible crimes?

  4. Miso Sorbel says:

    Was it at all logical, moral and just when the international community responded to Serb aggression in 1991 with arms embargo against the attacked countries (Croatia and Bosnia and Herzegovina)? Where was this judge Harhoff then? Why didn’t he raise his voice and shouted: “Fowl pressure!”

  5. Judge Harhoff seems either naïve or manipulating. Probably the latter. The problem is not in the judgments but in the idiotic indictments. Guided by those president Truman and general Eisenhower and other US generals from WWII could easily be declared war criminals for the murder of some 200 000 Japanese in Hiroshima and Nagasaki…same goes for the British in Dresden … but when it comes to the right to defend Croatia was not given it… draw your own conclusions there’s plenty of evidence to tell you that this judge if off his rocker

  6. Wolfgang Meier says:

    This judge is a comedian of the nasty kind. His letter seeps of anti-Semitism and conspiracy theory for which he gives not an iota of evidence … I think this nutty judge is trying to save the skin of the trial chamber, which has demonstrated to have been like the violinist for the prosecution’s music pieces.

  7. The First Born says:

    What judge Harhoff is doing is saying that justice has not been done, nor is it seen to have been done for all those that were acquitted. What about those that have been convicted? Does the same apply? Any judge that does not respect the law or decision brought down by the majority has no business being a judge. He has just reduced to rubble the dignity and respect for the judiciary it has taken us centuries to build. What a nasty thing to do or attempt to do – intentionally or not.

  8. Spectator says:

    Harhoff’s letter = pure vitriol. Nasty stuff indeed, so nasty that it cannot have any credibility whatsoever, as far as I am concerned. Election time at the ICTY is no different to any general parliamentary or presidential elections. The more rubbish you throw the more attention you get. But, reason and common sense prevails on election day; thank God!

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  10. therealamericro says:

    Again the fallacies of the “Prosecution” are repeated ad nauseum by another Internationale at the ICTY.

    1. Contrary to the indictment and initial ruling, Gens. Gotovina and Markac did everything within reason to prevent and or prosecute any crimes or war crimes in their areas of command because:
    a) Mandatory classes for all troops months before the operation on the Geneva Convention and Laws of Land Warfare took place through to the operation itself and after it;
    b) During and immediately after Storm there were 1,000 civilian trials and or military court martials for crimes and war crimes with over 741 convictions; with over 2,000 convictions and prison sentences meted out to date, and with over 65% of the (almost to an crime, revenge crimes by returnees) of the 53 murders solved and perpetrators convicted that means Croatia had and has a better murder-solving rate than the FBI US national average.
    2. The “excessive and indiscriminate shelling” fallacy, premised off of the “Prosecution” ‘s newly invented “standard” that the US and UK today could not meet with GPS guided mortars, tank projectiles, artillery and rockets (the “200 meter rule”), was disproven to be the fallacy because the fire mission(s) in Oluja killed a single armed “Krajina” paramilitary in front of the “Krajina” headquarters and injured not one single civilian; the fire itself 94.5% accurate.
    3. There was no “ethnic cleansing” or “deportation,” nor did the precise fire missions lead to Serbs leaving, but rather, the order to withdraw on pre-planned and pre-rehearsed escape routes came from their superiors elected in elections that barred any Croats and non-Serbs from participating in them, and was verified by those same leaders repeatedly during and after Storm:;

    The ICTY’s mission was to cloud history and Serbia’s sole responsibility for a) Planning b) Starting and c) Extending the wars, in which Serbian forces committed well over 90% of the attrocities, to whitewash the UN, as well as all but one (US) UNSC member, and multiple major power governments and top negotiators and ministers for their open lobbying for a consolidation of greater Serbian interests, starting with the arms embargo on.

    That is why the indictments against top Serb commanders (note the absence of any investigation or indictment against the senior JNA general officers and Serbian intelligence heads who co-authored and issued as a direct order the Rampart [RAM] Plan, which outlined the systematic targetting of civilians as a means of demoralizing the enemy, namely those neanderthals Gens. Kadijevic and Adzic) were so poorly written, say no “excessive or indiscriminate shelling” charges for ANY Serb military commander, nor all of the concrete crimes that were not prevented or punished (not a single disciplinary measure was taken by the RSK, VRSK or JNA for any crimes against any civilians the duration of Serbia’s genocidal imperialist-expansionist wars) in areas under their direct command (Skabrinja and Mostar for Perisic, for instance, were not included in the indictment).

    • therealamericro says:

      I would add Zadar, as all military forces were on the front line, not anywhere behind them as it was a life and death struggle, so every shell that fell on Zadar was excessive, indiscriminate, and intended to cause civilian deaths and maimings – as was the evident intent outlined in Perisic’s repeated Warning Orders to attack in 1991 that the ICTY “mysteriously” ‘forgot’ to include in the indictment, while charging that greater Serbian fascist Perisic with crimes in Sarajevo and other areas where the monkey, from a legal perspective, was far removed from the chain of command (he was in DIRECT command and control of Zadar / Dalmatian hinterland and the occupation of W. Hercegovina and directly ordered urbicide of Mostar and the multiple uninvestigated / unpunished mass attrocities that took place in Mostar and the surrounding areas).

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