Reblogged from Misetic Law
By Luka Misetic
Much has been made in the past week about the incredibly naive email sent by ICTY Judge Fred Harhoff to 56 of his “closest friends.” According to the New York Times, on 6 June 2013, Judge Harhoff sent an unsubstantied, highly defamatory email to over 56 people in which he cast doubt on the propriety of the acquittals of several accused persons before the ICTY. Not surprisingly, the letter was leaked immediately to the international press. At the outset, it should be noted that Judge Harhoff had no involvement whatsoever in the Gotovina, Perisic, Stanisic or Haradinaj cases, and thus had no access to any “inside information” about these matters. Nevertheless, in his email Judge Harhoff made the following defamatory statements without any evidence to support them:
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)…What can we learn from this? You would think that the military establishment in leading states (such as USA and Israel) felt that the courts in practice were getting too close to the military commanders’ responsibilities.
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 (the presiding judge for the court that is) to ensure a change of direction? We will probably never know. But reports of the same American presiding judge’s tenacious pressure on his colleagues in the Gotovina -Perisic case makes you think he was determined to achieve an acquittal – and especially that he was lucky enough to convince the elderly Turkish judge to change his mind at the last minute. Both judgements then became majority judgements 3 -2. …
You may think this is just splitting hairs. But I am sitting here with a very uncomfortable feeling that the court has changed the direction of pressure from “the military establishments” in certain dominant countries. …
The latest judgements here have brought me before a deep professional and moral dilemma, not previously faced. The worst of it is the suspicion that some of my colleagues have been behind a short-sighted political pressure that completely changes the premises of my work in my service to wisdom and the law.
A careful review of the above passages reveals that Harhoff admits that he has absolutely no evidence to support the assertions made in his email:
1. Harhoff consistently writes that these are his “suspicions” and “uncomfortable feeling(s)”, i.e. things that “one would think”;
2. Harhoff outrageously asks the question (as opposed to asserting as fact) whether “any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?” He then proceeds to answer the question by acknowledging that he has no evidence to support any claim of impropriety: “We will probably never know.”
3. Harhoff refers to “reports” that the American presiding judge in the Gotovina case put “tenacious pressure” on his colleagues in the Gotovina case and that he was “lucky enough to convince the elderly Turkish judge to change his mind at the last minute.” The statements in this sentence are preposterous for several reasons:
i. Harhoff claims to have heard “reports” to this effect. These “reports” appear to be nothing more than rumors and innuendo that are typically exchanged in the Tribunal’s cafeteria and corridors. While I was defence counsel at the ICTY, I often heard such “cafeteria reports” and most often found them to be unsubstantiated;
ii. Harhoff claims that Judge Meron exerted “tenacious pressure” on the “elderly Turkish judge,” Judge Guney. It should be noted that Judge Meron is six years older than Judge Guney, so Harhoff’s implication that Judge Meron took advantage of an “elderly” colleague is absurd on its face. Moreover, Harhoff’s disparagement of his fellow colleagues is beneath the dignity of the office he holds. For the record, I have heard many “cafeteria reports” at the ICTY about Harhoff, but would never make them public absent evidentiary corroboration. Judge Harhoff should have held himself to the same professional standards.
iii. Harhoff has acted irresponsibly by repeating in public rumors he has heard in the ICTY rumor mill. Several days after Harhoff’s email was published, the ICTY’s official rumor mill, SENSE news agency, published another rumor which completely contradicts Harhoff’s innuendo about Judge Guney. On 17 June 2013, SENSE claimed as follows: “According to the rumors, the five judges met only once (for one hour or one and a half hour at most), established that the votes are 3 to 2 in favor of an acquittal and went away: the majority refused to further discuss any of the issues with the minority.”  Accordingly, Harhoff’s claim that Judge Guney changed his vote at the last minute is now contradicted by SENSE’s most recent rumor that the judges had reached a 3:2 vote at the very outset of their deliberations, thus demonstrating the gross recklessness (by both Harhoff and SENSE) of publicly repeating unreliable ICTY rumors.
Judge Harhoff would have been wiser to avoid commenting about cases in which he took no part. Instead, he could have provided his “56 friends” with information about the inner workings of the ICTY through his own personal experience. Judge Harhoff has sat in judgement in many cases at the ICTY, including Dragomir Milosevic, Delic, Stanisic and Zupljanin, Seselj, et. al. Was any political pressure exerted on him in those cases? Did Judge Meron ever try to interfere with his work in any of those cases?
I suspect that Judge Harhoff’s answer to these questions would be in the negative. If so, it’s really too bad that he did not give Judge Meron and his colleagues in the Appeals Chamber the benefit of his doubt.
 Marlise Simons, Judge at War Crimes Tribunal Faults Acquittals of Serb and Croat Commanders, New York Times, 14 June 2013, as found at http://www.nytimes.com/2013/06/15/world/europe/judge-at-war-crimestribunal-faults-acquittals-of-serb-and-croat-commanders.html?_r=0. Judge Harhoff’s email is attached hereto as Exhibit A.
 Mirko Klarin, A Question for the Judges: And What Have You Done?, SENSE News Agency, 17 June 2013, as found at http://www.sense-agency.com/icty/a-question-for-judges-%E2%80%98and-what-have-you-done%E2%80%99.29.html?news_id=15064&cat_id=1
About Luka Misetic: Lawyer, based in the United States of America. Luka Misetic represents clients in state, federal and international litigation, including commercial, civil, white-collar criminal and international criminal cases. In business litigation, Mr. Misetic represents corporations and partnerships, as well as their directors, officers and partners in breach of contract and fiduciary duty claims, regulatory matters, trade secrets claims, fraud and negligence suits, and a variety of other claims. Mr. Misetic represented Croatian General Ante Gotovina before the International Criminal Tribunal for the former Yugoslavia in The Hague, The Netherlands