Professional Suicide Of A Hague Judge

ICTY Judge Frederik Harhoff

Written by Vesna Skare-Ozbolt, published by Croatian portal Dnevno.hr 26 June 2013

(Translated into English by Ina Vukic)

Danish newspaper Berlingske June 13 published judge Frederik Harhoff’s letter, in which he expresses his suspicions that the Hague court president Theodor Meron is under the U.S.A. and Israel governments’ influence, and that he had pressured the judges to deliver judgment of acquittal in Gotovina-Markac, Perisic and Stanisic – Simatovic cases. Judge Harhoff sent his letter to his colleagues and friends at 56 addresses and it is still not known who had leaked it to the media, reportedly without his knowledge.

Harhoff gives no evidence to support his statements but says: “Have any American or Israeli officials ever exerted pressure on the president of the tribunal, we will probably never know, or, it appears that judge Orie was also under pressure from the president of the tribunal”, etc.   Dov Jacobs, professor of international law and international criminal law at the renowned Leiden university, Netherlands, says: “The letter uses typical language of conspiracy theories for which it is also typical to subtly shift the burden of proof onto others or onto those who do not believe in conspiracy. It’s a win-win situation for the ‘conspirationists’, because evidence about the existence of conspiracy can be utilised in many ways.”

After the Gotovina-Markac case judgment, and especially after the acquittal verdict in the Perisic and Stanisic – Simatovic cases an interesting debate developed in international legal circles and opinions were divided with regards to the judgments. However, not one of the critics of these recent judgments attempted to defame judge Meron or his court politics in the media by using “a third side”.  How come, then, that judge Harhoff decided to abandon the frame of a cautious and reasonable lawyer – which, judging from his biography, he undoubtedly is – and undertake this undoubtedly planned move?   Why did he not firstly direct his complaint to the tribunal’s president, and after that, if the latter was unresponsive, to the founder of the Tribunal, i.e. to the UN Security Council.  He did not even attempt to take this course – for, if he had he would have surely revealed it now – exactly because the goal was for the letter to come to the media. It’s not known whether anyone or who stands behind judge Harhoff for him to embark so courageously upon – what is clear by now – a professional suicide.  Attorney Luka Misetic , who June 19 published on his blog an article titled “Joint criminal enterprise against judge Theodor Meron” and made interesting revelations, will possibly try to find the answer to this.

It became apparent quite quickly that one judge alone, more than politics itself, can demolish the tribunal’s credibility with his political moves with which he only put wind into the backs of all those who attempt to relativise the former and the future Hague judgments.

Hence, the family of late BiH Army general Rasim Delic has June 18 (of this year) lodged an application with the Hague tribunal to have the judgment against him reviewed (Delic was convicted in 2005 to 3 years prison on command responsibility) and their reasoning or explanation is that judge Harhoff’s letter infers his inclination to convict anyone who engaged in a high position in the war and that, therefore, his judicial integrity is doubtful. That is, judge Harhoff was a member of the tribunal in Delic case and his opinion was the decisive one that rendered the convicting judgment.  In their application to the Hague court the attorneys representing late Delic’s family claim that had the defence known at the time about such exclusive opinions held by judge Harhoff they would have sought his disqualification from hearing the case.

Judge Harhoff is a member of the tribunal in dr. Vojislav Seselj case and the judgment is expected in October of this year. Kevin Jon Heller, a professor at faculty of law in Melbourne, says that it’s to be expected that the lawyers representing Seselj will seek disqualification of the judge on the basis of the fact that it’s possible to conclude from judge Harhoff’s letter without a doubt that he is “inclined to convict”.

Savo Strbac, director of Veritas association, has June 13 (of this year) lodged an application with the Hague tribunal for a review of the judgment of acquittal in Gotovina – Markac case, calling upon new evidence (110 exhumed bodies to end of May 2013). It is interesting that in his application for the review Savo Strbac writes: “ … exhumations of the remains of Serbs killed in the aggression of the Croatian armed forces in August 1995 have been carried out”.  Time will show whether it’s true that, besides coincidence of time, there is no direct connection between his application and judge Harhoff’s letter, as Savo Strbac claims.

It’s interesting that Harhoff places the acquittals of Gotovina and Markac in the same context as the acquittal of the heads of Serb military and intelligence and attributes all three tribunal judgments to the directive politics of great powers. Also, while he can privately think whatever he wants, it is unacceptable from the professional aspect that in his letter he claims how Gotovina and Markac were acquitted of guilt “for war crimes committed by the Croatian army which deported Serb population from the area of the so-called Republic of Serb Krajina (RSK) in 1995”. Judge Harhoff should know that the acquitting judgment found that it was not a matter of “deportation” (due to alleged excessive shelling) but a matter of planned evacuation in advance and in accordance with orders and through the organisation by the authorities of the so-called RSK at the time. Croatian Homeland War memorial-document centre possesses numerous documents even from Serbian sources about that, as well as about the evacuation drills carried out much before Operation Storm. I will further add – as I had personally participated in this – that the Croatian government had managed to purchase on the “black market” the authorities’ of the so-called RSK population evacuation plans, paying for them with not a small amount of money.  During the liberating Operation Storm the Croatian army had done everything possible so that the evacuation routes remain free in order to ensure that any civilian casualties be brought down to the minimum. The judges of the Hague tribunal know all this very well.

This attempt at defaming judge Meron could have an impact (and) on the Herceg-Bosna Six generals case. That is, it’s not necessary to emphasise that judge Meron’s withdrawal from his position prior to an appeal decision being made in the case of the Six from Herceg-Bosna would suit,  except Serbia and one EU member state. And, judging from the recent unfounded and concerning statements made by Bakir Izetbegovic about an alleged aggression against BiH by Croatia, such an outcome of this shameful story would also suit the Bosniaks.

Following all these events, I’m of the opinion that judge Harhoff cannot continue working at the Hague tribunal and professor Jacobs shares my opinion and says: “It seems that judge Harhoff does not hold much respect for presumption of innocence and that he has formed opinion in advance as to who should be pronounced guilty and who innocent. Besides that, Harhoff has in his letter explicitly apostrophised two of his colleagues (judge Meron and judge Gunaya) and so I really do not see how his continued work at the tribunal is possible.

“Despite the shortages the Hague tribunal has shown in its work to date it nevertheless represents a large civilised lunge forward. It’s become evident that, after Nuremberg, such adjudication is still possible. Although it hasn’t completely responded to its historical task the Hague tribunal has, nevertheless, brought some sort of satisfaction for the victims and their families and created a conscience that crimes are not permitted even in war.

“The International criminal justice is still in its juvenile stage. Prevention of crimes, which in itself is a goal of international war crimes tribunals, cannot occur immediately”, said judge Theodor Meron in his interview in BBC’s HardTalk program in March of this year where he, even though in advanced years of his life, lucidly and concentrated responded to the standard, direct and provocative questions put to him by the interviewer. Also, he added, ” reconciliation is not the job of the court, even though it can and it should contribute to it with its decisions, that which people seek above everything else is the criminal responsibility of the individual. Reconciliation is, after all, the job of politics.”

Vesna Skare-Ozbolt

About the writer: Vesna Škare-Ožbolt was a legal advisor of the late President Franjo Tuđman for ten years and the former Minister of Justice of the Republic of Croatia. She is also President of Democratic Centre, the party in coalition with HDZ (Croatian Democratic Union).