Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the second installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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With the stage set, it was time to dissect the Harhoff matterJudge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.

The Harhoff Syndrome 

SONY DSCJudge Frederik Harhoff, in a letter to fifty-six personal contacts[1] that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution.[2]  Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution.  Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence.  But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise.  A classic case of inappropriate burden-shifting.  This, in my opinion, is the Harhoff syndrome in its purest form.  Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija when the need to disqualify is seemingly palpable.

To demonstrate the Harhoff syndrome, I examined some of the musings of Judge Harhoff’s tortured soul in meeting his perceived mission as an international judge; words which proved to be the tripwire for the Chamber finding him biased and thus unfit to continue with the deliberations in the Šešelj case;[3] words such as  “presuming it was right to convict leaders for the crimes committed with their knowledge,” because it was a “set practice,” and of his “professional and moral dilemma,” in having to apply faithfully the jurisprudence as it was emerging from the ICTY which he obviously found abhorrent and contrary to his view of what the law is or should be.  These were the words latched onto by the Šešelj Defence in showing an unreasonable appearance of bias.[4]

The Chamber convened by the Vice-President explicitly noted how Judge Harhoff’s comments met the criteria for disqualification for lack of impartiality:

The Majority, Judge Liu dissenting, considers that the Letter differs from other public statements in that Judge Harhoff refers to what he perceives as a ‘set practice’ of convicting military commanders and makes clear his dissatisfaction with his perceived change in the Tribunal’s direction in this regard. With regard to Judge Harhoff’s reference to military commanders, the Chamber notes that the accused is charged with participating in a JCE by inter alia directing paramilitary forces including a group known as ‘Šešelj’s men’.

By referring to a ‘set practice’ of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff’s statement that he is confronted by a professional and moral dilemma, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal.[5]

Judge Harhoff, with his “deep professional and moral dilemma,” clearly believed that it was his professional duty to convict—particularly Serb and Croat accused. His quasi-public accusations show his dissatisfaction with the ICTY’s jurisprudence and practice, which demonstrates a reluctance to apply the law.  Judge Harhoff also engages in speculation—the American and Israeli governments certainly have something to do with shielding military commanders from responsibility—right?  While we may never know whether Judge Harhoff’s accusations are true, he certainly did not go through the proper channels to discuss such a dilemma.  Judge Harhoff did not contact the Tribunal’s President on this issue, consult the Plenary, or even write a dissenting opinion.  Additionally, as Security Council Resolution 837 created the ICTY, Judge Harhoff could have taken his complaint to the members of the Security Council (although reports submitted to the Security Council are funneled through the Presidency).[6]  In any event, there were a number of available, more appropriate means for Judge Harhoff to discuss his “professional and moral dilemma.”  If Judge Harhoff was so tortured by the specific direction requirement (subsequently reversed by the Šainović Appeal Chamber),[7] why did he not dissent to the Trial Chamber’s (Judge Harhoff sitting) adoption of specific direction in the Stanišić and Župljanin judgment?[8]

Judge Harhoff also made serious allegations against Judge Meron – revealingly referred to by Judge Haroff as “the American presiding judge”[9] – effectively challenging his independence by claiming that he was influenced by or doing the bidding for the governments of the US and Israel.  Judge Harhoff queried:

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. One hoped that the commanders would not be held responsible unless they had actively encouraged their subordinate forces to commit crimes. In other words: The court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.

Now apparently the commanders must have had a direct intention to commit crimes—and not just knowledge or suspicion that the crimes were or would be committed. 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.[10]

Upset about the acquittal of Gotovina and other accused, Judge Harfoff stated that:

[T]he court’s Appeal 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…[11]

Judge Harhoff also accused Judge Orie, a Dutch judge, of taking directions from the American Government:

Was Orie under pressure from the American presiding judge? It appears so! Rumour from the corridors has it that the presiding judge demanded that the judgement against the two defendants absolutely had to be delivered last Thursday—without the three judges in the premium authority having had time to discuss the defence properly—so that the presiding judge’s promise to the FN’s security service could be met. The French judge only had 4 days to write the dissent, which was not even discussed between the three judges in the department. A rush job. I would not have believed it of Orie.

Judge Harhoff, insinuated that “the Turkish Judge,” Ju­­­dge Mehmet Güney, lacked independence since he was elderly and easily manipulated:

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…[12]

Examining Judge Harhoff’s assertions about Judge Güney’s in a different context begs the question whether — at least in Judge Harhoff’s mind — Judge Güney is currently fit to serve as a judge at the ICTY.  If Judge Güney, the “elderly Turkish Judge,” is too old and easily manipulated by his peers, does this not affect his impartiality and independence?  If he is so easily lead or mislead by other judges, applying the Furundžija standard, would a reasonable observer apprehend bias?  Perhaps so.  Curiously, Judge Harhoff was silent on this point.  So much for his deep and abiding reverence for judicial independence and impartiality.  But when you dissect his assertions and insinuations, it becomes rather obvious that Judge Harhoff simply lacks the basic understanding of the deliberative process: judges lobby other judges with a fair amount of horse-trading when deciding issues of the finer points of the law.[13]  And since much of what is applied is customary international law, the contours as elusive as they are malleable.

Judge Harhoff’s assertions go to the credibility of the Tribunal, arguably bringing it into disrepute. Under the ICTY Statute, the Chambers shall be composed of a maximum of sixteen permanent independent judges.[14]  While the ICTY Statute and Rules of Procedure and Evidence do not specifically detail what is meant by the independence of judges, the general rule has been adopted by the ECCC: judges “shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.”[15]  Judge Harhoff asserts a level of control over Judge Meron by the American and Israeli Governments, implicitly accusing Judge Meron, the President of the ICTY, of lacking of independence.  This is a damning accusation, which, if true (and Judge Harhoff provides no evidence other than speculative musings), sullies the reputation and legacy of the ICTY.  Although there is no code of ethics for judges at the ICTY as there is for the judges at the ICC or ECCC[16] (curiously strange as it seems), Judge Harhoff’s behavior amounts to sanctionable offense.  Under the ICC Code of Ethics, “[w]hile judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the Court.”[17]  Defence counsel at the ICTY are bound by a similar rule: “counsel shall take all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute.”[18]  By analogy, it would be sound to say that judges at the ICTY are equally bound.  There is no cogent reason to argue otherwise.

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Next up:  The Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting?



[1] ICTY Judge Frederik Harhoff’s Email to 56 contacts, 6 June 2013, available at http://www.bt.dk/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf.

[2] See International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95–20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 (“ICCPR”), Article 14; Statute of the International Criminal Tribunal for the Former Yugoslavia, as amended 7 July 2009 by Resolution 1877, Article 21 (“ICTY Statute”); The Law on the Establishment of the Extraordinary Chambers as amended 27 October 2004 (“ECCC Law”), Articles 33 (new) and 35 (new); Rome Statute of the International Criminal Court as corrected by the procés-verbaux of 16 January 2002, Article 66; Statute of the International Criminal Tribunal for Rwanda, adopted 8 November 1994, Article 20; Statute of the Special Court of Sierra Leone (“SCSL Statute”), adopted 15 August 2000, Article 17.

[3] This of course caused other problems briefly commented on, such as how is it possible to claim that Šešelj received a fair trial if the judge replacing Judge Harhoff never participated in any of the courtroom proceedings. Additionally, there is the issue of all the split decisions made during the proceedings where Judge Harhoff was in the majority. It is doubtful if this sort of flexibility in the pursuit of justice would be countenanced in national courts with vibrant judicial institutions and an abiding appreciation for the strict application of the rule of law.

[4] Prosecutor v. Šešelj, IT-03-67-T, Disqualification of Judge Frederik Harhoff and Report to the Vice-President, 28 August 2013.

[5] Id., paras. 12-13.

[6] United Nations Security Council, Resolution 827 S/RES/827, 25 May 1993, Statute of the ICTY, Article 34.

[7] Prosecutor v. Šainović et al., IT-05-87-A, Appeal Judgment, 23 January 2014, paras. 1649–50. The Šainović Appeals Chamber criticized the Perišić Appeals Chamber for misreading prior jurisprudence on specific intent and failing to give primary consideration to “positions expressly taken and clearly set out in the judgement concerned.” Id., para. 1621. Judge Harhoff could have legitimately made similar criticism of the Perišić Appeals Chamber, rather than instead assuming that the Judges involved were lacking in independence.

[8] See Prosecutor v. Stanišić & Župljanin, IT-08-91-T, Judgement, 27 March 2013, para. 107.

[9] ICTY Judge Frederik Harhoff’s Email to 56 contacts, 6 June 2013, available at http://www.bt.dk/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf.

[10] Id.

[11] Id.

[12] Id.

[13] Maybe newly appointed judges who do not come from a judicial background should be required to read The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong.  For extra credit, they could also read The Nine: Inside the Secret World of the Supreme Court, a fascinating read on the intricacies of judicial deliberations.  But then again, any good biography on any justice from the US Supreme Court, particularly on Justice Brennan, reveals how stare decisis is adhered to, developed, and refined through a variety of means such as lobbying, negotiating, and nuancing legal positions. See Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (1979); Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007).

[14] ICTY Statute, Article 12.

[15] Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 3.

[16] ECCC Code of Judicial Ethics, 5 Sept. 2008, Art. 7: “While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and  shall avoid expressing views which may undermine the standing and integrity of the ECCC.”

[17] ICC Code of Judicial Ethics, ICC-BD-02-01-05, Article 9.

[18] Code of Professional Conduct for Counsel Appearing before the International Tribunal (ICTY), IT/125 Rev. 3, as amended 22 July 2009,Article 3(V).

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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