Yesterday, a Danish newspaper revealed that Frederik Harhoff, Danish judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), sent a letter, in which he alleged that the American President of the Tribunal, Judge Theodor Meron, pressured other judges to approve the recent acquittals of top military leaders, namely Ante Gotovina, Momčilo Perišić, Jovica Stanišić and Franko Simatović.
Judge Harhoff’s letter, dated June 6, was e-mailed to 56 people, including several lawyers. The newspaper did not say how it obtained a copy.
Harhoff pointed out that the tribunal had set up a fairly firm legal practice, which allowed for the conviction of military or political leaders with respect to crimes of genocide, war crimes and crimes against humanity, if such persons had associated themselves with or in some manner helped to make these crimes possible.
But this “just” practice is now changing, thinks Harhoff, making reference to the above-mentioned acquittals and the alleged pressure that the President Meron would have put on judges.
“It would seem that the military establishment in leading states such as Israel and the US felt that the tribunal was getting too close to the military commanders’ responsibilities […] The Court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed”, wrote Judge Harhoff.
“Has an Israeli or American official influenced the American President of the tribunal to effect a change of direction? We will probably never know”, he said, before specifying the allegations he made against President Meron came from hearsay and rumour from the corridors.
Harhoff said that the result of the new precedent is that the theory of responsibility under the specific joint criminal enterprise (JCE) has now been reduced from contribution to crimes (in some way or another) to demanding a direct intention to commit crime (and so not just acceptance of the crimes being committed), so that “most of the cases will lead to commanding officers walking free from here on. American (and Israeli) commanders in chief can breathe a sigh of relief…”.
He concluded by saying that “the latest judgments here have brought before me a deep professional and moral dilemma not previously faced. The worst is the suspicion that some of my colleagues have been behind a shortsighted political pressure that completely changes the premises of my work in my service to wisdom and the law.”
Quite interestingly, a blogpost published earlier on this week by Lawyer Bogdan Ivanisevic claimed that such conspiracy theory must be proven much more convincingly, given the fact that the concept of “specific direction” was already used in the case law. Ivanisevic claims that these acquittals are not due to political pressure but to a change in the nature of the factual issues the court confronts.
The author first focused on the so-called agenda of the powerful states that the Tribunal would supposedly be fulfilling. Ivanisevic pointed out the voting pattern among the judges. With the exception of Meron, citizens of powerful states voted against the acquittal of Perišić (Judge Liu Daquin, from China) and Stanišić and Simatović (Judge Michele Picard, from France).
Ivanisevic then concentrated on legal considerations and recalled that it was not Meron who introduced the concept of ‘specific direction’, referring to the standard formulated by the ICTY Appeals Chamber in the Tadic case, of which Meron was not a member, as well as to other international tribunals precedents.
Admittedly, he said, “Meron has been in favour of retaining the standard, but respecting precedents is what judges, especially those coming from the common law system, do. No need for a political motivation there.”
For Ivanisevic, the recent acquittals the Tribunal ultimately reached reflects the peculiar nature of the cases, rather than a change in the ICTY’s approach.
Taking among others the example of the Stanišić and Simatović judgement, the author highlighted the specific circumstances of the case, being that the accused were officials in one country, while the crimes were commited in another.
In this judgment, the central issue was whether Stanišić and Simatović, respectively former Chief of the Serbian State Security Service and former employee of the Serbian State Security Service participated in a joint criminal enterprise, the purpose of which was to forcibly and permanently remove non-Serbs from parts of Croatia and Bosnia and Herzegovina.
As explained by Ivanisevic, the method employed by the majority in this case was to assume the existence of a JCE in Croatia and Bosnia and Herzegovina and then to examine whether Stanišić and Simatović participated in it. The judges concluded that, based on the evidence, the two accused had not been members of any such enterprise.
Ivanisevic stressed that the Tribunal has been able to make direct inference in some other cases, but not in Stanišić & Simatović.
He notably mentioned the judgement of Jadranko Prlić, Bosnian Croat leader found guilty on May 29, 2013, the day before Stanišić and Simatović’s acquittals and emphasized that the Chamber found he was involved in blocking water supply and humanitarian aid to Bosniaks in East Mostar. Prlić also signed a document establishing the detention camp Gabela, specifically designed to receive Bosniak men, including minors and other categories of civilians.
In the Stanišić & Simatović case, the prosecution did not even argue that Stanišić had carried out an act from which it was possible to directly infer intent.
For Ivanisevic, the comparison between other JCE cases and Stanišić & Simatović shows that in the latter it was singularly difficult to infer the direct intention of the accused to participate in a JCE.
The court also examined whether the intent could be inferred indirectly and concluded that the evidence was not in itself sufficient for such conclusion.
On the contrary of what judge Harhoff wrote in his letter, Bogdan Ivanisevic concluded that these recent decisions represent an honest attempt by the judges to maintain jurisprudential consistency and, importantly, respect the right to a fair trial.