Yesterday, the Defence for Rasim Delić filed a motion for review of the first instance judgement issued against its client by the International Criminal Tribunal for the former Yugoslavia (ICTY) in September 2008. This motion was filed only a few days after the release of a letter by ICTY Judge Frederik Harhoff in which the Danish Judge revealed that he considered acquittals as being the result of pressure from the US and Israel conducted through the ICTY President, Theodor Meron.
Judge Frederik Harhoff was part of the Trial Chamber which sentenced by majority Rasim Delić to three years’ imprisonment. Judge Harhoff, alongside Judge Flavia Lattanzi, voted for the conviction. Presiding Judge Bakone Moloto dissented.
The Defence appealed the conviction in October 2008 but the former Commander of the Main Staff of the Army of Bosnia-Herzegovina passed away in 2010 before the resolution of the Appeal. Consequently, the Appeals Chamber terminated the proceedings and determined that the Trial judgement be considered final.
However, under Article 26 of the ICTY Statute and Rule 119 of the Rules of Procedure and Evidence, a party may submit an application for review of a judgement if it discovers a new fact which was not known at the time of the proceedings and which could have been a decisive factor in reaching the decision.
Delić’s Defence alleges that Judge Harhoff’s lack of impartiality and integrity constitutes such new fact, saying that “it is overwhelmingly clear from the Letter that Judge Harhoff – who first worked as a senior Prosecutor before he joined the Chambers – believes that the Tribunal’s mission is to convict people, particularly anyone in a leadership position, and that the Tribunal’s recent acquittals ran contrary to that mission.”
In his letter, Harhoff said 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, wrote Harhoff, making reference to recent acquittals and the alleged pressure that the President Meron would have put on judges.
Based on the above, the Defence alleges that the substance of Harhoff’s letter reveals that Judge Harhoff’s pro-prosecution position “fatally diminishes his integrity as a Judge at the Tribunal” and therefore requests the ICTY Appeals Chamber to issue the Appeals Judgement in the case or to quash the Trial Judgement.
The Defence points out that the death of Rasim Delić has no bearing on the establishment of review proceedings, as the ICTY provisions and the jurisprudence do not establish that the death of the accused bars such request.