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Wednesday, August 28, 2013

Nightmare scenario at the ICTY: Judge Harhoff disqualified

The news broke an hour ago: Seselj's long-winded motion to disqualify Judge Harhoff from his case has been successful. His motion was based on the letter that Judge Harhoff sent  in the spring to a number of his friends, and that I commented on extensively on this blog (here and here). Basically, the panel found in its decision that 

In the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias

This is quite big news and the first public sign, to put it mildly, that someone at the ICTY is unhappy with Harhoff's conduct. The question now is of course what the consequences of this decision, given that the decision considers that Judge Harhoff's bias is general, not specific to the Seselj case. 

In the Seselj case, first of all, does this now mean that the trial has to start over from scratch? Given the tortured history of this trial, it's difficult to imagine that the ICTY wants this, and Seselj would have a good claim to being released because a new trial would constitute an abuse of process. 

In the Stanisic case on appeal, there is a pending motion to admit Harhoff letter as new evidence. I don't see how the Appeals Chamber can decently refuse that motion now. And more, I think this could be a strong basis for a new motion in review of the Trial Judgement. 

Finally, in the Delic case, his lawyer filed a motion for revision, with the added difficulty of the defendant being deceased (i commented on that point here). Again, this new decision strenghtens the motion. 

More generally, does it mean that every case that Judge Harhoff was on is now subject to revision? I haven't done a list of those cases yet, but given that he has been at the ICTY for some years now, this could have serious consequences. UPDATE: there is only the Dragomir Milosevic case, but there hasn't been any movement from there yet, that I know of.

Judge Harhoff was also Senior Legal Officer in Chambers for 10 years, so, to stretch things a bit, the cases he worked on could theoretically be affected. 

What is clear is that this most certainly puts an end to Judge Harhoff career at the ICTY. It was already surprising that he had not resigned before and this decision means that he cannot decently work there anymore. He probably should have resigned before being fired. 

A final thought: there is of course a certain level of hypocrisy here. I, like many, have always thought that the ICTY, and international criminal justice in general, is biased in favour of convictions, and has developed tools to make these easier, in terms of rules of evidence or modes of liability, such as JCE. It seems slightly unfair that Judge Harhoff should pay for saying publicly what a lot of people at the ICTY think, including among the judges. Therefore, this decision should not be taken as a reason to continue to reflect on the biases of the system that go well beyond the fate of just Judge Harhoff. 


  1. Dov, there is jurisprudence to the effect that judges and not legal officers are responsible for the outcome and content of judgments. So I very much doubt that any cases prior to his appointment as a judge could be successfully called into question.

  2. Thanks Manuel, point taken. Just thought I'd mention it to be comprehensive. Although, this case law seriously says that if one could show partiality of senior chamber staff, this could not affect the fairness of the trial? Not sure I agree with that.

  3. The trial goes on. Rule 15 (A): "the President shall assign another Judge to the case". (Interestingly, it is harder when a judge dies or becomes incapacitated - Rule 15bis (C) and (D) require accused to consent and if overruled, grant automatic appeal to AC, and require replacement judge to certify familiarity with case. This happened in Milošević after death of Judge May.)


  5. I wonder what are, theoretically, all possible outcomes of Harhoff disqualification, since it is something without a precedent at the ICTY? Could you please list all possible scenarios? Do you, as an expert, know of any other cases when a judge was disqualified after the final word and just before the decision, as in this case? Would you be so kind to share some relevant references on this? Many thanx in advance!