The email that went around the world…

… and prompted the uprecendented ousting of Danish Judge Frederik Harhoff from the International Criminal Tribunal for the Former Yugoslavia. His personal letter and subsequent dismissal are still a matter of controversy that raise the question of whether international humanitarian law can be properly enforced if generals cannot be convicted for crimes committed, with their knowledge, by their subordinates. For the first time, Harhoff gives his take on what happened in The Hague

”I dare say I was completely baffled by the leaking of my letter”.

A month ago, Judge Harhoff was deposed from the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague.

He was recused by a panel of three judges that in a vote of 2 to 1 found the Danish judge had expressed bias against Serbs in general and generals in particular in a personal and private email he had sent to 56 family members, friends and colleagues in Denmark last June. Since 2007, Harhoff had served as one of three judges in the trial against Vojislav Šešelj, the leader of the ultranationalist Serb Radical Party.

The email was sent a few hours after midnight on Thursday June 6. Within a few days, it was somehow intercepted by the Danish tabloid daily B.T., which published the letter in its entirety along with an accompanying article. Both were translated into English and spread quickly. Consequently, Mr. Harhoff’s fellow judges were also able to read it in The Hague.

Recently, the internationally renowned and highly respected Danish law expert decided to give his own take on what transpired at ICTY this past summer and Fall in a three hour long interview with the Danish newspaper Information. Mr. Harhoff asserted that his ousting from a tribunal, whose work he reveres, was ”unwarranted” and based on a ”flawed legal basis”.

He said that his commitment to international war crimes tribunals is unwavering and that he had always been motivated in his work on the war-related crimes in Rwanda and Yugoslavia by a desire to ”help reinforce international law as a legal system”.

After sitting as judge in four Trial Chambers and delivering hundreds of rulings Mr. Harhoff said he was convinced until recently that the ICTY had largely functioned well and in line with the intentions and expectations of its founder, the UN Security Council.

”We have had to make a lot of tough decisions along the road, but on the whole I think we managed to deal quite successfully with all our cases,” he told Information.

Settled case law

But then at the end of last year and earlier this year a drastic change in case law seemed to take place when the Appeals Chamber at ICTY rendered two sensational acquittals in two separate cases against Croatian and Serbian generals, respectively. Later a Trial Chamber at the ICTY acquitted two other Serbian generals with direct reference to the Appeals Chamber’s preceding acquittals. Indeed, these were the acquittals that prompted Mr. Harhoff to write his controversial email, which eventually led to his disqualification from the Tribunal.

In one of the cases, two high-ranking Croatian military officers were acquitted on a mere technicality. In the other case, the Appeals Chamber acquitted a Serbian general by overturning a standard previously used in Trial Chambers to convict senior officers for ”aiding and abetting” war crimes committed by perpetrators on the ground. All of a sudden, the Appeals Chamber required that a senior officer must have given “specific direction” to commit the crimes for which the officer stands accused.

”However, it is almost impossible to prove that a general had given specific direction to the individuals who committed the atrocities at the scene of the crime. In most cases, this would mean that commanding officers could get away with impunity,” Judge Harhoff wrote in the email.

The ICTY-panel, which subsequently recused Judge Harhoff, believed his criticism of the new practice could be perceived by objective observers as expressing a bias. In particular, the panel took note of his concluding remark in the email where he observed that “recent rulings here have put me in front of a deep professional and moral dilemma”.

Two of the three judges in the panel concluded that Judge Harhoff’s ”dilemma” could give the impression that he no longer felt able or willing to follow the new practice and that he consequently would not ”evaluate the evidence in each individual case”.

”I completely disagree with this interpretation”, the former Danish judge said.

”As far as I can assess, the ruling ascribes to me the view that generals and military commanders must be convicted regardless of the evidence against them, even though this is in complete contradiction with the principle that an accused should be considered innocent until the contrary is proven. I did not write or express any such view in my email and, of course, I do not hold such opinion, neither as a judge nor as a professor”.

Consequently, Mr. Harhoff is convinced his recusal was motivated by other considerations.

This is where the story gets really fishy and shrouded in an impenetrable veil of assumptions and assertions that cannot be fully documented. Circumstantial evidence indicates that somewhere in the upper echelons of the court, a decision was taken to rid the ICTY of a troublemaker who had dared to speak up against its authority. But it is impossible to get by hard evidence and to pin down who may have taken this decision, and why.

During the interview Mr. Harhoff openly admitted he made “a blunder” in assuming that an email sent to 56 people would remain confidential. However, following publication of the email in the international press, he was frequently saluted in the corridors of the Tribunal by employees who expressed their sympathy and agreement with the views expressed in his email.

Criticism of colleagues

Not surprisingly, the reaction from his 22 fellow judges was entirely different.

”Most of them kept silent. A few of them thought it was useful that my critique came out. They accepted that I had not intended my letter to become public, but they still believed I committed a huge mistake in sending the email,” Mr. Harhoff said.

Others, however, were convinced that the Danish judge intended his email to become public.

Asked whether he agreed that judges should refrain from criticizing colleagues and their rulings in public, Mr. Harhoff concurred:

”Well, I actually do agree with that. I respect that. It is indeed disloyal to criticize a fellow judge in public”.

But he adds a caveat: “Unless you talk to them first, that is. But all previous attempts to raise debate within the Tribunal about the change in our jurisprudence had been soundly rejected by President Meron.”

For Mr. Harhoff, however, the rub was elsewhere. He asks: Who would have had an interest in leaking the email – and why leak it to a tabloid newspaper like B.T.?

”None of 56 recipients reads a newspaper like B.T. If one of them wanted to leak my email they would most likely have preferred more reputable newspapers such as Politiken or Information,” Mr. Harhoff inferred, “and at least they would have consulted me first.”

All 56 recipients have since given him personal guarantees they didn’t leak it. Mr. Harhoff also asked each of them whether they had forwarded his message to someone else, but not everyone responded to this question. So he believes that in all likelihood the mail was passed on to a third party unknown to him.

– Who could it be?

”I am sure that all judges are having their email correspondence monitored,” Mr. Harhoff said (a suspicion shared by several other judges, as far as Information has been able to ascertain).

”It might make sense to assume that if a foreign intelligence service were able to read my email this would be a smart way to silence me by making it public”, he said.

A henchman for the U.S.

For Harhoff, the more pressing issue was who would have had an interest in seeking to modify the jurisprudence of the Tribunal to ensure that generals could only be convicted in the future if it had been proved that they had given “specific direction” to the perpetrators. In Mr. Harhoff’s view one possible answer is that the Tribunal had somehow been influenced by military circles in states that are currently involved in armed conflict abroad. At first glance, even Harhoff agreed, this hypothesis would seem rather conspiratorial.

However, in his view, it was not so much his criticism of the new practice at the ICTY that caused the fuzz about his alleged bias. The recent acquittals had already been vigorously debated in The Economist and The New York Times as well as among lawyers outside the Tribunal. The issue had also raised debate within the Tribunal itself and led to a split among the judges.

Rather, it was the explosive hypothesis – namely, the suggestion that the very leading force behind the change of the practice, the American president of the court, Theodor Meron, had been influenced by the ”military establishment” in the United States and Israel – that stirred outrage in the Tribunal’s leadership and among many judges.

In his email, Mr. Harhoff raised the question of whether the United States and Israel (today, he says he would have added France, China and Russia, all of whom are currently involved in armed conflicts) might possibly have feared that the Tribunal’s established judicial practice in holding military commanders responsible for crimes committed with their knowledge by their subordinates, would potentially bring their senior officers in legal troubles.

In his email, however, Mr. Harhoff added a proviso to his own controversial musings on President Meron’s role in this matter: “We will probably never find out.”

During the interview, Mr. Harhoff seemed to be of two minds. On the one hand, he conceded that his contention of Mr. Meron’s possible motives was ”pure  speculation”. On the other hand, he left open the possibility that a likely explanation for Mr. Meron’s radical departure from a “more or less set practice” could be that he had somehow been influenced by outside military interests.

”In military establishments, some people might have been uncomfortable having to accept the evolving liberal jurisprudence at ICTY, since this could set a precedent for the International Criminal Court, ICC. And in the future that could make it very hard to be a general,” Mr. Harhoff said.

”If I were a general in one country or another, I would carefully follow what’s going on at the tribunals for Yugoslavia, Rwanda and at the ICC. I would perhaps be hesitant to serve as a general, if it involved the risk of ending up being held accountable for crimes committed far away and far below my command authority, just because I had at some point been made aware of it.”

”Obviously, there should be limits to how far you can go in holding a general responsible,” Mr. Harhoff stressed.

”In our case law at ICTY, I felt we often moved on the verge of how far we ought to go in implicating a general. It goes without saying that generals must be acquitted if a strong case cannot be made, through the evidence, for placing the responsiblity on them.”

Whitewashing the stain

Mr. Harhoff therefore believes that the Panel’s decision to recuse him from the trial is indirectly related to his conjectures on a possible influence on the court from foreign military circles. But that is a flawed legal basis and it is not what the Panel actually says in its decision, Harhoff pointed out.

”By getting rid of me, the Tribunal was able to signal that it had now done what it could to wash away the stain that my email had put on the court.”

This is the way Mr. Harhoff characterized the prevailing thinking: ’Judge H. made some crazy allegations, but since we have got rid of him this should be the end of story.’

If one wants to get a better sense of what happened behind the locked doors of the war crimes tribunal at The Hague this last spring, Mr. Harhoff’s case turns out to be an excellent guide. In addition, his manner of thinking becomes clearer.

His email has been thoroughly discussed in all of its aspects, as if it were a matter of turning  tea leaves to find a magic formula for understanding the internal clashes within the court. The media have referred to the Harhoff affair in great detail.

Frederik Harhoff was not just any judge at the tribunal. He participated from the very beginning in the extensive post-Cold War experiment of bringing those suspected of war crimes and genocide to justice in international courts. He worked as senior legal officer at the Rwanda tribunal in Arusha, Tanzania, during the proceedings in the court’s first three years of existence.

Later on he was a party to the Danish delegation at the Rome Conference that gave birth to the ICC in the first place. And before his appointment as a judge at ICTY in 2007, he served three years as senior legal officer for one of its three Trial Chambers. Futhermore, he spent many years as an associate professor at the University of Copenhagen and was in 2006 appointed Professor of International Law at the University of Southern Denmark .

At The Hague, he sat as a judge in four trials. He took part in convicting the Bosnian Serb general Dragomir Milosevic and sentenced him to many years in prison for his leading role in the siege of Sarajevo. He was a Judge in the Trial Chamber that convicted the Bosnian Serb interior minister and the security chief in Banja Luka of war crimes. Harhoff also sat in another Trial Chamber that convicted a Bosnian Muslim general for war crimes committed by mujahideen warriors.

The trial against the radical Serb politician Vojislav Šešelj was Mr. Harhoff’s last case. It dragged out for incredibly long, almost six years. Mr. Šešelj has been in custody for over 10 years. The three judges on the bench had been deliberating for eighteen months and was only six weeks away from pronouncing a verdict when the Dane was removed from the chamber. This has left the trial of Mr. Šešelj in deep trouble.

Anyway, the Appeals Chamber’s recent change of case law would probably not have had an impact on the outcome of the Šešelj case in trial court since the Serb politician was not charged with having wielded command authority over military forces.

Nevertheless, Mr. Harhoff and other judges were stunned last May when a Trial Chamber at the ICTY acquitted two senior military officers of the Serbian Security Service – charged with aiding and abetting the commission of crimes – referring to the Appeals Chamber’s new practice.

The Turkish judge

A week later, the Danish judge wrote his email. In the preceding months, he had heard and seen various disturbing things at the court.

He thought it strange that President Meron in two previous appeals cases in 2007 and 2009 had rejected applying the “specific direction” standard to a couple of indicted generals – a condition that Mr. Meron suddenly supported in the Appeals Chamber’s recent acquittal of general Momcilo Perisic in 2013.

On top of that, Mr. Harhoff was troubled by rumours that President Meron allegedly had persuaded the old and physically frail judge Mehmet Güney from Turkey to a last minute switching of sides leading to the sensational acquittal of the two Croatian military officers, Ante Gotovina and Mladen Markač, in November 2012 in the first of two acquittals in the Appeals Chamber. Both had been convicted in the first instance and sentenced to more than 20 years imprisonment.

“Lawyers who were in touch with Güney said that he is no longer able to conduct long conversations and the he often becomes disoriented during sessions,” the German daily, Süddeutsche Zeitung wrote this past October.

Information’s sources at the ICTY confirmed Süddeutsche’s description of Judge Güney’s mental state.

In the interview Mr. Harhoff mused: ”Why was it so important for Meron to ensure the acquittal of two Croatian officers who were accused of indiscriminate shelling of towns and civilian centers?”

He wondered: ”It has been pointed out by many others that the United States strongly supported the Croats with arms and intelligence. Gotovina was only able to defeat the Serbs militarily because of the American support. Would that in any way implicate the US Army? Probably not. But we don’t know what the accused might have revealed, if he had been convicted.”

When the two Serbian security chiefs, Jovica Stanisic and Franko Simatovic, were acquitted and set free by the trial chamber in May of this year, a palpable uneasiness spread throughout the ICTY. Mr. Harhoff remembers that several other judges called for an internal debate of the new ‘specific direction’ standard, but the idea was categorically rejected by President Meron. The Danish judge therefore considered it to be futile to raise the question within the court.

On Wednesday afternoon June 5, a deeply frustrated Mr. Harhoff discussed the situation with several of his fellow judges. Late in the evening, he was at home in his apartment in The Hague and began writing a letter to friends, acquaintances and colleagues in Denmark. He poured himself a couple of glasses of red wine and then, sometime between 2 and 3 o’clock in the wee hours of Thursday June 6, he finished his email and hit the ’send‘-button.

”I just had to let it go to unburden myself of my concerns. Also, I had to get up pretty early next morning”, Frederik Harhoff recalled.

He said the email was written in a moment of passion.

It changed his life forever and planted a seed of doubt: Could the most successful war crimes tribunal in the history of the modern world be in danger of losing its bearings in its final years of existence and along with that its democratic legitimacy and political independence?

Martin Burcharth