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Comment on Judge Harhoff’s Letter

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Judge Harhoff ICTY

By:  Colleen Rohan and Gregor Guy-Smith*

This commentary concerns a letter purportedly written by Judge Frederick Harhoff of the ICTY to numerous friends and colleagues; the contents of which were reported in the Danish press and instantly went viral.   Unfortunately the letter raises serious issues about the judicial temperament and ethics of its author.  Something is wrong here.

There are several questions which immediately come to mind after reading this letter. Does the author believe in the institution he claims to serve?  Does the author believe in the Rule of Law?  Is the author familiar with the Bangalore Principles of Judicial Conduct?  Does the author accept the core values reflected in those principles which require, among other matters, that judges act with impartiality, integrity, and propriety?

As a judge the author is required to be a neutral fact-finder and an impartial interpreter of the law.  Despite these obligations the statements in the letter second guess the outcomes of trials and appeals in which the author did not participate, criticize the judges who did participate, include intemperate and unsubstantiated allegations about which governments will “breathe a sigh of relief” based on the outcome of certain cases, and question the integrity and good faith of his judicial colleagues.

Even more troubling is that the letter appears to express the author’s disappointment that all individuals brought before the ICTY have not been convicted; a view which ignores the reality that when the prosecution has not met its burden of proof an acquittal is the only just and fair result.  The author’s view does an enormous disservice to the institution of law, is misleading to the public, and is inconsistent with the internationally recognized principle of the presumption of innocence.

If the author has fundamental disagreements with certain aspects of international criminal law he, as a judge, is in the position and has been in the position to write opinions explaining the legal and factual bases for those disagreements in the course of his work.  Ad hominem attacks are inappropriate, especially coming from a member of the judiciary.

A judge must act at all times in a manner that promotes public confidence in the judiciary.  A judge should also conduct the judge’s personal and extra-judicial activities to minimize the risk of conflict with the obligations of judicial office.

It is disquieting, therefore, to see that the author–in lieu of the pursuit of proper avenues of inquiry–prefers the spreading of divisive suspicion, rumors and assumptions about his judicial colleagues and their internal deliberations.  That is in direct contravention of the substance and the spirit of recognized codes of judicial ethics, be they mandatory or merely instructive.

The ICTY is the pioneer in international contemporary criminal proceedings.  The results of the various cases litigated in its courtrooms have been praised in some quarters and condemned in others.  That’s the nature of the beast.  Principled, public debate about its successes and mistakes is to be expected.  What is not to be expected and what cannot be condoned is precisely what has just happened—the opening of a Pandora’s box of rumor and innuendo at the expense of the rule of law.

Defence counsel at the international courts operate with the assistance of clear, effective and enforceable codes of professional conduct.  It appears it is high time similar binding codes are enacted for the organs of the courts themselves:  the Registry, the Prosecution and the Judiciary.

 *Gregor Guy-Smith is a former president of the ADC-ICTY and is currently a member of the ICTY Disciplinary Panel. Colleen Rohan  is a former member of the ADC-ICTY Executive Committee and currently a member of the ICTY Disciplinary Board.  Both are also former chairpersons of the ADC-ICTY Disciplinary Council.

Photocredit: ICTY website

5 Responses to “Comment on Judge Harhoff’s Letter”

  1. flyinglotus49

    Excellent Excellent commentary. I was stunned when I read the letter and wondered whether he had literally lost his mind. Then I thought, he is going to regret that when he finds it again. There were so many things wrong with that letter. You have addressed all of them and very well. Good job.

  2. Novak Lukic

    Excellent article Mrs. Rohan and Mr. Guy-Smith,
    I want to point out one more issue, which raises additional concerns about the background of some of the legal views Judge Harhoff expressed in his letter.
    Judge Harhoff was a member of the Trial Chamber in the Stanisic-Zupljanin case at the ICTY. On 27 March 2013 a unanimous Judgement was handed down in that case convicting both accused. Paragraph 107 of the Judgement accepted and promoted the legal findings from the Perisic Appeal. Judge Harhoff, with his signature, confirmed and supported the Perisic legal finding that:
    “ 36…………, the Appeals Chamber, Judge Liu dissenting, considers that specific direction remains an element of the actus reus of aiding and abetting liability. The Appeals Chamber, Judge Liu dissenting, thus reaffirms that no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly.”

    Several questions could be posed comparing his position from that Judgment and the contents of his letter. If Judge Harhoff was against the specific direction standard which he now criticizes in his letter, than why didn`t he dissent two months ago in the Stanisic-Zupljanin case? That would be the only appropriate way for a judge to react. However, if he changed his position after he signed the Stanisic-Zupljanin Judgement, did anybody put pressure on him? Or, has he shared with anyone, through any correspondence, that he was wrong in that Judgement and that he should have dissented?

    So many questions…….

    I shall finish using his words from his letter:

    “We will probably never know.”

    Novak Lukić, defence counsel for Mr.Perišić

  3. John Ackerman

    On 15 June 2013 Marlise Simons wrote about the Harhoff letter in the New York Times. It thus go some very undeserved publicity. She seems to accept the validity of the Harhoff remarks. Notably, she says this: “Other lawyers [unnamed] agreed that the tribunal, which has pioneered new laws, is sending a new message to other armies; they do not need to be as frightened of international justice as they might have been four or five years ago.” She at least recognizes that against its mandate the Tribunal “has pioneered new laws.” It has done away almost entirely with the internationally recognized right of confrontation of witnesses against an accused and has invented the concept of Joint Criminal Enterprise, for instance. It is hard to judge whether Judge Harhoff has done himself or the Tribunal the greater injustice. He has certainly demonstrated a lack of judicial character.

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