Judge Queries Disqualification From Seselj Case

Friday, 6 September, 2013

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Rachel Irwin

Senior Reporter

Judge Frederik Harhoff has questioned last week’s decision to disqualify him from the Hague trial of Serbian nationalist politician Vojislav Seselj. He argues that both his own views and comments from a fellow-judge should have been taken into consideration before the decision was taken.

Judge Harhoff, who was part of the bench hearing the long-running case against Seselj, was disqualified last week after a specially-appointed panel of his peers found that an email he sent in June “demonstrated bias”.

Amid a flurry of activity following the disqualification, Judge Harhoff claimed in a September 3 filing that after a request for his removal filed by Seselj in July, he “conferred” with the presiding judge on the case, Jean-Claude Antonetti, and also submitted a memorandum setting out his own views

Judge Antonetti’s report on the matter and Judge Harhoff’s memorandum were given to the vice-president of the tribunal, Judge Carmel Agius.

It was Judge Agius who appointed the panel that reviewed the application for disqualification.

Judge Harhoff notes that according to the dissenting opinion of Chinese judge Daqun Liu, the decision to disqualify him was “based solely on the evidence” of the email, while the report and memorandum were not taken into account. He says that according to tribunal rules, these additional materials should have been evaluated, and his own views should have been considered.

“The right to be able to participate in disqualification proceedings against oneself is respected by other international criminal tribunals…. In this case, however, the views [of] both the presiding judge and myself have been excluded from the panel’s considerations,” Judge Harhoff writes. “The decision to disqualify me from the Seselj case has a direct impact on my personal and professional commitments to this tribunal as a judge. By any standard of due process of law, therefore, I would be entitled to have my views considered and taken into account by the judges of the panel. Accordingly, I would also enjoy standing before the chamber to ask for clarification of its decision.”

Meanwhile, Judge Antonetti has submitted his own “urgent request” for clarification both to the panel and to the tribunal’s vice-president. He also unsealed the memorandum that Judge Harhoff wrote in July.

In that document, Judge Harhoff states that his email was “purely private and was never intended to become public”, and that someone leaked it to the Danish newspaper BT, which “chose to print it against my will”.

In the email, he alleges that the Hague tribunal’s president, American judge Theodor Meron, applied “tenacious pressure” to colleagues in a way that “makes you think he was determined to achieve an acquittal” for Croatian General Ante Gotovina and former Yugoslav army chief Momcilo Perisic.

In the July memorandum, Judge Harhoff stated that this was actually the second email on the topic he had sent to his contacts – the first contained two articles from the New York Times and the Economist which “raised questions about the rationale” behind the acquittals in the Gotovina and Perisic cases, as well as the case against former Serbian intelligence officials Jovica Stanisic and Franko Simatovic.

These press articles, Harhoff said, “hinted at the possibility that the tribunal might have been under the influence [of] foreign states likely to be involved in conflicts in the future”.

“I tried to figure out just who might have an interest in seeking to adjust the tribunal’s jurisprudence on criminal responsibility for senior military commanders, assuming that such adjustments would most likely have been the result of some indication from sources outside the tribunal,” Judge Harhoff wrote.

He goes on to state that the “immediate answer to that question was that it could have been the military establishments in ‘dominating countries’ such as the US. or Israel”.

This was because, he said, those two countries are currently involved in “armed conflicts” and would not want international law to develop in a such a way that could result in their own generals being convicted unless “they had actively contributed to the commission of crimes within the common purpose, or given ‘specific directions’ as accomplices”.

“I had allowed for the possibility that our president had somehow accepted this inclination towards tightening the conditions for criminal legal responsibility for generals, but I added that we shall never know if such influence was ever attempted.”

He stresses that the email “does not mention Mr Seselj at all or contain any reference to the trial against him”.

“I do not have, or have ever had, any personal interest whatsoever in the trial against the accused [Seselj] and I have not had any association with him or anyone else that might affect my impartiality in the case. I therefore do not believe that my email contains any element that might cast doubts about my impartiality in this trial,” Harhoff writes.

Vice-president Agius initially issued a decision on September 3 stating that he would not assign a new judge to the Seselj chamber until the remaining judges conferred with the accused on whether to “rehear the case or continue the proceedings”.

However, a day later, Judge Agius put everything on hold in light of the submissions by Judge Harhoff, Judge Antonetti, and a motion by the prosecution for the disqualification to be reconsidered. These motions will have to be dealt with before any further action can be taken.

Rachel Irwin is an IWPR reporter in The Hague.