This week’s predictions: Ko te Karadžić nek ti piše pjesme

On Thursday the verdict will be delivered in one of ICTY’s last major cases, the one against Radovan Karadžić. You all know who he is and what he did, so no need to go into the details here: if you want to refresh your memory, here is the final amended version of the indictment. It is fairly easy to make a prediction that has been made by everybody else as well, and that is that Karadžić will be convicted. No surprise there – the evidence is overwhelming and his defence was weak (a fact that is not the fault of Karadžić’s legal counsellor Peter Robinson, who has to be recognised for doing a monumental job in assuring a fair trial despite an unreliable indictee who insisted on representing himself and a series of witnesses who were largely unhelpful).

But of course the question that remains open is what Karadžić will be convicted of. The most intense attention will be directed to the most serious charges, where Karadžić is accused of genocide. Count 2 of the indictment accuses him of responsibility for the genocide in Srebrenica, and here it is reasonable to expect a conviction, for three reasons:

• 1) There already exists a judicial record establishing that genocide was committed by VRS in Srebrenica, so judges are not being asked to break new ground;
• 2) Karadžić occupied a position of political authority that gave him ultimate responsibility for the conduct of armed forces under his command (in his defence Karadžić argued that he did not exercise effective control over the military, which was dominated by his political rival Mladić, but to my eye the evidence does not look strong enough to demonstrate, like it did in the acquittal of former Serbian president-manque Milan Milutinović, that he did not in fact exercise political power);
• 3) A wide variety of RS institutions, from the “state” assembly to the interior ministry and local police forces, left a documentary record that viewed in its entirety probably provides sufficient evidence of genocidal intent at the political level. The fact that much of this evidence has become publicly available may end up being one of the greatest legacies of the prosecution researchers at ICTY (to the degree that transcripts of political debates indicate that genocidal intent was not universally shared by all “state” officials, they clearly show Karadžić sharing the intent).

So on these grounds it looks probable that the Tribunal will find that Karadžić’s responsibility for the Srebrenica genocide has been demonstrated, and that he will be convicted on Count 2. But it is harder to make a confident prediction about Count 1, where Karadžić is accused of committing genocide between March and December 1992 in seven localities: Bratunac, Foča, Ključ, Prijedor, Sanski Most, Vlasenica and Zvornik (in an earlier version of the indictment the charges also included genocide in Kotor Varoš, Brčko, and Višegrad, but these were dropped in response to a trial chamber order to reduce the scope of the indictment). Whatever the trial chamber does find on Count 1, the decision will be read carefully because it both offers a guide to what will eventually be decided in the case of Ratko Mladić, and because either way, the judges’ decision on Count 1 will be interpreted as going a long way to establishing the ICTY’s stance on the character of the 1992-1995 Bosnian conflict. The eventual verdict will most likely also be interpreted not as a conclusion of what the evidence demonstrated, but as an indication of what the judges were willing to do politically at a given moment.

Let’s make this a bit clearer: if the trial chamber finds Karadžić guilty on Count 1, this will be interpreted as indicating that the aims and purposes themselves of RS involved genocide. It will be understood as affirmation by people who have been arguing for years that the violence in Bosnia-Hercegovina was not a confrontation between a set of armed forces but a campaign deliberately designed to create nationally homogeneous territories by changing the structure of the population through violence. Many people in RS and Serbia will interpret a conviction on Count 1 as a condemnation of the war aims of Serbia and its clients in RS, and as a major challenge to the legitimacy of RS, where the current leadership lives in fear of being labelled an entity created through genocide. Either way, a guilty verdict on Count 1 will be taken as a major intervention by the judges into the historical understanding of the violence in Bosnia-Hercegovina.

A not guilty verdict on Count 1 would also constitute a major intervention into history, but one more in line with the overall direction of the tribunal in its recent very controversial cases involving Bosnia-Hercegovina. In that version of events one incident of genocide occurred toward the end of a conflict that lasted for three and a half years. And for the rest, there was a confrontation between two legitimate armed forces with legitimate aims. Crimes were committed but were not the result of policy or command. This is the general narrative constructed by the appeals chamber in the Perišić case,  which determined that “the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war” (Perišić appeal verdict, para 53), and that “VRS was participating in lawful combat activities and was not a purely criminal organisation” (Perišić appeal verdict, para 57). The fact that crimes were committed along the way, in this telling of the story, involves freestanding individual facts rather than goals, policies or institutions. The narrative is further elaborated in the Stanišić-Simatović trial chamber verdict (Part 1 here, Part 2 here),  where it is found that the role of outside actors who trained, financed and armed the forces that committed crimes merely provided “general assistance which could be used for both lawful and unlawful activities” (Stanišić-Simatović trial chamber verdict, para 1264, 2360), the purpose of which “was limited to establishing and maintaining Serb control over large areas of Croatia and Bosnia-Herzegovina” (Stanišić-Simatović verdict, para 2326; reformulated in various ways in paras 2330, 2332, 2333, 2334, 2345, 2360). In this context, if somebody says something like “we’ll exterminate them completely,” this is “too vague to be construed as support for the allegation that [the person] shared the intent to further the alleged common criminal purpose” (Stanišić-Simatović trial chamber verdict, para 2309).

It might seem more probable that ICTY would continue down the path it has taken and deliver a not guilty verdict on Count 1. But let me go out on a limb here and suggest why they might not: the „legitimate war with some nasty events along the way“ narrative is reconstructed from the verdicts in two 2013 cases that radically narrowed the standards for establishing criminal responsibility. These might be thought of as precedents, but a decision is only a precedent if another court uses it. This standard has been rejected by every court that has reviewed it, including three times by ICTY itself (in the Šainović et al and Popović et al cases, and then again in December in the Stanišić-Simatović appeal). If these rulings can be thought of as a judgment not just on the ill-conceived and short-lived „specific direction“ standard, but as a sign of a broader approach to crime (at least when the perpetrator is a domestic one whose activity does not cross borders), then it is not impossible that the Tribunal’s standards could be returning to their pre-2013 levels. The limiting factor on this prediction is a big one, though: one thing we know is that in general, judges are pretty loath to label something as genocide if it has not already been labelled that way by another judge.

Will any of this matter? In the short term, probably not much – people in different ethnopolitical camps will interpret any favourable verdict as a score for justice, and any unfavourable verdict as a sign that ICTY is biased. Down RS way, Milorad Dodik made the preemptive gesture of naming a new student dormitory after Karadžić (what student would want to sleep in such a dormitory?). But in the long term – a finding that a court makes is bound to have more influence than a finding it does not make. Eventually both the supporters and critics are going to be compelled quit the roundabout strategy of talking about bias and engage with the content of the verdicts themsleves.

 

Then next week there will be a verdict in another case, the one against state security agent, paramilitary mascot and TV performer Vojislav Šešelj. No major legal or empirical issues are at stake in this case, and it is principally notable for the grotesque theatrics that have accompanied it, in which an insane man plays a swearier and more bloated Jeanne D’Arc and an incompetent man plays a judge. By deciding last week that the accused did not need to be required to show up to hear the verdict, the Tribunal fairly invited everyone to make a prediction that the verdict would not result in a prison sentence. Hold your breaths for the answer to the uninteresting question of whether this means an acquittal or sentencing to time served.

 

So these are my predictions. Like any predictions, they will turn out to be either right or wrong, and we will all know by the end of next week. Then, of course, remember that these are cases in the trial phase, which means that whoever loses will have the opportunity to appeal, which they can be expected to use. So the story is going to go on.

Note: Here’s Marko Milanović making the opposite prediction. The reason we are making different predictions is that we are making different assumptions. He is assuming that judges will do what they have done before (usually a pretty safe assumption in any legal environment). I am assuming that the 2013 verdicts are reflective of a larger experiment in restricting legal oversight, which has since been rejected. I don’t know which one of us is right.

Gospodar noćnog saobračaja

Lifting arms like that can also be a core exercise.

Tuesday may weld but Wednesday casts asunder. Or so you might be tempted to think after last night’s surprising news that Vojislav Šešelj won a huge victory — a victory not only and probably not even primarily for him — in getting judge Frederik Harhoff removed from his case at ICTY on grounds of partiality.

You will remember Harhoff for the brouhaha he caused by writing a leaky little letter. That letter turned out to be the only piece of evidence discussed in relation to Šešelj’s motion. So no doubt, it continues to be an object of contention.

First as to why the decision, though it is his victory, does not primarily benefit Šešelj. There was never a certainty of conviction on the charges against Šešelj, particularly since they relied on indirect forms of responsibility and on showings that Šešelj exercised command when he was in fact subordinate to DB. But once the verdicts came down exonerating Perišić, Stanišić and Simatović, nobody any longer expected Šešelj to be convicted. If no guilt applies to the people who armed, trained, financed and organised the direct perpetrators of crimes, then none is likely to apply to a clown who was hired to wave pistols in front of cameras.

The rusty spoon of fate determined, though, that at one point Šešelj’s interests would coincide with a complex of others and deepen the mess into which ICTY has been sinking itself of late. Presiding judge Meron’s bold circumscriptions of the applicability of international law to really existing states and militaries (parastates and paramilitaries are still fair game) have meant that an interest in sustaining his credibility is now shared by defendants and ex-defendants from multiple sides, Meron’s Wikileak co-stars, defence counsel in ongoing, past and future cases, and the Thick White Četnik Duke. As the proverb says, well-oiled beds make low-friction bedfellows.

Concretely, though, the decision is not likely to do much to alter the course of Šešelj’s case. Its credibility was already damaged by rococo untimeliness and ulcer-inducing mismanagement, so one fiasco more or less means fairly little. The most likely outcome here is that a new judge is assigned to replace Harhoff and that the panel reaches its 2-1 decision a little later rather than a little sooner. It is possible that a rehearing could be ordered before a new panel, but not probable — though trial junkies could just love a trial that competes for longevity with Coronation Street. But most probably this decision will have minor effects on the process and no effect on the outcome.

The main effect will be on processes outside the Šešelj case. Like the letter that brought the ruling about, the ruling itself is symptomatic of the general malaise that derives from divisions within ICTY, which reflects a wider division among people interested in international law more generally. So what did the panel that dismissed judge Harhoff have to say? A few things, most of which are tangentially related to the grounds of Šešelj’s petition:

1. The panel confirmed that ICTY is deeply divided, by adding another 2-1 decision to a long list of 2-1 and 3-2 decisions on matters of fundamental importance where clear law or a united (or even well-managed) judiciary would seek unanimity and clarity.

2. The panel was unanimous in disapproving of a judge using leaks to the media to substitute for arguments in chambers. Judge Liu, writing in dissent, condemned the inappropriateness of the unpurloined letter in stronger language than the majority.

3. The panel agreed that ICTY started making new law in 2012. Both the majority and the dissenting opinion concur that the central issue was whether judge Harhoff had indicated that he faced a dilemma in applying “the current jurisprudence” of the Tribunal. This could have the effect of undermining the argument of people who would like to present recent appeals chamber decisions as though they are settled law.

4. As much as a single document can be said to prove anything (the old “killer fact!” theory), the panel might have indicated that in the oft-discussed contretemps between the Merovingians and the Harhoovers, the Merovingians could perhaps have the upper hand for the time being. But don’t take my word on this one, I’m not too sure and it is a job for a wizard or a Kremlinologist anyway. What is striking regardless of who has the upper hand is the extent to which activity like this demonstrates a competition in the assignment of blame: does it go to Meron whose innovations have contributed to dissension in the Tribunal, or to Harhoff who clumsily made it publicly known?

The upshot? In the first place, we are very much where we were before this happened, except ICTY’s credibility is a little more damaged. In the second place, we see an interesting arrangement of forces in which the nacoši are all on the same side regardless of nationality (but this was probably always the case).

Postscript: No links, sorry, I wrote this on a plane. I’m sure people who are interested will have no trouble finding a copy of the decision.

More fun with conspiracies

Dear old Luka Mišetić has found za shodno to reply to a post I put up on 23 June. There’s some playing with expressions involving straws, a little bit of recapitulation of the sinister workings of the Djupröven spy conspiracy, and some repetition of used courtroom and media arguments. Hi, Luka!

Today’s dictionary of ideology: “Lawfare”

So where do professional goals and practices in international law intersect with efforts to provide legal protection to victims of conflict-related violence? You might think it is a silly question: don’t all practitioners in international law share the goal of providing the protection of international law? The ultraquick answer is no, they do not all have the same orientations, the same sympathies, or the same employers. Some of them want to establish and expand legal protection and some want to limit it.

Since these two groups are fundamentally opposed in terms of what they are trying to achieve, it is not too surprising that they should frequently try to discredit one another. It’s not much of a challenge to discredit projects that have the mission of exempting violence from legal oversight, of course. But what about the other side? Well, what if you were given the opportunity to argue that people interested in protecting civilians while you are fighting are strategic tools of the enemy? The opportunity has been provided, and it traces its origins to the effort of right-wingers to redefine the world after the 9/11 terrorist attack in New York.

Enter one very modern major-general (a brigadier-general actually, but it doesn’t scan). Speaking at Harvard University in the aftermath of the attack in 2001, Charles Dunlap (he was a colonel then), asked:

Is warfare turning into lawfare? In other words, is international law undercutting the ability of the US to conduct effective military interventions? Is it becoming a vehicle to exploit American values in ways that actually increase the risk to civilians? In short, is law becoming more of the problem in modern war instead of part of the solution?

Funny I should ask, General Dunlap answers himself, before going on to quote approvingly two people who agree with his contention, to the effect that

…a “new” kind of international law is emerging that is “profoundly undemocratic at its core” and “has the potential to undermine American leadership in the post-Cold War global system” ….”If the trends of international law are allowed to mature into binding rules,” they state, “international law may become one of the most potent weapons ever deployed against the United States.”

He defines this tendency as “lawfare” and offers a definition:

Lawfare describes a method of warfare where law is used as a means of realizing a military objective.

And Dunlap identifies non-governmental advocates of international law as the prime perpetrators. He has some more words about them too:

…Americans are inclined to be wary of those NGOs who purport to speak – literally – for the “world” on political issues, including LOAC [law on armed conflict]. Too often NGO positions look like political agendas. With respect to LOAC, it must always be kept in mind that NGOs are not political entities equivalent to sovereign nations; rather, they are no more than self-selected, idiosyncratic interest groups that are not accountable to any ballot box. This perspective is sometimes ignored, to the detriment of LOAC development and interpretation.

Consequently (?), Dunlap tells us, “there is an undeniable element of anti-Americanism in international law as it is developing today.” The danger can come from the application of law to violations, or it can come simply from people knowing about violations, as the good general instructs us:

The velocity of today’s communications capabilities presents real challenges to democracies as well as to those governments that, if not truly democratic, nevertheless depend upon support from constituencies that have access to globalized information sources. When television airs unfiltered, near real-time footage of what appear to be LOAC violations, complications result.

Or to put it another way,

The traditional US approach to accomplishing victory – and the one LOAC endorses – focuses on the military element and seeks to diminish the enemy’s armed strength. America’s challengers focus on the people element and seek to diminish the strength of their support for the military effort.

Now, General Dunlap wanted to defend some things in labeling the legal critique of military activity as “lawfare.” On a general level, he wanted to defend targeting civilian objects. On a level more specific than that, he wanted to defend the bombing by NATO of the Radio-Television Serbia headquarters in Belgrade:

Apparently relying on evidence that indicated that RTS broadcasts whipped up ethnic hatreds for years, Air Commodore David Wilby, a NATO spokesman, insisted, “Serb radio and TV is an instrument of propaganda and repression … It is … a legitimate target in this campaign.” His statement is consistent with US legal thinking. [ellipses in original]

He pointed a finger at NGOs as a collective (and Human Rights Watch in particular) as carrying out interest-damaging “lawfare” by criticizing the attack, and of course conveniently overlooked that the attack had no effect on either propaganda or military communication, and that the 16 people who were killed in the attack were technical employees of the television who had no control over editorial or any other policy. The concurrently developing doctrine of (enemy!) force protection enters into Dunlap’s calculation as well, since he contends that large numbers of opposing soldiers were spared at the cost of “small, albeit regrettable, numbers of civilian casualties.”

A couple of quick points about the implications of this fascinating “lawfare” doctrine:

1. Lawfare is conceived as an enemy strategy. That is to say that the reason the term is invented is so that it can be invoked against advocates of law in order to associate them with military opponents. Sometimes, of course, advocates of law might be associated with military opponents. But the global deployment of the term, in conjunction with Dunlap’s sweeping statements about the nature and orientation of NGOs, does not suggest a strong willingness to make distinctions.
2. Lawfare occurs in “asymmetrical” conflict, in which one party is smaller and less well armed than the other. For Michael Schmitt of the US Naval War College, this means that the “disadvantaged party has an incentive to blur the distinction between its forces and the civilian population in the hope that this will deter the other side from attack.” This worries Laurie Blank who points to “the great fluidity between hostile persons and innocent civilians,” but if there is fluidity the “lawfare” analysts seem to have a consensus about the direction of the flow: it goes from innocence to hostility and consequently expands the pool of legitimate targets.
3. Contesting lawfare requires the cooperation of (people in) legal institutions. On the one hand this means lawyers involved with military planning and target selection to try to prevent violations occurring (this is a good thing), but on the other hand it means reducing risk by opposing international courts and tribunals, and if their founding and operation cannot be prevented, limiting their oversight.

Going back to General Dunlap again, he tells us something that has been represented in the pattern of responses we have been able to observe in the debate since the ICTY initiated its series of exonerations of high-ranking suspects last November:

Too often it seems that civilian lawyers and/or humanitarian actors suffer from an insufficient understanding of the military consequences of their legal positions. This can lead to situations that serve to make the law an object of disdain for many in uniform.

But in the immediate post-9/11 environment, our general was optimistic (about the “many in uniform,” that is). As he put it:

Considering Americans’ willingness to sacrifice their own legal protections, they are unlikely to be overly demanding about the supposed legal rights of foreign belligerents.

I am pretty sure that Dunlap’s essay was never translated, but I wonder whether “supposed” would have been translated as “tobože”?

In a later reflection on coining the term, General Dunlap sniffed that “the term was always intended to be ideologically neutral.” But it is fairly clear that it was not. As the debate developed, the discourse on “lawfare” came to be used for a wide variety of purposes. Mostly it was used for the intended purpose, which was to discredit criticism of the techniques and particularly the targeting used in military operations like the ones in Iraq and Afghanistan. But another was to provide a justification for the targeting of civilian objects more generally. When a concrete instance that could have led to legal charges emerged, it was used more specifically – for example by law professor (and former State Department official) Laurie Blank, who excoriated the 2009 report by Richard Goldstone on violations of the laws of war in Gaza. Professor Blank borrowed Dunlap’s argument that the presence of civilians in an area of military activity transform them into legitimate targets (so residential buildings, cultural sites and religious buildings are fair game), but also dismissed Goldstone’s report more broadly as an example of … you guessed it, “lawfare”!

There is a lot that is fairly fascinating about the whole “lawfare” discourse, and it certainly speaks to me as a lover of neologisms and portmanteaus in particular. But aside from the fairly obvious inference that everyone will make that it represents an effort to delegitimate fundamentally legitimate activity by way of verbal disqualification (nothing new there, that’s what ideology does), I would emphasize two things: 1) it shows that people in the military establishment care what people think, which is actually kind of awesome, and 2) it shows that they put a lot of energy into stopping them from thinking it, which is actually kind of creepy.

By now the canny reader will be wondering, this was a nice little journey through the mind of a portion of the military-legal establishment, but what is it doing in a blog about Balkan politics and academics? It is because some interesting relationships emerge between the “lawfare” discourse and the reasoning used in the latest generation of ICTY verdicts that have been the object of so much controversy since the first of them was handed down in November, even more so since one of the judges, Frederik Harhoff, circulated a letter that became public raising his concerns about changes in the way that evidence is evaluated and the possible influence of (and on) the ICTY’s presiding judge.

There are a couple of places where the language of “lawfare,” even though it is not explicitly invoked, made its way into the reasoning of judicial majorities, one of them indirectly and one of them fairly directly.

In February, the Perišić appeals chamber judgement found that “the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators” – a finding echoed by the trial chamber in the Stanišić-Simatović case, which “recalls the Appeals Chamber’s holding that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to the crimes of the principal perpetrators.” The finding is consistent with the lawfarists’ intent on protecting commanders and policymakers as far as possible from accountability for the consequences of their activity, and to limit liability to cases where there is an explicit intention to commit crimes (as opposed to failure to assure that they will not be committed, or knowledge of the likelihood that crime is a probable result). What it appears to require is a presumption that all war aims be regarded as legal – calling them into question is lawfaring.

Maybe more interesting is the reasoning of the appeals chamber in the Oluja case. A group of military lawyers filed a “friend of the court” brief that concentrated on the development of a standard to distinguish legal from illegal targets. The appeals chamber decided not to admit the brief as the association of the signers with one of the parties to the case disqualified them as “friends of the court,” but it is clear to any reader that the majority decision adopted much of the reasoning used in the brief.

The brief argued that imposing concrete limits on shelling targets “will subject military commanders to a standard of care that is impossible to satisfy and operationally untenable.”

What makes the standard impossible is those perfidious civilians, or as the amici wannabes put it, “Amici fear that adoption of an unrealistic operational standard will, in future conflicts similar to the one before the court, result in noncompliance with IHL balancing standards which may ultimately increase the risk of casualties among the civilian population by incentivizing efforts to immunize lawful objects of attack by co-mingling them with the civilian population and requiring commanders to comply with an impossible standard.”

Otherwise “the commander should benefit from the presumption that his orders and actions fully complied with obligations established by international humanitarian law.” This would serve the purpose of “protect(ing) commanders from unjustified criminal responsibility based on orders resulting from necessarily hasty preparation.”

The first of those arguments resembles quite closely the argument justifying civilian targets in Gaza that (look higher up on the page) had been offered by “lawfare” advocate Leslie Blank – who was, coincidentally, the first signer of the brief.

Let’s put this into a bit of context. What is being played out at ICTY is not a competition over what nationality the judges like the least (as a lot of domestic right-wingers across the region have liked to argue), and it is probably not a sign of direct pressure or lobbying (as Judge Harhoff implied in his letter). It is a competition between rival visions of how legal regulation relates to military activities and the policies, accompanied by a consciousness of what an outcome in favour of the capacity would imply. For now it is a competition that states and militaries are winning, and victims are losing.

He’ll Hoff and he’ll Poff and he’ll blow your court down

Well, this has been an interesting week! After the pretty surprising not guilty verdict in the Stanišić and Simatović trial, a bunch of media were interested in explanations of how it was possible for the Tribunal to find (like it did in the Perišić case) that creating, training, arming, financing, housing, providing personnel and managing covert communication for paramilitary forces that commit crimes does not constitute a connection to the crimes. I was one of the people who offered responses, but there were many others as well, including Iva Vukusić, Srđa Popović, Saša Ilić, Sandra Orlović … there was a lot of critical reaction, I could go on.
There was a little bit of a counterreaction to the critical analyses of the verdict. Stanišić and Simatović’s lawyers published a piece arguing that criticism of the verdict amounted to undermining the right of the accused to a fair trial. A former human rights lawyer tied criticism by human rights activists (and people who sympathise with them) to a feeling of jilted love when verdicts failed to go their way, and claimed that ICTY’s narrowing standards of evidence were in fact nothing new. But the really fun part came from people who picked up on the point that there was a community of interest between judges who adopt restrictive standards of responsibility and states desiring a free hand in shelling stuff and using proxy forces. They decided that pointing out a relation between law and policy is “conspiracy theory,” and decided that this was a good way to defend the ethereal purity of the legal profession by way of terminological dismissal. There’s not much point in making a denial once someone has called you a conspiracy theorist (Your denial is just a sign that you are part of the conspiracy! And you would deny it, wouldn’t you?), but maybe it is at least worth pointing out that the etymology of the word conspiracy (let’s do it loosely as “breathing the same air”) might be used to suggest that what we are talking about when we talk about this disagreement is quite possibly in large part a conflict of approaches and worldviews, and maybe of professions as well.
The professions bit could possibly be the most interesting. As many people have been arguing over the years, when history-defining grievances and crimes are at stake, it is not entirely reasonable to expect legal institutions and procedures – even, if we want to go hypothetical, very good ones – to bring justice, peace, understanding and mutual recognition. This is in a greater measure the job of politics and culture, and one of the great failures of the post-2000 period is the way that politics and culture in large measure ran away from the table in fear, hoping that ICTY would do the job of establishing historical truth and encouraging dialogue instead of them. That was never going to happen even under the best conditions, but with worse conditions in place a lot of people are confronted with a lot of painfully open questions.
There is perhaps another interesting dimension to the conflict between the professions. Lawyers and researchers are both in weird and incestuous communities that trace their origins to the priesthood. Probably they descend from different parts of the priesthood, though. Lawyers come out of the tradition of priests who intercede between man and God, and their practice is founded on affirming their special relationship to ultimate authority and declaring in the interest of the people they represent, “I am right.” Researchers come out of the tradition of priests who try to elaborate and make sensible the mysteries of the world, and their practice is founded on making information available and excitedly shouting “Isn’t this interesting?” A lot of differences derive from these distinct approaches, but maybe the most important difference here is that the two professions do not share the same tendency to defend one another and close ranks.

As it turned out, the people who rushed to defend the sanctity of the lawyers from the people they thought were conspiring to suggest a conspiracy kind of jumped the gun, because eventually the greatest scandal would be produced not by the outsiders who were analysing them but from within their own ranks (darn the priesthood and its intrigues anyway!). On Thursday Danish media published a letter that an ICTY judge, Frederik Harhoff, had sent “privately” to 56 of his nearest and dearest friends. Was it an inappropriate leak of an individual’s private thoughts? Let’s say that when a senior international official sends something around to a large number of people, he either intends for it to become public or is very bad at calculating probability, and although Frederik Harhoff is a professor of law and not mathematics, there is a nonrandom chance that he understands something about probability.
Everybody who follows these topics has already seen the letter (if not, here it is in Danish, English and Naški) so there is not any need to go into too much detail on its contents. In sum it complains about the shifting orientation of the Tribunal to the question of the responsibility of high ranking indictees. accuses presiding judge Teodor Meron of putting undue pressure on his colleagues, raises the question of whether the situation is the result of political pressure, and expresses worry about whether the practice of ICTY is consistent with professional ethics.
Does the letter prove anything? No doubt it offers evidence that at least one senior judge lacks confidence in the leadership of the Tribunal and has some serious doubts and a few suspicions. It does not provide evidence that the suspicions are grounded in more than coincidence, and Harhoff does not claim to have evidence of that. So in that sense observers are largely in the same situation they were in before the letter was released: we do not know about lobbying or other types of pressure, and if there are people who do know they are (for perfectly legitimate reasons) not saying. So if there really are any conspiracy theorists out there, this is not the smoking gun they wanted to find. For my part I don’t care for conspiracies and am inclined to think that if there is influence it does not come from crude strongarming but from the existence of a group of people who have goals, values and orientations to their profession in common.
The letter does give more concrete confirmation of something that we knew before pretty much only from gossip. It confirms the existence of a meaningful (but we do not know how large) level of discomfort among people inside the institution with the direction in which it is headed, the legacy it is likely to leave, and the leadership it has. That is to say, it demonstrates that there are people inside the Tribunal who think what a lot of observers outside think. The fact that it comes from a senior judge who is not known as a live wire gives it a bit of credibility, though its not entirely temperate tone maybe makes it a bit of a wash.

Unsurprisingly the news was greeted with high fascination. The SENSE news agency described it as a “bombshell.” The former OTP spokesperson Florence Hartmann called for an investigation of the issue and raised the possibility of verdicts being revised. Marlise Simons reported in the New York Times of a movement afoot among judges to replace Meron as the presiding judge when his term comes up in the fall.
On a side note, there has also been a bunch of chazzerai about anti-Semitism that I am not meshuggeneh enough to touch.
Is it a bombshell, a pretext for retrials, or the catalyst for a judicial revolt? Time will tell, but a good measure of scepticism is always in order. I am inclined to think it is both a little bit less and a little bit more than that.
First, it is a sign that the crisis of confidence in ICTY has spread from outside the institution to inside. The people who dismiss critics as a bunch of wild-eyed justice-obsessed hippie sans-culotte nonlawyers intruding into the comfortable sanctum really may want to start paying attention.
But possibly more to the point, the whole inside-baseball character of the dispute and the recurrent efforts to limit discussion tell us once again that the putative clients of the Tribunal are not at the centre of anybody’s concern. And it tells us again that if societies genuinely need the work of justice to be done, they have to cast their net broader than the courts.