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.

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.