Trending Topics:

US and Israel are accused of manipulating Hague to acquit accused Serb and Croat leaders

Israel/Palestine
on 137 Comments

A disturbing case. The New York Times reports on a “mini-rebellion” of judges at the UN war crimes tribunal at the Hague over an Israeli-American “president” judge who is setting the bar impossibly high so as to acquit Serbian and Croat leaders who allegedly authorized atrocities in the former Yugoslavia. A former Israeli diplomat becomes a war crimes judge. Huh.

The whistleblower in the case, a Danish judge, accuses the United States and Israel of exerting influence to make the international criminal court toothless. Reporter Marlise Simons:

Other lawyers 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.

But until now, no judge at the tribunal had openly attributed the apparent change to the court’s current president, Theodor Meron, 83, a longtime legal scholar and judge.

Judge [Frederik] Harhoff’s letter, dated June 6, was e-mailed to 56 lawyers, friends and associates; the newspaper did not say how it obtained a copy. In his letter, Judge Harhoff, 64, who has been on the tribunal since 2007, said that in two cases Judge Meron, a United States citizen who was formerly an Israeli diplomat, applied “tenacious pressure” on his fellow judges in such a way that it “makes you think he was determined to achieve an acquittal.”

“Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?” Judge Harhoff asked. “We will probably never know.”…

In earlier cases before the tribunal, a number of military or police officers and politicians were convicted of massacres and other war crimes committed by followers or subordinates on the principle that they had been members of a “joint criminal enterprise.”

In contrast, three Serbian leaders and two Croatian generals who played key roles during the war were acquitted recently because judges argued that the men had not specifically ordered or approved war crimes committed by subordinates.

Judge Meron has led a push for raising the bar for conviction in such cases, prosecutors say, to the point where a conviction has become nearly impossible…

Is this the US imperial state or the Israel lobby at work? My suspicion is of course the Israel lobby; I think Israeli ideas of how to deal with conflict have swayed the U.S. during the great war on terror/clash of civilizations which aligns the U.S. so perfectly with the only democracy in the Middle East. Though at this point the tail and the dog are hard to distinguish, certainly no one can say that this alliance is not the geopolitical focal point, so often ignored by our media. Thanks to Donald! 

About Philip Weiss

Philip Weiss is Founder and Co-Editor of Mondoweiss.net.

Other posts by .


Posted In:

137 Responses

  1. DICKERSON3870
    June 15, 2013, 11:17 am

    RE: “The New York Times reports on a ‘mini-rebellion’ of judges at the UN war crimes tribunal at the Hague over an Israeli-American “president” judge who is setting the bar impossibly high so as to acquit Serbian and Croat leaders who allegedly authorized atrocities in the former Yugoslavia.” ~ Weiss

    MY COMMENT: This new instance of the debasement of international law* is yet another reason I fear that Revisionist Zionism and Likudnik Israel (specifically by virtue of their inordinate sway over the U.S.) might very well be an “existential threat” to the values of The Enlightenment! ! !
    “Down, down, down we [the U.S.] go into the deep, dark abyss; hand in hand with Israel.”

    * “The Second Battle of Gaza: Israel’s Undermining Of International Law”, by Jeff Halper, mrzine.monthlyreview.org, 02/26/10
    LINK – http://mrzine.monthlyreview.org/2010/halper260210.html

    P.S. OTHER EXAMPLES OF ISRAEL’S VALUES TRUMPING (OVERRIDING) THE VALUES OF THE ENLIGHTENMENT – http://mondoweiss.net/2013/05/markets-propaganda-waughs.html#comment-566771

  2. pabelmont
    June 15, 2013, 11:17 am

    The judge may be a committed Zionist, and as a former Israeli diplomat this seems likely. A Zionist does not like a “law” that would condemn most of the military and civilian leaders of his own (former) country. (USA also has war criminals.)

    Let us hope this accusation and attendant hoo-haw will awaken the other memb ers of the court to the ideological content of the presiding judge’s apparent support for lawlessness.

    • Hostage
      June 15, 2013, 2:20 pm

      The judge may be a committed Zionist, and as a former Israeli diplomat this seems likely.

      Thankfully, Theodor Meron already cooked Israel’s goose back in 1967 when he was the Chief Legal Adviser to the Ministry of Foreign Affairs. He wrote the now-famous classified memo that said establishment of settlements in the Israeli administered territories contravenes explicit provisions of the Fourth Geneva Convention. http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf

    • shachalnur
      June 15, 2013, 8:03 pm

      Or;

      Serbia was one of the few European countries that put up a fight against the Nazi’s.

      Albania was fully collaborating with Hitler.

      Serbia was destroyed by the US coalition ,after Al-Qaida stirred things up in Kosovo,Yugoslavia.

      So ,the New West is helping (still) criminal Albania against the former Partizans.

      Unacceptable for Russia ,Serbia and Israel.

      Maybe Israel is doing a new allie a favor and protect important Serbs against the hypocrasy and lawlessness of the NWO/ ICC.

      Israel is making lot’s of new friends ,as will soon be clear.

  3. Cliff
    June 15, 2013, 11:39 am

    This is so ****ing disgusting.

    And OF COURSE it’s an Israeli who is the manifestation of this corruption.

  4. Ramzi Jaber
    June 15, 2013, 11:44 am

    Truly shocking. This seems rather well orchestrated game and what’s happening now is just a dry run for US/Israel to learn how to control ICC/ICJ when the courts take up the case of the Zionist criminal regime’s colonialization of Palestine.

    Palestine, beware. The game is being played in a devious way so as to pre-neutralize our ICC/ICJ action.

    Thanks for sharing Phil.

    • Citizen
      June 15, 2013, 2:57 pm

      Yep

    • Hostage
      June 15, 2013, 5:51 pm

      Palestine, beware. The game is being played in a devious way so as to pre-neutralize our ICC/ICJ action.

      To some extent, but Meron’s ruling simply says you can’t convict a defendant using guilt by association alone. There must be some evidence that the person “specifically directed” the commission of a crime or the operation of a criminal organization. You could easily indict and convict Netanyahu of violating the prohibition against transferring or facilitating portions of the occupying power’s own population into the territory it administers using nothing more than his own speeches and press releases. The same thing applies to his cabinet members, the remainder of the Knesset, and the members of the Supreme Court.

      • Ramzi Jaber
        June 15, 2013, 6:03 pm

        Good point Hostage. How about something more fundamental like killing Palestinians by the zionist army including targeted assassinations by the military and the intelligence agencies?

      • Hostage
        June 15, 2013, 11:49 pm

        Good point Hostage. How about something more fundamental like killing Palestinians by the zionist army including targeted assassinations by the military and the intelligence agencies?

        I think Zionist politicians and judges feel like they enjoy absolute impunity. In many cases, they simply can’t resist gloating over that fact and bragging about their criminal acts.

        On the other hand, the standard Meron applied here would have led to the acquittal of the defendants in the Holy Land Charity cases, since there is no such crime in international law as “providing material support” and there was no evidence that the money was “specifically directed” to any criminal enterprise or organization. See for example: The CMCR Invents the “War Crime” of Material Support for Terrorism http://opiniojuris.org/2011/06/24/the-cmcr-invents-the-war-crime-of-material-support-for-terrorism/

      • Hostage
        June 16, 2013, 12:17 am

        P.S. In the case of targeted killings, the Israeli Supreme Court has rejected the principle – in writing – that certain crimes are prohibited at all times, regardless of the motive involved. That includes murdering members of the armed forces or civilians who are taking no active part in hostilities (e.g. Gaza Police officers). They are simply not legitimate targets for summary executions:

        Here is the applicable portion of Common Article 3:
        (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

        To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

        (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

        (b) taking of hostages;

        (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

        (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

        (2) The wounded and sick shall be collected and cared for.

      • Ramzi Jaber
        June 16, 2013, 9:57 am

        Hostage, you taught me something new today. Thank you.

  5. seafoid
    June 15, 2013, 11:53 am

    “American exceptionalism” in practice gives Americans the right to override any international law they want.

    The notion of an Israeli judge waving through war crimes is absurd. No doubt he honors Yom HaShoah.

    What is constant through all of this is it is always the same people who get shafted, raped and murdered – Poor Polish Jews, Working class Yugoslavs and poor Palestinians.

  6. HarryLaw
    June 15, 2013, 12:28 pm

    Ramzi Jaber @ “what’s happening now is just a dry run for US/Israel to learn how to control ICC/ICJ when the courts take up the case of the Zionist criminal regime’s colonialization of Palestine”. The legal counsel of the Foreign Ministry in a secret memo shortly after the six day war in 1967 declared that the Israeli settlements in occupied territory would be a violation of the Geneva Conventions the author Theodore Meron.see here..http://www.soas.ac.uk/lawpeacemideast/resources/

    • Citizen
      June 15, 2013, 3:07 pm

      None of this matters as Dick and Jane won’t ever know, US government and main media will make it so, and they will keep paying taxes to benefit Israel right or wrong. Nothing will change this except, maybe, a WW3 developed from an attack on Iran, wherein, the possibility of a US military conscription may come into Dick and Jane’s eyesight.

    • Ramzi Jaber
      June 15, 2013, 3:30 pm

      HarryLaw, this is great info, wasn’t aware of it. Thank you.

    • MRW
      June 15, 2013, 4:12 pm

      Great documentary find.

  7. traintosiberia
    June 15, 2013, 12:34 pm

    It does not portend well. By acquitting these leaders, Israel can claim that these judges dont kowtow to any power including to that of US.It can claim that these judges argue cases on the merits of the cases . These judges then will use this new found validated moral power and unblemished authority to prosecute Syrian or Lebanese Hizbullah or Sudanese or Iranain leaders countering charges of proAmerican angle with above precedents. Beyond that, this will make sure that Israel be loved by most nationalistic elements of Croatia and Serbia joining eternal fight against muslim.

  8. Obsidian
    June 15, 2013, 1:04 pm

    When Phil says:

    “Is this the US imperial state or the Israel lobby at work? My suspicion is of course the Israel lobby..”, Phil ignores the whistleblower’s own comment. Judge Harhoff asked, “Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?”. “We will probably never know.”

    Phil also ignores a senior court official who said that, he did not believe that American officials had pressured Judge Meron to rule a certain way in any case.

    I’m a trial attorney and judges are always pressuring the lawyers to move the case, and the trial itself, along as quickly as possible.

    “Today, as the tribunal winds down it work, pressure over time is among the complaints heard from judges’ chambers.”

    Judge Meron may not be any different from any other judge who believes that ‘Justice delayed is justice denied’.

    • Annie Robbins
      June 15, 2013, 2:58 pm

      phil didn’t ignore anything.

      “We will probably never know.” and “judges are always pressuring the lawyers to move the case” is not any kind of evidence refuting phil suspicions.

      furthermore it is you who are ignoring/dismissing the words of the whistleblower, the danish judge:

      Judge Meron, a United States citizen who was formerly an Israeli diplomat, applied “tenacious pressure” on his fellow judges in such a way that it “makes you think he was determined to achieve an acquittal.

      ‘justice served’ is not synonymous with acquitting defendants.

      • Obsidian
        June 15, 2013, 3:36 pm

        Without an accurate translation of Judge Harhoff’s letter, neither you, me nor Phil, can say for certain whether Judge Meron, “.. was determined to achieve an acquittal.”

        Phil has made a ‘rush to judgment’.

      • Annie Robbins
        June 15, 2013, 3:56 pm

        Phil has made a ‘rush to judgment’.

        is ‘rush to judgement’ how you’re paraphrasing ” My suspicion”

        because suspicions are not the same as judgements. furthermore you initially claimed phil “ignores” using as evidence the judges caveat that we’ll never know.

        inserting your opinion is not good enough, you have to claim your sorry excuse for’ logic’ is being ignored. it’s not, it’s just not compelling.

        besides, zionists have an established record of trying to water down international law to cover up their criminal behavior.

      • Hostage
        June 15, 2013, 6:08 pm

        Without an accurate translation of Judge Harhoff’s letter, neither you, me nor Phil, can say for certain whether Judge Meron, “.. was determined to achieve an acquittal.”

        The Judge has overturned the customary rule which says that commanders have an affirmative duty to prevent their subordinates from systematically violating the laws and customs of war and to impose regular military discipline. Heretofore, any acts of omission gave rise to individual criminal responsibility through various modes of complicity or dereliction.

      • Ellen
        June 15, 2013, 7:50 pm

        Annie, it is strange that Trial-attorney-Obsidian would venture to conclude that former-Israeli-diplomat, Judge Meron is pushing all other judges to conclude the case in the spirit of not delaying justice. Geesh, Meron cannot act alone and we are not talking about some breach of contract or traffic violation.

        I suspect there is much more to motives behind Meron’s tenacious activities. More than the perhaps jaded view that Israel is setting the stage to prevent any conviction should Israel wind up in the ICC.

        The Israeli connection to Serbia — and not only selling and delivering weapons to Serbia– during the most horrific conflict in Europe since WWII goes very deep.

        I’ve said it before: Israeli involvement in that horrible conflict is not irrelevant. There is MUCH more involvement, fueled by profiteering, strategic interests and Zionism, than the general and even relatively well informed public, is aware of.

        So, yeah, Israel has a huge interest to seek acquittals before charges stick and the net of international inquiry spreads.

    • Citizen
      June 15, 2013, 3:12 pm

      If Obsidian is a trial attorney in the USA, he knows that judges heavily favor whatever interests keep them on the bench and drenched in cash. Does he practice in the USA?

      • Obsidian
        June 15, 2013, 4:15 pm

        I practiced in New York City before making aliyah.

        What Citizen says about favored interests is largely correct, which is why I look with a jaundiced eye at Hostage’s many legal citations.

        However, in the instance of 83 year old Judge Meron, it’s probably pure stubborness that keeps him the bench.

      • Hostage
        June 16, 2013, 7:42 am

        What Citizen says about favored interests is largely correct, which is why I look with a jaundiced eye at Hostage’s many legal citations.

        Well I’m usually citing the work of the General Assembly, its Legal – Sixth Committee, it’s subsidiary organ: the International Law Commission, and the ICRC or UN treaty bodies that were responsible for the progressive codification of international law or the establishment of the international criminal tribunals.

        FYI, those are precisely the same special interest groups that gave Meron his current gig with the ICTY. Much of his previous legal experience was acquired either working with or in one of those well-funded UN or ICRC special interest groups. A simple review of his biography/CV will confirm that. http://www.unmict.org/president.html

        In fact much of the material I post here about constituent acts, elements of crimes, and customary law is derived from Meron’s life work in those areas:

        Prior to his election to the ICTY, President Meron was a Public Member of the U.S. Delegation to the Commission on Security and Cooperation in Europe (CSCE) Conference on Human Dimensions in Copenhagen in 1990. In 1998, he served as a member of the U.S. Delegation to the Rome Conference on the Establishment of an International Criminal Court (ICC), where he was involved in the drafting of the provisions on crimes, including war crimes and crimes against humanity. He also served on the Preparatory Commission for the Establishment of the ICC, with particular responsibilities for the definition of the crime of aggression. He has acted as counsel for the United States before the International Court of Justice, and in 2000-2001 served as Counselor on International Law in the U.S. Department of State.

        President Meron has also served on several committees of experts of the International Committee of the Red Cross (ICRC), including those on Internal Strife, on the Environment and Armed Conflicts, and on Direct Participation in Hostilities under International Humanitarian Law. In addition, he was a member of the steering committee of ICRC experts on Customary Rules of International Humanitarian Law. President Meron is a frequent lecturer at ICRC seminars, and he founded and continues to lead the annual ICRC seminars for U.N. diplomats on international humanitarian law at New York University, a tradition spanning nearly three decades.

      • Citizen
        June 16, 2013, 11:23 am

        @ Obsidian
        My experience as a trial lawyer in the USA would suggest that Hostage’s legal citations should not be looked at with a jaundiced eye.

      • talknic
        June 16, 2013, 2:17 pm

        @ Obsidian I practiced in New York City before making aliyah.”

        A) This yours? “First I paraphrased Norm, than I gave the original quote, which I had to search for in archives.” http://mondoweiss.net/2013/06/approaching-finkelstein-reflects.html#comment-569940

        A legal practitioner of any worth should know accurate paraphrasing does not change the meaning of what was said. You changed the meaning completely.

        B) Aliyah quite recently … or not so recently http://pages.citebite.com/n1y7a8x8k1kso …. Oh? http://mondoweiss.net/2012/12/jonathan-cook-on-liberal-zionism.html#comment-521708 … whatever, congratulations

    • Hostage
      June 15, 2013, 4:32 pm

      Phil ignores the whistleblower’s own comment. Judge Harhoff asked, “Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?”. “We will probably never know.”

      Hasbara fail. The Goldstone report addressed several questions and issues directly to the ICC Prosecutor. Wikileaks revealed that the Government of Israel considered the Palestinian complaint with the ICC “an act of war” and asked the United States for help in getting it quashed. Wikileaks also revealed that in response, UN Ambassador Rice personally met with President Song of the ICC and stated serious concerns about the way the ICC should handle the Goldstone report.

      The fact is that the US has adopted legislation that authorizes the use of any force necessary to free US or Israel officials from jail if they are awaiting trial by the ICC. http://www.state.gov/t/pm/rls/othr/misc/23425.htm

      There is no way to spin that as anything other than a blatant threat and contempt for the Court.

  9. HarryLaw
    June 15, 2013, 1:12 pm

    The Israeli military commanders and their legal appendages are forever trying to extend the scope of what is possible in the IDF’s rampages, on the assumption that if they lead the way others will follow and that is the way the law will be made and interpreted, similarly Judge Dorit Beinish interpreted International Law in such a perverse way in her dismissal of the Yesh Din appeal in the quarries case recently that many Israeli International Law scholars took issue with her.here http://yesh-din.org/userfiles/file/%D7%97%D7%95%D7%95%D7%AA%20%D7%93%D7%A2%D7%AA/QuarriesExpertOpinionEnglish.pdf

    • Hostage
      June 15, 2013, 5:34 pm

      The Israeli military commanders and their legal appendages are forever trying to extend the scope of what is possible in the IDF’s rampages, on the assumption that if they lead the way others will follow and that is the way the law will be made and interpreted

      True enough, but there would be no problem at all meeting the ICTY’s new “specific direction” standard for aiding and abetting in connection with illegal deportations, the illegal settlements, and the crimes of persecution or apartheid. Those are crimes regardless of the motives involved and they represent obligations, not options.

      The problem for the defense is that Zionist leaders are completely brazen and openly admit their official disdain for international law. The publicly endorse illegal policies which amount to serious crimes.

  10. Ecru
    June 15, 2013, 1:41 pm

    Disgusting, but worse – not surprising. The USA machinery of State has become completely penetrated by the Zionist project; they are now to all intents and purposes the same thing.

    • john h
      June 17, 2013, 4:17 am

      Don’t ya know – shared values.

      • Ecru
        June 17, 2013, 2:40 pm

        Well they certainly “shared” in the Guatemalan genocide didn’t they.

  11. yourstruly
    June 15, 2013, 1:48 pm

    so is it to be Africans only who will be found guilty by the UN War Crimes tribunal?

    • Maximus Decimus Meridius
      June 15, 2013, 3:10 pm

      I used to say ”Africans and Serbs” (Serbs being Europe’s ”Africans”). But if the above story is true, maybe even Serbs are now off the hook.

    • Hostage
      June 15, 2013, 5:19 pm

      so is it to be Africans only who will be found guilty by the UN War Crimes tribunal?

      Correction: the ICTY has put European criminals behind bars. The United Nations has established Special international criminal tribunals in Rwanda and Yugoslavia and Special Courts in Sierra Leone, Lebanon, Cambodia and East Timor.

      On the other hand, the ICC is not a UN tribunal. It has only put one person in jail so far. The US, for one, was violently opposed to creating a permanent criminal court with general jurisdiction. It would have required US consent to amend the UN Charter to create a permanent tribunal, so the General Assembly convened a Special Diplomatic Conference of Plenipotentiaries instead so that they could established their own independent Court. The ICC merely has a treaty relationship that calls for limited cooperation with the UN.

  12. Hostage
    June 15, 2013, 3:53 pm

    The whistleblower in the case, a Danish judge, accuses the United States and Israel of exerting influence to make the international criminal court toothless.

    That of course is nothing new. Wikileaks had already revealed behind the scenes maneuvers by the US, UK, and France. Of course the US has publicly adopted the Hague Invasion Act to spring US or Allied Israeli officials from jail by force if they ever fall into the hands of the ICC. http://www.state.gov/t/pm/rls/othr/misc/23425.htm

    This doesn’t necessarily translate into a precedent for other criminal tribunals, since different doctrines have evolved over time regarding criminal enterprises that are reflected in the statutes of the newer Courts, i.e. JCE I, JCE II, & etc.

    The Judges of each Court interpret their own statutes for themselves anyway. But the ICC has a lawmaking organ in its Assembly of State Parties that can amend the Statute to codify offenses and their elements without regard for the wishes of the Judges or the Security Council.

    A much more interesting legal development would be the Obama administration’s mental gymnastics and theatrics over the alleged use of chemicals weapons during the Syrian civil war. The latest news reports say that the US will make a fund available that rebels can use to purchase weapons from third parties.

    FWIW, the US and UK unsuccessfully argued in the Security Council that Sadaam Hussein had crossed a red line by using chemical weapons on his own civilian population.

    Then during the 2010 ICC Kampala Review Conference the US opposed amendments to the Rome Statute, including ones that would have specifically criminalized the use of weapons that cause unnecessary suffering (like chemical weapons, biological weapons, white phosphorus, or nuclear weapons, & etc.) in non-international armed conflicts for the very first time.
    http://dataspace.princeton.edu/jspui/bitstream/88435/dsp012b88qc227/1/LISD_ICC2012.pdf

    Only six or seven ICC member states have ratified the proposed amendments so far. That means that without another “special tribunal” there is no conventional basis to prosecute the use of these weapons as war crimes during civil wars today. See Chemical Weapons: Is it a Crime? http://humanrightsdoctorate.blogspot.com/2013/04/chemical-weapons-is-it-crime.html

    So it’s ironic that both the US and UK are once again working without a UN mandate to arm rebels because a “red line” (they’ve worked assiduously to make irrelevant) has been crossed by the Syrian government. See Legally Meaningless “Red Line” Crossed in Syria http://opiniojuris.org/2013/06/13/legally-meaningless-red-line-crossed-in-syria-u-s-government-confirms/

    • Obsidian
      June 16, 2013, 6:38 am

      @Hostage

      You may be treading on thin ice. Beware.

      “The “pressure” by Meron was not imposed by the Americans, but rather the Security Council, which noted in a resolution that the ICTY Appeals Chamber will only hear cases in which the Notice of Appeal is filed by 30 June 2013. Any cases in which the Notice of Appeal is filed on 1 July 2013 or thereafter will be heard by the new Residual Mechanism. This is likely the reason why both the Stanisic and Prlic cases were decided in the last week of May 2013, i.e. so that both cases could be heard by the ICTY Appeals Chamber. This reflects Security Council pressure on Meron to implement the Completion Strategy (which Meron as President of the ICTY is duty bound to implement), and certainly does NOT mean that Meron actually put pressure on any Trial Chamber concerning the RESULT to be reached in these cases.” –excerpt of the reader’s comment of Luka Misetic.

      http://www.ejiltalk.org/danish-judge-blasts-icty-president/

      • Hostage
        June 17, 2013, 11:19 am

        @Hostage You may be treading on thin ice. Beware.

        Beware, you may be clueless.

        Judge Meron and his colleagues were reviewing transcripts where the trial judges were asking the prosecutors very specific legal questions about analogous cases wherein NATO commanders had “knowledge” of on-going crimes against humanity and war crimes, yet continued to supply assistance to allies; continued to participate in the war; & etc. just like the Serbian commanders. Note that “specific direction” was found NOT to be an element of the actus reus of aiding and abetting in the previous Appeal Judgment in Mrksic (para. 159) and Vasiljević (cited above).

        The Prosecutor and Judges in the Momčilo Perišić, case even employed the United States and the illegal transfer and detention of the prisoners at Guantanamo Bay as an example or hypothetical.

        In a split decision, the Judges decided to ignore their own appeals decisions on the subject (stare decisis) and adopt the specific direction standard that they had formerly rejected. Harhoff is not the only expert who suspects that “something is rotten in the State of Denmark”.

      • Obsidian
        June 17, 2013, 12:46 pm

        All of which has nothing to do with the comment I posted.

      • Hostage
        June 18, 2013, 7:10 am

        All of which has nothing to do with the comment I posted.

        Beware, Okay, you may be really are clueless.

    • Citizen
      June 16, 2013, 11:28 am

      Obama’s red line is nothing but a result of his handlers whispering in his ears like Iago. Axelrod, prominent. They are leading Obama down the slippery slope to attack Iran. Let’s one up Adelson, so “you can get your indirect reparations for black Americans via Obamacare and Amnesty.”

  13. Helena Cobban
    June 15, 2013, 8:17 pm

    Some very interesting aspects to this issue:

    (1) Neither the United States nor Israel is actually a ‘state party’ to the ICC. It is outrageous, therefore, that the Assembly of States Party appointed an Israeli-US jurist to be the president of the court. They were kowtowing, to try to win U.S. support for the court.

    (2) Though the U.S. is NOT a party to the Rome Statute (and therefore, handily, its officials are not subject to the jurisdiction of the ICC!), it has nonetheless tried over a course of many years now to USE the Hague court in furtherance of its own imperial policies in various parts of the world.

    (3) Ted Meron himself is a fascinating figure. He was the chief legal counsel of the IDF in 1967-68 (!) But in that period he actually issued an advisory ruling to the IDF, as the occupying power in the OPT’s, that the implantation of Israeli settlements in the OPTs was contrary to international law… Regardless of that ruling, the fact that a previous chief legal officer of the IDF was appointed not just a judge but also president of all the judges on the ICC speaks to the extreme political/juridical bankruptcy of the ICC as a ‘world’ body. (The illusion of all the ICC advocates/supporters in the western liberal glitterati, that any court anywhere could be completely a-political and ‘pure’ is surely unrobed by that fact?)

    • Hostage
      June 16, 2013, 4:24 am

      It is outrageous, therefore, that the Assembly of States Party appointed an Israeli-US jurist to be the president of the court. They were kowtowing, to try to win U.S. support for the court.

      Meron is not a judge of the ICC. He is a US jurist who was nominated by our government to serve as a Judge of the UN Tribunal for the former Yugoslavia.

  14. Helena Cobban
    June 15, 2013, 9:18 pm

    Actually, to be correct, in Sept 1967 he was the legal advisor to the Israeli Foreign Ministry, and offered this judgment regarding the illegality of Israeli settlements in occupied territories: http://www.scribd.com/doc/120087398/Theodor-Meron-on-Legality-of-Civlian-Settlement.

    Interestingly, in many more recent biographies of Judge Meron, his earlier service to the state of Israel has been completely expunged.

  15. irishmoses
    June 15, 2013, 10:53 pm

    I’m sorry, but Obsedian is spot on here. I’m also an attorney and I have yet seen no sufficient factual basis for attacking Judge Meron’s conduct. I think everybody needs to take a deep breath and lower the drama level. We are talking about Judge Theodor Meron who, as Hostage points out, was the legal advisor to the Israeli government in 1967 who said unequivocally that settlements in the West Bank would be illegal and a breach of the Geneva Conventions. He later publicly admitted being the source of that opinion and said he would not change his opinion. Just recently he was interviewed (I can’t remember where) and repeated his statements. He is hardly a “committed Zionist” and, if anything, is a major thorn in side of committed Zionists and their attempts to hasbarize the Zionist history.

    He is also an American citizen and not an Israeli judge. He is also a well-respected international jurist. The fact that he was once an Israeli citizen does not necessarily mean he is a tool of the Zionists or the Israeli government.

    The fact that he may be unwilling to allow automatic convictions of alleged war criminals may be evidence of courage on his part. Annie’s statement above, “‘justice served’ is not synonymous with acquitting defendants”, illustrates the problem. Does Annie mean that acquitting defendants does not serve justice, that accused defendants are necessarily guilty?

    Sometimes justice served means some guilty defendants get acquitted because the evidence against them is too weak to prove criminal guilt. War crimes cases are often very difficult to prove which may be the problem in these cases. Allowing unappealing defendants who may well be guilty to be railroaded into convictions without adequate evidence is not justice.

    Moreover, the crime of “participating in a joint criminal enterprise” has some real problems. Hostage alludes to that in his statement above: “…Meron’s ruling simply says you can’t convict a defendant using guilt by association alone. There must be some evidence that the person “specifically directed” the commission of a crime or the operation of a criminal organization.”

    I’ve always thought Judge Meron was one of the Israeli heroes who refused to rubber stamp illegal Israeli behavior. The fact that a Danish judge doesn’t like his view of the law doesn’t mean Meron is a Zionist/Israeli tool.

    Judge Meron’s legal credentials and history as a thorn in the side of Israeli Zionist extremists should gain him the benefit of the doubt. If MW wants to conduct a rational discussion of Judge Meron’s decisions or legal views that’s fine, but this smells of a hatchet job, perhaps an inadvertent one, but one none the less.

    While I may be opposed to what I see as a rush to judgment about Judge Meron, it would not surprise me if both the Israeli and American government would like to see the ICC become a body less threatening to Israel should any of its citizens be brought up before that court. It is also possible they may try to influence that court, although attempting to do so would risk some very bad publicity if the attempts were revealed. The statement, ““Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?” Judge Harhoff asked. “We will probably never know”, says volumes about Judge Harhoff. Has the good judge Harhoff ever engaged in sex with pre-teen minors? We will probably never know. Talk about hatchet jobs.

    How about, “Judge Meron has led a push for raising the bar for conviction in such cases, prosecutors say, to the point where a conviction has become nearly impossible.” Since when does the opinion of disgruntled prosecutors who have lost a case provide evidence of corruption by the presiding judge? Prosecutors (district attorneys, et al) think everyone they have ever charged with a crime is guilty and every judge or jury who has ruled against them is wrong or even corrupt. The fact that prosecutors want convictions does not mean that the accused defendants are necessarily guilty, even defendants accused of war crimes.

    For good reason, the standard for criminal guilt is a high bar, so high that some who are guilty cannot be convicted because there is insufficient evidence to prove criminal guilt. That’s how the law works. That’s justice. It looks to me like Judge Meron is holding to that high bar despite the unpopularity of his stand. If so, good on him; we need more like him.

    Phil’s statement, “Is this the US imperial state or the Israel lobby at work? My suspicion is of course the Israel lobby…” implies that it is either US imperial state interference or Israel lobby interference on the court and specifically its presiding Judge Meron. There is another possibility, that Judge Meron has a tough job and is willing to apply standards of justice equally despite the clamor of the crowds.

    Judge Meron’s very distinguished history in the Israel-Palestine conflict should have entitled him to quite a bit more respect and deference than this particular thread has shown him.

    Gil Maguire

    • Hostage
      June 16, 2013, 3:19 am

      @Gil Maguire I tend to agree that the US and Israel would not pursue actions indirectly through the ICTY, which is winding down and getting ready to fold-up shop, in order to influence the actions of the ICC.

      There’s plenty of evidence that they’ve gone straight to the officers of the ICC and used their public and private influence as observer states to protect what they perceive to be their own interests. There are reports from other ICTY senior officials who say 18 judges of the tribunal have grouped around an alternative candidate for the scheduled election for tribunal president this fall because they feel Meron is trying to cooperate with his government, but not because they feel he has been approached improperly on the subject, e.g. http://www.ejiltalk.org/danish-judge-blasts-icty-president/

      Judge Meron’s 1967 memo is exactly the sort of documentary evidence that can be used to establish that Israeli officials “specifically directed” the establishment of settlements, despite legal advisories from a multitude of sources that it contravened the 4th Geneva Convention, customary norms regarding racial segregation reflected in the ICERD, & etc.

      As I noted above, it’s a shame that the US does not use the “specifically directed” standard in its own jurisprudence, like the Holy Land Charities case. It would be consistent with the civilized notion of giving the defendant in a criminal case the benefit of any doubt.

      At the same time, Meron is departing from well-established ICTY and other customary views about criminal dereliction of duty and implicit command complicity in systematic and widespread criminal acts committed by subordinate forces.

      • irishmoses
        June 16, 2013, 9:09 pm

        Thanks Hostage for your cogent in-depth analysis. I’ll look at the link you provided below. It would be interesting to know why Judge Meron is backtracking from standards he initially helped create. Maybe he didn’t like the results. I find it difficult to believe that he was acting under the direction of the US government or the Lobby.

        Gil Maguire

    • Annie Robbins
      June 16, 2013, 3:21 am

      gil, The fact that he may be unwilling to allow automatic convictions of alleged war criminals may be evidence of courage on his part.

      i didn’t read anything about even a suggestion of “automatic convictions” in the article. who’s claiming or advocating that?

      Annie’s statement above, “‘justice served’ is not synonymous with acquitting defendants”, illustrates the problem.

      why? do you think justice served is synonymous with acquitting defendants?

      Does Annie mean that acquitting defendants does not serve justice, that accused defendants are necessarily guilty?

      acquitting a guilty defendants does not serve justice, obviously. and convicting an innocent party doesn’t serve justice either. justice served means a fair trial. i am more concerned with the idea the tribunal…has pioneered new laws

      Obsidian said judges are always pressuring the lawyers to move the case

      you said Since when does the opinion of disgruntled prosecutors who have lost a case provide evidence of corruption by the presiding judge? Prosecutors (district attorneys, et al) think everyone they have ever charged with a crime is guilty and every judge or jury who has ruled against them is wrong or even

      nobody said anything about ‘automatic convictions’ and there was not a charge against meron that he was pressuring lawyers or prosecutors to move the case along as both you and obsidian implied. i don’t support ‘automatic’ anything. let’s review what’s been said:

      The New York Times reports on a “mini-rebellion” of judges at the UN war crimes tribunal at the Hague over an Israeli-American “president” judge who is setting the bar impossibly high so as to acquit Serbian and Croat leaders

      and here’s the nyt:

      the court’s president, an American, pressured other judges into approving the recent acquittals of top Serb and Croat commanders.

      pressuring other judges is not the same thing as pressuring lawyers before the bench. and contrary to your argument the charge is not that he “unwilling to allow automatic convictions” is was that he applied pressure to push thru acquittals.

      people should not rush war crimes trials. it take a lot of effort getting those people to trial, after years. there should be no rush to judgement. and judges should not be pressure to acquit anymore than they should be pressured to convict. justice served is not synonymous with acquitting defendants.

      • Hostage
        June 16, 2013, 6:55 am

        i didn’t read anything about even a suggestion of “automatic convictions” in the article. who’s claiming or advocating that?

        FYI, the German Prosecutors failed to produce any reliable evidence that John Demjanjuk was a co-perpetrator of war crimes. The Judge of the Munich Court came to the conclusion that it was sufficient to prove the presence of an accused in a concentration camp to convict him of accessory to murder. He reasoned that every SS member or guard present in a concentration camp was part of the “machinery of murder”. He also concluded that the network of concentration camps had been established and existed for no other purpose.

        In another related article here at MW, “Hiding in Plain Sight”, the Associated Press admitted that its investigation found no record that Michael Karkoc directly committed any war crimes. But the director of the Simon Wiesenthal Center in Jerusalem explained that guilt by association is sufficient grounds for extradition and prosecution in the US and Germany:

        “In America this is a relatively easy case: If he was the commander of a unit that carried out atrocities, that’s a no brainer,” Zuroff told AP. “Even in Germany … if the guy was the commander of the unit, then even if they can’t show he personally pulled the trigger, he bears responsibility.”

        There would be no problem convicting Brig. Gen. (res.) Yitzhak Pundak using Meron’s specifically directed standard of evidence, since the General himself has publicly stated “We Razed Arab Villages, So What? . . . If we hadn’t done it, there would be a million more Arabs and there would be no Israel.” http://mondoweiss.net/2013/06/hiding-plain-sight.html

      • irishmoses
        June 16, 2013, 8:31 pm

        Actually Annie, acquitting a guilty defendant does serve justice if there is insufficient evidence to meet the legal standard of guilt. As I said before, that bar is properly set quite high. To artificially convict a guilty defendant when sufficient evidence of guilt is not available would undermine justice. Serving justice is not always pleasant or popular, but it is still justice.

        “Pressuring other judges” is a loaded term. The implication here is that Judge Meron was pressuring other judges in order to achieve acquittals. Per my and Hostage’s earlier comments, Judge Meron was trying to get his fellow judges to apply the correct legal standard for conviction, not an arbitrary, guilt by association standard.

        As to “rush to judgment”, courts, including ICTY, have busy, crowded dockets. Without pressure from presiding judges, cases tend to molder as Judges put off writing opinions. Failing to move cases along results in injustice to worthy plaintiffs waiting in line, perhaps the Palestinians at some point. Controlling a court or legal body that has 18 or more judges coming from different nationalities and legal systems is worse than herding cats. It is the job of the presiding judge to move cases along. Judges on the receiving end never like it.

        As to “automatic convictions”, the legal theory of guilt by association or member of a criminal enterprise, is essentially that. It means that any NCO or officer above the guilty party in the chain of command is automatically guilty. It applies an inappropriate strict liability standard to criminal law. It is a very dangerous precedent to set as it lowers the bar for criminal conviction down to the level the howling mobs are crying out for which is a far cry from serving justice.

        Gil Maguire

      • john h
        June 17, 2013, 4:40 am

        “acquitting a guilty defendant does serve justice if there is insufficient evidence to meet the legal standard of guilt. As I said before, that bar is properly set quite high. To artificially convict a guilty defendant when sufficient evidence of guilt is not available would undermine justice”.

        That’s talking about legality justice, “the legal standard of guilt”. What most people who have a heart and a thirst for justice are looking for is natural justice. They care about the people the guilty party has damaged and want them to have closure.

        By natural justice I mean actual justice in which someone who is literally guilty because they have actually done what they are accused of, pays what is a just price and is seen to do so.

        To do otherwise “would undermine justice”, so that acquitting a guilty defendant would be to serve injustice.

      • Obsidian
        June 17, 2013, 5:36 am

        Thank you Brother Maguire for your fair and reasoned analysis.

        Now is the time for Phil to step up and apologize for unfairly besmirching the good character of a learned and respected Judge.

      • Annie Robbins
        June 17, 2013, 9:31 am

        Actually Annie, acquitting a guilty defendant does serve justice if there is insufficient evidence to meet the legal standard of guilt.

        with all due respect gil i really think you are missing my point. i already stated “convicting an innocent party doesn’t serve justice “.

        what’s happening here is the ‘legal standard of guilt’ has been shifted. and it has been shifted at a time when the court has yet to decide cases against General Ratko Mladic and Radovan Karadzic president of the Serbian republic in Bosnia. to site the danish press linked by the nyt http://www.b.dk/nationalt/bekymret-dansk-fn-dommer-jugoslavien-generalerne-gaar-fri ” it is now required that the commander must have had a direct intent crimes”….this is changing the goalposts in international law in this way:

        So far it has been up to the commander in the world to ensure that no crimes committed under their command, and if it does, that they are doing what they can to prosecute the guilty. It follows from international law – but maybe not anymore.

        ……

        Associate Professor Karsten Fledelius from Copenhagen University is an expert on the consequences of the civil war and share Harhoffs concern.

        “I agree that the recent decisions are seriously indemnify overall responsibility for subordinates’ crimes. In some of the cases, the defendants free on mere technicalities – such as with the precision artillery shells supposed to hit. It bodes ill for the judicial settlement with General Mladic. Although we can place him at the sites of massacres committed, he was very careful to speak in the media that he was the human-General. The basis throughout the UN tribunal is to proceed to a degree, so we can end up in a situation where the Hague Tribunal would be hard pressed to know a Adolf Hitler guilty of war crimes committed by the German army during the Second World War. ‘

        and this is not about one judges complaint, back to the nyt:

        “I’d say about half the judges are feeling very uncomfortable and prefer to turn to a different candidate,” said a senior court official. The official said he did not believe that American officials had pressured Judge Meron to rule a certain way in any case, “But I believe he wants to cooperate with his government,” the official said. “He’s putting on a lot of pressure and imposing internal deadlines that do not exist.”

        The legal dispute that is the focus of Judge Harhoff’s letter and that has led to sharp language in dissents is the degree of responsibility that senior military leaders should bear for war crimes committed by their subordinates.

        Judge Meron was trying to get his fellow judges to apply the correct legal standard for conviction, not an arbitrary, guilt by association standard.

        i had the misfortune of being accused of a “desire to act as the ultimate gatekeeper of opinions” here the other evening, so feel free to disagree with me all you want. but i would appreciate you understanding my point, which i stated in my earlier comment to you (3:12) by quoting the nyt , the “tribunal…has pioneered new laws”. the definition of what you call ” the correct legal standard for conviction” is being changed, and along with it, international law. that should be of concern to all of us if it’s altered in such a way as only subordinates will be held responsible for crimes committed and not commanding officers.

        so if you think Annie’s statement above, “‘justice served’ is not synonymous with acquitting defendants”, illustrates the problem. i strenuously beg to differ. btw, i noticed you didn’t answer my question:

        do you think justice served is synonymous with acquitting defendants?

        because there are examples of ‘justice served’ that have led to convictions.

      • irishmoses
        June 17, 2013, 10:24 pm

        John H,
        Who exactly will uphold your “natural justice” standard? Will it be a crowd of righteous citizens standing outside the courtroom with noose in hand to insure the exonerated guilty get their more appropriate conviction under their version of natural law? Is there a body of law and legal precedent under your system natural justice? Does it use a jury system? Is there a court of appeal?

        The modern Anglo-American form of jurisprudence and the European counterparts are imperfect at best, but at least they require proof of guilt for conviction. Lacking sufficient proof, you don’t get a conviction even if it seems likely or near certain the accused is in fact guilty.

        I can understand your frustration but your so-called natural law solution would and did result in far more injustice than our currently admittedly flawed system.

        Gil Maguire

      • john h
        June 18, 2013, 9:36 pm

        I understand your point, Gil, and yes, I do agree with you there.

        What I was stating I realise is rarely if ever borne out in practical terms. My purpose was to express the desirable and the just in ethical terms.

        The principle Churchill alluded to in his famous quote about governance, is what applies to jurisprudence. We all know about the fact that, with the system of justice we have, too many of the guilty go free or get a smack on the hand, and too many of the innocent are convicted and seen as guilty and have to do time or even worse.

        Natural justice on its own can often be dangerous because that is what people are capable of misusing in serious ways, and legal justice as carried out has imperfect results because we are imperfect people.

        We rightly choose legal justice, therefore. It is clearly the better of the two in practice. But the principle and ethics of natural justice is what most people long for. We just don’t know how to make it work in practice.

    • Hostage
      June 16, 2013, 10:26 am

      I’m also an attorney and I have yet seen no sufficient factual basis for attacking Judge Meron’s conduct.

      Well the main objection is that Meron has backtracked on doctrines and standards that he helped establish in the first place. Even commentators like Kevin Jon Heller @ Opinio Juris and Marko Milanovic @ the Eurpean Journal of International Law Talk! page, who welcome the specific direction standard as a necessary reform to the doctrine of joint criminal enterprise, don’t support the way it was applied by the Appeals Chamber in these cases.

      All of the defendants were guilty of the aiding and abetting war crimes. There is just no way that they could have been completely unaware of the fact that the forces they were commanding or supporting had morphed into machines of mass murder and criminal persecution that systematically employed summary executions, torture, and rape. Hell the international press was reporting on that situation day-in and day-out. The ICTY Appeals Chamber specifically held in Vasiljević that, in contrast to the doctrine of joint criminal enterprise, the mens rea of aiding and abetting is mere knowledge, not intent:

      In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.

      The text of the Harhoff, email explains in full detail that this new standard is a complete departure from the previous doctrines employed by the ICTY (and everyone else) regarding military command responsibility. http://www.bt.dk/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf

    • Citizen
      June 16, 2013, 11:32 am

      It’s hard not to think of Goldstone.

    • American
      June 16, 2013, 11:51 am

      “I’m also an attorney and I have yet seen no sufficient factual basis for attacking Judge Meron conduct.”

      Well I ‘m not an attorney but I think we can all be forgiven for assuming that a Jewish former Israeli would be swayed in setting precedents that might protect his ‘fellow tribe members’ from future prosecutions regardless of his opinion Israel’s illegalities.
      That after all is what we have seen time after time….that is norm among them, not the exception.
      A thousand times burned a thousand times shy.

      • irishmoses
        June 16, 2013, 8:55 pm

        Well, I spent most of the day watching the US Open golf championship which, unfortunately, was won by a British foreigner. There is no justice.

        I just read through all the comments and I would like to thank Hostage, Harry Law, Helena, Ritzl and others for helping bring some temperance back to this thread.

        In my view, Judge Meron should be viewed by all of us as one of the true heroes on the side of I-P justice. Watch the interview I posted, and then maybe cut him some slack.

        Eating one’s own may slacken hunger, but is a sure road to extermination. Fortunately, MW’s cannibalistic tendencies are on the decline. Was yesterday a day of fasting for our fearless leader?

        Gil Maguire

      • hophmi
        June 17, 2013, 6:44 am

        “Well I ‘m not an attorney but I think we can all be forgiven for assuming that a Jewish former Israeli would be swayed in setting precedents that might protect his ‘fellow tribe members’ from future prosecutions regardless of his opinion Israel’s illegalities.”

        I don’t think you deserve forgiveness. I think you deserve deep contempt for what is an obvious and transparent antisemitic view that has no basis in fact or reality.

      • Citizen
        June 18, 2013, 11:30 am

        Yep, can’t imagine why anyone would think MOTs would look our for their own. I mean, gee, it’s never been discussed in political analysis, historical commentary, or Jewish American novels. And the number of US Congress standing ovations to Bibi Netyahu should ever be compared to those for a POTUS. Yep, “no basis in fact or reality.” We can also ignore the DNC convention, viewed on primetime US TV, where the guy brought the hammer down on protests regarding the Democrat mission statement re Jerusalem. Don’t believe your eyes or ears.

        Just google “Is it good for the Jews?”

      • American
        June 18, 2013, 1:15 pm

        I don’t think you deserve forgiveness. I think you deserve deep contempt for what is an obvious and transparent antisemitic view that has no basis in fact or reality.”…hoppie

        Being slurred by a racist zionist like you really wounds me…..Not…LOL

    • Erasmus
      June 17, 2013, 4:10 pm

      Re: Irishmoses / Gil Maguire
      “We are talking about Judge Theodor Meron who, as Hostage points out, was the legal advisor to the Israeli government in 1967…Just recently he was interviewed (I can’t remember where) and repeated his statements…..”

      Correct, Judge Meron ascertained that this is still is opinion. That must be due to the fact that the Geneva Convention is so airtight and clear on the issue of settling nationals in foreign occupied lands, that there is virtually also no room whatsoever to retreat from his expert opinion given 18.September 1967 to the Israeli Foreign Ministry.

      The Interview in question is the BBC-hardtalk-interview 14Mar2013 with Stephen Sucker, when Judge Meron refused twice to go into details on his affiliation with the Israel Government and Israel’s violation of Geneva Convention’s absolute prohibition to settle Jewish Israelis in the then “occupied Palestinian Terrorities”, now Palestine.
      see: http://www.youtube.com/watch?v=2BwOBsMuPy8)

      Listening (and Seeing Meron’s body language) the whole interview is still rewarding, imho. Especially the second half, when Judge Meron’s diction becomes notably more nebulous and his verbage rather increasingly very generalizing and empty, when more delicate + precise questions have been asked.

      • Hostage
        June 18, 2013, 7:06 am

        Correct, Judge Meron ascertained that this is still is opinion. That must be due to the fact that the Geneva Convention is so airtight and clear on the issue of settling nationals in foreign occupied lands, that there is virtually also no room whatsoever to retreat from his expert opinion given 18.September 1967 to the Israeli Foreign Ministry.

        Well most of us give him credit for “cutting to the chase” and providing a brief summary of his advisory opinion in the cover letter stating flatly that “My conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.”

        But like many Israeli legal opinions or decisions, it goes on to advise how to best disguise or downplay that fact in order to circumvent the provisions of the conventions. I’ve mentioned elsewhere how the Supreme Court used the decision against torture to advise the government on the legislative changes needed to make the practice (technically) legal and to explain that it would hold security service personnel immune in the meantime.

        We shouldn’t loose sight of the fact that Meron did something exactly like that back in 1967. He advised the government to establish settlements under the military’s auspices (i.e. the Nahal settlements) and try to make them look non-permanent if they decided to go ahead with their plans anyway. He also included himself (i.e. “we”) when describing the right-wing Zionist proposition regarding the disputed status of the West Bank and Jerusalem under the armistice agreements. See the full opinion starting on page 3 of 6.
        http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf

  16. irishmoses
    June 15, 2013, 11:27 pm

    Here is the link to the You Tube video I referred to in my long posting above. Judge Theodor Meron is being interviewed on BBC’s Hardtalk. It is well worth listening to in its entirety as it deals with the cases at issue in Phil’s posting. A the 20 minute mark he is asked about his 1967 legal opinion with regard to the settlements. His answer is unequivocal.
    http://www.youtube.com/watch?v=2BwOBsMuPy8

    Gil Maguire

    • HarryLaw
      June 16, 2013, 7:11 am

      Irishmoses @ link to you tube, I have just watched Theodor Meron on Hard Talk and my opinion is that he sounds like a very fair and honest man, I would go further and say he is a gentleman, his opinion on the settlements is still the same, although he quite rightly declined to give his opinion on the jurisdictional aspects of the case. Thanks for the link.

      • Hostage
        June 16, 2013, 4:30 pm

        although he quite rightly declined to give his opinion on the jurisdictional aspects

        Israel has not granted the ICC jurisdiction. So the Palestinians can only grant the Court jurisdiction over crimes committed by members of the Israeli government, the civil administration, the IDF, or the settlers while located on Palestinian territory in Gaza, the West Bank, and East Jerusalem. But that would not include jurisdiction over the acts committed by co-perpetrators who are only located on Israeli territory. So yes, there are complicated jurisdictional issues involved. But there is no question that the local Israeli officials who implement the illegal policies on the ground in Palestine can be prosecuted.

    • ritzl
      June 16, 2013, 2:13 pm

      @Gil Maguire, Hostage, Helena Cobban, Annie. Great thread. Learned so much.

      And thanks for the video of Judge Meron. It ties together a lot of what you all are discussing here.

      Q: What is the appeals process made up of for these international tribunals? Is there say a standing ICA[ppeals]C, or does an appeal get referred to some national court designated to have jurisdiction on a given case, or something else? It seemed to me at least, from the Meron interview that there was a structural avenue for appeals.

      Also, if there is a standing international appeals structure, is it more, or less, susceptible to politicization?

      Again, thanks to you all.

      • Hostage
        June 16, 2013, 3:39 pm

        Q: What is the appeals process made up of for these international tribunals?

        The statutes and amendments adopted by the Security Council establish the jurisdiction and operation of the Courts, including provisions governing the composition and number of the trial chambers and the appeals chamber. http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

        The Judges of the ICTY Appeals Chamber also serve as the Judges of the Appeals Chamber for the Rwandan Tribunal. http://www.icty.org/sid/141

        One of the somewhat unusal features has been the practice of allowing Amici Curiae to file motions of acquittal with the Trial and Appeals Chamber, e.g. http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm

      • ritzl
        June 16, 2013, 4:35 pm

        Thanks Hostage. Can a judge (other than the President) in the Trial Chambers sit on an appeal of his/her decision in the TC, or do they have to [lay usage, please forgive] recuse themselves?

        Meron made the point in the HardTalk interview that international jurisdiction on war crimes, et. al. was in its infancy. That they were [my characterization] feeling their way through this, with the objective of making it an effective and consistently-applied deterrent, eventually. That suggests that as the ICC-related infrastructure increases, so will the specific, explicitly non-conflicting judgeships.

        It’s so hopeful that that expansion (with implied broadening acceptance) might be the case.

      • Hostage
        June 16, 2013, 9:35 pm

        Can a judge (other than the President) in the Trial Chambers sit on an appeal of his/her decision in the TC

        No.

  17. Hostage
    June 16, 2013, 5:33 am

    @ Gil Maguire, I personally don’t think that these Meron acquittals would establish a precedent that would help Israeli officials. After all, they are willing participants in a JCE I criminal enterprise to illegally colonize or annex Arab territories. The commenter’s here may not realize that the doctrines regarding joint criminal enterprises; command responsibility; and the rejection of a defense based upon superior orders are still considered controversial, even if they are well-known. See for example: Jennifer Easterday, Obscuring Joint Criminal Enterprise Liability: The Conviction of Augustine Gbao by the Special Court of Sierra Leone http://bjil.typepad.com/publicist/2010/01/obscuring-joint-criminal-enterprise-liability-the-conviction-of-augustine-gbao-by-the-special-court-.html

    The existence of well-known government planning behind the development and construction of the settlement blocs would probably still leave officials open to liability for “systematic crimes” committed in furtherance of the common plan (JCE II) and the “extended” JCE III doctrine regarding crimes committed outside the common criminal plan that were a natural and foreseeable consequence of that plan. It would only be necessary to establish that they were co-perpetrators and “specifically directed” or participated in the initial JCE I common enterprise (if the Court accepts the doctrine of JCE II & III).

    All of the JCE doctrines were fleshed out in ICTY cases, but they have not been universally accepted, even by the other UN tribunals. In fact, a few had already refused to prosecute individuals on the basis of JCE II and JCE III before these acquittals in the ICTY.

    FYI, I have several of Meron’s books, like Henry’s Wars and Shakespeare’s Laws: Perspectives on the Law of War in the Later Middle Ages and can’t imagine a better qualified individual for a job in the ICTY. Apparently the other judges and the General Assembly agreed, because they’ve elected him and placed him in the top spot twice now.

    Another factor to keep in mind is that international criminal law is a subset of the international foreign relations laws that are created by the governments of States. So it’s part of a Judge’s normal role to implement well-reasoned government policies when they can.

  18. Helena Cobban
    June 16, 2013, 1:23 pm

    Ah, right, Meron’s at ICTY not the ICC. Much of my earlier critique still stands, though. In particular, my critique of the idea that allegedly ‘international’ tribunals (or any tribunals, in any jurisdiction) can deliver a ‘pure’, totally unpoliticized form of justice… Plus, my critique of all these international tribunals formed during the years of ‘western’ dominance of the world system which somehow, mysteriously, never have the many and continuing crimes committed by western and pro-western governments (including Israel), on their docket… There is no equality of nations or responsibilities before the bar of ‘international’ criminal justice; and absent far-reaching reforms in the world’s governance system it is illusory to imagine that there could be.

  19. HarryLaw
    June 16, 2013, 2:34 pm

    Helena @ “There is no equality of nations or responsibilities before the bar of ‘international’ criminal justice”; I agree with you and Theodor Meron does to, he describes the Nurenberg Tribunal as ‘winners justice’, Hope you find time to view the Hard talk interview with Theodor Meron linked to a comment by irishmoses further up the thread.

    • ritzl
      June 16, 2013, 2:42 pm

      And thanks to you too, HarryLaw.

    • Hostage
      June 16, 2013, 5:14 pm

      “There is no equality of nations or responsibilities before the bar of ‘international’ criminal justice”

      That’s true, but it’s a work in progress and more loopholes get closed with each passing day. The ICC and ICJ are not a panecea, but the OAS, the AU, the Inter-American Commission on Human Rights and other regional bodies have entered into treaty agreements with the ICC on enforcement of sentences. In many cases, they have agreed to set-up their own extraordinary criminal tribunals or to use existing regional courts like the African Court on Human and Peoples’ Rights, or the Inter-American Court of Human Rights to hear contintious cases and to compliment the efforts of the ICJ and ICC to end impunity with less outside intervention.

  20. Keith
    June 16, 2013, 6:10 pm

    PHIL- “Is this the US imperial state or the Israel lobby at work?”

    It was the US empire which was behind the establishment of the Yugoslavia ‘kangaroo court’ tribunal. It is a tool of empire, nothing more. The two parties most responsible for the death and destruction in the former Yugoslavia are Germany and the US. Without their machinations, it is unlikely that a civil war would have taken place. If there was any justice, Clinton and NATO would have been in the dock long ago. This is one area where Israel is relatively blameless. You shouldn’t look too hard to see things which aren’t there.

    • Annie Robbins
      June 17, 2013, 12:36 pm

      keith, isn’t it just as relevant to look at what precedence this sets in terms of what could be prosecuted in the future, as well as past events. israel may be blameless in yugoslavia but my understanding of the implications of rules changing in the tribunals is more about changing international law than it is about yugoslavia.

      even a year ago the rules were different. can you think of anything that happened over the last year (like around nov 29th) that might concern israel?

      • Keith
        June 17, 2013, 3:48 pm

        ANNIE- “keith, isn’t it just as relevant to look at what precedence this sets in terms of what could be prosecuted in the future, as well as past events.”

        Power determines who gets prosecuted and who doesn’t. There is already sufficient legal justification for prosecuting every 20th century US president for war crimes. It is not going to happen. Israeli officials are not going to be prosecuted for war crimes unless the empire, including Zionist power elites, want them prosecuted. I don’t believe in dignifying kangaroo courts. Furthermore, I tend to de-emphasize the majesty of our legal system. In many ways, laws are but the codification of the prevailing system of power, justice an incident not an end. For gosh sake, look at the Obama administration’s “legal” shredding of the constitution. The President can “leally” assassinate someone because they gave money to a charity which the State Department has labeled “terrorist.”

      • Donald
        June 17, 2013, 4:48 pm

        “Power determines who gets prosecuted and who doesn’t. There is already sufficient legal justification for prosecuting every 20th century US president for war crimes. It is not going to happen. Israeli officials are not going to be prosecuted for war crimes unless the empire, including Zionist power elites, want them prosecuted. I don’t believe in dignifying kangaroo courts. ”

        This is true, but I think it’s useful to point out the double standards and hypocrisy.

  21. hophmi
    June 16, 2013, 7:30 pm

    Just a total distortion of what the article says.

    There is not a shred of proof in this article that Meron is acting as anything other than a admin judge. What we have here is a disgruntled judge who probably simply wants another judge other than Meron, who is 83, on the bench, and probably because Meron is actually getting these judges to do hard work, which is what admin judges are supposed to do.

    It is yet another conspiracy theory for which Phil provides zero proof other than his own “feelings.”

    • Hostage
      June 17, 2013, 8:01 am

      It is yet another conspiracy theory for which Phil provides zero proof other than his own “feelings.”

      Fair enough. I’ll quote the in-court exchange that was recorded between Presiding Judge Moloto and Senior Trial Attorney Harmon during the closing trial arguments in the Perišić case. It was the first conviction that was overturned on a point of law (not on the facts) by the Appeals Chamber using the new “specific direction” standard.

      This is evidence that the ICTY Judges are mindful of the possible implications of these legal questions in connection with the possible criminal culpability of NATO commanders in what Judges see as “analogous circumstances”. These two officers of the Court even use the United States as their example:

      Judge Moloto: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or commander of the assisting army is guilty of aiding and abetting those crimes?
      Mr. Harmon: Your Honour, General Perišić provided assistance knowing that that assistance was going to assist the VRS [Bosnian Serbs] and it was likely that that assistance would be used in the commission of crimes.
      Judge Moloto: Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged to have been committed, and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places?
      Mr. Harmon: Your Honour, you are asking me obviously, an explosive political question.
      Judge Moloto: No, no. It’s a legal question.
      Mr. Harmon: I would like to answer your question. The objectives, as I understand, of the NATO forces isn’t to ethnically cleanse parts of Afghanistan. It is to be engaged in a military campaign against the Taliban. It is —
      Judge Moloto: Mr. Perišić is not charged with ethnic cleansing. He is charged with murders. That’s why I’m making the distinction between the actual crimes that are charged in the indictment. […]
      [snip]
      Judge Moloto: [M]y question still stands, […] – what is the authority for that proposition and I’m saying can you comment on the – on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.

      Mr. Harmon: I draw the distinction as I say, as follows, Your Honour, the first situation is it’s a war, it’s a war in Bosnia and it was a war in and it is an on-going war in Afghanistan. Where I make my distinction is the purpose in objectives. The objectives of Bosnian Serbs, in part of strategic objective number 1, was to ethnically cleanse, if you will, that is a much broader term, it was to separate the Serbs from the non-Serbs. That act gave rise to conduct, long-standing conduct that lasted throughout the war of the VRS taking populations of Muslims and Croats and removing them from their homes by force. That was no mystery. General Perišić was aware, as we say in our brief, was fully aware of the conduct of the Bosnian Serbs, and with the knowledge of that conduct he provided them with assistance that enabled them to continue to conduct the war, continue to commit crimes, and that assistance that he provided had a substantial effect on the commission of those crimes. So I make a distinction between the Afghan war, where there is not the stated purpose which is to remove and ethnically cleanse. I also make one other observation about the Afghan war. In the Afghan war, and I’ll take the United States as an example, because I’m familiar with the United States’ participation in part in that. When there were crimes that were committed by American soldiers, those crimes were prosecuted in the United States and people are serving life prison sentences as a result of those crimes committed against Afghan civilians. In this situation, there were no prosecutions whatsoever, either in the VRS or in the Federal Republic of the Yugoslavia for war crimes.
      [snip]
      Judge Moloto: You see, unfortunately, we don’t seem to be on the same wavelength. […] [T]he point I’m asking simply is because the armies, the commanders of the remaining NATO countries that are participating in Afghanistan are aware of the fact that crimes have been committed, crimes against humanity have been committed, and yet those commanders are still continuing to participate in that war, are they then guilty of those crimes that are being committed? That’s just – you either say they are not guilty or they are guilty. If anybody is guilty of those crimes, then they are equally guilty with those people of those crimes, because they are aware of those crimes being committed and yet they are continuing to participate in that war.
      Mr. Harmon: I draw a distinction, Your Honours, between continuing to participate in the war. The position we assert here is identical to the situation in your hypothetical situation.
      [snip]
      Judge Moloto: And, therefore, if it is identical, then you are saying, yes, they ought to be guilty if anybody else is guilty.
      Mr. Harmon: Your Honour, I don’t want to go that far. I’m saying that the situation is identical in terms of the framework of our case.
      Judge Moloto: I won’t force you to go any further than that.

      Here is a link into the relevant ICTY video transcript at 8 minutes 43 seconds http://www.youtube.com/watch?v=6Cfbt_mQ-rw&t=8m43s

      That’s part of the official record that Judge Meron had to revist on the appeal, where the other Judges say that he pressed them for an acquital. So that might put the situation into a different perspective.

      • hophmi
        June 17, 2013, 11:32 am

        You quote an appellate colloquy in which an analogy is drawn to American involvement in Afghanistan as evidence that the Americans are “pressuring the court.”

        Besides the fact that this says bubkus about Israel, the notion that this is tantamount to American pressure is like saying the broccoli industry is pressuring the Supreme Court because Justice Scalia used a broccoli analogy during oral argument on the mandate provisions of the ACA.

        “That’s part of the official record that Judge Meron had to revist on the appeal, where the other Judges say that he pressed them for an acquital. So that might put the situation into a different perspective.”

        Pressured? You mean, he argued his position and said they should adopt it?

        They voted the other way. Did the sky fall?

      • Annie Robbins
        June 17, 2013, 12:32 pm

        Pressured? You mean, he argued his position and said they should adopt it?

        They voted the other way.

        hops, according to “a senior court official” cited by nyt 1/2 the judges “are feeling very uncomfortable and prefer to turn to a different candidate,”

        this is not about the 2 judges out of 3 who adopted his ptv on the acquittal.

      • Hostage
        June 17, 2013, 12:52 pm

        You quote an appellate colloquy in which an analogy is drawn to American involvement in Afghanistan as evidence that the Americans are “pressuring the court.”

        You need to work on your reading comprehension. That was the trial court, not appeals chamber. You are putting scare quotes around words and phrases that don’t even appear in any of my comments in this thread.

        The senior court officials quoted in the New York Times article said that they do not think the rulings which abruptly rewrote the legal standards that had applied in earlier cases were the result of American pressure. They believed that Meron and the judges that joined in the decisions simply want to cooperate or assist their governments. I said that I doubted that the US or Israel would bother approaching the ICTY, since they are already working publicly and privately with the ICC as observer states to protect their interests.

        You’re trolling the thread with artless lies, distortions, and the usual crap you spout about racism.

      • hophmi
        June 17, 2013, 1:10 pm

        “You need to work on your reading comprehension. That was the trial court, not appeals chamber. You are putting scare quotes around words and phrases that don’t even appear in any of my comments in this thread. ”

        It really doesn’t matter where the argument took place. It’s oral argument on a legal matter, in which analogies are drawn all the time.

        “They believed that Meron and the judges that joined in the decisions simply want to cooperate or assist their governments.”

        Yeah, a very convenient excuse for the disgruntled here, particularly when Meron comes from the country with the world’s most active military. What were the motivations of the Madagascar, Maltese, and Senegalese judges?

      • Hostage
        June 18, 2013, 10:43 am

        “They believed that Meron and the judges that joined in the decisions simply want to cooperate or assist their governments.”

        Yeah, a very convenient excuse for the disgruntled here, particularly when Meron comes from the country with the world’s most active military. What were the motivations of the Madagascar, Maltese, and Senegalese judges?

        As of 11 December 2006, the U.S. State Department reports 102 countries have entered into bilateral ICC immunity agreements with the USA. Two of the countries on your list above, Madagascar and Senegal, have signed one of those get-out-of-jail-free, behind the barn immunity agreements. The third, Malta, has entered into a formal agreement to be a NATO partner state. In the past, the USA suspended military aid to Malta for 3 years to punish it for refusing to sign a bi-lateral agreement on ICC immunity. So yes, the USA has thrown its weight around and used its influence or threats against these countries.

        BTW, would you like to comment on the propriety of Judge Meron’s direct relations and on-going communications with the US State Department on day-to-day internal ICTY management issues that bypass normal UN channels?

      • hophmi
        June 18, 2013, 11:01 am

        A nice argument that would have more weight if these were state reps, rather than judges. Also a nice argument if this issue of specific direction hadn’t come up in the near past in other cases.

        But ultimately a conspiracy theory.

        “BTW, would you like to comment on the propriety of Judge Meron’s direct relations and on-going communications with the US State Department on day-to-day internal ICTY management issues that bypass normal UN channels?”

        I read the wikileaks cable. It looks improper, but it really isn’t. When you consider that the prosecutor is appointed by the Security Council, communication between the admin judge and the country that has a major role in making the appointment is hardly unexpected. And it appears, as would be expected, that the communication had to do not with any specific legal question, but with Del Ponte’s management style. If this were a lawyer being considered for a public appointment to a state bench or as a special prosecutor in some case, it would be routine for the appointing authority to seek out the view of judges the candidate has practiced before.

        I think we can all agree that the length of these trials has been a serious problem, and that Meron’s concern about trying these cases in an effective, timely way, is reasonable and part of his responsibility as an admin judge.

      • Hostage
        June 18, 2013, 12:23 pm

        A nice argument that would have more weight if these were state reps, rather than judges.

        Please explain why Meron has spent years coordinating and communicating day-to-day internal management issues with the U.S. State Department through its Embassy in the Netherlands, instead of through the UN organs he’s supposedly working for? You keep saying he’s not a state rep, but that claim is unconvincing in light of all the evidence disclosed by Wikileaks. What gives?

      • hophmi
        June 18, 2013, 12:56 pm

        “Please explain why Meron has spent years coordinating and communicating day-to-day internal management issues with the U.S. State Department through its Embassy in the Netherlands, instead of through the UN organs he’s supposedly working for? ”

        I see two cables, both related to Carle del Ponte’s reappointment, not day-to-day issues. Both cables are from 2003, ten years ago. As I said, it doesn’t surprise me a great deal that the President of the Tribunal would consult with one of the appointing authorities on the reappointment of the Chief Prosecutor (who, by the way was REAPPOINTED to a second term). I don’t see lots of evidence here. I see a couple of disgruntled judges who are acting unprofessionally by talking to the press about a superior, a superior with a stellar reputation.

      • Hostage
        June 18, 2013, 3:07 pm

        I see two cables, both related to Carle del Ponte’s reappointment, not day-to-day issues. Both cables are from 2003, ten years ago.

        The complaints haven’t been limited to two Wikileaks cables, but rather on reports from his colleagues and co-workers concerning the Judge’s habitual practice.

        As I said, it doesn’t surprise me a great deal that the President of the Tribunal would consult with one of the appointing authorities on the reappointment of the Chief Prosecutor

        It’s not part of the Court President’s brief and he has been criticized for talking to outsiders at all, and condemned for talking to his own government about it. See The Real Judge Meron Scandal at the ICTY http://opiniojuris.org/2013/06/17/the-real-judge-meron-scandal-at-the-icty/

      • hophmi
        June 18, 2013, 4:14 pm

        I’ve read the Kevin Jon Heller article; the debate is very interesting.

        I think an argument could be made that it gives the appearance of impropriety. But I don’t think it goes much further than that. As I said before, this is an admin judge talking about admin matters with an appointing authority, and in the end, not getting what he wanted.

      • Hostage
        June 19, 2013, 8:14 am

        As I said before, this is an admin judge talking about admin matters with an appointing authority, and in the end, not getting what he wanted.

        And as I pointed out to you before, his brief does not include administering the Prosecutor’s cases. The Prosecutor and the President of the ICTY were consulted separately by the Security Council on the details of the schedule to shutdown the Tribunal, because it isn’t Meron’s call and it isn’t up to him to make those decisions for the Prosecution.

        P.S. One of the biggest complaints about the ICC, so far, has been the way Prosecutors have excluded victims from the process and the failure to call them as witnesses.

        When you have hundreds of thousands of people exterminated in hundreds of separate incidents that are part of a systematic regional policy, you may need to call 90 witnesses. Scores of witnesses were called upon to to testify in the Eichmann trial. There’s no evidence that the Judges in that case tried to fire the Prosecutor for doing that in order to “move things along”.

  22. Hostage
    June 17, 2013, 7:25 am

    Just a total distortion of what the article says.

    The European Journal of International Law’s Talk! blog is dishing-up the same material covered in Phil’s article. See: Danish Judge Blasts ICTY President [UPDATED] http://www.ejiltalk.org/danish-judge-blasts-icty-president/

    How on Earth can it be a total distortion of what the article says when Phil is simply summarizing the contents of the Danish Judge’s letter (.pdf)? The New York Times reported that even before Harhoff’s letter was published the acquitals had already been very controversial among international lawyers, human rights groups, and at least half of the 18 judges of the ICTY itself. Your claim that it’s just one irritated Jurist is the distortion in this case.

    There’s really no problem finding articles or blog comments by scholars with PhDs in international law condemning the adoption and application of the “specific direction” standard in these cases. Here are some that discuss the pros and cons by Profs James Stewart and Kevin Jon Heller with comments by a number of other experts:
    *James G. Stewart Guest Post: The ICTY Loses its Way on Complicity – Part 1 http://opiniojuris.org/2013/04/03/guest-post-the-icty-loses-its-way-on-complicity-part-1/
    *James G. Stewart Guest Post: The ICTY Loses its Way on Complicity – Part 2
    http://opiniojuris.org/2013/04/03/guest-post-the-icty-loses-its-way-on-complicity-part-2/
    *Kevin Jon Heller : Why the ICTY’s “Specifically Directed” Requirement Is Justified http://opiniojuris.org/2013/06/02/why-the-ictys-specifically-directed-requirement-is-justified/
    *James G. Stewart “Specific Direction” is Indefensible: A Response to Heller on Complicity http://opiniojuris.org/2013/06/12/specific-direction-is-indefensible-a-response-to-heller-on-complicity/
    Manuel J. Ventura: Guest Post: What the ICTY appeal judgment in Perišić means for the SCSL Appeals Chamber in Taylor http://dovjacobs.blogspot.nl/2013/03/guest-post-what-icty-appeal-judgment-in.html

    Even people, who support doing a better job of distinguishing between the culpable and non-culpable have either condemned this particular exercise or refused to defend these acquittals. Marko Milanovic an editor of the European Journal of International Law commented on the articles above saying:

    Even though I am very much opposed to the Perisic acquittal – and even more so to that of Stanisic and Simatovic, two utter villains if there ever were any – I accept your point that there is a purpose served by the specific direction standard, namely drawing a line between culpable and non-culpable assistance to a crime. This is precisely why the Appeals Chamber did what it did, looking at Libya, Sirya etc, and its reasoning will have consequences even outside the ICTY – note the pending Charles Taylor appeal. But even if we disregard the conceptual objections made by James etc, the specific direction standard is in my view manifestly incapable of drawing that line in a non-arbitrary way.

    What Perisic, and especially Stanisic and Simatovic did, was not some generalized aid to a war effort, knowing that there’s a risk that some crimes might happen. This wasn’t your Syria or Libya. Rather, they provided vast amounts of aid to an entity which had a systematic policy of committing crimes against international law. Ethnic cleansing was not just an unfortunate risk or possibility in Bosnia and Croatia, it was the whole point of the war effort. This was especially true in the initial stages of the conflict. Without the massive amounts of aid, assistance and coordination (at the very least) that was provided by the Serbian leadership to the Bosnian and Croatian Serbs, it would have been impossible to commit ethnic cleansing on the immense scale that provoked the creation of the ICTY in the first place.

    So, in short, I find the Appeals Chamber’s approach profoundly unsatisfactory. If what Stanisic and Simatovic in particular did was not criminal, then I really don’t know what is. And I am even more unsettled by thinking of what the consequences of such reasoning would have been in the Milosevic case, had that come to final judgment.

    NB: We’ve had an interesting discussion of this on EJIL Talk, and I particularly commend to readers the comment by Manuel Ventura, who in a separate post provides some very interesting details of the oral argument in Perisic: http://www.ejiltalk.org/the-limits-of-aiding-and-abetting-liability-the-icty-appeals-chamber-acquits-momcilo-perisic/

    Heller who had authored the theoretical defense of the standard replied:

    Marko,
    I happily defer to your understanding of the ICTY cases — that’s why I specifically disclaimed any desire to affirm how the various chambers applied the specific-direction test. My goal, as you recognize, was simply to point out that there are situations in which the requirement might make sense. You are absolutely right that when an organization is primarily, if not exclusively, engaged in unlawful acts, the test seems particularly unsatisfactory.

    What we have here is a disgruntled judge who probably simply wants another judge other than Meron, who is 83, on the bench, and probably because Meron is actually getting these judges to do hard work, which is what admin judges are supposed to do.

    No, these decisions had already caused a shit storm in the international criminal law community.

    • Shmuel
      June 17, 2013, 8:16 am

      I’m reminded (probably rather tangentially from a strictly juridical point of view) of the debate surrounding the Bielefeld Trial (1966-67), concerning Nazi war crimes in the Bialystok District — including the definition of terms such as “perpetrator”, “principal perpetrator”, “accomplice”, “personal intent”, etc.

      Historians such as Katrin Stoll have suggested that the historical importance of such trials goes well beyond the question of conviction/lesser-conviction/acquittal.

      Stoll writes, for example (“Producing the Truth: The Bielefeld Trial and the Reconstruction of Events Surrounding the Execution of 100 Jews in the Bialystok Ghetto Following the ‘Acid Attack'”, Dapim: Studies on the Shoah 25 [2011]):

      The example of the allegation of “execution by shooting of 100 retaliation victims” illustrates how legal proceedings can contribute to the study of Nazi crimes. In order to establish the defendants’ guilt, the court first had to ascertain the precise facts of the case. The court thus reconstructed the details of the events … finding that there was no justification for the execution of 100 helpless and innocent people … and that this action constituted a crime – murder, according to article 211 of the German criminal code, in effect at the time the action was committed. By means of this approach, the court succeeded in thwarting efforts to downplay Nazi crimes, that is ideologically-motivated war crimes. The court’s findings thus transcend the investigation of a specific criminal act. It is also noteworthy that the court defined the events in question as criminal acts, and made an important contribution to the study of the factual and legal aspects of those crimes.
      Ultimately, how should the conclusions and reasoning of the Bielefeld court be viewed? Joachim Lege wrote that a legal decision should be considered successful if it offers “at least satisfactory reasons for a tolerable result.” By this standard, the decision of the Beliefeld court can be considered a “legal success.” … For a jurist, it may be perfectly reasonable to consider the defendant a mere recipient of orders, lacking personal intent. A historian however, must consider such an interpretation from a historical perspective….
      Although the court failed to consider the defendants party to the will of the “principal perpetrators” to commit murder, but accomplices only, it clearly established the facts of the case and proof of individual guilt. It is to these two final points that the Bielefeld trial owes its historical importance, both because few such trials in West Germany ended in conviction, and because defendants in many other criminal trials were acquitted due to the inability of the prosecution to establish the facts of the case or present sufficient evidence.

  23. hophmi
    June 17, 2013, 7:40 am

    I see nowhere here any substantiation of the accusation that Israel is “manipulating” the Hague. The accusation appears to based on Meron’s background as an Israeli diplomat, nothing more.

    What nonsense. Meron did not make these decisions by fiat. His American citizenship and Israeli past are convenient cudgels. There’s not a shred of evidence that either has anything to do with the MAJORITY DECISION of the court.

    This is taking a legal debate and injecting xenophobia and bigotry into it.

    • Annie Robbins
      June 17, 2013, 12:03 pm

      any substantiation of the accusation

      strawman, phil never accused israel was manipulating the hague.

      • hophmi
        June 17, 2013, 12:20 pm

        “US and Israel are accused of manipulating Hague”

        “My suspicion is of course the Israel lobby; I think Israeli ideas of how to deal with conflict have swayed the U.S. during the great war on terror/clash of civilizations which aligns the U.S. so perfectly with the only democracy in the Middle East.”

        Distinction without a difference.

      • Annie Robbins
        June 17, 2013, 12:45 pm

        Distinction without a difference.

        don’t be disingenuous. if there was no difference why didn’t you say:

        I see nowhere here any substantiation for phil’s suspicion that “Israeli ideas of how to deal with conflict have swayed the U.S.”

        ;)

      • hophmi
        June 17, 2013, 1:11 pm

        “I see nowhere here any substantiation for phil’s suspicion that “Israeli ideas of how to deal with conflict have swayed the U.S.””

        Because that isn’t really what Phil said, and it’s clear that Phil’s headline expresses support.

    • Hostage
      June 17, 2013, 12:29 pm

      I see nowhere here any substantiation of the accusation that Israel is “manipulating” the Hague.

      Oh please, Phil said “Is this the US imperial state or the Israel lobby at work? My suspicion is of course the Israel lobby;”

      1) Our own President has become the head cheerleader of the mantra that Israel has to able to defend itself by itself without the presence of peace keepers;
      2) Our own Congress has hidden away provisions in a so-called “American Service-Members’ Protection Act” that would allow the use of force to free Israeli or any other allied civilian officials awaiting trial in the Hague.
      3) After the General Assembly endorsed its findings and recommended action by the ICC, the Congress adopted legislation calling on the UN to rescind the Goldstone Report;
      4) There are Wikileaks cables which illustrate behind the scenes requests from the Israeli government to the US for assistance in getting the Palestinian complaint in the Hague withdrawn and meetings where US UN Amb. Rice lobbied ICC President Song about the Court’s handling of the Goldstone report.

      But no, you can’t comprehend that the US government or the Israel Lobby had a hand in any of that.

      What nonsense. Meron did not make these decisions by fiat.

      No, he was assisted by colleagues from other NATO countries with a stake in reversing the existing appeals chamber stare decisis on aiding and abetting which held that acting with “knowledge” was the applicable legal standard, not “intent” or “special direction”.

      • hophmi
        June 17, 2013, 1:06 pm

        “1) Our own President has become the head cheerleader of the mantra that Israel has to able to defend itself by itself without the presence of peace keepers;”

        So, are you asserting that Europe would like to send peacekeepers to the Middle East to help Israel defend itself?

        “2) Our own Congress has hidden away provisions in a so-called “American Service-Members’ Protection Act” that would allow the use of force to free Israeli or any other allied civilian officials awaiting trial in the Hague.’

        Nonsense. It covers US servicemen, not the allies. http://www.hrw.org/en/news/2002/08/03/us-hague-invasion-act-becomes-law

        “3) After the General Assembly endorsed its findings and recommended action by the ICC, the Congress adopted legislation calling on the UN to rescind the Goldstone Report;”

        It didn’t take much prompting.

        “4) There are Wikileaks cables which illustrate behind the scenes requests from the Israeli government to the US for assistance in getting the Palestinian complaint in the Hague withdrawn and meetings where US UN Amb. Rice lobbied ICC President Song about the Court’s handling of the Goldstone report. ”

        Israeli government is not Israel lobby.

        “But no, you can’t comprehend that the US government or the Israel Lobby had a hand in any of that.”

        None of this, none, not an iota, constitutes evidence that this was behind the court’s decision to require a finding of “specific direction” in aiding and abetting cases.

        “No, he was assisted by colleagues from other NATO countries with a stake in reversing the existing appeals chamber stare decisis ”

        How so? The majority in Perisic was Meron, Agius, Ramaroson, and Vaz. Agius is from Malta. Ramaroson is from Madagascar. Vaz is from Senegal. Besides the fact that all of these judges are not acting in their national capacities, what is Madagascar and Senegal’s interest? What’s Malta’s?

        Not one of these is a NATO country.

        In Gotovina, the 3-2 case, the majority was Meron, the Turkish judge (who somehow is protecting Israeli soldiers now?), and Robertson, a Jamaican judge. The dissenters were Pocar, an Italian (NATO member) and Agius (a non-NATO state).

        So we have all of one judge from a NATO ally in Gotovina (and another in dissent), and all of none outside of Meron in the majority in Perisic.

      • Hostage
        June 17, 2013, 9:53 pm

        So, are you asserting that Europe would like to send peacekeepers to the Middle East to help Israel defend itself?

        Wow! You really are uninformed. The idea of using NATO forces in the West Bank has been proposed by President Clinton, the Secretary-General of NATO, the High Representative of the EU for Foreign Relations, and former National Security Advisors James L. Jones, Brent Scowcroft, and Zbigniew Brzezinski. See:
        *The Associated Press NATO offers Israel, Palestinians peacekeeping troops after Mideast peace deal http://www.washingtonpost.com/wp-dyn/content/article/2011/02/09/AR2011020903719.html
        *NATO in the West Bank link to newsweek.com
        * Abbas: “Future State Will Be Under NATO Security Forces Headed By The USA” link to imemc.org
        * Abbas Wants US-led NATO Force for PA State: PA chairman Mahmoud Abbas told US lawmakers he wants a US-led NATO force to provide security for the future ‘Palestinian state.’
        http://www.israelnationalnews.com/News/News.aspx/146691#.Ub-pOxUYodg

        So EU and the US officials have both suggested ending the occupation by deploying NATO peace keepers in Palestine. AIPAC and Israel have responded by rejecting the idea. They’ve lobbied for the demilitarized Palestinian dependent state and their continued presence in an undivided Jewish capital, the Jordan Valley, and all the settlement blocs – so they can keep on shooting fish in a barrel and colonizing the region while using the lame excuse that Israel has to be able to defend itself, by itself.

        Nonsense. It covers US servicemen, not the allies. link to hrw.org

        You need to work on your basic reading comprehension. The link you just supplied says:

        The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague.

        I gave you a link to the text of the Statute itself. It’s unambiguous on the subject of freeing allies on the request of the allied government. Here it is again:

        SEC. 2008. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND CERTAIN OTHER PERSONS DETAINED OR IMPRISONED BY OR ON BEHALF OF THE INTERNATIONAL CRIMINAL COURT.

        AUTHORITY- The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.

        PERSONS AUTHORIZED TO BE FREED– The authority of subsection (a) shall extend to the following persons:

        Covered United States persons.

        Covered allied persons.

        Individuals detained or imprisoned for official actions taken while the individual was a covered United States person or a covered allied person, and in the case of a covered allied person, upon the request of such government.

        http://www.state.gov/t/pm/rls/othr/misc/23425.htm

        Israeli government is not Israel lobby.

        Ambassador Rice was lobbying the President of the ICC about the handling of the Goldstone report on behalf of Israel stupid.

        How so? . . . Not one of these is a NATO country.

        We’re talking about three appeals cases where there were one or more Judges from a NATO member state on the panel. The New York Times article points out that Meron has been accused of pressuring a Turkish Justice who had the swing vote in one of those cases.

        I specifically said that NATO states had a self-interest in changing the aiding and abetting standard independent of any interest in protecting Israel.

      • hophmi
        June 17, 2013, 10:29 pm

        I am well aware of proposals to use NATO troops for peacekeeping in the Middle East. I am not aware of the characterization of those troops as “defending Israel.” So you can save your condescending for someone who cares.

        You really are disingenuous. The bill protects US servicemen and CERTAIN ALLIED PERSONS, not all allies and not specifically Israeli allies. It’s is wholly disingenuous to suggest that this has anything to do with Israel or that the Act is anything but symbolic.

        As far as the ICTY cases, I’ve shown that in the cases where you claim, with zero proof, that the US judge or NATO states exercised pressure, in at least one instance, most of the majority was from Africa. You’ve not responded to that point, as befits a conspiracy theorist.

      • Hostage
        June 18, 2013, 12:05 pm

        You really are disingenuous. The bill protects US servicemen and CERTAIN ALLIED PERSONS, not all allies and not specifically Israeli allies. It’s is wholly disingenuous to suggest that this has anything to do with Israel or that the Act is anything but symbolic.

        I’ve given you the link to the text of this statute several time now. It specifically defines Israel as one of the governments that can request assistance under the act in freeing an allied person:

        SEC. 2013. DEFINITIONS.

        As used in this title and in section 706 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001: . . .

        3. COVERED ALLIED PERSONS- The term `covered allied persons’ means military personnel, elected or appointed officials, and other persons employed by or working on behalf of the government of a NATO member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand), or Taiwan, for so long as that government is not a party to the International Criminal Court and wishes its officials and other persons working on its behalf to be exempted from the jurisdiction of the International Criminal Court.

        http://www.state.gov/t/pm/rls/othr/misc/23425.htm

        You don’t need to apologize, you just need to take the chip your shoulder and STFU about the quality of other people’s fact checking.

        As far as the ICTY cases, I’ve shown that in the cases where you claim, with zero proof, that the US judge or NATO states exercised pressure, in at least one instance, most of the majority was from Africa. You’ve not responded to that point, as befits a conspiracy theorist.

        In fact I’ve pointed out that the USA had used threats and coercion against the governments of all the countries you cited to obtain bilateral ICC agreements that grant the USA blanket immunity in any ICC criminal case. That’s been an open scandal in the legal community for more than a decade.

      • AlGhorear
        June 18, 2013, 12:26 pm

        Hophmi just doesn’t know when to quit and if he didn’t exist, we’d have to invent him. He sets himself up perfectly for Hostage (and others) to shred his arguments to pieces. The exchange about the American Service-Members’ Protection Act, that would allow the use of force to free Israeli or any other allied civilian officials awaiting trial in the Hague, is priceless.

      • hophmi
        June 18, 2013, 12:46 pm

        “You don’t need to apologize, you just need to take the chip your shoulder and STFU about the quality of other people’s fact checking. ”

        Mea culpa. I misread it. I don’t need the STFU. I’ve caught you being disingenuous with sources before.

        And you’re still being disingenuous here, because your original assertion was that the inclusion of Israel on that list is somehow because the Israel lobby. That’s ridiculous. Israel is a major non-NATO ally, and would be in the bill whether there was an AIPAC or not.

        “In fact I’ve pointed out that the USA had used threats and coercion against the governments of all the countries you cited to obtain bilateral ICC agreements that grant the USA blanket immunity in any ICC criminal case. That’s been an open scandal in the legal community for more than a decade.”

        None of this explains the decision of independent judges to acquit a defendant. If that’s true, then your argument is that every judge is acting on behalf of their home country, not just the US judge.

      • hophmi
        June 18, 2013, 12:48 pm

        ” He sets himself up perfectly for Hostage (and others) to shred his arguments to pieces.”

        Not really. I make mistakes; I admit them when they are pointed out to me. I misread the statute. Hostage is still disingenuous to argue that Israel’s inclusion in a statute that covers all NATO and major non-NATO allies is because of the lobby.

        “The exchange about the American Service-Members’ Protection Act, that would allow the use of force to free Israeli or any other allied civilian officials awaiting trial in the Hague, is priceless.”

        I’m sure you enjoyed it. Unlike most people here, I do admit mistakes when I make them.

      • Hostage
        June 18, 2013, 2:43 pm

        None of this explains the decision of independent judges to acquit a defendant. If that’s true, then your argument is that every judge is acting on behalf of their home country, not just the US judge.

        Some of the commenters here are reminiscent of the proverbial frog being boiled alive. The USA and Israel have publicly launched frontal assaults on the norms of international criminal law. So it’s really irrelevant whether they’re doing the same thing in private behind closed doors at the Hague. See: Israel Pushes To Change International Laws Of War After Damning Gaza Report http://www.huffingtonpost.com/wires/2009/10/21/israel-push-to-change-law_ws_328024.html

        Let’s spell it out one more time. As a matter of public law, the US has conditioned its foreign assistance and the exercise of its good offices on behalf of other states upon their conclusion of bilateral agreements that guarantee US citizens unconditional immunity from prosecution by the international criminal tribunals. The USA has placed sanctions on states that have failed to pledge their cooperation. If that approach fails, there is another US law that allows the armed forces to use any necessary means to free any Americans or Israelis awaiting trial in the Hague.

        So the Judges of these tribunals and their governments have been given every possible incentive to cooperate in granting the wishes of the USA and Israel, or else.

    • Donald
      June 17, 2013, 1:50 pm

      “This is taking a legal debate and injecting xenophobia and bigotry into it.”

      Complain to the NYT then. They printed the allegation.

      Meron and his motives aside, it’s rather obvious that the US and Israeli governments have a shared interest in preventing their officials from being charged with war crimes. Obama himself famously said regarding Bush Administration crimes that he thought we should look forward and not back, which is obviously not a POV he adopts towards whistleblowers. If either a high ranking Israeli or American official were somehow brought up on war crimes charges, the US government would do everything in its power to stop the proceedings.

      • eljay
        June 17, 2013, 1:55 pm

        >> Obama himself famously said regarding Bush Administration crimes that he thought we should look forward and not back …

        I recall being blown away when Barry “Hope and Change” Obama spoke those words.

        >> If either a high ranking Israeli or American official were somehow brought up on war crimes charges, the US government would do everything in its power to stop the proceedings.

        Naturally. Justice is something “we” do to “them”, even if it means raining massive-scale death and devastation upon them.

  24. Hostage
    June 17, 2013, 10:02 am

    Some of us are not aware of the fact, or have simply forgotten that members of the US military were engaged in strictly criminal enterprises with the CIA when they kidnapped suspects in other countries and transferred or deported them to foreign prison facilities in violation of the 4th Geneva Convention.

    The Italian criminal courts and British Supreme Court have ruled that so-called renditions and continued detention in Guantanamo violate Article 49 of the 4th Geneva Conventions, Article 8 of the Rome Statute, and local criminal laws.

    The trial chamber judges in these particular ICTY cases specifically questioned the prosecutors on the issue of liability or culpability for aiding and abetting war crimes on the basis of the defendant’s knowledge that crimes had been committed or were likely to be committed. They specifically wanted to know if US and NATO commanders in Afghanistan were also considered guilty under that legal standard? That was part of the official trial record from below that Judge Meron and the other appeals judges were considering, when they decided to raise the bar and adopt the previously rejected “special direction” standard. So it could appear that they were looking after their own individual county’s interests (i.e. NATO).

    • hophmi
      June 17, 2013, 12:16 pm

      “They specifically wanted to know if US and NATO commanders in Afghanistan were also considered guilty under that legal standard?”

      Have you ever done an oral argument? It’s called an analogy. They come up all the time. If you’re looking for military analogies, one obvious place would be the world’s largest and most powerful armies.

      The letter was unbelievably unprofessional and intemperate, for starters. The allegation, made with zero proof, zero, is disgusting.

      By the way, the copy of the letter I saw says that this was a 3-2 decision. It was 4-1; Liu was the only dissenting justice.

      It also appears that in the concurrence, Meron argues that specific direction can be found as part of the mens rea of the crime of aiding and abetting, in addition to the actus reus. So he suggests that while specific direction must be a requirement, it may be found either in intent or in action.

      But let’s cut to the chase. Your fear that this sort of decision makes it harder to convict Israelis and Americans of war crimes suggests that you concede the point that crimes committed by Israelis and Americans are overwhelmingly committed by rogue individual soldiers, not commanders, and that the IDF and the US Armed Forces do not look to commit war crimes in the field. If you had the courage of your convictions, and you believed your claim that the whole IDF enterprise was foul, this decision wouldn’t worry you at all. This again suggests that your complaint is political, not legal.

      • Donald
        June 17, 2013, 4:44 pm

        “you concede the point that crimes committed by Israelis and Americans are overwhelmingly committed by rogue individual soldiers, not commanders, and that the IDF and the US Armed Forces do not look to commit war crimes in the field. If you had the courage of your convictions, and you believed your claim that the whole IDF enterprise was foul, this decision wouldn’t worry you at all. ”

        Hostage can speak for himself, but this is just a distraction. You’re going after some minor point trying to make it seem like Hostage is a hypocrite when the entire settlement enterprise is criminal and if you want war crimes, there’s no shortage. Take the millions of cluster munitions dropped on Lebanon in the closing days of the 2006 war, for instance–

        Human Rights Watch report

        This is the problem with many (not all) liberal Zionists–you just can’t help yourselves apparently. You have to make it seem like only “rogue” Israelis commit war crimes. It’s never been true– what you could argue is that there are Israelis who are honest enough to document this about their own society, but you don’t do that.

        As for what the US does, when we ever have a serious investigation into our own war crimes, not just the actions of some “rogue” scapegoats, let me know. It didn’t happen in Vietnam and it’s not happening now either. And yet it’s virtually self-evident that the emphasis on bodycount in some operations led to massive civilian casualties (see Operation Speedy Express, for example).

      • hophmi
        June 17, 2013, 4:54 pm

        “This is the problem with many (not all) liberal Zionists–you just can’t help yourselves apparently. You have to make it seem like only “rogue” Israelis commit war crimes. It’s never been true– what you could argue is that there are Israelis who are honest enough to document this about their own society, but you don’t do that. ”

        Then why would anyone worry that a decision requiring a finding of specific direction would make it difficult to convict an Israeli military official in an international tribunal?

        The answer is that this has nothing to do with either America or Israel.

      • Hostage
        June 17, 2013, 10:31 pm

        “you concede the point that crimes committed by Israelis and Americans are overwhelmingly committed by rogue individual soldiers, not commanders,

        No I do not. If the standard for aiding and abetting is “knowledge”, then the US Commanders in Afghanistan and elsewhere were perfectly aware of the fact that they were assisting in the collection, waterboarding, and deportation of protected persons to a secret network of prisons or to Guantanamo. That wasn’t an unexpected or accidental side effect carried-out by a few rogues, that was a central part of their mission. I’ve commented elsewhere that the Congress even tried to immunize those responsible under the terms of the 2006 Military Commissions Act and by allowing the President to adopt a definition of the term “torture” that was different from the one contained in the international convention on torture.

        Thanks to our Constitutional prohibition against ex post facto punishment, the only place these individuals can be tried is in an international tribunal where their acts have been considered crimes at all times and places. But now, prosecutors have to produce evidence that they specifically directed the operation of the prison networks, waterboardings, & etc. These people are not stupid enough to have put those orders in writing or to have kept records lying around afterwards. We even have statements that say top officials ordered the destruction of what little evidence there was, like the video tapes of waterboardings. Now it doesn’t even matter if the Commander knew about those videos or that waterboarding was happening in facilities under his jurisdiction at Bagram Air Base, so long as there’s no evidence that he personally and specifically directed those things to happen. See for example Jose Rodriguez, Ex-CIA Officer, Defends Destroying Waterboarding Videos In ‘Hard Measures’ Book http://www.huffingtonpost.com/2012/04/24/jose-rodriguez-cia-hard-measures-book_n_1450416.html

        If that isn’t a crime and evidence of a guilty mind, then I don’t know what is.

      • Hostage
        June 18, 2013, 6:12 am

        Then why would anyone worry that a decision requiring a finding of specific direction would make it difficult to convict an Israeli military official in an international tribunal?

        The new rule actually allows the Court to ignore the allied commander’s state of mind or stated intent to aid and abet the crimes in question. It allows the Court to ignore the fact that a criminal organization existed that actually did carrying out crimes with support supplied by the allied commander – and that the allied commander was aware of that situation. This is an utterly bizarre way to “put an end to impunity”. There are no parallels in previous state practice.

        In these cases the Court actually did ignore an overwhelming amount of evidence which established all of those hypotheticals because the Prosecutor couldn’t show that the allied commanders had specifically directed the support they provided to the parts of the organization responsible for commission of the crimes:

        Strangely, though, the tribunal concluded that the “specifically directed” requirement was not a mens rea requirement (something that would have been similar to the “purpose” requirement for aiding and abetting that criminal law students know well) but rather an actus reus requirement. In short, the prosecution had better draw a straight line from the defendant’s conduct to the criminal behavior, rather than rest on a circumstantial case of general assistance to an organization that then engages in criminal behavior, even if the defendant has the intent to facilitate the criminal conduct.

        http://www.liebercode.org/

      • Hostage
        June 17, 2013, 10:53 pm

        Have you ever done an oral argument? It’s called an analogy.

        This was a case where the Prosecutor happened to be from the USA and a member of the California bar. The Judge in an international criminal tribunal wanted to know if the controlling legal authority that made the Serb commander guilty on the grounds of “knowledge” would also mean that NATO commanders in Afghanistan were guilty too? The Judge said it was a legal question, not a political one. The Prosecutor finally admitted the two situations were analogous and the defendant was convicted.

        It may not have made headlines in the mainstream media, but it got plenty of attention among expert commentators and scholars, including Jewish ones: e.g. http://dovjacobs.blogspot.nl/2013/03/guest-post-what-icty-appeal-judgment-in.html

        The conviction was overturned on appeal, but there wasn’t a shred of state practice cited or any precedent to support the decision. The Appeals Chamber cited dicta that only went back to its own Tadic decision, and the Appeals Chamber itself had dismissed and rejected that reasoning in subsequent decisions on the subject.

  25. irishmoses
    June 17, 2013, 1:14 pm

    Fascinating discussion. Hostage, as the main contributor, just exactly where do you come down on the question of whether Judge Meron was acting under the influence of US/Israeli/Lobby pressure to reduce the standard of guilt in these cases? From some of your earlier comments I got the impression that you felt there was a legitimate basis for questioning the more permission aiding and abetting/participating in a criminal enterprise standard, and that Judge Meron seemed to be having second thoughts about using those standards. I see that as a legitimate legal debate.

    My real problem with all of this is in the jump to the conclusion that Judge Meron is acting under US or other influence in order to reduce the liklihood of US or Israeli convictions in future cases. This borders on conspiracy theory in my view, particularly in light of Judge Meron’s past anti-Zionist opinions and reputation as an international jurist.

    In your view is this more likely a heated dispute over the legal standard of proof in highly controversial cases, or do you see the nefarious hand of outside forces manipulating the decisions of presiding judge Meron? That to me is the key question in this thread.

    My main objection to Judge Harhoff was his statement, “Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?” Judge Harhoff asked. “We will probably never know.” That borders on McCarthyite language and coming from a judge it is inexcusable.

    Gil Maguire

    • Hostage
      June 17, 2013, 11:26 pm

      Fascinating discussion. Hostage, as the main contributor, just exactly where do you come down on the question of whether Judge Meron was acting under the influence of US/Israeli/Lobby pressure to reduce the standard of guilt in these cases?

      I’ve already said that I don’t think he was under any such influence. But I think that he was probably mindful that the record before him clearly illustrated that the controlling legal authorities set a standard that could be applied to NATO Commanders in exactly the same way to establish their guilt for war crimes and crimes against humanity. Like the US Prosecutor, Mark Harmon, he probably wanted to establish a standard that could be used to make finer-grained distinctions.

      I agree with Marko Milanovic and Kevin Jon Heller that the special direction standard is totally unsatisfactory and unnecessary in cases where the enterprise itself is entirely a criminal one, or very nearly so.

      I’ve noted that I think it would be useful this standard had been employed in the Holy Land Charities case, which unlike the Serbian militias, were not aiding and abetting any organizations known for their involvement in mass murder and other serious crimes.

    • Hostage
      June 17, 2013, 11:34 pm

      In your view is this more likely a heated dispute over the legal standard of proof in highly controversial cases, or do you see the nefarious hand of outside forces manipulating the decisions of presiding judge Meron?

      I don’t think the Judges should be talking out-out-school and speculating with 60 outsiders or making idle accusations like this at all.

      But Wikileaks disclosed a cable dated 27 July 2003 which detailed a conversation in which President Meron deliberately undermined the statutory independence of the Prosecutor’s office by asking a US Ambassador to help block the re-appointment of Carla Del Ponte. So people who live in glass houses . . .

      • Hostage
        June 18, 2013, 12:17 am

        P.S. Here’s a link to the cable which shows that Meron was deeply involved in discussions about the details of managing the Prosecutor’s office and case selection with members of her staff, behind her back. At the same time he was engaging in talks with US officials about ways to get rid of her. http://www.wikileaks.org/plusd/cables/03THEHAGUE1827_a.html

        The ICTY Statute established the Office of the Prosecutor and stipulated that it enjoys complete independence from the Trial and Appeals Chambers. So Meron’s behind the scenes interference was “off the reservation”.

        I personally find Meron’s comments that lend credence to the USA’s “principled opposition to the International Criminal Court” very disappointing. The USA’s objections to the ICC have been based upon American exceptionalism, and are anything but well-principled.

  26. Obsidian
    June 18, 2013, 12:11 am

    @Hostage

    ‘So people who live in glass houses..’

    So there is not a shred of evidence that Israel, the United States, much less ‘The Lobby’, exerted any pressure on Judge Meron whatsoever.
    Phil Weiss, should come out from the high grass and apologize to Judge Meron for having made a ‘rush to judgment’.

    Case closed.

    • Hostage
      June 18, 2013, 5:32 am

      So there is not a shred of evidence that Israel, the United States, much less ‘The Lobby’, exerted any pressure on Judge Meron whatsoever.

      There’s quite a bit of misunderstanding here about the role of the President of the Court in “pushing things along”. That only applies to the work of the Judges. He is not in charge of deciding who gets prosecuted or which charges will be filed in a case. For that reason, both the President and the Prosecutor submitted separate closure schedules to the Security Council, because many of the decisions were strictly a matter falling within the Prosecutor’s discretion.

      In addition, Meron has been criticized for establishing unnecessary and on going contact with the US Embassy to the Netherlands ever since he arrived at the Court, instead of communicating through normal UN channels:

      WikiLeaks dispatches covering the period 2002-2004 (see enclosed WikiLeaks dispatches) show that Theodor Meron abused his function as ICTY President and that he revealed all information on ICTY directly to the US Embassy to the Netherlands. Analysts have concluded that due to his narrow interests Meron “involved” US State Department in ICTY’s activities and that US State Department has never publicly distanced itself from the in(appropriate) communication with Meron as ICTY President.

      — See ICTY:”Meronization” of our future http://www.ifimes.org/en/researches/ictymeronization-of-our-future/

      Milan Markovic has noted that U.N. rules apply to the ICTY’s judges, Regulation 1.2(i) prohibits the communication of confidential information obtained from their official positions. He has suggested that Harhoff be removed by the UN, but the same logic could just as easily be applied to remove Meron for his direct dealings and disclosures to the U.S. State Department.

      • Obsidian
        June 18, 2013, 6:59 am

        @Hostage

        “There’s quite a bit of misunderstanding here about the role of the President of the Court in “pushing things along”. That only applies to the work of the Judges.”

        Indeed. So I will re-post the comment I’d posted earlier and which you blithely ignored.

        “The “pressure” by Meron was not imposed by the Americans, but rather the Security Council, which noted in a resolution that the ICTY Appeals Chamber will only hear cases in which the Notice of Appeal is filed by 30 June 2013. Any cases in which the Notice of Appeal is filed on 1 July 2013 or thereafter will be heard by the new Residual Mechanism. This is likely the reason why both the Stanisic and Prlic cases were decided in the last week of May 2013, i.e. so that both cases could be heard by the ICTY Appeals Chamber. This reflects Security Council pressure on Meron to implement the Completion Strategy (which Meron as President of the ICTY is duty bound to implement), and certainly does NOT mean that Meron actually put pressure on any Trial Chamber concerning the RESULT to be reached in these cases.” –excerpt of the reader’s comment of Luka Misetic.

        link to ejiltalk.org

      • Hostage
        June 18, 2013, 11:18 am

        Indeed. So I will re-post the comment I’d posted earlier and which you blithely ignored.

        I didn’t ignore it. It’s just irrelevant. Luka Misetic didn’t address the fact that one of the Judges is claiming, on the basis of insider knowledge, that Meron actually pushed for acquittals or outcomes.

        So Misetic can point at the countdown clock and speculate all he wants to, but that won’t explain away what Harhoff has actually said. It also doesn’t explain why another senior court official would tell the New York Times that half the Judges want Meron replaced as President. All of them are senior jurists who are perfectly well aware of the UN timetable.

      • hophmi
        June 18, 2013, 11:26 am

        “It also doesn’t explain why another senior court official would tell the New York Times that half the Judges want Meron replaced as President. All of them are senior jurists who are perfectly well aware of the UN timetable.”

        To me, that hearsay quote doesn’t have a lot of credibility. Perhaps the senior official wants him replaced, and thinks he can accomplish it by starting a chattering campaign.

        If, as you say, the US is pressuring all of these other judges to decide in ways that would make it difficult to prosecute US soldiers down the road, what exactly would getting rid of Meron accomplish? We’ve had Americans as President of the tribunal before. Maybe less rushed opinions, but not a change in stare decisis. At the end of the day, the judges themselves are appointed by the UNSC.

      • Hostage
        June 18, 2013, 12:32 pm

        If, as you say, the US is pressuring all of these other judges to decide in ways that would make it difficult to prosecute US soldiers down the road, what exactly would getting rid of Meron accomplish?

        If he’s as big a prick as the NYT report alleges, it might give the other Judges a great sense of self satisfaction. BTW, Meron was elected to the Tribunal by the U.N. General Assembly in March 2001.

      • Obsidian
        June 18, 2013, 1:22 pm

        @Hostage

        “pushed for acquittals or outcomes.”

        Pushed how? By pushing deadlines and setting time restraints?
        Maybe yes, maybe no. Nobody specifies.

        ” another senior court official would tell the New York Times”

        A senior who? A senior disgruntled prosecutor? Dunno. Nobody’s saying.

        ” that half the Judges want Meron replaced as President”

        And the other half want what? Meron to stay?

      • hophmi
        June 18, 2013, 2:18 pm

        “Pushed how? By pushing deadlines and setting time restraints?
        Maybe yes, maybe no. Nobody specifies.”

        Is it surprising? The court has to finish its work by the end of 2014. It has moved at a glacial pace.

      • Hostage
        June 18, 2013, 2:56 pm

        Pushed how? By pushing deadlines and setting time restraints?
        Maybe yes, maybe no. Nobody specifies.

        There was actually a very specific allegation based on inside information, but who knows (yet) if it’s true. So far it’s unsupported. The members of the Court who are in a position to know are refusing to comment for the record, but leaking information about a so-called mini-revolt and “pulling a Meron” on Meron by suggesting that his term as President not be renewed.

  27. irishmoses
    June 18, 2013, 3:07 am

    Hostage,
    Thanks for your candid response. I read the linked document. It sounded to me like Meron was giving a fairly balanced criticism of Del Ponte and that the OTP was really in disarray. It also looks like Meron’s main concern was that Del Ponte was putting effective prosecutions at risk. I got the impression that he was inserting himself because he saw the entire war crimes trial mission being undermined by a very ineffective prosecutorial administrator. Nonetheless, his contact seems inappropriate although it also seems that the UN earlier had contacted his COS regarding the idea of terminating Del Ponte. It looks like a lot of people wanted to get rid of her, not because they didn’t like who she was or wasn’t prosecuting, but because she was a damn poor administrator who was undermining the whole war crimes trial process.

    To me, the bottom line in all of this is that there is no evidence that Judge Meron is some sort of closet Zionist sympathizer acting under the influence of the US, Israel, or the Zionist Lobby attempting to modify legal standards of proof to benefit future cases involving Israeli or US defendants. The premise for this thread, which was based on the outrageous, unsupported speculative accusation of Judge Harhoff, appears to be not only weak, but untenable.

    I enjoyed the rest of the discussion regarding standards of proof and, as usual, learned a lot from your cogent contributions.

    Gil Maguire

    • Hostage
      June 18, 2013, 4:49 am

      To me, the bottom line in all of this is that there is no evidence that Judge Meron is some sort of closet Zionist sympathizer acting under the influence of the US, Israel, or the Zionist Lobby attempting to modify legal standards of proof to benefit future cases involving Israeli or US defendants.

      I don’t know of any evidence that he was acting under influence, but there are obviously plenty of peers who think he was deliberately modifying legal standards to prevent future cases against western government officials.

      I find the whole idea that the Bosnian Serb militias were on legitimate missions extremely far-fetched. Others are wondering out loud why the Appeals Court didn’t mention some of the hypothetical legitimate objectives that all of these defendants were expending considerable resources to achieve, e.g. See Cornell Professor Jens David Ohlin, “Why Did the ICTY Acquit Stanisic and Simatovic?” http://www.liebercode.org/2013/06/why-did-icty-acquit-stanisic-and.html

      • irishmoses
        June 18, 2013, 12:05 pm

        Hostage,
        “I don’t know of any evidence that he was acting under influence, but there are obviously plenty of peers who think he was deliberately modifying legal standards to prevent future cases against western government officials.”

        I think there are two very distinct issues here: First, was Judge Meron strongly advocating a stricter standard of proof, and second, was Judge Meron acting under the influence of outside forces. The answer to the first is clearly yes but that involves a legitimate legal dispute and view of the law. The fact that Meron’s legal stance was viewed as overly restrictive by some or many of the judges who were frustrated or even angered by his position is not evidence that he was acting under the influence of outside forces. From the links you’ve provided, the proper standard of proof in these cases is a pretty complicated and controversial issue that reasonable legal minds can view differently.

        To suggest that Judge Meron’s stance on the legal issue is evidence of him being under the influence of outside forces is grossly unfair and unwarranted which is precisely what Judge Harhoff did. I think these two issues need to be kept separate. Your latest response, which I quoted above, appears to conflate the two issues. i.e. you see no evidence of outside influence, but others are angered by his position on the correct standard of proof.

        I also looked at the link you provided and found the final sentence revealing. “There might be inferences to be drawn here, but apparently the ICTY Trial Chamber was unwilling to make them or felt they were not warranted based on the trial record. I will leave an assessment of that decision to the Appeals Chamber.” In other words, the trial court may well have felt that there was insufficient evidence to make the inferences the other judges felt they should have made. Again, making a leap from that to an inference that Meron was acting under the influence of outside forces is quite a stretch and certainly an unwarranted and unfair one.

        Obviously this thread is not an exchange of legal briefs and I realize it is difficult and even unfair to characterize your statements over a long and confusing thread. If I have mischaracterised your position I apologize.

        Gil Maguire

Leave a Reply