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Judge who acquitted war criminals at Hague had ‘close and confidential relations’ with U.S. gov’t

Israel/Palestine
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The other day we did a post on charges roiling the UN’s war crimes tribunal at the Hague: that an American-Israeli judge was working to acquit Serb and Croat leaders who had been convicted of war crimes so that the precedent would not ensnare American and Israeli officials.

Well today, the Danish publication Information has a piece based on Wikileaks cables, showing that presiding judge Theodor Meron, an American-Israeli, was in touch with US officials.

Now documents from 2003 made public by WikiLeaks show that Meron had close and confidential relations with the United States government in his first term as President of the ICTY. 

»It is the perception among my former colleagues that the tribunal president takes instructions from the US government. And the WikiLeaks documents certainly do not help his case,« a former legal adviser at the Tribunal said…

At the end of last year judge Meron and some other judges started acquitting Serbs and Croats who had been convicted of war crimes and crimes against humanity in Trial court in the Hague – people whose conviction earlier on most likely would have been upheld in the Appeals chamber.

The documents found on WikiLeaks website corroborate to a certain extent the assertions put forward by [Danish Judge Frederik] Harhoff. In two diplomatic cables sent from the U.S. embassy in the Netherlands in 2003 during Mr. Meron’s first term as President of the Tribunal he is described as coordinating his views on the court’s work with the US government….

”The perception among my colleagues is that Meron takes instructions from the US government and that this reigning in of the legal standards – as we have seen with the acquittals – would have implications for the US and probably Israel. And WikiLeaks does not help him,” said a former legal advisor to the tribunal who wished to remain anonymous in order to avoid putting his career opportunities at risk.

The legal standard at issue would obviously put American and Israeli leaders in a tight spot if war crimes prosecutions ever eventuate from Pakistan or Gaza:

Harhoff claimed the recent acquittal of two Croatians and three Serbs is contrary to the previous standard, by which top commanders are held responsible for crimes committed by subordinates in the former Yugoslavia.

As far as Meron’s critics are concerned the U.S. and Israeli government are deeply worried about the traditional doctrine of command responsibility. Until the recent acquittals it was sufficient for the prosecutor to prove that a military commander or political leader was aware of the risk that subordinates or forces allied with his army or government would commit a war crime in order to get a conviction.

Under this practice, political leaders and high-ranking officers in the United States and Israel ultimately could risk being held responsible for war crimes committed by their soldiers or by foreign forces that their governments support with arms.

About Meron:

That Mr. Meron’s and his family were victims of the Holocaust has made the controversy surrounding the use of a new legal standard to acquit convicted war criminals even more fascinating for outsiders….

Meron was born in 1930 into a Jewish family in Kalisz, Poland. Following the war he emigrated to Israel where he studied law at Hebrew University; later he graduated from Harvard Law School. He told the BBC that his initial interest in international criminal law was prompted by his (undoubtedly horrific) experiences during the war, although he now felt he had put this chapter behind him.

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20 Responses

  1. Woody Tanaka
    Woody Tanaka
    June 18, 2013, 12:10 pm

    I can’t say I’m surprised. The US has been dominated by war criminals for centuries. Why should now be any different?

  2. hophmi
    hophmi
    June 18, 2013, 12:22 pm

    As I said on the other thread, the problem with this theory is that it would hardly be unusual for the presiding judge of a tribunal like the ICTY to consult with the people who are deciding whether to appoint a chief prosecutor, and since all of Meron’s complaints relate to del Ponte’s management style, I can’t see how this has anything to do with the outcomes.

    As the article says, Meron is an international respected international law expert, and there is zero evidence to support the assertion Harhoff made, and no reason to believe that Meron’s integrity is compromises. He did not act alone in reversing the conviction of these defendants.

    “Other international law experts have come to the rescue of Meron. The American-born Associate Professor at the Melbourne Law School, Kevin Jon Heller, is plainly upset with Judge Harhoff.

    “There is absolutely no evidence in the WikiLeaks documents that Meron have taken instructions from the U.S. and Israel,” said Heller on the phone from South Africa.

    He continued: ‘If there is a controversy it should be about the propriety of revealing a letter about internal deliberations at the Tribunal. Harhoff is sitting on this case against Vojislav Sesejl, which is complicated. I would recuse him from the trial, he is prone to convict.'”

    • Hostage
      Hostage
      June 18, 2013, 1:47 pm

      As I said in the other thread, the problem with this theory is that it would hardly be unusual for the presiding judge of a tribunal like the ICTY to consult with the people who are deciding whether to appoint a chief prosecutor. . . . “There is absolutely no evidence in the WikiLeaks documents that Meron have taken instructions from the U.S. and Israel,” said Heller on the phone from South Africa.

      No it’s none of his business and the USA doesn’t have sole discretion in the selection of Prosecutors anyway.

      Here is what Heller really had to say about the revelations from the Wikileaks cables:

      The President has no role in the appointment or reappointment of the Prosecutor under the ICTY Statute or RPE, nor is supervising prosecutorial strategy (outside of the relevant provisions of the ICTY Statute) part of his brief. So he should not have been channeling anyone’s concerns to anyone other than, perhaps, his fellow judges — and he especially should not have been channeling them to his own government.

      http://opiniojuris.org/2013/06/17/the-real-judge-meron-scandal-at-the-icty/

      That’s a comment he exchanged about an article he wrote taking Meron to task for undermining the independence of the office of the Prosecutor in violation of the terms of Statute, i.e. Meron is guilty of betraying confidential information in the much the same way as Harhoff. See Kevin Jon Heller, The Real Judge Meron Scandal at the ICTY:

      Needless to say — I hope! — it is completely unacceptable for a judge to encourage a state to not re-appoint the Prosecutor of his tribunal because he disagrees with the way she has exercised her prosecutorial discretion or because he doesn’t believe she is a “first class prosecutor.”. Art. 16(2) of the ICTY Statute provides that “[t]he Prosecutor shall act independently as a separate organ of the International Tribunal.” Judge Meron’s secret meeting with the US Ambassador was inconsistent with any notion of the OTP’s independence. Indeed, it was a frontal assault on it.

      http://opiniojuris.org/2013/06/17/the-real-judge-meron-scandal-at-the-icty/

      • hophmi
        hophmi
        June 18, 2013, 2:16 pm

        “No it’s none of his business and the USA doesn’t have sole discretion in the selection of Prosecutors anyway. ”

        No, it doesn’t. But it certainly has a strong voice as a P-5 UNSC member.

        “The President has no role in the appointment or reappointment of the Prosecutor under the ICTY Statute or RPE, nor is supervising prosecutorial strategy (outside of the relevant provisions of the ICTY Statute) part of his brief. ”

        I find this view a bit naive. The President may have no role in the appointment of the prosecutor, but his job is surely affected by the decisions of the prosecutor with regard to how cases are brought before the court. Let’s take the US Attorneys as an example. They’re appointed prosecutors. If the prosecutors for the Southern District of New York are constantly bringing prosecutions before the Southern District that are needlessly complicated and legally weak, and Admin Judge X is friendly with the official in the Obama Administration responsible for advising the President on US Attorney selections, do you think that Admin Judge X is going to say something in confidence about it? Of course.

        That’s what’s happening here, in my view. Meron’s telling State: Carla del Ponte is not doing a great job, and her needlessly complex cases are making things take forever and driving my trial judges crazy. And again, I have to repeat: Meron doesn’t appear to have been successful, because del Ponte was appointed to a second term.

        If you look at the comments on Heller’s piece, one of them quotes Antonio Cassese discussing how he had his fellow judges issue a criticism of Richard Goldstone’s prosecutorial strategy, a potentially much greater infringement on prosecutorial independence.

      • Hostage
        Hostage
        June 19, 2013, 2:04 am

        I find this view a bit naive.

        It’s a separation of executive and judicial powers built right into the Statute from day one by the Secretary General and the independent panel of legal experts the Security Council commissioned to draft the Statute.

        That’s what’s happening here, in my view. Meron’s telling State: Carla del Ponte is not doing a great job, and her needlessly complex cases are making things take forever and driving my trial judges crazy.

        How is that any different from Judges making similar accusations against Meron for driving them crazy and talking out-of-school?

        It isn’t his job to be talking to the US State Department about the Prosecutor’s strategy in the first place or to contact the Prosecutor’s staff privately behind the Prosecutor’s back. The late Antonio Cassese didn’t do anything remotely like that. The Judges complained directly to Goldstone, but didn’t lobby their governments to fire members of other independent Court organs. BTW, Cassese headed-up the Lebanon Tribunal and it was turned into a political organ of the UN on his watch.

      • hophmi
        hophmi
        June 19, 2013, 9:09 am

        “It’s a separation of executive and judicial powers built right into the Statute from day one by the Secretary General and the independent panel of legal experts the Security Council commissioned to draft the Statute.”

        That’s all fine. I still find it naive that people would think that judges would not speak with any government reps from their home countries about issues unrelated to cases, as happened here.

        “How is that any different from Judges making similar accusations against Meron for driving them crazy and talking out-of-school?”

        First, Harhoff is discussing individual cases and legal issues. Meron is discussing case management issues. Second, Harhoff is discussing his personal feelings, which amount to conspiracy theory. Nothing Meron said undermines the court’s authority. Meron isn’t saying that the prosecutor’s integrity is compromised. He’s simply saying that she’s not a great manager. If anything, he’s trying to help move the work of the court forward.

        Harhoff’s letter impugns the court’s authority, with zero proof other than his own feelings on the matter. He impugns the integrity of fellow judges. He undermines the Court’s work.

        “It isn’t his job to be talking to the US State Department about the Prosecutor’s strategy in the first place or to contact the Prosecutor’s staff privately behind the Prosecutor’s back. ”

        I’m curious as to whether you have trial experience, because these are things judges routinely do; they routinely talk off-the-record to appointing authorities and they routinely opine to staff about prosecutorial policy.

        “The Judges complained directly to Goldstone, but didn’t lobby their governments to fire members of other independent Court organs. ”

        Firing and not reappointing are two different things. I should hope that as part of making a decision as to whether to reappoint a chief prosecutor at the ICTY, government solicit opinions of those in the know. What else have they got to go on?

      • Hostage
        Hostage
        June 20, 2013, 5:08 am

        That’s all fine. I still find it naive that people would think that judges would not speak with any government reps from their home countries about issues unrelated to cases, as happened here.

        U.N. rules apply to the ICTY’s judges, Regulation 1.2(i) prohibits the communication of confidential information obtained from their official positions through non-UN channels. Full stop.

        Meron isn’t saying that the prosecutor’s integrity is compromised. He’s simply saying that she’s not a great manager.

        That’s nonsense. Prosecutors have to throw the kitchen sink into the trial record when lousy judges, like Meron, change the applicable legal standards of evidence after the trial is over. Prosecutors can’t introduce new evidence during the appeal hearings. He should shoulder his own responsibility for the glacial pace of the proceedings. This tribunal has already astonished the rest of the world by its narrow definition of genocide and over abundance of new legal tests.

        The proper thing would have been for the Appeals Chamber to have remanded the case back for additional hearings on special direction, not to acquit on the grounds that there was no evidence in the record from below of a heretofore irrelevant element.

      • hophmi
        hophmi
        June 20, 2013, 10:10 am

        ” Regulation 1.2(i) prohibits the communication of confidential information obtained from their official positions through non-UN channels.”

        It was confidential information that the prosecutor’s office was mismanaging cases and calling cumulative witnesses at trial? That’s not confidential information.

        ” Prosecutors have to throw the kitchen sink into the trial record when lousy judges, like Meron, ”

        Here we go. Can’t make an argument without blaming the messenger, can you. Meron is now a “lousy judge.” This was 2003. The specific direction cases came down in 2011.

        This is not, in any event, true. Cumulative witnesses are cumulative witnesses; cases with weak evidence are cases with weak evidence. If a case lacks evidence of a linkage between specific direction and war crime committed by a militia the defendant is supporting, it takes all of one witness to make the linkage, not 60 witnesses who say the same thing. The problems in Perisic aren’t curable by simply bringing more evidence of war crimes committed by the militias, just like the lack of evidence linking a defendant to a string of robberies isn’t cured by bringing in more evidence of more robberies you can’t link the defendant to.

        That wasn’t even the substance of Meron’s complaint. The complaint was that del Ponte was not bringing strong cases and was not showing the best discretion in the cases that she did bring. When mass murderers are tried, prosecutors usually do not try every single murder. They pick the strongest four or five cases. It sounds like that’s essentially what Meron is complaining about.

        “He should shoulder his own responsibility for the glacial pace of the proceedings.”

        Since he wasn’t a trial judge, I’m not sure what his responsibility would be; clearly, speeding up other judges breeds resentment.

        “The proper thing would have been for the Appeals Chamber to have remanded the case back for additional hearings on special direction, not to acquit on the grounds that there was no evidence in the record from below of a heretofore irrelevant element. ”

        Why? You fail to prove an element of the crime, the conviction is vacated.

      • Hostage
        Hostage
        June 20, 2013, 11:18 am

        Here we go. Can’t make an argument without blaming the messenger, can you. Meron is now a “lousy judge.” This was 2003. The specific direction cases came down in 2011.

        Try refuting the argument. This guy didn’t remand the cases back to the trial chamber for further hearings, when he arbitrarily decided to change the legal standard employed by his own court in previous cases. He just moved the goal line and let the ring leaders go free. I don’t think that’s anything to brush off. If he’s got a revolt on his hands, he’s earned it.

        You obviously aren’t going to address the arbitrary legal tests that this Court used even back in 2003 to avoid aggravating the new Serbian regime with more genocide convictions.

      • Hostage
        Hostage
        June 20, 2013, 11:40 am

        Why? You fail to prove an element of the crime, the conviction is vacated.

        I already explained that in the Perišić case, Meron was reversing his own tribunal’s stare decisis, which held in two previous appeals that the prosecution only had to show knowledge and that special direction wasn’t a necessary element in aiding and abetting cases. That’s the one of the reasons this has caused such a brouhaha in the international legal community. That wasn’t the standard of evidence used during the trial below and he didn’t remand it back for additional hearings.

      • hophmi
        hophmi
        June 20, 2013, 11:57 am

        “This guy didn’t remand the cases back to the trial chamber for further hearings, when he arbitrarily decided to change the legal standard employed by his own court in previous cases.”

        Apparently, the appeals chamber doesn’t send cases back to the trial chamber for retrials; they’ve done it for invalid pleas and sentences. http://books.google.com/books?id=UGGgJiMEyBoC&pg=PA946&lpg=PA946&dq=remand+appeal+at+icty&source=bl&ots=q1Us2UodHw&sig=Ke-DpbQNW_VoDGj4FmLzeE-fSTw&hl=en&sa=X&ei=YCLDUeqHPLay4AP7ooHACA&ved=0CF4Q6AEwBg#v=onepage&q=remand%20appeal%20at%20icty&f=false

        Cases are not remanded if the prosecutor hasn’t proven the elements of the crime, whether the goalposts are moved or not. I’m sure you know that. Otherwise, it’s a double jeopardy problem.

        “You obviously aren’t going to address the arbitrary legal tests that this Court used even back in 2003 to avoid aggravating the new Serbian regime with more genocide convictions. ”

        You’ve not given me anything to address other than a contention. The law evolves. There’s certainly always criticism when it doesn’t evolve the way people think it should. That doesn’t change the fact that you can’t cure a substantive elemental flaw in a criminal case by a re-trial. Procedural issues, yes. Evidentiary issues, yes. But not a failure to prove the elements of the crime.

        I’m as much for putting away Serbian war criminals as anybody else. But defendants still have rights, even at this level. There were acquittals at Nuremberg too (I think 3 out of 24). Here, it’s 17 out of 97. Most have been convicted.

      • hophmi
        hophmi
        June 20, 2013, 12:34 pm

        “I already explained that in the Perišić case, Meron was reversing his own tribunal’s stare decisis”

        It doesn’t really matter. If the decision finds that the prosecution failed to prove an element of the crime, you can’t send it back for the prosecution to take another bite of the apple without creating a double jeopardy problem.

        Your view is not universally held. The post and comments here discuss this issue. http://opiniojuris.org/2013/06/02/why-the-ictys-specifically-directed-requirement-is-justified/

        Obviously, it’s a controversial issue.

      • Hostage
        Hostage
        June 20, 2013, 1:17 pm

        This is not, in any event, true. Cumulative witnesses are cumulative witnesses; cases with weak evidence are cases with weak evidence. If a case lacks evidence of a linkage between specific direction and war crime committed by a militia the defendant is supporting, it takes all of one witness to make the linkage, not 60 witnesses who say the same thing.

        We’re talking about a Court that splits hairs and argues that there is no evidence of systematic and widespread massacres with the intent to destroy the victims or systematic and widespread crimes against humanity. That’s why there is still only one isolated finding of genocide in this entire war.

        The fact is that Meron has great credentials and qualifications, but he has earned a reputation as a Judge who has been improperly consulting with his own government and who has used underhanded methods to undermine colleagues and the Prosecutor. Mondoweiss didn’t start these rumors.

        Even before Harhoff’s letter, the media and legal scholars alike were “scratching their heads” and wanted to know what had gone wrong with the Court? They were publicly complaining about the 800+ pages of “tortured logic” that was employed to turn loose Jovica Stanisic and Franko Simatovic. See:
        *What Happened to the International Criminal Tribunal for the former Yugoslavia? http://humanrightsdoctorate.blogspot.com/2013/06/what-happened-to-international-criminal.html
        * What Happened to the Hague Tribunal?
        http://www.nytimes.com/2013/06/03/opinion/global/what-happened-to-the-hague-tribunal.html?pagewanted=all&_r=0

      • hophmi
        hophmi
        June 20, 2013, 1:57 pm

        “The fact is that Meron has great credentials and qualifications, but he has earned a reputation as a Judge who has been improperly consulting with his own government and who has used underhanded methods to undermine colleagues and the Prosecutor. Mondoweiss didn’t start these rumors.”

        You overstate the case. That’s the view of a few disgruntled judges, not a majority view.

        “Even before Harhoff’s letter, the media and legal scholars alike were “scratching their heads” and wanted to know what had gone wrong with the Court? They were publicly complaining about the 800+ pages of “tortured logic” that was employed to turn loose Jovica Stanisic and Franko Simatovic.”

        That’s one international law scholar and one political science professor, who says that the court now requires documentation to prove specific direction, which I think misstates what the court said.

        I agree; one interpretation is that the decisions are meant to protect large states giving assistance elsewhere; this is also Kevin Jon Heller’s view.

        In any event, this is hardly the end of international criminal law, and there is little to stop other appellate judges from reaching other conclusions. There have been relatively few trials for war crimes, and like any legal system, developing the jurisprudence takes time.

      • foresomenteneikona
        foresomenteneikona
        June 20, 2013, 3:39 pm

        While some of Moren’s recent decisions may be questionable, it is worth recalling that, when asked by Levi Eshkol’s office in 1967 about the legality of founding settlements in the West Bank and Gaza, he delivered an opinion that stated that it was unequivocally illegal. As he summarized, “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.” See http://www.soas.ac.uk/lawpeacemideast/resources/.

        Hopefully Meron’s defenders (like Hophmi) will recognize that, because of his own actions, the entire settlement enterprise is not only illegal, but was started by Israeli governments that *knew* that it was illegal.

      • Hostage
        Hostage
        June 21, 2013, 6:52 am

        While some of Moren’s recent decisions may be questionable, it is worth recalling that, when asked by Levi Eshkol’s office in 1967 about the legality of founding settlements in the West Bank and Gaza, he delivered an opinion that stated that it was unequivocally illegal.

        I already posted that link and pointed out that Meron actually advised his higher-ups on methods and alibis that they could use to go ahead and settle the occupied territories anyway. Why don’t you try reading what he actually had to say and stop cherry-picking sound bites?

      • Hostage
        Hostage
        June 21, 2013, 6:54 am

        You overstate the case. That’s the view of a few disgruntled judges, not a majority view.

        I’m not overstating the case. I’m citing things that have been published in major newspapers and blogs written by his peers in the international legal community.

      • Hostage
        Hostage
        June 21, 2013, 7:12 am

        It doesn’t really matter. If the decision finds that the prosecution failed to prove an element of the crime,

        No, that decision was the first time that the Appeals Chamber elaborated special direction as an element of the crime of aiding and abetting under its jurisdiction. In two previous cases it actually held that special direction was not a necessary element of the crime. Our own Supreme Court and courts in other countries routinely remand cases back to the lower courts for further hearings in similar situations.

      • Hostage
        Hostage
        June 21, 2013, 7:23 am

        Apparently, the appeals chamber doesn’t send cases back to the trial chamber for retrials; they’ve done it for invalid pleas and sentences. link to books.google.com

        That’s not what the text says. It explicitly states that in rare cases they have remanded back to the trial chamber. Reversing your own precedent and patenting a brand new element of an offense after the trial below has taken place, happens to be a rare case. Remanding a case for further hearings doesn’t raise any issue of double jeopardy. There was no requirement to grant the appeal or acquittal at that point in the case.

  3. DICKERSON3870
    DICKERSON3870
    June 18, 2013, 10:06 pm

    RE: “[A]n American-Israeli judge was working to acquit Serb and Croat leaders who had been convicted of war crimes so that the precedent would not ensnare American and Israeli officials.” ~ Weiss

    MY COMMENT: This debasement of international law*by the U.S. and Israel 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.”

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

    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

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