Hague Disqualifies ‘Biased’ Judge From Seselj Trial

In an unprecedented move, the International Criminal Tribunal for the Former Yugoslavia, ICTY, has removed one of its judges from a case on the grounds of bias, raising questions about what will happen with the trial’s impending verdict and whether other convictions involving the judge will be affected.

The judge, Frederik Harhoff, was disqualified after Serbian war crimes defendant Vojislav Seselj filed a motion last month claiming that he was not impartial he had showed “strong inclinations… to convict accused persons of Serbian ethnicity”.

The allegations were sparked by a leaked letter written by Harhoff, in which he criticised the court’s high-profile acquittals of Serbian and Croatian wartime commanders.

The Hague Tribunal on Wednesday ruled in favour of Seselj’s motion to bar Harhoff from the trial.

“In the letter, Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias,” the court’s decision said.

According to the Tribunal’s procedural rule number 15, if a judge is replaced on the grounds that their impartiality has been affected, “the president (of the court) shall assign another judge to the case”.

However it was not immediately clear exactly how Harhoff’s disqualification might disrupt Seselj’s trial.

All the evidence for and against him has already been heard by the court and a verdict was due to be handed down on October 30.

The Hague Tribunal could neither confirm nor deny whether Harhoff’s disqualification would delay the proceedings.

“A decision on how to proceed in the case of Vojislav Seselj will be taken in due course by the ICTY vice-president, Judge Agius, who was assigned to consider Seselj’s motion seeking the disqualification of Judge Frederik Harhoff,” ICTY spokesperson Magdalena Spalinska told BIRN.

Serbian Radical Party official Zoran Krasic said that he was glad that the ICTY had finally realised that some of its judges were biased and expressed hope for an acquittal on October 30.

“We are awaiting a decision from the ICTY about who will be the new judge on the panel [handing down the verdict on Seselj]. We also hope that will be here [in Belgrade] on October 31, free in the company of his family and friends,” Krasic told a press conference on Thursday.

Seselj is charged with committing war crimes and crimes against humanity against the non-Serb population in Bosnia, Croatia and the Serbian province of Vojvodina between 1991 and 1994.

Harhoff wrote in the controversial letter that he had heard that the Tribunal’s president, Theodor Meron, an American, allegedly put pressure on other judges to approve the acquittals over the past year of Croatian generals Ante Gotovina and Mladen Markac, Yugoslav general Momcilo Perisic and Serbian security officials Jovica Stanisic and Franko Simatovic.

He also accused the Tribunal of changing its policy on convictions.

Dov Jacobs, an assistant professor in international law at Leiden University in Holland, suggested that the decision was “the first public sign, to put it mildly, that someone at the ICTY is unhappy with Harhoff’s conduct” over the leaked letter.

In a blog post, Jacobs said that the biggest question now is what will happen to other cases in which Harhoff acted as a judge, pointing out that lawyers for convicted Serbian security official Stanisic and Bosnian Army commander Rasim Delic have already filed motions citing the leaked letter.

“In the Stanisic case on appeal, there is a pending motion to admit the Harhoff letter as new evidence. I don’t see how the appeals chamber can decently refuse that motion now. And more, I think this could be a strong basis for a new motion in review of the trial judgment,” Jacobs wrote.

“Finally, in the Delic case, his lawyer filed a motion for revision, with the added difficulty of the defendant being deceased. Again, this new decision strengthens the motion,” he added.

Despite his death in 2009, Delic’s defence has filed a motion with the Tribunal’s president, Theodor Meron, alleging that judge Harhoff had revealed an unacceptable bias towards conviction.