A Danish judge sitting on the UN war crimes tribunal for the Former Yugoslavia (ICTY) expressed concern after several commanding officers accused of war crimes have been acquitted after an apparent change of practice by the court.
In a leaked email sent to 56 of his friends, judge Frederik Harhoff speculated that judges may have been lobbied by “military establishments” to alter how they determined the guilt of the officers.
Harhoff explains that through until the autumn of 2012 it was more or less standard procedure for the courts to find commanding officers responsible for war crimes that their subordinate forces committed during the Yugoslav wars.
Then suddenly the ICTY appeals court acquitted a series of military officers including Risto Perisic who was commander of police for the Visegrad municipality in Bosnia and Hercegovina and who failed to prevent the ethnic cleansing of Bosnian Muslims.
According to Harhoff, Perisic provided military and logistical support to the Bosnian Serb forces that carried out the war crimes but was acquitted of war crimes himself because he did not intend that his support would be used to commit the crime.
“It is plausible that the ‘military establishment’ in leading countries (such as the USA and Israel) have felt that the court’s practice was getting too close to the responsibility of the commanding officers,” Harhoff speculates in the email. “They don’t want the commanding officers to be held responsible unless they actively commanded their subordinate forces to commit crimes.”
Harhoff argues, however, that commanding officers are by definition responsible for the actions of their subordinates and for preventing their subordinates from breaking the law. He added that officers, such as Perisic, were undoubtedly aware of the crimes being committed with their support.
The ICTY recently acquitted Jovica Stanisic and Franko Simatovic, who headed the Serbian state security service and secret police respectively, for their roles in the war crimes.
“These latest judgements have placed me in the most profound professional and moral dilemma I have yet experienced,” Harhoff wrote. “The worst is the suspicion that some of my colleagues have been placed under a short-sighted political pressure that completely alters the premise in the legal profession.”
Berlingske newspaper and the tabloid BT chose to publish the content of the email both because of how many people Harhoff had sent it to, and because the content was of significant public interest.
Harhoff told Berlingske newspaper that he would not comment on the content of the email, adding: “I would have formulated myself differently if the email was intended to be published publicly. A friend of mine has performed a breach of confidence.”
