The Competence of Judge Güney and the Boomerang Effect

Declarations of war often have a boomerang effect, causing more damage to the attacker than the attacker had ever anticipated.  Just ask George Bush what happened after he declared “Mission Accomplished” in Iraq.  In The Hague, the war launched on the ICTY’s judges in early 2013 continues.   As I have noted previously, Judge Theodor Meron has been subjected to what I figuratively refer to as a “Joint Criminal Enterprise” by a disgruntled few.  More recently, Judge Frederic Harhoff discovered the “boomerang effect” when he launched an attack on Judge Meron in an email to 56 of his “closest friends,” only to find himself attacked on multiple fronts by multiple defendants and ultimately disqualified from the Seselj case by a panel of his judicial colleagues.

Today comes a new attack on ICTY Judge Mehmet Güney of Turkey, this time on the pages of the Süddeutsche Zeitung (“SZ”).  In an article titled, “The Fight for Supremacy on the UN Tribunal,” the SZ reports (citing those sinister “anonymous sources,” but widely believed to be sourced by a certain “Balkan journalist” based in The Hague) that Judge Güney is “no longer really sure on his feet,” that he “communicates only in writing,”  and “is no longer able to monitor long conversations and at meetings loses his orientation.”  Moreover, the “anonymous sources” allege that Judge Meron is “pulling Judge Güney along with him for as long as Judge Meron thinks he needs Judge Güney’s vote.” SZ then states that had Judge Güney not voted with the “American President of the Tribunal, then there would be no stunning 3-2 decision in favor of the acquittal of the two Croats.”

The article concludes by stating that a “medical examination of one of the judges can only be ordered by the President of the Tribunal,” and therefore the “incompetent” Judge Güney cannot be removed from the ICTY before the end of his mandate in 2015 unless the judges elect a new judge to replace Judge Meron as President of the ICTY on October 1^st.  This statement, combined with the article’s title, (“The Fight for Supremacy on the UN Tribunal”), makes it clear that the article is really just part of the campaign to discredit Judge Meron on the eve of ICTY elections for President of the Tribunal, a campaign which has been organized for months by the “Balkan journalist” based in The Hague.

But let’s look at the substance of the allegations against Judge Güney, who supposedly can “communicate only in writing” and is “pulled along by Judge Meron.”  The Gotovina Appeals Chamber Judgement was delivered on 16 November 2012.  Meanwhile, Judge Güney was the Presiding Judge and the Pre-Appeal Judge in the appeal of Milan Lukic, whose appellate judgement was delivered on 4 December 2012, almost three weeks after the Gotovina Appeals Judgement.  As the Presiding Judge and the Pre-Appeal Judge in Lukic, Judge Güney had primary responsibility for administration of that case, including resolving motions and preparing the actual Judgement.  Accordingly, those now anonymously attacking Judge Güney are also calling into question the legitimacy of the appeals convictions of Milan and Sredoje Lukic.  Indeed, if the Judge most responsible for preparation of the Lukic Judgement was incompetent, then the Judgement is not sound and must be reviewed.

But was Judge Güney really able to “communicate only in writing”?  The video of the delivery of the Lukic Judgement (again, delivered three weeks after the Gotovina and Markac acquittals), suggests that Judge Güney was able to communicate verbally without any problems.  Furthermore, he delivered the Judgement for 36 consecutive minutes, contradicting the claim that he is “no longer able to monitor long conversations and at meetings loses his orientation.”

It should be noted that Judge Meron was not a member of the Lukic Appeals Chamber, so Judge Meron was not there to “pull along” Judge Güney, as the SZ article claims.   Moreover, Judge Güney was a member of a 3-2 majority (along with Judges Agius and Morrison) that voted to grant two of Sredoje Lukic’s grounds of appeal.  Unless the “anonymous sources” of SZ are willing to go so far as to suggest that Judges Agius and Morrison (like allegedly Judge Meron) are also “manipulators of the incompetent Judge Güney,” the 3-2 vote in Lukic suggests that Judge Güney is able to reach decisions competently and independently of Judge Meron or anyone else.

Finally, it should be noted that the Lukic and Gotovina Appeals Chambers had three common judges:  Judges Güney, Agius and Pocar.  If Judge Güney were “incompetent” at the time of the delivery of the Gotovina Appeals Chamber Judgement, Judges Agius and Pocar would have had to know about it.  They would have had a duty to disclose to the parties in the Gotovina case that they believed one of their colleagues was incompetent at the time of judicial deliberations.  Instead, Judges Agius and Pocar, despite vigorously dissenting from the Majority decision, never suggested in their dissents that the Majority had reached its decision where one member of the Majority was incompetent.  Moreover, Judges Pocar and Agius then went on to sit with their colleague in the Lukic case, where they not only did not disclose any concern about Judge Güney’s fitness to be a member of the Appeals Chamber, but also had no concern about Judge Güney being named the Presiding Judge in the case. Indeed, Judge Agius in the Judgement went so far as to join Judge Güney (and oppose Judge Pocar) in forming a 3-2 Majority on certain issues in the Lukic Judgement.

Accordingly, the silence of Judges Agius and Pocar in the Gotovina and Lukic cases strongly suggests that Judge Güney was not incompetent at the time of delivery of both Judgements in November and December 2012.  If it were true that Judge Güney was incompetent at the time of delivery of both judgements, and Judges Agius and Pocar kept silent, then Judges Pocar and Agius would have to be disqualified from both cases along with Judge Güney, because both Pocar and Agius would have breached their ethical duties to disclose information critical to determining whether the fundamental rights to a fair trial and to an independent and impartial tribunal were violated by Judge Güney’s membership on both panels.

Those “anonymous sources” attacking Judge Güney on the basis of his vote in the Gotovina Appeal are thus also inadvertently calling into question the ICTY’s conviction of Milan and Sredoje Lukic, once again demonstrating the “boomerang effect” of going to war on false pretenses. 

Just ask “Boomerang Fred” Harhoff.