An Unfortunate Trial Begins at the ICTY
Florence Hartmann’s contempt trial began today at the ICTY. Hartmann, a celebrated journalist who served as the Tribunal’s spokesperson from 2000-2006, is charged with knowingly disclosing confidential Tribunal information:
On 10 September 2007, a book entitled Paix et Châtiment, authored for publication by Florence Hartmann, was published by Flammarion. Pages 120-122 of the book Paix et Châtiment in particular disclose information related to the decisions of the Appeals Chamber dated 20 September 2005 and 6 April 2006, including the contents and purported effect of these decisions, as well as specific reference to the confidential nature of these decisions.
On 21 January 2008, an article authored for publication by Florence Hartmann entitled “Vital Genocide Documents Concealed” was published by the Bosnian Institute. The article discloses information relating to the two confidential decisions of the Appeals Chamber dated 20 September 2005 and 6 April 2006, including the contents and purported effect of these decisions.
Florence Hartmann knew that the information was confidential at the time disclosure was made, that the decisions from which the information was drawn were ordered to be filed confidentially, and that by her disclosure she was revealing confidential information to the public.
Some scholars question whether the Tribunal has the power to punish contempt, which is provided for by the ICTY’s Rules of Procedure (Rule 77), but is not mentioned in the ICTY Statute. I don’t have a problem with the contempt power itself: the “courtness” of courts, it seems to me (and forgive the butchering of Heidegger), includes the power to punish contempt. That said, I think this particular use of the contempt power is an exceptionally bad idea. As numerous human-rights groups and NGOs in the former Yugoslavia have pointed out, the information Hartmann disclosed was already in the public domain:
On November 3, the Belgrade-based Humanitarian Law Centre, of which Hartmann is a member of the executive board, issued a press release signed by 34 non-governmental organisations from the former Yugoslavia in which they condemn the tribunal’s decision to indict the former tribunal spokesperson.
The statement noted that the content of the confidential decisions was “the subject of many press reports and public debates after the International Court of Justice delivered its judgment in February 2007 in the case of Bosnia and Herzegovina versus Serbia on charges of genocide, and it is not clear why Ms. F. Hartmann has been singled out by the Hague judges”.
As the Belgrade group notes, human rights organisations throughout the region openly criticised the decision of tribunal judges to accept the request submitted by Serbia to conceal parts of the SDC minutes. They alleged that Belgrade wanted the documents kept confidential to prevent them from being used in the parallel case before the ICJ in which Bosnia as a state accused Serbia of genocide. Although the ICJ ultimately found Serbia was not directly responsible for genocide, it found it guilty of failing to prevent the genocide in Srebrenica and punish the perpetrators.
IWPR has itself written about this issue extensively, for example, in the report Secrecy and Justice at the ICTY, by Hague-based reporter Simon Jennings, published on May 14, 2008, as well as in How Belgrade Escaped Genocide Charge, by Slobodan Kostic in Belgrade, published on February 15, 2008.
There is no question that Hartmann knowingly violated Tribunal rules. But that doesn’t mean she should be criminally prosecuted. Indeed, given that her disclosures seemingly revealed nothing new, her prosecution only makes the Tribunal seem petty and vindictive, more interested in silencing an insider critic than doing justice.
Just last week, the President of the ICTY, Patrick Robinson, told the Security Council that the Tribunal would not complete its first-instance trials until 2012 at the earliest — four years behind schedule. Given the Tribunal’s workload, prosecuting Hartmann hardly seems worth the time and effort.