Hell Hath No Fury Like a Tribunal Scorned (Updated)

by Kevin Jon Heller

According to AFP, the ICTY has issued an “arrest warrant” for Florence Hartmann for failing to pay the fine she received for her 2009 contempt conviction:

The UN Yugoslav war crimes court issued an arrest warrant Wednesday against a former spokeswoman for the tribunal’s chief prosecutor for refusing to pay a 7,000-euro ($10,000) fine.

Florence Hartmann, a French national, was found guilty of contempt in 2009 for disclosing confidential details of the trial of the late Serbian strongman Slobodan Milosevic.

“The French Republic is hereby directed and authorised to search for, arrest, detain and surrender promptly to the tribunal, Florence Hartmann,” the Hague-based court said in an order.

Her fine “has been converted to a term of seven days of imprisonment,” it added.

The International Criminal Tribunal for the former Yugoslavia (ICTY) found her guilty of contempt in September 2009 for having “knowingly and wilfully interfered with the administration of justice”.

Hartmann was prosecuted for writing about two confidential appeals chamber decisions in a 2007 book she authored on the ICTY and in a later published article.

I’m not sure what authority the ICTY has to order France to arrest Hartmann.  I’m even less sure what authority it has to summarily “convert” her punishment two years after the fact from a fine to imprisonment.  Then again, the statute also says nothing about punishing contempt or imposing a fine on a convicted defendant, so I imagine the judges believe that the latest order is simply a manifestation of the their inherent power to ensure the integrity of the ICTY’s proceedings.  But it’s still troubling — especially the ex post facto conversion of her punishment.

Legal considerations aside, this is the latest terrible PR move by the ICTY.  Prosecuting Hartmann for revealing information that was already in the public domain was bad enough.  Convicting her was even worse.  Attempting to imprison her for failing to pay her fine is completely over the top.  I’m sure there is some mechanism in French law to force Hartmann to pay; there is no need to try to imprison her.  This is obviously yet another attempt by the ICTY to punish Hartmann for having the temerity to violate her confidentiality agreement.  But all it does is make the tribunal look petty and vindictive.

Hat-Tip: OUP’s John Louth.

UPDATE: Jannek is quite right (in the comments) that r. 77 and r. 77bis of the Rules of Procedure and Evidence permit the fine and the conversion of the fine into imprisonment.  I should have mentioned the rules in the post — but I don’t think they answer the legal question.  A rule permitting a penalty not provided for in the ICTY statute is not a rule of procedure; it is a new substantive rule.  The same is true of permitting the conversion of one penalty into a different penalty.  I would argue, therefore, that both provisions are ultra vires.

Then again, the rule permitting the judges to punish contempt is also clearly substantive, and the Security Council never complained about that!

http://opiniojuris.org/2011/11/17/hell-hath-no-fury-like-a-tribunal-scorned/

10 Responses

  1. Seems strange to me too, why not collect the fine in France? Then again, the conversion of the fine into imprisonment doesn’t bother me in the slightest. That seems completely standard procedure. (Except that that alternative will normally be mentioned from the start.)

  2. Interestingly, Hartmann has claimed that she has made the money available to the Tribunal. SENSE has a report here: http://www.sense-agency.com/icty/hartmann-insists-tribunal-should-collect-the-fine.29.html?cat_id=1&news_id=13324.

  3. The actions against Hartmann aren’t by far as legally troubling as the author suggests.
    In fact, the earlier punishment for contempt and the conversion of the fine to imprisonment (which is in its legal character less an ex-post conversion than an alternative sentence for failure to pay a fine) complies with the applicable written law of the ICTY.
    While it is true that the statute doesn’t include provisions for punishing contempt, the statute provides in Art. 15 that the judges shall adopt the rules of proceedings themself.
    Accordingly, rule 77 and 77 bis of the “ICTY Rules of procedure and evidence” take care of punishing contempt and the “conversion” of the fine to imprisonment.
    Legal considerations aside:
    Shouldnt a court exhaust all its (already limited) available tools so that its jurisdiction be carried out? I think it is even obliged to do so in order to keep its credibility. Any other demeanor would indeed make the joke out of it, that the author already thinks it is.

  4. QUOTE:“Seems strange to me too, why not collect the fine in France?”
    Because other than the ICC statute with its Art. 109, the ICTY statute doesnt contain legal provisions for the enforcment of fines through state authorities/national law.

  5. Kevin, I once argued with Judge Cassese on this precise point.  If I remember correctly, his view was that the power to hold individuals in contempt of court was an inherent part of the judicial power vested in the tribunal by the Security Council.  This is reminiscent of the argument in Tadic that such a tribunal is inherently competent to determine its jurisdiction.  It’s a fair argument but doesn’t necessarily support the idea that the court has inherent power to declare that contempt to be criminal and to impose a penal sanction.  This is particularly problematic because, unlike the power to determine jurisdiction or the bare power to hold someone in contempt, the ICTY’s power to impose a penal sanction against individuals IS defined in the statute, and does not include the power to punish those in contempt of court.

  6. Interesting point, John. 

    To begin with, i think the jurisdiction here derives explicitly from Art. 15, in that it assigns adjective law-making powers to the tribunal (“shall adopt rules of procedure…for the conduct of trial”).

    Concerning your last phrase:

    It is my understanding that the power to impose penal sanctions for the crimes defined in the statute is distinct from the question of power to sanction contempt of court:

    In-compliance with the rules of procedure (e.g. contempt of court) is neither a criminal offense nor an infraction (which are material law). Fine or detention penalties for such conduct are sui-generis sanctions of procedural law (at least in continental law).
    As procedural jurisdiction powers are explicitly assigned through Art. 15, the power to punish contempt of court is not ruled out by the exhaustive list of crimes defined in the statute.

  7. I think there must be more to this story, unless it is just a clever way of telling the ICTY to come and get the money, knowing that they can’t.
    Here is my take on the case.
     
     
     

  8. Thanks Jens and Jannek.  Great stuff.  You both agree that the basis for imprisonment rests in the ICTY’s authority to establish its procedural law.  I think this would surprise most U.S. lawyers.  Particularly given the issuance of an “arrest warrant” as well as the unconditional nature of the sanction and its “conversion” into a ”detention,” it would seem at first blush to require a substantive rule to justify the fine/detention/imprisonment.

    The perception that there must be a substantive rule to justify a fine or imprisonment explains both my and Kevin’s response.  The underlying question would then seem to become whether, given the apparent differences in legal traditions on this point, it was appropriate for the court to adopt the continental approach in this area.  Given the ICTY’s past practice, it is not surprising that it did.

  9. Response…

    There are serious criminal contempt issues to be addressed by the Yugoslav Tribunal, including the alleged leaking of the names of witnesses in the war crimes investigation concerning Ramesh Haradinaj, leader of northwestern Kosovo, resulting (it is said) in witness intimidation. 

    But the Florence Hartmann case was not the right occasion for the war crimes tribunal to flex its muscles. 

    Ms. Hartmann’s revelation of two ICTY rulings on Serbian government records concerning the genocide in Bosnia did not harm any vulnerable persons. And whether one agrees with her choice or not, it was done in apparent protest of the Hobson’s choice in which this potentially important evidence was kept from the International Court of Justice in its resolution of the Bosnia v. Serbia genocide case — a true dilemma concerning the comity that one international court may owe to a sister court. 

    The Yugoslav tribunal could have collected its fine against Ms. Hartmann through civil process, or by taking her up on the proffer of monies pledged by her supporters.  Demanding personal   submission does not serve a tribunal in which function is more important than personalities. 

    War crimes tribunals are becoming key players in political and legal history, and it is unrealistic to suppose that their internal histories will be forever unexamined. There are lessons to be learned about the difficult practical challenges faced by a war crimes tribunal in gathering evidence and securing cooperation from states — whether in the thwarted attempt to prosecute Tutsi crimes in the Rwanda tribunal or the notorious example of Katyn Forest and the Russians at Nuremberg.  But the Yugoslav tribunal should focus on the most important tasks at hand — including learning how to try cases more expeditiously, before defendants evade judgment through their decease — rather than chasing after a press agent whose own moral beliefs about the need to fight genocide led her to reveal an appellate ruling.   

  10. Besides the jurisdiction issue, there is of course the question of enforcement of such sentences. More precisely, can states surrender a person charged with contempt?
    The determining legal basis are the bilateral agreements on surrender of persons between the states and the Tribunal.
    In the case of the United States the agreement is most certainly not applicable to surrender for contempt charges as it is limited to violations “as defined in the statute”.
    The french agreement on the other hand is – at least by its wording – applicable to any sentence imposed by Tribunal.

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