France Will Not Arrest Former ICTY Spokeswoman

by Julian Ku

France has turned down the ICTY’s request that it detain and turn over a former ICTY spokeswoman who has been sentenced to a week in prison for contempt of that court.

PARIS — France refused Monday to carry out an arrest mandate from the Yugoslav war crimes tribunal against a French journalist convicted of contempt for revealing confidential information about the tribunal’s work.

The nation’s chief Foreign Ministry spokesman, Bernard Valero, said France’s accords with the International Criminal Tribunal for the former Yugoslavia require it to carry out mandates against those accused of “serious crimes” but not offenses against the court itself, such as Florence Hartmann’s contempt conviction.

I don’t know any of the details of France’s agreements with the ICTY, but this certainly sounds like the right result.  I don’t think the Security Council Resolutions obligate states to cooperate with the ICTY on matters besides serious violations of international humanitarian law, unless there is some other provision I am not aware of. An interesting legal question, though, nonetheless.

http://opiniojuris.org/2011/12/27/france-will-not-arrest-former-icty-spokeswoman/

7 Responses

  1. Wow!  Thanks for this, Julian; I didn’t see it.  Kudos to France to standing up to the ICTY’s petty thuggery.

  2. It is hard to see why the ICTY stuck its neck out so far for this. There will probably be repercussions (both legal and reputational) from the decision by one of the ICTY’s supporters not to enforce an ICTY arrest warrant even if it is for what is essentially a contempt of court proceeding.

  3. Doesn’t the ICC have the ability to define its own jurisdiction?  Isn’t France treading on that power?

  4. NSD,

    It’s the ICTY, not the ICC.  And the issue is cooperation, not jurisdiction — France is arguing, based on the text of the cooperation provisions in the statute, that its duty to cooperate doesn’t apply to offenses like contempt.

  5. Shouldn’t the ICTY have the power to define the scope of that cooperation under the same theory as the ICTY having the power to define its own jurisdiction.  Otherwise, what is to prevent a country from defining serious offense in an absurd way?

  6. NSD,

    It’s a perfectly fair point — one with which I’m sure the judges would completely agree.  As always, though, the tribunal is more dependent on states for cooperation than vice-versa.  The ICTY could always complain to the Security Council, but there’s that pesky problem of France having a veto!

  7. Both France and the ICTY probably have plausible legal arguments supporting their positions.  But that doesn’t negate the reputational damage to the ICTY from the incident.  I also wouldn’t rule out some sort of legal effect at some point.  Anyone wishing to justify a refusal to turn over a fugitive from international justice is going to cite this incident, even if the facts are significantly different (i.e., the warrant is against someone who is charged with serious violations of international law).

    This whole thing reminds me a little of the context of Marbury v. Madison.  How does a court get the political branches to accept its decisions?  Ultimately it turns on legitimacy.  Anything that damages legitimacy has the prospect of making it harder for the court to get its decisions enforced.  For that reason, I tend to think it was a silly fight for the ICTY to pick.

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