Institute for War and Peace Reporting | Giving Voice, Driving Change

Hartmann to Appeal Contempt Conviction

Leading media freedom group says judgement undermines credibility of international criminal justice.
By Rory Gallivan
An ex-spokesperson for the prosecutor of the International Criminal Tribunal for the former Yugoslavia, ICTY, is to appeal after being convicted of contempt of court for disclosing confidential information.

Florence Hartmann, who served as the spokesperson to former tribunal prosecutor Carla Del Ponte from 2000 to 2006, was fined 7,000 euro for revealing, in knowing violation of a court order, the details of two appeals chamber decisions made in the case against former Serbian president Slobodan Milosevic. The prosecution had called for a fine of between 7,000 and 15,000 euro.

“We will appeal this matter and are in the throes of doing so,” Hartmann’s lawyer Karim Khan told IWPR the day after the judgement was passed. The defence team has 15 days from the date of the decision to file an appeal.

The information Hartmann revealed related to orders by Hague judges to suppress parts of certain Serbian military documents that Belgrade had provided for use in the case against Milosevic. The former president’s case ended without a verdict when the accused died of a heart attack in 2006.

The documents are thought to include minutes of meetings of Serbia’s Supreme Defence Council, SDC, held during the Balkans wars of the Nineties. These minutes are widely believed to contain crucial information about Belgrade’s involvement in these wars, and victims’ groups, lawyers and the media have all criticised the decision not to make them public.

Hartmann, a former journalist who covered the war in Bosnia for French newspaper Le Monde, discussed confidential aspects of the court’s handling of these documents in a book entitled Peace and Punishment (Paix et Chatiment), published in September 2007, and in an article published on the Bosnian Institute website on January 21, 2008.

In the article, which remains on the Bosnian Institute website, Hartmann argued that the suppressed documents might have supported the Bosnian government’s genocide case against Serbia at the International Court of Justice, ICJ, which concluded in February 2007.

While ICJ judges found Serbia guilty of failing to prevent the genocide committed against Bosniaks in Srebrenica in 1995 and to punish the perpetrators, they ruled that Serbia was not directly responsible for this crime.

Hartmann said in her article that Serbia requested that protective measures be applied to the documents, invoking a Hague tribunal rule which allows for such material to be kept secret if its disclosure could “prejudice national security interests”.

According to her report, tribunal judges agreed to Serbia’s request to grant confidential status to parts of the documents, finding that the state’s “vital national interest” in not damaging its position in Bosnia’s case before the ICJ could be admitted as a “national security interest”, thus allowing protective measures to be granted under the rule.

When reading out the summary of the judgement against Hartmann this week, presiding judge Bakone Moloto said her conduct could deter states from submitting evidence to the tribunal in future.

“This, in turn, necessarily impacts upon the tribunal’s ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law as prescribed by its mandate,” he said.

During the trial, Hartmann’s defence argued that the confidential information she included in her article and book was already widely known. It cited articles published in US newspapers The New York Times and The International Herald Tribune, as well as on this website of the UK-based Institute for War and Peace Reporting, IWPR, which it said had displayed information about the ICTY decisions.

But judges said that while they considered the fact that some of the information revealed by Hartmann had already been in the public domain, they ruled that this did not negate Hartmann’s actions. They also noted that not all of the information contained in her book and article had been publicly known at the times of publication.

Judges also dismissed the defence argument that in bringing charges against Hartmann without investigating others suspected of similar acts, prosecutors had unfairly singled her out.

“The chamber finds that evidence that other persons may have committed similar acts to those alleged in the indictment is irrelevant to the case at hand, as it does not prove or disprove any of the charges against the accused,” the judgement said.

The judgement also noted that although the tribunal’s registrar had written to Hartmann on October 17, 2007, after the publication of her book, instructing her to comply with tribunal staff regulations to respect the confidentiality of judicial documents, she still went on to publish her article.

Judges also said that during an interview with Hague tribunal prosecutors, Hartmann stated that the article was intended to be an “English version” of certain passages in the book, which was published in French. “It’s nothing new,” she said in the statement, according to the judgement.

The investigation into the contempt allegations against Hartmann began on January 23, 2008, two days after the article’s publication.

During the trial, defence lawyer Khan argued in court that in revealing the information in question, Hartmann had been fulfilling her duty as a journalist “as the watchdog of society in democratic pluralistic societies, not only of the executive, but all parts, including the judiciary and the legislature”.

The defence argued that Hartmann had revealed information about the appeals chamber decisions in the belief that judges had violated the tribunal’s duty to assist victims in seeking compensation for war crimes.

It called upon Louis Joinet, a French judge specialising in human rights, and Serbian human rights activist Natasa Kandic, to appear as witnesses.

During its examination of Joinet, the defence referred to a letter he signed, published in Le Monde in December 2008, which criticised the proceedings against Hartmann.

Joinet told judges that he had added a paragraph to the letter which he read out in court.

“We believe… that international justice, which… we have always supported, could only be strengthened in its fight against impunity by encouraging a large reflection on its role and functioning. Its reliability depends on it,” he said reading from the letter.

He said that the paragraph had been inspired by his years’ of experience of reporting on issues of freedom of expression when he worked for the United Nations.

Kandic argued during her examination that many people in Serbia knew that the documents in question existed, and that their existence had been widely discussed there before Hartmann’s revelations.

Referring to Hartmann’s indictment for contempt, she said, “It seemed completely illogical… that one person should be singled out for discussing it.”

The prosecution called two witness: Yorric Kermarrec, who works for Flammarion, the company that published Hartmann’s book, and Robin Vincent, the registrar of the Special Tribunal for Lebanon.

Prosecution lawyer Bruce MacFarlane asked Kermarrec whether Flammarion had an agreement with Hartmann to pay her royalties on her book, and also to confirm how many copies had been sold. He replied that there was such an agreement and that 3,799 copies had been sold as of June 8, 2009.

When examining Vincent, MacFarlane asked about the importance of confidentiality of state information in matters of international justice.

Referring to his work at the Lebanon tribunal, as well as to his previous experience at the ICTY and with a war crimes tribunal in Sierra Leone, Vincent said that states would be unlikely to hand over confidential material if they feared that this could be disclosed.

“If there is any lack of confidence in the tribunal, so far as the state is concerned that's in a position to provide evidence which is crucial to that particular tribunal, once its recognised that there has been or may well be dangers of breaches, then it's unlikely that the cooperation that tribunal seeks will actually be forthcoming,” he said.

The decision to try Hartmann for contempt prompted widespread opposition, and the guilty verdict sparked further criticism.

Reporters Without Borders, RSF, which campaigns for press freedom, said in a statement published on its site on September 15, “This conviction undermines the credibility of international criminal justice.

“How can you trust a court that chooses to conceal documents that would help to render justice and then suppresses information about its own functioning?”

Former president of Slovenia Milan Kucan also voiced his disappointment at the verdict.

Kucan, who before the trial signed a petition in support of Hartmann, was quoted in the Slovenian newspaper Dnevnik and other local media as saying, “Without understanding the circumstances under which the court operates, it would be very difficult to strengthen confidence in its work.”

Kucan led Slovenia to independence in opposition to Milosevic in 1991, a process that culminated in a ten-day war between Slovenia and the Yugoslav army. He was Slovenia’s head of state from 1991 to 2002.

Marko Attila Hoare, a historian specialising in the former Yugoslavia, who has worked as a research officer for the ICTY, was also critical of the judgement.

“The judges' refusal, in their verdict against Hartmann, to acknowledge the public interest in their disclosures epitomises the tribunal's increasing divorce of the principle of justice from their actual work,” he told IWPR.

He argued that it was particularly wrong to try such a case, when many of those suspected of war crimes in the Balkans still walked free.

“The very act of prosecuting Hartmann while allowing so many of the key Serbian perpetrators to remain unindicted demonstrates the tribunal's skewed priorities,” he said.

Rory Gallivan is an IWPR contributor in London.