Is Hartmann's Trial Necessary?
Is Hartmann's Trial Necessary?
At a recent appearance in The Hague, a former spokesperson for the Office of the Prosecutor, OTP, at the International Tribunal for the former Yugoslavia, ICTY, was uncharacteristically quiet. Florence Hartmann seemed nervous and uncomfortable, and didn’t say much.
This is hardly surprising, as the French journalist was now sitting in the dock before the very court she so vigorously promoted for seven years, serving until 2006.
Charged with contempt of court for allegedly revealing confidential information, Hartmann could face a fine of up to 100,000 euro, or seven years in prison, or both.
The trial is expected to start in January, and in this her first appearance in court, Hartmann declined to enter her plea until the court’s registry decides if she is entitled to legal support.
But procedural details aside, the real question is whether the case should have been brought in the first place.
In August this year, Hartmann was accused of revealing elements of confidential decisions made by appeal judges in the trial of former Serbian president Slobodan Milosevic at the Hague tribunal.
Milosevic, who went on trial in The Hague in 2002 for war crimes in Bosnia, Croatia and Kosovo, died in his cell in March 2006, before proceedings were complete.
In her 2007 book Paix and Chatiment (“Peace and Punishment”), and in her article, “Vital Genocide Documents Concealed”, published on the Bosnian Institute website on January 21, 2008, Hartmann allegedly revealed the contents of two confidential decisions – made by appeals judges on September 20, 2005 and April 6, 2006 – while at the same time noting that they were confidential.
The information she revealed is thought to relate to the court’s handling of certain documents, including minutes of meetings of Serbia’s Supreme Defence Council, SDC, during the wars in the former Yugoslavia in the 1990s.
The minutes from these meetings are widely believed to contain crucial information about Belgrade’s involvement in these wars, and both lawyers and the media have criticised the decision not to make them public.
Tribunal judges reportedly granted parts of the documents confidential status at Serbia’s request, under tribunal rules of procedure and evidence which allow a state to keep its documents secret if their disclosure could “prejudice national security interests”.
Although Hartmann is not the first journalist to be indicted by the tribunal for contempt of court, she is the first former employee of the tribunal to face these charges. She is also the first journalist indicted not for revealing the identity of protected witnesses but parts of confidential decisions made by the court.
As a spokesperson for the former chief prosecutor Carla Del Ponte, Hartmann obviously had access to some sensitive and confidential documents in the possession of the tribunal, even though she wasn’t supposed to. While lawyers, investigators and researchers employed by the court are entitled to see these documents, spokespersons are not.
Any court, including the Hague tribunal, must have means to prevent such documents from being leaked.
In the tribunal’s case, that instrument is contained in its Rules of Procedure and Evidence. Rule 77 states that the tribunal “may hold in contempt those who knowingly and willfully interfere with its administration of justice, including any person who . . . discloses information relating to those proceedings in knowing violation of an order of a [trial] chamber”.
Rules such as this one are perfectly acceptable if applied reasonably. However, Hartmann’s indictment raises the question of what this court is really trying to protect here.
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.
In May 2008, IWPR organised a round table in The Hague on judicial transparency, focusing on the protected SDC documents and the judges’ confidential decisions granting protective measures.
Although both judges and the prosecutors employed by the tribunal were invited to participate, they refused. A spokesperson for the OTP said, “Any discussion on the topic of confidential decisions and documents would be a violation of the Tribunal's Rules.”
IWPR was also warned by the OTP spokesperson that “anyone who engages in the dissemination or discussion of information which is considered confidential in accordance with the Tribunal's Rules of Procedure and Evidence is in violation of those Rules and could be held in contempt of the Tribunal, in accordance with Rule 77 of the Tribunal's Rules”.
The round table went ahead without incident, and no charges were brought.
Subsequently, Judge Fausto Pocar, the president of the ICTY, speaking to the media in Bosnia and Hercegovina, appeared to suggest that the question of opening the SDC documents was under review. When asked about the possibility of making the Serbian state archive documents available, he replied, “This is a question that is still open… We at the tribunal definitely have to take a position on this.”
IWPR followed this up by writing to Judge Pocar requesting permission to present amicus curiae arguments for unsealing the documents. No response has been received.
Why, then, is Florence Hartmann in the dock?
The French reporter, who covered the conflict as a correspondent for Le Monde, claims that disclosure of these documents was in the public interest.
“Public opinion is one of the leading forces in support of international justice because it is for the protection of any citizen in the world,” she told IWPR shortly after her indictment was made public. “Public discussion of judicial affairs is a driving force behind the success of international justice.”
Some observers claim she did this not to serve the public interest but her own, because she simply wanted publicity. Certainly, the case has brought increased publicity to Hartmann, and to her publications.
In any case, it is fair to assume that as a former employee of the tribunal, Hartmann knew its rules very well. She must have known that by revealing parts of confidential decisions she was at risk of being indicted for contempt of court. Whether she believed it would ever come to that is another issue.
The tribunal is due to close down in December 2010 and it already has more cases than it can deal with in such a short time. Twenty-two individuals are currently on trial, six are awaiting the delivery of their judgement, ten are on appeal, and five are expecting the imminent start of their trial, including four who were only arrested in recent months.
The confidentiality ruling on the SDC documents has been highly controversial and widely criticised by NGOs, journalists and some senior jurists. The president himself has seemed to suggest that the matter should be reviewed.
In these circumstances, is bringing a case against Hartmann the best use of precious remaining court time and resources?
Prosecuting journalists for contempt is a fairly recent phenomenon at the tribunal and one which has raised questions about the balance of freedom of speech versus judicial powers.
When the information in question is about the identity of protected witnesses, there would seem to be no dilemma over the importance of holding accountable those who put people’s lives at risk only to make a good headline.
But when leaked information is about confidential judicial decisions, it must be asked whether bringing legal charges is justified.
The former chief prosecutor’s spokesperson clearly disregarded professional ethics when she decided to reveal documents she got hold of as the tribunal’s employee. One could argue that was wrong from a professional point of view, in respect of her former employer. However, she wasn’t the only one talking publicly about these documents, or the judges’ decisions.
It is also clear that by using a sledge hammer on such an arguably small matter, the tribunal only fuels suspicion about the true reasons for indicting Hartmann. Is this really about justice, or about the tribunal’s power to punish those who raise unpleasant questions?
Indeed, while opening procedural matters are debated, human rights groups are asking whether the trial of Hartmann itself will be held in closed session, due to the confidentiality of the documents involved.
In a letter this summer to IWPR, a spokesperson for the tribunal asserted that the ICTY was a “world leader in judicial transparency”.
Placing a former employee in the dock over a matter of such raging controversy suggests exactly the opposite.
The views expressed in this article are not necessarily the views of IWPR.
