Florence Hartmann - Contempt of Court in The ICTY

Contempt of Court in The ICTY

On 27 August 2008, Hartmann was indicted by the Tribunal for disclosing, in a book and article, confidential information pertaining to two decisions of the Tribunal approving black-outs and exclusions from critical historical war documents provided by Belgrade for the trial of the former Serbian President Slobodan Milosevic and showing Serbia's involvement in the Srebrenica massacrein the Srebrenica massacre. In her impugned publications, Hartmann described how, in her view, the ICTY Appeals Chamber had used an invalid legal reasoning to effectively censor evidence which might have implicated Serbia-Montenegro in the commission of genocide in Bosnia and Herzegovina during the 1990s Balkans wars. Hartmann specifically criticized the ICTY Appeals Chamber for improperly denying victims of mass atrocities the ability to access information critical to their ability to obtain reparation for crimes committed against them and their relatives. She argued that the war documents censored by the ICTY should have been made available during a separate trial at the International Court of Justice(ICJ) in which Bosnia unsuccessfully tried to sue Serbia for genocide, because they could not prove a direct link between Belgrade and war crimes committed in Bosnia – most notably the massacre of up to 8,000 Muslim men and boys around Srebrenica in 1995. The Tribunal decision to grant confidentiality for the key portions of Belgrade war documents acknowledged that disclosure would harm Serbia's "vital national interests" by failing to protect Serbia from having to pay damages to Bosnia in Bosnia's suit then-pending at the ICJ.

There was no dispute at trial that Hartmann had written the impugned publications as a journalist. The Tribunal never questioned the truth and accuracy of what she said in her publications nor did it claim that she could have violated her duty of confidentiality as a former ICTY’s spokesperson. In a letter dated 7 February 2009 related to the agreed facts between the parties, the amicus prosecutor also indicated that Hartmann had never seen the concerned confidential decisions while she was working at the Tribunal or later when she wrote her publications.

The issue at the trial was whether the information she was said to have impermissibly disclosed – “the existence and the purported effect” of the two impugned confidential decisions of the ICTY Appeals Chamber’s dated 20 September 2005 and 6 April 2006 – was confidential or whether only the key evidence Serbia sought to censor was protected by a Court order.

On 14 September 2009, the ICTY found Hartmann guilty of contempt of court and convicted her to pay a €7,000 (£6,100)fine for disclosing information relating to the two confidential ICTY Court orders that deprive victims and public from access to documents on Serbia's involvement in planning and executing the Srebrenica genocide in 1995. While the Chamber has found that "some protected information disclosed by the Accused in her publications was indeed in the public domain", it considered however that she disclosed "more information, notably the legal reasoning applied by the Appeals Chamber in reaching its dispositions, as well as the purported effects of both Appeals Chamber decisions”. On this grounds, Hartmann was found guilty of violation of two appellate orders dated 20 September 2005 and 6 April 2006 issued in the Slobodan Milosevic case before the ICTY.

On 24 September 2009 Hartmann launched an appeal against the conviction.The London based international NGO dedicated to the protection and the promotion of freedom of speech Article 19 submitted an Amicus Curiae brief calling the ICTY Appeals Chamber to apply the international standards that have been disregarded by the Trial Chamber.

On 19 July 2011, the ICTY Appeals Chamber dismissed all the grounds of appeal advanced by Hartmann and confirmed the conviction, limiting it exclusively to the "disclosure of the legal reasoning of the two impugned confidential decisions". The imposition of the €7,000 fine was upheld.

The charges made no specific mention of the legal reasoning. During the trial, the ICTY resisted any effort to identify what specific portion(s) of the two impugned decisions were improperly disclosed. The Appeals Chamber still does not specifying what part of Hartmann’s book or article is supposed to discuss that “legal reasoning”. However, the legal reasoning was also in the public domain prior to Hartmann’s publications, having been disclosed earlier by the Tribunal itself, by Serbia and by the press.

In March 2011, prior to the issuing of the Appeal judgment against Hartmann, the impugned confidential decisions criticized by the French journalist were turned down. Most of the critical historical war documents provided by Belgrade for the trial of the former Serbian President Slobodan Milosevic in relation to which confidentiality orders had initially been made were released by the ICTY and admitted as public evidence in the ICTY case against former Yugoslav Army chief of staff Momcilo Perisic. The only information pertaining to the 2005 and 2006 confidentiality Court orders that still remains protected is therefore the Appeals Chamber’s legal reasoning. However, no ban was ordered in the ICTY Appeal judgment in relation to the three impugned pages of Hartmann’s book or her article.

In reaction to Hartmann conviction by the ICTY, several international NGOs have criticized the ICTY for hiding its “legal reasoning” while the publicity of criminal proceedings is a general principle of criminal and international law which aim is to guarantee the transparency and public control of judicial proceedings. Reporters Without Borders and Article 19 condemned a conviction contravening international case law relating to freedom of expression.

Noting that the reliability of the functioning of justice is linked to transparency, Reporters Without Borders stated that “it is the duty of the press to highlight how this internationally created system of justice works, to question its procedures and to stimulate public discussion”.“ARTICLE 19 believes that such an insistence on keeping the logic and effect of the ICPY’s jurisprudence secret is profoundly undemocratic and manifestly inappropriate for an international criminal court”, adding that “o impose such a penalty on a journalist for bringing transparency and accountability to the ICTY raises troubling questions about the Tribunal’s democratic legitimacy”.

The €7,000 fine was deposited by Hartmann into a French dedicated bank account along with an invitation to the ICTY to seek assistance to the French authorities in order to collect these funds for the purposes of paying the fine. The ICTY Appeals Chamber deemed the money not to have been paid and converted, on 16 November 2011, the €7,000 fine into a seven-day prison term. An arrest warrant for contempt of court was issued by the ICTY on the same day, ordering France to transfer immediately Hartmann to The Hague and the Netherlands to assist in taking her to the United Nations detention unit. France refused to extradite Florence Hartmann and informed the ICTY of its decision on 27 December 2011.

In November 2011, Reporters Without Borders had urged the French judiciary to determine the validity of the arrest warrant and to consider the merits of the case in accordance with the case law of the European Court of Human Rights. “The European Court of Human Rights has consistently emphasized the public interest in the reporting of legal issues. It would be illogical and dangerous if international justice was exempt”

On 30 November 2011, Article 19 denounces the unlawfulness of the arrest warrant and “calls on all states, particularly the French and Dutch authorities, to avoid complicity in this perversion of international justice and to resist carrying out the order”. ARTICLE 19 insists that the human rights guarantees enshrined in the European Convention on Human Rights (ECHR) should take priority over the ICTY and recalls that under the case law of the European Court of Human Rights, French authorities as well as the authorities of the 46 other member states to the European Convention are obliged to verify the legality of the ICTY orders which they are asked to execute.

On 30 November and early December 2011, Hartmann sized Frank La Rue, United Nations Special Rapporteur for Freedom of Opinion and Expression, and Dunja Mijatovic, the Representative for Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). As there is no appeal before an independent jurisdiction from a decision of the ICTY, Florence Hartmann is seeking from the Special Rapporteurs to determine that the ICTY judgment rendered against her fall short and violate international standards of protection of the right of freedom of expression and that the upholding or the execution of the arrest warrant against her would constitute a further violation of this right. Reporters Without Borders called both rapporteurs to remind international courts that they are subject to international norms, especially those concerning freedom of expression, noting that “eyond the Hartmann case itself, the decision to penalize criticism of an international tribunal is a dangerous precedent for all those working in the media.

In an opinion paper published in Le Monde in November 2011, French and European public figures also called upon France “not to add insult to injury” by carrying out the ICTY order to arrest Florence Hartmann. “When judges turn the international legal order on its head because they are unable to tolerate criticism, they are undermining the credibility of international justice”, they added