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Thursday, November 17, 2011

Be Careful What You Write

As several blogs have already noted (including Kevin Heller at opiniojuris), the ICTY Appeals Chamber has issued a warrant for the arrest of Florence Hartmann, the former ICTY spokesperson of the tribunal who was convicted in 2009 for contempt.  The arrest warrant is only the latest installment in an already bizarre legal saga that raises important issues regarding the implied judicial powers of the tribunal.

After Hartmann retired as ICTY spokesperson, she wrote and published a book (in French) about the working of the tribunal.  The tribunal has a reputation for being quite strict in reviewing books and publications by tribunal employees to ensure that the written material is kosher.  

Hartmann's book contained some exciting material, including a discussion of the ICTY's handling of documents turned over by the Serbian government.  As I explain in the following article, the documents were only turned over by the Serbian government under the condition that the documents remain confidential.  Presumably, the Serbian government did not want the documents admitted into evidence in its own genocide case, Bosnia v. Serbia, which was being heard by the International Court of Justice.  Accordingly, an ICTY Trial Chamber issued a confidentiality order for the documents.


On appeal, an ICTY Appeals Chamber apparently issued a secret decision that held that the Trial Chamber was wrong to issue the confidentiality order, but that the documents should not be disclosed anyway because the Serbian government had turned over the documents in reliance on the promise of confidentiality.  So the documents remained secret.  Incidentally, access to the relevant documents that would have allegedly linked top Serbian officials to the genocide in Bosnia turned out to be a major issue in the Bosnia v. Serbia ICJ case, and potentially one of the reasons why the ICJ failed to find Serbia directly responsible for the genocide.

Although the ICTY Appeals Chamber decision was supposed to remain secret, Hartmann discussed it in her memoir.  She was charged with contempt of the tribunal, convicted after a brief trial in 2009, and fined 7000 Euros.  She was represented by the eminent defense counsel Guénaël Mettraux.  An appeal followed, which she lost.

Now the Appeals Chamber has issued an arrest warrant for Hartmann because she never paid the fine.  The Appeals Chamber has converted her fine to a prison term of 7 days; the ICTY ordered France to search for Hartmann, apprehend her, and transfer her to The Hague.  

The Appeals Chamber decision recounts a bizarre set of correspondence between Hartmann and the Tribunal.  She wrote a letter claiming that she was indigent and could not pay the fine.  She then stated that her supporters had deposited enough money in a French bank account to cover the fine.  But instead of simply paying the fine, she provided the details of the bank account.  The Tribunal responded in writing that she needed to pay the fine, and again she wrote back that her supporters in France had put the money in a bank account.  Was she daring the Tribunal to enforce the fine with the French authorities -- for which there is currently no procedural mechanism?  Who knows.

The correspondence is utterly bizarre, and sounds to me like there is more to this story than the public version.  Comments are welcome from anyone who knows or who can hazard an intelligent guess about the parties' motivations.

Of course, there are several legal questions in this case.  First, how does the tribunal have the power to punish contempt when no such crime is listed in the ICTY Statute?  Answer: it is an implied judicial power, necessary for the court to enforce its rulings.  Critics disagree with this answer and note that the tribunal court refer contempt cases to the Dutch authorities for a national prosecution, if necessary.  Or the Security Council could have included contempt in the ICTY Statute, which it didn't.

Second, how does the tribunal convert a fine into a prison sentence?  Answer: it's in the ICTY rules of procedure.

Finally, why does the Tribunal care so much?  Here's my view: The tribunal cares about contempt in general because there are contempt cases in particular that really matter.  Specifically, the Tribunal prosecutes individuals for revealing the names of protected witnesses -- and that's something the tribunal is deadly serious about.  In fact, the tribunal just convicted Šešelj, a Serb nationalist in the midst of a lengthy trial, for doing precisely that.  He has disclosed the names of witnesses in books and websites.  He was sentenced to 18 months.  It was his third conviction for contempt.

1 comment:

Celine Bardet said...

Thanks for the great post. And I fully agree with you. The point for me is not that much of what Florence was trying to unveil which in fact can show good intention but the all things surrounding this. First of all, you state that she retire from the ICTY, I think she was asked to leave and thus, this reflects also the tone of her book in which she seems to settle score with lots of people and staff of the ICTY. I worked at the ICTY, I know each person she mentions and I often agree with her however, am wondering is putting names ahead of people and settling scores the way she does is very constructive, let alone fair ( An ICTY prosecutor replied to her in an open letter after the book release regretting she did not come and talk with him). But the most troubling is that refusal of her to pay this fine and instead putting the money on an account while as you rightly say, procedure does not allow the ICTY to retrieve this money. Paying and continuing her "fight" would have been smarter than putting herself in a position of "martyr". Moreover she indeed declared herself indigent. Well she worked 7 years for the ICTY... What I do regret is that all this put in question the legitimacy of decisions of the ICTY while why those decisions should be considered final and legitimate for anyone but for Florence Hartmann. Am just asking? I regret she finds herself in this position and I regret that the issue of arrest warrant was reached but I don t understand the position of Florence in all this what exactly she aims to reach? She also "fired" her lawyers now which certainly shows a disagreement on all this.
Celine Bardet