By Katherine Iliopoulos
Florence Hartmann, a former spokesperson for the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, was found guilty of contempt of court by the Tribunal on September 14 and fined 7,000 Euros for disclosing confidential court decisions.
The French journalist was found to have knowingly disclosed the contents and effect of two confidential Appeals Chamber decisions rendered in the Slobodan Milosevic case, which ended prematurely when the accused died in detention in March 2006.
In her 2007 book, Paix et Châtiment (Peace and Punishment) and a subsequent article published by the Bosnian Institute in January 2008, Vital Genocide Documents Concealed, Hartmann revealed that the Appeals Chamber had agreed to grant protective measures over transcripts of meetings of the Serbian Supreme Defence Council (SDC) – which were admitted as evidence during the Milosevic trial – based on the ‘national interests’ of Serbia, which was being sued at the International Court of Justice by Bosnia over the 1995 Srebrenica genocide. Serbia had only agreed to supply these documents to the Prosecution and the Court on condition that they be the subject of protective measures.
The ICJ ultimately cleared Serbia of responsibility for genocide, but it did rule that it was liable for failing to prevent the genocide, thereby violating its obligations under the Genocide Convention of 1948. Hartmann wrote that many people believed that if the SDC evidence had been made available to the ICJ, it would not have cleared Serbia of responsibility for the genocide.
Presiding Judge Bakone Moloto said Hartmann had “knowingly and wilfully interfered with the administration of justice” by revealing the contents of the orders of the Appeals Chamber.
The Prosecutor submitted that the content of the decisions were still confidential at the time that Hartmann wrote about them, and the Court agreed. The Court acknowledged the Defence argument that some of what was contained in those decisions were already in the public domain. On this basis, the Defence had argued that Hartmann could reasonably have formed the view that the decisions were no longer confidential and that her revelation of ‘publicly known facts’ would not have posed a real risk to the administration of justice. Against this, the Prosecution argued that what information may be said to have been in the public domain was a discussion of the contents of the protected SDC documents, but not of the Appeals Chamber’s reasoning and logic with respect to granting them their confidential status.
The Defence then tried to show that the disclosure of the reasoning and logic of the Appeals Chamber orders did not form part of the charges in the indictment against Hartmann and that therefore she could not be prosecuted for disclosure in that sense. The Court disagreed, pointing out that the indictment clearly stated that Hartmann was accused of disclosing the contents, purported effect and confidential nature of the two court orders – which does not exclude the legal reasoning of the Appeals Chamber – charges of which she was found guilty.
In effect, the Court found that Hartmann had revealed publicly for the first time that: “Several ICTY rulings show clearly that the ‘blacking out’ [of the SDC documents] was granted in order not to damage Serbia’s position in Bosnia’s case before the ICJ. They reveal that the ICTY judges admitted that public disclosure of the most sensitive part of the SDC minutes could have had a negative effect on the outcome of the proceedings before the ICJ. They also took into account that a genocide conviction would have had enormous political and economical consequences for Serbia.”
Thus the ICTY judges in the Milosevic case agreed that Serbia’s ‘vital national interest’ in not compromising its position in the ICJ case could constitute a ‘national security interest’ relevant to the granting of protective measures at the request of a state. This logic is arguably unsound in law, and indeed Hartmann also revealed that the Office of the Prosecutor, headed at the time by Carla del Ponte, “considered that granting protective measures for the sole purpose of shielding Serbia from responsibility before another international court could be considered neither reasonable nor in accordance with the law and the ICTY rules.”
Regarding the mental element of the offence of contempt, Hartmann’s defence submitted that she did not have the specific intent to interfere with the administration of justice. However, the Prosecution had argued in its final trial brief that Hartmann wrote that both Appeals Chamber orders were marked ‘confidential,’ and that with over twenty years of journalism experience, and her six years as OTP spokesperson during which time she operated within the Tribunal’s confidentiality framework, meant that she must have known she was violating those court orders by disclosing their contents. The Court agreed with the Prosecution argument, on the basis of the most recent Tribunal jurisprudence, that “any defiance of an order of a Chamber per se interferes with the administration of justice for the purposes of a conviction for contempt.”
In sentencing Hartmann to pay a fine of 7,000 Euros, the Court took into account that the risk of interference with the administration of justice “is real, and it is serious” because her conduct may deter sovereign states from co-operating with the Tribunal where the provision of evidentiary material is concerned. It must be noted however that this reasoning does not seem to fit well with Security Resolution 827 (1993), which imposes a legally binding obligation on all States, including the Governments of the Former Yugoslavia, to cooperate fully with the Tribunal.
In mitigation, the Court considered the fact that some information was already in the public domain, that Hartmann’s book had not been a commercial success, her co-operation with the Tribunal and her lack of prior convictions.
In an interview with France 24, Hartmann’s Co-Defence Counsel Guénaël Mettraux said, “It’s very likely that we will appeal, but we have not made a final decision yet. We have 15 days to decide according to court procedure.”
The case might also be brought before the European Court of Human Rights. In the defence brief, it was argued that the prosecution of the charges violates Hartmann’s fundamental rights as a journalist – mainly the freedom of expression – under Article 10 of the European Convention of Human Rights. But in its judgment, the Court pointed out that under Article 10(2) of the Convention, the exercise of freedom of expression may be subject to such “formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary.” These interferences with the freedom of expression are applicable “even with respect to press coverage of matters of serious public concern.”
As a Balkans correspondent for Le Monde in the early 1990s, Hartmann had written about the discovery of a mass grave containing the remains of more than 200 people in Ovcara, Croatia. She gave evidence in 2006 before the ICTY in a case against three Yugoslav army officers accused of involvement in the mass killing. She also wrote a Case Study on Bosnia for the book, Crimes of War Project: What the Public Should Know.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Vital Genocide Documents Concealed
By Florence Hartmann
The Bosnian Institute
January 21, 2008
Judgment on Allegations of Contempt (PDF)
International Criminal Tribunal for the Former Yugoslavia
September 14, 2009
Prosecutor v. Florence Hartmann: Case Information Sheet (PDF)
International Criminal Tribunal for the Former Yugoslavia