Greater Surbiton

The perfect is the enemy of the good

Freedom of information on trial at The Hague

NETHERLANDS/ Florence Hartmann on trial at The Hague

By Antoine Garapon, Louis Joinet and Emmanuel Wallon

The International Criminal Tribunal for the former Yugoslavia (ICTY) must try war criminals, not journalists. Its credibility is at stake.

Partial and misguided justice involved in a biased trial: such is the image public opinion could retain of the International Criminal Tribunal for the former Yugoslavia (ICTY) if its judges persist in their intention to prosecute Florence Hartmann, the former spokesperson for the Prosecutor Carla Del Ponte (from October 2000 to October 2006).

Could the French journalist have perpetrated in the Balkans one of those very crimes against humanity that this jurisdiction is in charge of punishing? If not, what misdeed could she have committed to appear in The Hague amongst the instigators and perpetrators of « ethnic cleansing », incurring a penalty of up to seven years in jail or a € 100,000 fine? Is she hiding a secret so terrible that her judges would be well founded in requiring the hearings to be held in closed sessions ? The former Le Monde journalist is indeed charged with ‘contempt of court’ for having allegedly infringed on a confidentiality order. The indictment of August 27, 2008 argues that she ‘knowingly and wilfully disclosed information in knowing violation of a Court order’.

Florence Hartmann did not violate rules of non disclosure related to an ongoing investigation neither did she disclose the names of protected witnesses. She only discussed the motivations of judges who decided to restrict access to Belgrade archives, including on the part of victims. The writings over which she is charged are contained in her book Paix et Châtiment. Les guerres secrètes de la politique et de la justice internationales (Flammarion, 2007) and in her article entitled Vital Genocide Documents Concealed, which was published on the website of the London-based Bosnian Institute on 21 January 2008. The facts that she is charged with exposing, long after she left the Court, had in fact been a matter of public debate since 26 February 2007.

A decision by the International Court of Justice (ICJ), a judicial body of the United Nations which settles disputes between States and is also based in The Hague, argued that Serbia had not participated in a conspiracy to commit the crime of genocide, nor incited the committing of genocide in Bosnia-Herzegovina between 1992 and 1995. The ICJ conceded that Serbia had violated the 1951 convention, which obliged it to prevent genocide in Srebrenica in July of 1995 and to bring its main perpetrator, General Ratko Mladic, to justice by transferring him to the ICTY. But it exonerated that State of any other responsibility, arguing that the Court had no knowledge of material evidence of its involvement in the crime.

There is overwhelming indication that such evidence existed, sitting among exhibits in the boxes of the ICTY, in the vicinity of the ICJ. Indeed in 2003, after a long judicial battle during the Milosevic trial, the ICTY had obtained the archives of Serbia-Montenegro’s Supreme Defence Council. From the opinion of attorneys who have had access to them, the archives, even with their most incriminating parts redacted, reveal Serbia’s involvement in the crimes of ethnic cleansing as well as in the Srebrenica massacre.

Two ICJ judges put this argument forward, in their dissenting opinions: the Algerian Ahmed Mahiou and the Jordanian Shawkat Al-Khasawneh, Vice-President of the Court. But, under strong pressure from Belgrade – and probably from other European capitals – the ICJ did not ask for these archives, and the ICTY decided on its own initiative not to send it to the ICJ. The ICTY judges have since acknowledged that a confidentiality agreement in the name of ‘vital national interest’ had been improperly granted to Belgrade.

Thus the Serbian state escaped a verdict which would have exposed it to many demands for financial compensation. Several legal experts think that ICJ did commit a mistake in law with heavy consequences by issuing a decision that prevents the victims or their families from filing legal complaints for compensation. Considerable sections of public opinion were outraged by this judgement, which was rendered without proper consideration of the decisive elements.

Feeling abandoned, the victims wanted to understand why an institution created to give them justice had spared the interests of their executioners’ patrons. In the spring of 2007, they heard from various sources that Carla Del Ponte herself had agreed to grant Belgrade immunity in exchange for the coveted archives.

Florence Hartmann’s investigation shows that this rumour was unfounded. The ICTY judges, although well acquainted on the matter, abstained from denying these allegations as long as they were not directly aimed at them. But once their own role in concealing the documents was mentioned, they raised the charge of ‘contempt’ and made it clear that their deal with the Serbian government was not to be discussed.

Therefore Hartmann did not initiate the public controversy about the minutes of the Supreme Defence Council. She was by no means the first to publicise the fact that the ICTY had put the seal on evidence which would have led to Serbia’s conviction if it had been made available to the ICJ, as well as establishing Slobodan Milosevic’s guilt, if his death had not prevented his trial from reaching its conclusion. By underlining the political motivation behind the court’s decision, she exercised her rights as a citizen; and she did her duty as a journalist by investigating the ins and outs of a public cause. She fought against the premium given to impunity that would have represented the concealment of major facts concerning genocide. The authority of her arguments does not lie in her past proximity with the case; it follows from the professionalism of her work as a journalist.

Must she be punished for providing logical and competent analysis? And should one forbid anyone from commenting on a decision of a court whose rulings cannot be appealed elsewhere? On the contrary, we believe that international justice, whose mission we have always been in favour of, will be stronger in its struggle against impunity if it allows in-depth thinking about its role and functioning. Its credibility is at stake. The poor decision by The Hague magistrates to judge Florence Hartmann behind closed doors may well publicly spread the notion that the international tribunal is one of those special jurisdictions that do not grant the accused the right to due process through a public and contradictory trial.

If it wants to respond to its opponents during the final and crucial period of its mandate, the ICTY must fully endorse the principles of transparency for which freedom of the press is the ultimate warrant. Before the new International Criminal Court takes over the difficult task of trying crimes against humanity, ICTY judges have better things to do than muzzling free press. Public opinion expects that they conduct the Radovan Karadzic trial in an exemplary way and that they obtain Mladic’s arrest sooner rather than later. By such actions, they will insure their reputation in history better than by striking down a woman who only did her job of reporting news.

Antoine Garapon is a judge and teaches at the Institute for Higher Judicial Studies in Paris. Louis Joinet, a retired attorney and judge, former adviser to the French Presidency, has been an independent expert for the UN on human rights. Emmanuel Wallon is a professor of political sociology at Paris West-Nanterre University. This article was originally published in French in Le Monde on 28 December 2008 under the title ‘Mauvais procès à La Haye’.

Monday, 26 January 2009 - Posted by | Balkans, Bosnia, Former Yugoslavia, Genocide, Serbia

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