Monday, 1 September 2008
Florence Hartmann Prosecuted for Contempt
Late last year, Florence Hartmann published her memoir of the International Criminal Tribunal for the former Yugoslavia, where she worked as an assistant to Prosecutor Carla del Ponte for several years. The account, entitled Paix et châtiment, is full of juicy gossip, although of course it is impossible to distinguish fact from fiction in many cases. I learned about secret decisions of the Appeals Chamber concerning disclosure of evidence from Serbia. As an employee of the Tribunal, Hartmann wasn't supposed to divulge these secrets. She might have been in breach of her contract of employment. But the Tribunal has gone a step further, charging her with contempt. She is ordered to appear in The Hague on 15 September 2008: http://www.un.org/icty/milosevic/hartmannf/trialc/order-e/080827.pdf. I'm not sure what they can do if she doesn't show up. I've always been intrigued at how the Tribunal gave itself the authority to prosecute contempt of court, as an ancillary or implied power, because the Statute does not give it any express authority in this area. Under the Statute, it has jurisdiction to prosecute serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. It is not clear to me that publishing a book in Paris fits within this framework.
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4 comments:
Rule 77
Contempt of the Tribunal
(A) The Tribunal in the exercise of its inherent power may hold in contempt
those who knowingly and wilfully interfere with its administration of justice,
including any person who…
(ii) discloses information relating to those proceedings in
knowing violation of an order of a Chamber;
It can't be simpler than that...
I am a criminal defence lawyer with several years experience at the ICTY, including working on a team defending against contempt charges. Every criminal court is considered to possess an inherent contempt power. The power extends at least so far as necessary to enforce its lawful orders. This is not a very controversial proposition.
Whether ICTY orders to keep decisions confidential are lawful or not, or whether some public interest policy exception should apply in the circumstances of this case will no doubt be explored by Ms. Hartmann's defence team. However,her chances of success are limited. There is no review of the appeals chamber's decision, and the AC is unlikely to question their own power to keep decisions confidential.
If Ms. Hartmann does not appear, and she has been properly served with notice to appear, then an arrest warrant would issue, and I think the authority who served notice on Ms. Harmann to appear would also execute the arrest warrant if requested by the ICTY. In any event, I imagine she will appear and fight the charges.
Both answers fail to come to grips with Prof. Schabas's insightful observation that the ICTY has, to use my own (blunter) language, been bluffing its way ahead in matters of contempt. Rule 77 begs the question about the Tribunal's contempt power, it does not answer it. And the reference to "inherent powers" is also question-begging, for who is to say what is inherent to an unprecedented institution, such as the ICTY, which operates outside of (though not necessarily above) state laws on the basis of a Security Council resolution. The two commentators before me apparently are not aware that the transfer agreements which the ICTY has in place with the US, Australia, and other countries, and in particular with France, authorize arrest and transfer only in relation to the Tribunal's statutory crimes, without any provision whatsoever for the offence of contempt of court. (You will find these agreements at the ICTY's website.)
Ms Hartmann would be well advised not to submit to the authority of the Tribunal. There is no legal basis on which she may be arrested for non-compliance with a subpoena to appear. The laws of France, and of any other law-respecting country where she may happen to be, should protect her. The fact that we (I say "we" because I once worked at the ICTY) were able to have people arrested and transferred to the ICTY from parts of the former Yugoslavia, whether for violation of confidentiality orders or for refusal to appear as witnesses, was merely a happy (for us) combination of bluffery and a compliant local administration which went out of its way to please the Tribunal--and which did not care, particularly, about the rights of its citizens. It is different with countries where the law counts for something. Once, we tried our old trick on the United States. It concerned a man on US soil (he wasn't even a US citizen) who had violated a subpoena to appear as a witness. We issued an indictment for contempt and an arrest warrant. The US called our bluff, and told us, in no uncertain terms, to get lost.
I agree with the previous two commentators. The main problem with both the Tribunals is the large number of 'kids' employed who with no real practical experience whatsoever 'creating' laws and agreements.
As for Alexander's comments, I personally would classify them as immature. The issue of inherent powers has been dealt with in detail by both ICTY and ICTR. Look at the jurisprudence.
Does anyone know WHY the transfer agreements DID NOT provide for the transfers for contempt etc? It was because the 'kids' mentioned above created those agreements. Kids recruited based on certain criteria that I prefer not to elaborate upon.
As far as Florance is concerned, she gave a solemn undertaking not to divulge confidential information she comes accross in the course of her work. She did. So the consequence MUST follow.
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