Seven Days in Prison and an Arrest Warrant Ordered by the ICTY for Florence Hartmann

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has ordered the imprisonment of the former press attaché to the Prosecutor of the Tribunal for a term of seven days as punishment for a finding of contempt of court. The entire file, with the relevant decisions, can be found here.

The case relates to the book Paix et châtiment, written by Hartmann after she left the Tribunal. It was published in France by Flammarion. The book discloses the existence of decisions of the Appeals Chamber that were to have remained confidential.

By the judgment of 14 September 2009, she was sentenced to pay a fine of €7,000, to be paid in two installments of €3,500, one on 14 October 2009 and the other on 14 November 2009. On 19 July 2011 the Appeals Chamber dismissed her appeal of the decision, and ordered that the fine be paid in two equal installments of €3,500 on 18 August 2011 and 19 September 2011. On 16 November 2011 the Appeals Chamber noted that the fine remained unpaid, and ordered the issuance of a warrant of arrest. It also ordered that the fine be converted to a term of imprisonment of seven days.

I understand that Florence Hartmann lives in Paris, and that the warrant of arrest is directed specifically at the French authorities. Several prominent French intellectuals have issued a statement in protest. See the statement published in Le Monde some days ago. The NGO Reporters Without Borders has also challenged the order.

It has always been doubtful in law that the judges of the ICTY even had the power to cite people for contempt of court committed outside the courtroom. Their jurisdiction consists of serious violations of international humanitarian law committed on the territory of the former Yugoslavia. Unlike the International Criminal Court, there is no specific provision in the Statute of the Yugoslavia Tribunal allowing for punishment of contempt. The Tribunal’s judges, through the Rules of Procedure and Evidence, have given themselves such a power, premised on the idea that it is implicit in their authority to administer justice.

Assuming for the sake of argument that the judges have this inherent or implied power, it certainly cannot be unlimited. Punishing a writer for publishing a book in Paris may well have crossed the line. Contempt charges have always been a bit of a challenge for impartial justice because of the tendency for the ‘victim’ to be both prosecutor and judge. Moreover, in this case the ‘victim’ is also the lawmaker. The Tribunal is hardly the place for a genuine debate about the existence of such extensive implied or inherent powers.

But to enforce the judgment, the French justice system will have to get its feet wet. Perhaps French judges will bristle at the far-reaching scope of the powers the Tribunal has assumed. They may find it offensive that a sentence of imprisonment is imposed upon the writer of a memoir. And if they do not, this case may well end up in Strasbourg at the European Court of Human Rights. In addition to the freedom of expression issues that are raised, perhaps the Court will also consider whether imprisonment for failure to pay the fine constitutes inhuman or degrading punishment. It will be interesting to see the world’s leading international human rights court sitting in judgment of the world’s most distinguished international criminal court.