Friday, 25 March 2016

The Yugoslavia Tribunal also Engages in Debt Collection

Alongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.
Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.
All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.
It doesn't have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems.
If this were the case, by the way, the door would be wide open to the European Court of Human Rights. It could address the human rights issues that arise including arbitrary detention, imprisonment for debt, and freedom of expression. But the International Criminal Tribunal for the former Yugoslavia lives in a little glass bubble where it is immune from supervision by the European Court of Human Rights.
Florence Hartmann’s arrest did not, apparently, take place on the territory of the Tribunal, but well outside its gates. Can it really be the case that United Nations security guards have the legal authority to arrest individuals on Dutch territory outside the premises of the Tribunal?
The Security Council resolution establishing the Tribunal gives it jurisdiction over ‘serious violations of international humanitarian law’. Publishing a book in France does not fit within this concept. That may explain why France has refused requests from the Tribunal to arrest Florence Hartman for non-payment of the €7,000 fine.
Nobody should be put in prison for failure to pay a fine. This amounts to arbitrary detention. If the offence merits a jail sentence, then impose one from the beginning. But if it only justifies a fine of a relatively modest amount, it should not then be converted into jail time for non-payment, If the Tribunal wants to collect the money, let it file a civil claim before a national court and attempt to seize the money from the bank account of its debtor. That’s what the rest of us have to do when we are owed money.


Jonathan said...

It is also interesting that the ICTY Appeals Chamber holds that interference in the administration of justice can occur without "any actual interference t[aking] place": "When a court order has been violated, the Trial Chamber does not need to assess whether any actual interference took place or whether a real risk to the administration of justice has taken place because such a violation per se interferes with the administration of justice. The Appeals Chamber in the Jović case held that 'the language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice.' Thus, 'no additional proof of harm to the International Tribunal’s administration of justice is required.'" (In the Case against Florence Hartmann [IT-02-54-R77.5-A], Appeals Chamber Judgement, 19 July 2011, para. 107.)

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Everard O'Donnell said...

Hartmann was a senior official of the UN, had been employed thus for 6 years, and knew the relevant law and the reasons why her employers wished to protect confidential decisions made by judges. The reasons in this case were the continued operation of the tribunal by means of state cooperation, which cooperation was placed in jeopardy by her two publications. The functioning of this and any other tribunal, depending as these courts do on state cooperation to arrest accused persons, find evidence for both parties, and entry into states to conduct investigations, are in issue.
Rule 77(G) RPE allows a court to impose imprisonment for 7 years, a fine of up to 100,000 Euros, or both. There is no provision allowing the court, after imposing a fine, to treat it as a civil debt upon non-payment, and it is difficult to see why such a procedure would be efficient or justifiable. Non-payment of a fine when payment is possible is specifically made a possible further contempt. In this case, Hartmann [who had been treated as indigent and had collected enormous value in free legal services] chose to play a silly game of showing that the money donated by her supporters to pay the fine was waiting in France if the tribunal wanted to come and get it. Specifically, she refused to obey the court’s express instructions on how the money should have been paid over. She would not have been treated so leniently by any national court. As to the arrest by the Dutch, it was expressly requested by the court in the original decision altering the fine to a prison sentence.
Your remarks about the tribunals wasting time over contempt proceedings are, with a few exceptions that come to mind, not accurate. The ICTY has been subjected to a continuous process of attempts to pervert the course of justice. It hardly would attract much credit if it ignored the bad behaviour of its own ex-staff. At the root of all these cases is the need to protect not only an abstract idea of the course of justice but the actual needs of the victims of crimes, and the safety of witnesses who come to make the process work. The ICTR had a much easier experience in regard to contempt by participants [its first contempt appeals case was dated 2010]. But state cooperation is still a critical issue for both tribunals and it was that which Hartmann chose to put at risk. So, she was very lucky to be treated so gently. And the idea that a justice system which is experiencing an attack on its fundamental ability to function should be asked to line up with ordinary civil debtors is misconceived.