Hartmann conviction upheld

Florence Hartmann Support Committee

2011 07 20


The International Criminal Tribunal for the Former Yugoslavia (ICTY) upheld the conviction of Florence Hartmann for contempt of Court in an appeal judgement delivered on Wednesday 20 July. The Appeal Chamber sentenced her to pay a fine of 7 000 Euros, the same amount as in first instance. The French journalist and former spokesperson and advisor to the ICTY Chief Prosecutor condemns a verdict that sets new limits to freedom of speech in violation of international standards and of the European Convention for Human Rights. With this final judgement, the ICTY re-imposes a form of censorship aiming to protect international judges from all forms of criticism.

By convicting Florence Hartmann on the sly, just a few days before the closing of the Tribunal for vacation, without even a legal hearing, the ICTY confirms the fears of its most devoted supporters and justifies the criticisms of its fiercest opponents: YES International Justice obeys to political interests that have few in common with the missions that have been assigned to it; NO it does not work for the sole benefit of establishing the truth as a condition of a long lasting peace.

We cannot accept this judgement and we will try to contest it to all competent authorities.  Florence Hartmann will define her strategy with her counsels.  As for us, we do express our unconditional support for the actions she will now undertake.

Background

On August 2008, Florence Hartmann was indicted of contempt of court. She was accused not for having disclosed the existence of a deal between the Tribunal and Serbia, revealed earlier by other international journalists, - the deal’s purpose being to forbid the disclosure of the most compromising portions of Belgrade’s war archives from the 1990s-, but for having, unlike other journalists, indicated the dates and the conditions under which the deal was struck including the names of the judges involved.

Initially, the deal between the ICTY judges and the Serbian State was supposed to be secret. Its existence was however quickly revealed in several ICTY public Court decisions. And in spring 2007, the international media condemned the deal which not only denied the public access to the historical truth contained in the Belgrade’s war documents (from the Supreme Defense Council) but also prevented the victims from calling into evidence the documents in order to seek compensation from the Serbian State.

Several months later, in her book Peace and Punishment, the secret war between international politics and international justice, published by Flammarion in September 2007, and in her subsequent article Vital genocide documents concealed, published in January 2008 by the London based Bosnian Institute, Florence Hartmann further discussed the issue detailing the different stages that led to the controversial deal.

She indicated at first that the ICTY judges had abused their discretionary power when they favoured in an inappropriate and disproportionate manner the interest of a State to the detriment of the fundamental rights of the victims and the public. She also outlines that amidst the fact that the judges eventually acknowledged their mistake in law, the Appeals Chamber showed complete disregard for the rules so that it could satisfy Serbia’s request not to disclose evidence of the Serbian State’s involvement in the war and the crimes committed in Bosnia-Herzegovina.

On 14 September 2009, Florence Hartmann was convicted of contempt of the Tribunal, meaning of having knowingly and willfully interfered with the administration of justice, and sentenced to pay a fine of 7,000 Euros. She immediately appealed the ruling, which denied the necessary transparency of any criminal procedure as well as the special protection provided by international law on freedom of speech to discuss matters of public interest and general interest.

The first instance judgement acknowledged that the « secret » deal between the ICTY judges and the Serbian State had been discussed in the international media prior to Hartmann’s book and article and that no journalist had been sanctioned for disclosing its existence but convicted Florence Hartmann for having provided «certain information that was not in the public domain» (Par. 33 in the first instance judgement) although the Chamber did not even bother identifying which information it had in mind.

In the context of the Appeal procedure, the international NGO, Article 19, promoting freedom of expression and information worldwide, interceded with the ICTY as a friend of the court, - Amicus Curiae-, and provided to the Appeals Chamber a brief recapitulating the general principles recognized in this domain by the European Court for Human Rights and in international law.

Florence Hartmann is not convicted as a former ICTY staff member but as the author of the incriminate pieces, thus in her status of journalist and investigative writer. She has never been charged for any violation of her obligation to maintain professional secrecy. The ICTY did not deny the impugned information was legitimately obtained in the course of newsgathering outside the Tribunal, after Hartmann left the Tribunal.

Almost two years have passed between the first and the final judgement. In the meanwhile, the deal between Serbia and the ICTY judges became obsolete after Belgrade decided not to request any more the confidentiality of the most compromising portions of the transcripts of its Supreme Defense Council. In spring 2011, the ICTY made public these Serbian archives.

Former journalist at the French daily Le Monde, Florence Hartmann had covered in the 1990s the wars in the Balkans and authored a first book in 1999 on Slobodan Milosevic (Milosevic, la diagonale du fou, published by Denoël). In 2006, she testified as a prosecution witness against Veselin Sljivancanin, convicted of crimes against humanity to 10 years imprisonment for his contribution to the murder of 194 people at Ovcara farm, near Vukovar in November 1991. European and American jurisprudence agree on the fact that journalists cannot be asked to withhold information deemed privileged by an institution if the information is already, in part or entirely, in the public domain.

By indicting and convicting Florence Hartmann, the Tribunal has knowingly and wilfully chosen to set a precedent that contradicts the applicable laws in the democratic world. By nature of its international authority status, the ICTY has definitively created legal precedents with prescriptive values, which can therefore be legitimately invoked to limit freedom of speech in place of international standards in force so far. As a consequence, there will now be a conflict between this new international case law and the rules set out in particular by the European Court of Human Rights (ECHR) concerning Article 10.