A PREVIEW OF THE FLORENCE HARTMANN'S CASE - June 11, 2009

Journalist and former spokesperson for the ICTY's Prosecutor Office

THE CASE

Our colleague, journalist and former spokesperson for the International Criminal Tribunal for the former Yugoslavia’s Prosecutors Office, Mrs. Florence Hartmann, will face a criminal trial before the ICTY on June 15-17, 2009, for contempt of court and obstruction of international justice. If convicted, she could be sentenced for up to 7 years in prison and/or a €100,000 fine.

The ICTY has indicted her for what she wrote about it on 3 pages of her internationally acclaimed book, Paix et Châtiment (Peace and Punishment) – originally published in French in September 2007. Mrs. Hartmann wrote that the ICTY deliberately concealed parts of the evidence, which unequivocally showed Serbia’s direct involvement in the genocide in Bosnia during the war of 1992-95. This conclusion has been previously frequently repeated by American diplomats and politicians, although they did not provide any tangible evidence. For example, former Secretary of State, Mrs. Madeleine Albright, made absolutely clear in her autobiography “Madame Secretary” that Serbia under Slobodan Milosevic was directly involved in the genocide in Bosnia and was providing militarily support for the perpetrators of the crimes. Mrs. Hartmann, however, went one step further - she pointed out to the existence of material evidence of Serbia’s active involvement, which the ICTY agreed to keep secret from the public in exchange for Serbia’s cooperation in some criminal cases pending before the Tribunal.   

If that evidence was disclosed, Serbia could be proved guilty of genocide in a parallel case pending before the International Court of Justice (Bosnia v. Serbia) and the families of the Bosnian victims could seek damages from Serbia.  

WHY FLORENCE HARTMANN?

She was indicted in August 2008 for disclosing the existence of the aforementioned agreement between the ICTY and Serbia to keep the incriminating evidence secret. Mrs. Hartmann has been the only individual indicted for writing about it and for criticizing the ICTY’s decisions. Nevertheless, her book was published in 2007, while the existence of the agreement was already debated in the New York Times (in 2006) and was mentioned as early as in 2005 by the Institute of War and Peace Reporting (IWPR).

However, the ICTY contends that Mrs. Hartmann had personal access to the confidential information, while being employed at the ICTY (from October 2000 until the end of March 2006), and she misappropriated that information in her book and as a result damaged the reputation of the ICTY and its judges.

PROCEEDINGS MARRED BY IRREGULARITIES

Since Florence Hartmann was indicted in August 2008, her defence team successfully dismantled a large part of the prosecution’s case-in-chief. Notably, they have effectively demonstrated the bias of the judges presiding over the proceedings and forced their impeachment. In March 2009, they obtained their disqualifications and removals from the case. Moreover, the prosecutor has resigned from calling the majority of its own witnesses and intends to summon during the trial only two expert witnesses, who have no direct knowledge of the facts.

WHAT IF FLORENCE HARTMANN IS CONVICTED?

It would be a dramatic defeat for:

• Free access to information: After a guilty verdict, any public citation of the 3 pages from the Florence Hartmann’s book, describing the details of the secret agreement between the ICTY and Serbia, could be deemed a criminal act in the light of international law.

• The law: From a legal point of view, this trial is already quite an absurd and has been condemned almost unanimously by international law experts. For example, Mr. Robert Badinter, a former French Minister of Justice, when interviewed on the French radio France Culture in January 2009 said the following about Mrs. Hartmann's indictment: “I wish to recall once more the ICTY’s mandate: it is not to ensure that information obtained by its staff would not be disclosed, the ICTY’s mandate is to prosecute those who committed crimes against humanity. Such a mission is important enough for the Tribunal not to turn away from it.”

• The victims: The victims of the genocide will be prevented from challenging the controversial agreement between Serbia and the ICTY, as well as from demanding that the evidence in question be disclosed and the case of Bosnia v. Serbia re-tried before the ICJ.

Below is an exerpt from Mrs. Hartmann’s book, which content led to her indictment. Assess by yourself, whether the text is good enough to put somebody for 7 years in prison.

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Excerpt from the impugned pages of “Peace and Punishment” (Flammarion, 2007)

How the archives throwing light on Milosevic’s Serbia’s role in the genocide in Bosnia-Herzegovina were concealed from public view

ICTY judges kept key material from the public for the sole purpose of shielding Serbia from responsibility before another UN court.

Several ICTY’s rulings clearly show that the ‘blacking out’ of the evidence was granted by the ICTY in order not to damage Serbia’s trial position in Bosnia’s case pending before the International Court of Justice (ICJ). They reveal that the ICTY’s judges conceded that any public disclosure of the most sensitive part of the Supreme Defence Council’s (SDC) minutes could have had an adversarial effect on the outcome of the proceedings initiated by Bosnia-Herzegovina against Serbia before the ICJ. They admit that they want to protect Serbia from a genocide conviction and the payment of compensation to the victims. Belgrade was successful in arguing that the “vital national interests” of the Serbian state were at stake.

The judges in charge of the Milosevic trial, including Briton Richard May, Jamaican Patrick Robinson and South Korean O-Gon Kwon, preferred the presumed stability of a country over the interests of justice and truth. In so doing they became accomplices to a lie. However they stepped back in 2005.

In mid July of 2005, they denied a new request by Serbia for protective measures, this time on personal military files which showed clearly that VRS generals, including Ratko Mladic, were members of Serbia’s army (the VJ), under the Belgrade supreme control. Opposed to the disclosure of these documents, Serbia appealed the decision. The Appeal Chamber ruled in September of 2005 that Serbia’s ‘vital national interest’ in the ICJ’s litigation was not enough justification for granting confidential measures by the ICTY. According to the appeal judges, all previous decisions of the Milosevic Trial Chamber protecting the SDC documents from disclosure because of potential prejudice to Serbia’s ‘vital national interest’ rather than a ‘national security interest’ were ‘wrong as a matter of law’. Rather than remedying the error that it had just discovered and unsealing all of these documents, the Appeal Chamber noted that the granting of such measures so far had given rise to a “legitimate expectation” from Belgrade that all of its subsequent similar motions would be granted on the same grounds, so that it would be ‘unfair’ to deny the protective measures sought by the State on the military files.

Shocked by this decision, Carla Del Ponte and her prosecution team asked the judges in the Miloševic case to submit that the “vital national interest” argument be invalidated, in order to request that the confidentiality of the SDC archives be lifted immediately. On 6 December 2005, Judge Iain Bonomy, who had replaced Richard May, and Judge Robinson agreed, in spite of Judge Kwon’s objection, to lift the protective measures, which were in force since 2003, understanding that Belgrade was not attempting to protect its national security but instead to obstruct justice in its search for the truth. Belgrade immediately appealed the decision and obtained a temporary stay, thereby preventing Bosnia from submitting the SDC archives to the ICJ prior to the late February 2006 opening of the hearings of its complaint. On 6 April 2006, after reviewing the Prosecution’s arguments, the five judges of the Appeals Chamber, still presided by the Italian Fausto Pocar, decided to quash the decision of 6 December 2005. Information directly implicating the Serbian State in the war in Bosnia and the Srebrenica massacres thus remained inaccessible to the ICJ and the public. The Prosecution was not in a position to publicly expose the scandal, since the judges had declared each of their decisions “confidential”.

For additional information go to: www.preserverlajusticeinternationale.org  or www.caseflorencehartmann.org