ICTY: Hartmann arrest warrant undermines tribunals moral authority
30 Nov 2011
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ARTICLE 19 is profoundly concerned that the International Criminal Tribunal for the Former Yugoslavia - created to try war criminals and those responsible for crimes against humanity - has ordered a seven-day prison sentence and issued an international arrest warrant for French author, Florence Hartmann. The case is a perversion of international justice and undermines the right to freedom of expression.
ARTICLE 19 reported in October 2011 that the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) had upheld the first instance decision of the Trial Chamber to convict Hartmann of contempt for disclosing the ‘confidential reasoning’ of the Tribunal. Hartmann was fined €7,000 by the ICTY, a sum which was ultimately paid into a French bank account on her behalf by a support group. Since this was not the manner of payment prescribed by the ICTY, the tribunal deemed the money not to have been paid. In response, on 16 November 2011, the ICTY converted the €7,000 fine into a term of seven days imprisonment and issued an international warrant for her arrest. The arrest specifically mentions France, the country of Hartmann’s residence, and the Netherlands, with a view of the Dutch authorities assisting in Hartmann’s transport to the UN Detention Unit in The Hague.
ARTICLE 19 deplores the severity and apparent vindictiveness of this converted sentence, and expresses its profound concern over the troubling implications the case has for the right to freedom of expression. ARTICLE 19 further calls on all states, particularly the French and Dutch authorities, to avoid complicity in this perversion of international justice and to resist carrying out the order.
When Florence Hartmann’s conviction for contempt was upheld by the Appeals Chamber last month, the ICTY ordered her to pay her €7,000 fine in two instalments with two separate deadlines: the first €3,500 was to be paid by 18 August 2011 and the second by 19 September. Before the first of these deadlines expired, Hartmann notified the ICTY President that, having been recognised as indigent by the ICTY– meaning that she did not have the funds to pay her lawyers – she was incapable of paying the fine herself. Hartmann stated that the funds required to pay the fine had been deposited in a French bank account by people who had supported her throughout the proceedings, particularly the Committee to Support Florence Hartmann. Details of the account were then provided by Hartmann, along with a direction to the French authorities to allow the ICTY to collect these funds for the purposes of paying the fine.
Notwithstanding this notification, the Deputy Registrar informed the Appeals Chamber ‘that, as of 25 August 2011, the Tribunal’s Finance Department had not received the first instalment from Ms. Hartmann in accordance with the judgement’. On the day of the second deadline, Hartmann sent another letter to the ICTY President, again noting that the funds needed for the fine had been deposited within the deadline set by the judgement. Again, details of the account were provided. In response, the Appeals Chamber issued its “Order on Payment of Fine Pursuant to Rule 77 bis” on 11 October, in which it reiterated Hartmann’s obligation to pay the fine ‘in the exact manner prescribed by the Registry’ and ordered her to transfer the funds to the Tribunal’s Financial Section. On 20 October, Hartmann responded by reiterating the points made in her earlier letters.
The ICTY’s response to this procedural dispute has shocked supporters of Hartmann and campaigners for the right to freedom of expression alike, including ARTICLE 19. In its judgement, the Appeals Chamber justified its decision on the basis of Paragraph(C)(iv) of Rule 77 bis of the Rules, which provides that where a fine is not paid within the time specified the Chamber may convert the whole or part of the fine to a term of imprisonment. The ICTY therefore converted the fine ‘based upon the information contained within the Registry’s Submission’. However, nowhere in the Rules is the manner of payment stipulated. Neither do the rules at any point allow the tribunal to proscribe such a manner of payment, let alone deem payment not received in this way to have been not received at all. That Hartmann has been handed down a prison sentence on the basis of a procedural technicality should prompt serious questions to be asked about the scope of the Tribunal’s powers.
The pertinence of these questions becomes particularly pronounced when the dubious foundation of the ICTY’s contempt jurisdiction is examined. Rule 77(A) states that the ICTY may hold those who knowingly and wilfully interfere with the administration of justice in contempt ‘in the exercise of its inherent powers’. The ICTY’s jurisdiction in respect of contempt is not therefore expressly outlined in the Statute. It is, instead, said to possess an inherent jurisdiction derived from its judicial function to ensure that the exercise of the jurisdiction given to it by the Statute is not frustrated. Yet the Rules of Procedure and Evidence (RPE) were never intended to create new criminal offences, and neither Article 15 – allowing judges to adopt rules of procedure – nor any other rule in the Statute empower judges to deal with offences unrelated to international humanitarian law. While in common law jurisdictions the law may be malleable enough to accommodate “inherent” powers, it is entirely inappropriate for an international court governed by Statute to create such new substantive offences.
ARTICLE 19 therefore believes that the ICTY is on thin ground legally even before considering the factual peculiarities of the Hartmann case. That the ICTY was prosecuting a former employee on the basis of a book criticising its decisions raises further concerns about the institutional accountability of the ICTY (particularly since there is no further recourse to other international courts); that it has pursued this prosecution to the extent that it has makes it appear plain vindictive. On the back of this case, the ICTY is in real danger of losing its moral authority and undermining its stated mission to bring ‘transparent international justice’ to the former Yugoslavia.
For these reasons ARTICLE 19 calls on all states to resist complying with the order. This call is particularly addressed to the French authorities, since Hartmann is residing in France and the authorities are in a position to immediately arrest her. We believe there is no basis in French law to legitimate its execution: no journalist has been arrested for their work since the days of the Vichy government in the 1940s, and the crime of contempt is not even recognised in French law (the crime of “L’outrage à magistrat”, often thought to be the equivalent, is defined very differently). Law no.95-1 of 2 January 1995, meanwhile, which implements the ICTY Statute in French law, is limited to cooperation in regard only to the tribunal’s primary jurisdiction. Article 1 of this “Cooperation Legislation” is quite unambiguous in this respect, stipulating that the provisions of the legislation apply to any person prosecuted for crimes which ‘constitute grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide or crimes against humanity’. France is not, therefore, legally obligated to carry out the ICTY’s arrest warrant.
While it could fairly be argued that international law trumps municipal law (indeed, under French law, international treaties, once signed and ratified, take precedence over municipal law), it is equally arguable that the human rights guarantees enshrined in the European Convention on Human Rights (ECHR) should take priority over the ICTY. Under both French law and the case law of the European Court of Human Rights, the French authorities are obliged to verify the legality of the order which they are asked to execute. The leading case is Pellegrini v Italy, whereby the European Court held that, before authorising enforcement of a Vatican court decision, Italian courts ought to have duly satisfied themselves that the Vatican proceedings fulfilled the guarantees of Article 6. This is because Article 6 creates a duty only to enforce those foreign judgements that are compatible with the ECHR. In light of jurisprudence on Article 10 and Article 6 of the ECHR, there are very real reasons to doubt whether this precondition is satisfied.
With no robust legal basis for the ICTY’s decision, no examination of the necessity of imprisonment in light of Hartmann’s freedom of expression rights, and no consideration of the proportionality of such a sanction, ARTICLE 19 considers the arrest warrant issued to Florence Hartmann to be irreconcilable with established international human rights standards.
In the absence of any moral or legal obligation to comply with the ICTY on this matter, ARTICLE 19 calls on the French authorities to resist the order and calls on all other states to refrain from carrying out the order too.
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