10 February 2009
ARTICLE 19 Concerned About the ICTY Attempts to Silence its Staff
ARTICLE 19 urges the International Criminal Tribunal for Former Yugoslavia to take international standards on freedom of expression into account and to balance concerns for confidentiality and the importance of transparency in the case against Florence Hartmann. In particular, we call on the Court not to convict her if an overriding risk of harm to the administration of justice is not established.
In February 2009, the Trial Chamber of the International Criminal Tribunal for Former Yugoslavia (ICTY) will hear the case against Florence Hartmann, who worked from 2000-2006 as spokesperson for then ICTY chief prosecutor Carla Del Ponte. Hartmann is charged with “knowingly and wilfully disclosing information in knowing violation of a Court order”. In her book, Peace and Punishment, published in September 2007, Hartmann allegedly disclosed information relating to the case of Slobodan Milošević before the ICTY. The ICTY had agreed to maintain confidentiality regarding the archives of Serbia’s Supreme Defence Council related to Srebrenica massacre. Access to the archives was sought in a case before the International Court of Justice (ICJ). That case involved allegations by Bosnia and Herzegovina that the then Federation of Serbia and Montenegro were responsible for direct involvement in the Srebrenica massacre, which both the ICTY and the ICJ had found to constitute genocide.ARTICLE 19 recognizes that there can be tensions between the principles of freedom expression and openness, and the need for some degree of confidentiality to protect the administration of justice. A careful balance needs to be struck in these cases and any restrictions must be justified as necessary in a democratic society. The freedom of expression aspect of this case means that it cannot be based simply on whether or not Hartmann committed a formal breach of the rules. ARTICLE 19 believes that this case raises critical issues in relation to preserving this balance. The information disclosed by Hartmann relates to the role and responsibility of international bodies in bringing justice to victims of genocide, war crimes and crimes against humanity. This is a topic of very significant public importance, which therefore warrants strong protection as an exercise of freedom of expression. At the same time, the ICTY’s interest in maintaining confidentiality in order to secure the co-operation of States is clearly a legitimate aim. In assessing the appropriate balance to be struck in this case, the ICTY should carefully assess the extent of the risk of harm involved. In particular, it should look at whether a failure to convict Hartmann really does pose a risk that other States will refuse to cooperate with it by providing sensitive information. If there is little or no solid evidence that such harm will result, the criminal measures against Hartmann cannot be justified. This case also raises an issue of conflict of interest. The ICTY is effectively standing in judgement in a case which involves its own interests and in which it is the institution aggrieved by the alleged violation. Conflict of interest issues in analogous contexts, for example in contempt of court cases, have been recognised by some national courts. At a minimum, the ICTY should recognise this implicit conflict of interest and take such measures as may be possible taken to minimise it.
NOTES TO EDITORS:
• For more information: please contact Barbora Bukovska, Senior Legal Director, at barbora@article19.org, +44 20 7278 9292
ARTICLE 19 Concerned About the ICTY Attempts to Silence its Staff
ARTICLE 19 urges the International Criminal Tribunal for Former Yugoslavia to take international standards on freedom of expression into account and to balance concerns for confidentiality and the importance of transparency in the case against Florence Hartmann. In particular, we call on the Court not to convict her if an overriding risk of harm to the administration of justice is not established.
In February 2009, the Trial Chamber of the International Criminal Tribunal for Former Yugoslavia (ICTY) will hear the case against Florence Hartmann, who worked from 2000-2006 as spokesperson for then ICTY chief prosecutor Carla Del Ponte. Hartmann is charged with “knowingly and wilfully disclosing information in knowing violation of a Court order”. In her book, Peace and Punishment, published in September 2007, Hartmann allegedly disclosed information relating to the case of Slobodan Milošević before the ICTY. The ICTY had agreed to maintain confidentiality regarding the archives of Serbia’s Supreme Defence Council related to Srebrenica massacre. Access to the archives was sought in a case before the International Court of Justice (ICJ). That case involved allegations by Bosnia and Herzegovina that the then Federation of Serbia and Montenegro were responsible for direct involvement in the Srebrenica massacre, which both the ICTY and the ICJ had found to constitute genocide.ARTICLE 19 recognizes that there can be tensions between the principles of freedom expression and openness, and the need for some degree of confidentiality to protect the administration of justice. A careful balance needs to be struck in these cases and any restrictions must be justified as necessary in a democratic society. The freedom of expression aspect of this case means that it cannot be based simply on whether or not Hartmann committed a formal breach of the rules. ARTICLE 19 believes that this case raises critical issues in relation to preserving this balance. The information disclosed by Hartmann relates to the role and responsibility of international bodies in bringing justice to victims of genocide, war crimes and crimes against humanity. This is a topic of very significant public importance, which therefore warrants strong protection as an exercise of freedom of expression. At the same time, the ICTY’s interest in maintaining confidentiality in order to secure the co-operation of States is clearly a legitimate aim. In assessing the appropriate balance to be struck in this case, the ICTY should carefully assess the extent of the risk of harm involved. In particular, it should look at whether a failure to convict Hartmann really does pose a risk that other States will refuse to cooperate with it by providing sensitive information. If there is little or no solid evidence that such harm will result, the criminal measures against Hartmann cannot be justified. This case also raises an issue of conflict of interest. The ICTY is effectively standing in judgement in a case which involves its own interests and in which it is the institution aggrieved by the alleged violation. Conflict of interest issues in analogous contexts, for example in contempt of court cases, have been recognised by some national courts. At a minimum, the ICTY should recognise this implicit conflict of interest and take such measures as may be possible taken to minimise it.
NOTES TO EDITORS:
• For more information: please contact Barbora Bukovska, Senior Legal Director, at barbora@article19.org, +44 20 7278 9292
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