By Edward Cody
Washington Post Foreign Service
Sunday, June 21, 2009
THE HAGUE -- For the past 16 years, the International Criminal Tribunal for the former Yugoslavia has been prosecuting those accused of engineering and carrying out the atrocities that marked Yugoslavia's blood-soaked disintegration in the 1990s.
For the past week, however, it has taken time out to try Florence Hartmann, a French journalist who was a spokeswoman for the tribunal's prosecutor from 2000 to 2006.
Hartmann has been charged with contempt, punishable by seven years in prison and a fine of $140,000, because after she left the tribunal she wrote about a secret ruling that allowed the Serbian government to conceal documents dealing with its official involvement in the 1992-1995 Bosnian war.
The prosecution of a journalist who published leaked information has troubled some of the most ardent supporters of the U.N. court, which is part of an attempt to create an international justice system that can hold governments accountable for their actions in wartime. With several alleged Yugoslav war criminals still awaiting trial and Bosnian Serb military commander Ratko Mladic still at large, they said, the court has better things to do with its energy and a U.N.-supplied budget running at more than $120 million a year.
"This is ridiculous," said Chuck Sudetic, a former journalist who chronicled the conflict in his book "Blood and Vengeance" and recently co-authored "Madame Prosecutor," the memoir of Carla Del Ponte, a former tribunal prosecutor. "It's more than ridiculous. And, personally, I think someone inside the chambers has a personal vendetta going against Florence Hartmann."
Longtime observers of the court said trying a journalist does not fit with the tribunal's mission as defined by the U.N. Security Council.
"The goal and purpose of the tribunal is to prosecute individuals charged with committing serious violations of humanitarian law," Hartmann's attorney, Guenael Mettraux, said in an interview not far from the tribunal's modern glass-and-concrete headquarters in The Hague. The court's contempt jurisdiction, he added, "only applies to those who, through their actions, have interfered with the tribunal's ability to perform that mandate."
Mettraux said he has not been able to establish exactly how the decision was made to prosecute Hartmann or by whom. But other observers said that she had made enemies among some of the judges during her time as spokeswoman and that the tribunal sometimes reaches decisions behind closed doors with no outside supervision.
"They are in an ivory tower," said a source with detailed knowledge of the case who spoke on the condition of anonymity because of its sensitivity.Defense Council Minutes
The wartime documents, minutes from meetings of Serbia's Supreme Defense Council, were provided to the tribunal in 2003, but their exact contents have never been publicly aired. Bosnian officials and historians of the conflict have said the documents would prove that the late President Slobodan Milosevic and his generals financed and controlled the Bosnian Serb army and thus were involved in the 1995 Srebrenica massacre, in which 8,000 Muslim men and boys were killed, and in other atrocities that marked the war.
This was an important point in a parallel case before the International Court of Justice, or World Court, also in The Hague, in which Bosnia sued Serbia on genocide charges. Bosnia lost, an outcome that saved Serbia from what probably would have been an obligation to pay millions of dollars in reparations.
It was also key in the prosecution of Milosevic, who died of a heart attack in March 2006 while in tribunal custody.
On a prosecutor's request, the documents were supplied to the court by the Serbian government for Milosevic's prosecution but with a stipulation that they not be made public except under certain circumstances, Hartmann wrote. The court ruled that the stipulation included anything that might harm Serbia's national interests, she explained.
In addition to withholding the information from Bosnian war crimes victims, she said, the ruling ended up keeping the documents from the hands of Bosnian lawyers who wanted them for use in the suit against Serbia in the International Court of Justice.
Nerma Jelacic, a tribunal spokeswoman, said the Yugoslavia court acted against Hartmann after she wrote about the documents because it was entitled under its mandate to "address any obstacle put before it in its work to pursue criminals and to protect the integrity of its proceedings."
"I think even the defense would not dispute the necessity for the court" to protect the confidentiality of some of the documents it deals with, she added.
'Peace and Punishment'
Most previous contempt cases have dealt with actions or publications designed to intimidate witnesses or undercut their testimony against officials accused of war crimes. But a Canadian investigator on contract with the tribunal, Bruce McFarlane, found that Hartmann violated the integrity of court proceedings by discussing the secrecy ruling, first in her book "Peace and Punishment," which was published in Paris in September 2007 and then in an article published by the Bosnian Institute four months later.
After Hartmann was indicted in August, McFarlane continued on the case as prosecutor; he is leading the prosecution in the current court sessions. Mettraux said he won the disqualification of two judges, Alphons M.M. Orie and Carmel A. Agius, on grounds that they had been too closely connected to McFarlane's investigation to sit as impartial judges.
In three days of testimony last week, Mettraux said, he sought to show that the secret documents and the court's handling of them were already part of the public domain. They had been written about in several newspapers and openly discussed by officials in the former Yugoslavia before Hartmann's book came out, he said.
Moreover, Mettraux said he argued, the tribunal's U.N. mandate specifies that nothing should be done to impede the right of war crimes victims to seek reparation. By trying to suppress discussion of documents that show Serbian government involvement in various atrocities, he said, the tribunal in effect is robbing victims of evidence needed to seek compensation.
Another round of testimony is scheduled for next month, after which the judges have an unspecified period to deliberate and reach a verdict. But other duties also call. The court's presiding judge, Patrick Robinson, said this month that proceedings would begin in late August in the trial of the recently surrendered Bosnian Serb political leader, Radovan Karadzic, and expressed hope that it could end in early 2012.
In a report to the U.N. Security Council, Robinson noted that Mladic and a second fugitive, Goran Hadzic, have yet to be captured and brought before the court. Failure to try them, a communique quoted him as warning, "would leave a stain on the Security Council's historic contribution to peace-building in the former Yugoslavia."