Florence Hartmann, former spokesman for the International Criminal Tribunal for Former Yugoslavia (ICTY) chief prosecutor Carla Del Ponte, 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 before the ICTY relating to the case of Slobodan Milosevic.
“ARTICLE 19 recognises the need for some degree of confidentiality to protect the administration of justice. But any restrictions to freedom of expression must be justified as necessary in a democratic society…The fight against impunity and transparency are two sides of the same coin”, said Dr Agnes Callamard, ARTICLE 19’s Executive Director.
The ICTY had agreed to maintain confidentiality regarding the archives of Serbia’s Supreme Defence Council related to the Srebrenica massacre. Access to the archives was sought in a case before the International Court of Justice (ICJ). The 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 have found to constitute genocide.
ARTICLE 19 (A19) insists that contempt measures should not be abused to illegitimately limit criticism of courts and judges. 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.
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, an issue of significant importance to the public, warranting 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 seen by the A19 as a legitimate aim.
In assessing the appropriate balance to be struck in this case, the free expression organisation asserts that the ICTY should carefully assess the extent of the risk of harm involved. In particular, A19 states that the ICTY should consider whether a failure to convict Hartmann really does pose such a risk that other states will refuse to co-operate with it by providing sensitive information. If there is little or no solid evidence of such harm, the criminal measures against Hartmann cannot be justified. A19 further states that this case raises an issue of conflict of interest. The ICTY is effectively standing in judgment in a case concerning its own interests, a case in which it is the institution being associated with 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, A19 calls on the ICTY to recognise this implicit conflict of interest and take all measures necessary to minimise it.
