At the time of writing, Florence Hartmann, a French journalist and former employee of the International Criminal Tribunal for the Former Yugoslavia, is being held in solitary confinement at the UN Detention Unit, convicted of contempt of court. According to media reports, she is being held under conditions of suicide watch, with her cell lights on 24 hours a day. Due to the Easter holiday, the authorities have suggested to her lawyer that this situation will last until Tuesday at the earliest. She has reported watching General Ratko Mladić freely enjoying the exercise yard from her cell window. It is no surprise that large sections of the media have reported on this state of affairs with much interest and, in some quarters, with deep horror.
The background is as follows: From 2000 until 2006, Hartmann worked as chief spokesperson for Carla Del Ponte, the tribunal’s chief prosecutor. In the commission of her work she was made aware of sealed evidence collected during the trial of Slobodan Milošević , which she believed implicated the Serbian government in the Srebrenica massacre. This evidence, which the tribunal has since declared was withheld in the national interests of Serbia, was, in Hartmann’s opinion, of great importance and relevance to a separate trial which was ongoing at that time in the neighbouring International Court of Justice.
In that trial, Bosnia was suing Serbia for its alleged involvement in the massacre at Srebrenica and, as the supreme judicial authority with jurisdiction over United Nations affairs, established by the UN Charter with the consent of all members of the General Assembly, the ICJ’s entitlement to the evidence was clear. Hartmann decided to publish an account of the existence of this evidence – and the legal reasoning which buried it – in her 2007 book “Peace and Punishment”. She did not specify what the evidence was. For this she was first indicted, then convicted with (by its normal standards) unusual haste by a tribunal tasked with prosecuting war crimes. The tribunal held that not only was the evidence itself confidential but that both the legal reasoning and the “purported effects of both Appeals Chamber decisions” were also confidential information. In other words the tribunal was entitled to suppress both the evidence and the suppression of the evidence.
Hartmann appealed but the conviction was upheld, as was the fine of €7000 imposed by the tribunal. The funds for paying this fine were collected by voluntary contributions from numerous supporters and, according to Hartmann, were deposited in a French bank account, with instructions given to the ICTY on how to collect them. Failing, or declining to do so, the ICTY deemed it unpaid and decided to convert the fine into a jail sentence, issuing a warrant for Hartmann’s arrest. French authorities refused to extradite and, after several years of advocacy carried out on her behalf by various human rights organisations without the tribunal backing down, Hartmann travelled to the Hague for the judgement and sentencing in the case of Radovan Karadžić, last Thursday. The former President of Republika Srpska and leader of the Bosnian Serbs, indicted for crimes against humanity and genocide, was found criminally responsible for the targeted killing of around 8000 Muslim men and boys at Srebrenica and was sentenced to 40 years imprisonment. Before the verdict was heard, Florence Hartmann was arrested, despite the protests and attempted protection by Srebrenica survivors, and was detained at Karadžić’s place of residence.
This peculiar and seemingly arbitrary conception of justice is one that followers of the ICTY’s procedures and judgements will be familiar with, but it is surprising and shocking to see it brought to bear upon someone who, on the face of it, has generally bought into the mission. What appears to have done for Hartmann is that she seems to care about human rights rather than geopolitics. Cynics might say that she worked for the tribunal for six years, acquiescing to its authority and therefore tacitly approving of its often dubious methods and agenda, and they may have a point, but schadenfreude ought to give way to clear-thinking now. Whatever one might think of its legitimacy or lack thereof, the ICTY has mostly convicted individuals whose moral guilt in a general sense is quite apparent (though it has acquitted or exonerated others for whom the same is true). Some, like Karadžić, have even admitted to moral guilt, while claiming no legal guilt whatsoever, a mischievous dodge to be sure. We may reasonably demand a higher standard of a court of law than mere moral guilt but surely no sensible person believes that Hartmann is wilfully complicit in miscarriages of justice, thus finding herself the victim of such a miscarriage ought to provoke concern and outrage from all sides, whatever their political bias. Justice exists above the grasp of courts and laws. A guilty individual may be wrongly convicted, if the evidence presented could not support the conviction. These are miscarriages of judicial procedure, not justice, and these are the ICTY’s speciality.
Criticism of the tribunal has typically come from Serbs and pro-Serb quarters, for obvious reasons, although Croats are none too keen either. The tribunal’s indictments are heavily biased against Serbs, charge the Serbs. So are the war crimes statistics, counter the tribunal’s supporters. Both Serbs and Croats have questioned the now-famous legal mechanism used to build the case against Milošević (and, posthumously, against the late Croatian president Franjo Tudjman) – that of the “Joint criminal enterprise”. This concept does not appear in the ICTY statute, nor was it mentioned in the original indictment against Milošević. It was cobbled together mid-trial when it became clear that there was no smoking gun. But criticism of this, and other peculiar judicial improvisations of the tribunal, has been mostly the realm of the usual “anti-western” suspects, or from those with an axe to grind, like the writers behind Spiked, whose predecessor magazine, Living Marxism, folded after losing a libel suit to the ITN corporation after accusing it of misrepresenting conditions in detention camps in Bosnia in 1992. Now criticism comes from journalists for the BBC, the Guardian, Le Monde, etc. The central implication, that the tribunal withheld information that might have harmed Serbian individuals, is precisely the opposite charge to that typically made by Serbs – of Western bias against federal Yugoslav sovereignty and against Serbs in particular – but it is criticism all the same. It is criticism that calls into question the very ethics and practices of the tribunal which have produced the judgements that the liberal West has craved and demanded since the tribunal was created.
This kind of criticism is not altogether new but it is rare to hear it from quarters that can’t be broadly dismissed out of hand as irretrievably biased and compromised. A critique of the ICTY from, say, Edward Herman is more or less worthless, not because the critique would necessarily be inaccurate and unsupportable but because its accuracy would have no bearing whatsoever on whether or not it could be introduced into polite, mainstream discourse without the individual doing so being immediately pegged as a far-left crank, or worse. It is always much more refreshing to find a supportive argument from unexpected quarters.
One such example is the attack on the ICTY made in The Daily Telegraph by Daniel Hannan, a Conservative. A British Member of the European Parliament who describes himself as an “Old Whig” and an “Atlanticist”, Hannan has written, in apparent earnest, a book called How We Invented Freedom & Why it Matters. Nevertheless, in a 2007 blog for the Telegraph he described the ICTY as a “disgusting travesty”. No fan of authoritarian Communist bureaucrats, and certainly not of Milošević in particular, Hannan calls the late, not much-lamented former President of Serbia a “calculating Commie who unleashed a series of calamities, first upon the other South Slav peoples, then upon the Kosovars, and finally upon the luckless Serbs.” Yet he believes the jurisdiction of the tribunal to be false, their authority to be undemocratic and the implications to be very grave indeed, concluding “The world [is] returning to a pre-modern concept of politics, in which law-makers are answerable to their consciences rather than their public’s. Once we hand them that power, we create the opportunity for a dictatorship far worse than Milošević‘s.” Referring to John Laughland’s book, Travesty: The Trial of Slobodan Milošević and the Corruption of International Justice, Hannan goes on:
“Laughland chronicles, in pitiless detail, how the judges crashed through a series of legal norms and conventions in their increasingly frantic attempts to secure a conviction. The court changed its procedures more than 50 times. It allowed hearsay evidence. It repeatedly contradicted itself. And, in an extraordinary step, it silenced the surprisingly eloquent Milosevic by imposing counsel on him. “So what?” you may say. “Even if it got there irregularly, at least it got to the right result”. But did it? We shall never know whether it would have found Milosevic guilty although, at the time of his death, the prosecution was plainly floundering. And whether you admire Milosevic or abominate him, a five year incarceration without issue is surely no one’s idea of justice.”
Only the misguided will grieve for Milošević and the damage done to his reputation, yet it is not hard to appreciate where someone like Hannan is coming from here, and how this shoddy approach to international justice has led us, in 2016, to a situation where a journalist is living under the same roof as Ratko Mladić. Indeed, the ICTY’s blurring of this particular line is made evident to anybody who has visited Belgrade since the NATO bombing campaign of 1999. Sixteen civilian employees of Radio Television of Serbia were killed when NATO deliberately targeted the broadcaster’s headquarters, on the grounds that it was a propaganda organ for the Milošević regime. The ICTY concurred, disagreeing with Amnesty International (and with established international law) that targeting civilians is a war crime. The ruined building still stands as a monument to this glaring double standard.
Control of information by independent parties, whether they be rogue enemies or former employees, is an affront too far for the tribunal and must be punished. Hartmann will not lose her life, nor will she lose years to prison, but her treatment is nevertheless a startling reminder that being on the “right” side is not necessarily always enough. The countless journalists who have willingly appeared before the tribunal to testify for the prosecution, despite its approval of the killings of sixteen members of the press as “unfortunately high [but] they do not appear to be clearly disproportionate”, may have reason to pause and reflect.