IWPR, 08. 05. 2009.

Victims’ Request to Speak in Hartmann Trial Dismissed

Hague tribunal judges set to hear the case against former prosecution spokeswoman Florence Hartmann have denied permission to regional war victims’ organisations to present arguments during the trial.

The Association of the Concentration-Camp Detainees in Bosnia and Hercegovina, the Association of Mothers of the Srebrenica and Zepa Enclaves and the Association of Women Victims of War wrote to the court in March this year, requesting to appear before it to provide information which they said would contribute to a fair trial for Hartmann.

Hartmann, who was spokeswoman to former chief prosecutor Carla Del Ponte from 1999 until 2006, faces trial for two counts of contempt of court for allegedly revealing the contents of confidential decisions made by appeal judges in the trial of former Serbian president Slobodan Milosevic. Milosevic’s war crimes trial for atrocities in Bosnia, Croatia and Kosovo, which began in 2002, was never completed as he died in his cell in March 2006.

According to the order issued by the trial chamber in place of an indictment on August 27, 2008, Hartmann is responsible for “knowingly and wilfully disclosing information in knowing violation of an order of [judges]”.

The court order states that the disclosures were made in Hartmann’s 2007 book Paix and Chatiment (Peace and Punishment), and in an article, Vital Genocide Documents Concealed, which was published on the Bosnian Institute website on January 21, 2008.

Hartmann allegedly revealed elements of two confidential decisions – made by appeals judges on September 20, 2005 and April 6, 2006 – while at the same time acknowledging that they were confidential.

The decisions are thought to relate to the court’s handling of certain documents, including minutes of meetings of Serbia’s Supreme Defence Council, SDC, during the wars in the former Yugoslavia in the 1990s.

The contents of these documents have been kept confidential by the court – under rules that enable it to protect a state’s national security – but are widely believed to include crucial information about Belgrade’s involvement in the wars.

By requesting to appear in Hartmann’s trial, the victims’ organisations were seeking to present information to the court about the “damages that both the victims and all the communities in the region have suffered because of the so-called protected archives and documents”.

They also said they wished to inform the chamber of the difficulties of prosecuting war crimes suspects and compensating victims in the region as a result of the Hague tribunal continuing to protect the documents.

Under tribunal rules, judges may invite or allow a state, organisation or person to appear before it as an amicus curiae – or friend of the court – and make submissions on a particular issue if they consider it “desirable for the proper determination of the case”.

The organisations said they also wanted to demonstrate the negative impact of holding the proceedings against Hartmann.

According to them, the trial may “destabilise relations in the region, inflame victims’ frustrations, [and] endanger the founding principles of the work of the [tribunal],” said the groups in their joint letter of March 13 this year.

“Trust in the [tribunal] and international justice might be lost [as a result of this].”

The Association of Concentration Camp Detainees of Bosnia and Herzegovina wrote a separate letter to the court on February 2, 2009, also seeking to present arguments during the Hartmann case for the confidential Serbian military documents in the court’s possession to be made public.

The organisation believes that the documents will show that refugee camps which housed Bosniak, Croat and Serb civilians in Serbia during the war were actually prisons, deliberately set up as such by the former Yugoslav authorities.

Serbian officials have denied that this was the case, arguing that the camps served as collection centres for refugees in the region, and maintain that conditions inside were in line with international law.

However, in a ruling of May 6, judges denied the organisations the opportunity to put their concerns to the court as part of the contempt case against Hartmann.

“The chamber is of the view that it would not be desirable for the proper determination of this matter to consider the submissions proposed by the applicants,” ruled judges. No further reasons were given.

Murat Tahirovic, president of the Association of Concentration Camp Detainees of Bosnia and Hercegovina, has told IWPR that he will be appealing the decision of the specially appointed chamber of judges hearing the Hartmann case not to hear arguments for releasing protected documents.

“[The] Association of Concentration Camp Detainees of Bosnia and Herzegovina is not satisfied with the decision of the specially appointed chamber,” he told IWPR.

“Victims of torture in the camps deserve to participate in the [trial] process. We hope that [the court will] reconsider our request, or appeal, [and] allow [us] to take part in the legal process against Florence Hartmann.”

No new date has been set for Hartmann’s trial, which was originally scheduled for February 5 this year. Prior to that date, the case was suspended on the back of a request from the defence for two judges to be replaced because they “lacked an appearance of impartiality”.

A panel of judges appointed by the court’s president to oversee the matter ruled that the relationship between the judges and the appointed prosecutor, Bruce MacFarlane, “may lead an objective observer to conclude that the chamber has an interest in the investigation and prosecution of the case against Ms Hartmann”.

The two judges – Carmel Agius and Alphons Orie – were removed from the case and replaced by Judge Mehmet Guney and Judge Liu Daqun on April 2.

The defence has since filed a request on April 21 for judges to set aside all orders and decisions made by the previous judges, including the charges themselves.

It says that the charges against Hartmann are no longer valid as they were initiated by the previous judges, and argues that the new judges should neither reinitiate nor continue with the contempt proceedings against the accused.

No ruling has yet been made on this request.

Simon Jennings is an IWPR reporter in The Hague.

Florence Hartmann indicted; Hague Tribunal tries to silence a whistleblower

Marko Atila Hoare
Florence Hartmann, former spokeswoman for ICTY chief prosecutor Carla del Ponte, was last week indicted by the ICTY, on the charge of contempt of court, for allegedly disclosing classified information relating to the proceedings against Slobodan Milosevic. This information was allegedly published in her book, Peace and Punishment (Paix et chatiment) and in an article published on the website of the Bosnian Institute. Hartmann has rejected the charges, arguing that she has not revealed confidential information, but only information she had gathered through her work as a journalist, and that her indictment represents a blow by the Office of the Prosecutor against free speech and transparency. She has pledged to fight the charges.

Hartmann is the first Western citizen without roots in the former Yugoslavia, and the first former ICTY official to be indicted by the Tribunal. As she points out, her book was published a year ago, while the Bosnian Institute article was published in January, making the delay in the issuing of her indictment peculiar. The charges refer to a case that is no longer actual, and cannot be motivated by any desire to ensure the proper functioning of the proceedings. The indictment appears, indeed, to be an attempt to muzzle a whistleblower who has revealed information about the internal politics and incompetence within the Tribunal, and a warning to other former Tribunal officials who might be tempted to reveal more such information.

The ICTY is a highly flawed institution with a very patchy record; badly organised, filled with many incompetent apparatchiks alongside some committed professionals, riven with internal factionalism and corrupted by political pressures both external and self-induced, it has failed to deliver justice to the peoples of the former Yugoslavia. I am myself a former official of the Tribunal, and my biggest criticism of it has been its failure to indict most of the principal Serbian and Montenegrin war-criminals, a failure that, on the basis of my eyewitness experience, I attribute in large part to the poor strategy of del Ponte as Chief Prosecutor. But a perhaps even more shameful failing on the Tribunal’s part was the one about which Florence writes: the decision of the judges in the Milosevic case to allow Serbia, when submitting to the Tribunal the minutes of the ‘Supreme Defence Council’ of the former Federal Republic of Yugoslavia, to censor parts of it in the version that was made public. As Florence argues, it was thanks to the Tribunal’s collusion with Serbia in the suppression of this crucial piece of evidence, that Bosnia was not able to draw upon the latter in its case against Serbia for genocide at the International Court of Justice, leading to Serbia’s unjustified acquittal. Far from punishing the perpetrators of genocide in the former Yugoslavia, the Tribunal has helped to shield them (NB to date, only one individual, a lowly deputy corps commander of the Bosnian Serb army, has been successfully prosecuted for a genocide-related offence by the ICTY, while not a single official from Serbia has yet been convicted of any war-crime in Bosnia whatsoever).

The Tribunal may or may not have a legal case against Hartmann. What is certain, however, is that Hartmann was acting in the public interest in revealing the information she did. The people of the former Yugoslavia have a right to know why they have not received much in the way of justice from the ICTY, while the citizens of the world have a right to know why this UN court, funded by their taxes, has produced such poor results. Public interest would best be served if more former Tribunal officials showed as much principle and courage as Florence, and came forward with more insider information so that we can better understand this whole, sorry story. This would help to ensure that other international courts could avoid the ICTY’s mistakes. But we are all aware that there is a risk: I myself, after being interviewed about the ICTY by the Croatian journalist Domagoj Margetic last year, received a threatening letter from the Tribunal, warning me that I had, when taking up the post back in 2001, signed a declaration promising to respect the Tribunal’s confidentiality (Florence, too, apparently received such a letter when she first began publicly to speak about the ICTY). Although I did not take this threat seriously at the time, it appears my complacency has been misguided.

Florence is a brave, principled and committed individual who has done more than anyone to reveal the extent to which the international community and the international courts have betrayed the cause of justice for the former Yugoslavia. Although I disagree with some of what she says in her book, it is nevertheless a splendid, daming critique of this betrayal, and her accusations of Western complicity in Radovan Karadzic’s evasion of arrest for thirteen years have been essentially vindicated; I would recommend anyone interested in the subject to read it. Florence is fighting the battle for truth on behalf of all the victims of the wars in the former Yugoslavia, and all present and future historians. We are 100% on her side.

The former official spokesperson for the Hague tribunal's chief prosecutor provides a systematic review of the way in which minutes of Serbia’s Supreme Defence Council, that might provide evidence against Serbia for genocide at Srebrenica, have been concealed

In April 2006, Bosnia was presenting evidence against Serbia on the first case of genocide ever held before the International Court of Justice (ICJ). One kilometre away in the same Dutch town of The Hague, another UN Court, the International Criminal Tribunal for the Former Yugoslavia (ICTY), quashed the order unsealing Serbia’s state archives. So Bosnia was prevented from calling for documents that might have provided evidence against Serbia for genocide.

A few months later the ICJ, presided over by British QC Rosalyn Higgins, rendered its judgment. On 26 February 2007 it found that genocide had occurred at Srebrenica in July 1995, when 8,000 Muslim men and boys were killed. But although it found that Serbia-Montenegro had provided the Bosnian Serbs with extensive and substantial financial and military support throughout the war, including during the bloodshed at Srebrenica, it did not find Serbia responsible for the actions of the Bosnian Serb army (VRS) and paramilitaries who carried out the massacre.

The ICJ did nevertheless find that Serbia had violated its first obligation under the Genocide Convention by failing to use its influence to prevent genocide, and also its legal obligation to punish genocide by failing to cooperate with the ICTY by arresting Ratko Mladic. Serbia was the first state in history to be tried for, and convicted of, breaching the 1948 Genocide Convention.

If the ICJ had possessed evidence that Serbia was ‘in control’ of the Republika Srpska authorities or of the Bosnia Serbian Army, the Court would have not cleared Serbia of genocide at Srebrenica. Many believe that the transcripts or minutes of meetings of Serbia’s Supreme Defence Council (SDC) – the body in charge of the nation’s overall strategic goals and of the Yugoslav army – contain such evidence.

Those same minutes were submitted as evidence in the Milosevic case before the ICTY. Judges in the Milosevic case had those minutes at their disposal when they ruled on 16 June 2004 that they ‘could be satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise (which had) the aim and intention to destroy a part of the Bosnian Muslims as a group’, not only in Srebrenica but also ‘in Brcko, Prijedor, Sanski Most, Bijeljina, Kljuc and Bosanski Novi’.

Before submitting the SDC documents as evidence in the Milosevic case, Serbia applied for protective measures pursuant to article 54 bis of the ICTY Rules and Procedures. This rule authorized a state to seek confidentiality on documents the disclosure of which could affect the ‘national security interest’ of the country. After hearing the arguments presented by Serbia-Montenegro’s state representatives, the Trial Chamber for the Milosevic case agreed in October 2003 that part of these documents be blacked out.

The most sensitive part could not be disclosed to the ICJ or to the public. Bosnia was therefore not able to produce before the ICJ the unedited version of the SDC minutes obtained by the ICTY. However, the ICJ could have sought access to the SDC documents. Curiously, the Court refused to ask Serbia to hand them over. Bosnia-Herzegovina had requested the Court to order the release of the unedited version of these documents, but this request was turned down.

ICTY judges kept key material from the public for the sole purpose of shielding Serbia from responsibility before another UN court

Several ICTY rulings show clearly that the ‘blacking out’ was granted in order not to damage Serbia’s position in Bosnia’s case before the ICJ. They reveal that the ICTY judges admitted that public disclosure of the most sensitive part of the SDC minutes could have had a negative effect on the outcome of the proceedings before the ICJ. They also took into account that a genocide conviction would have had enormous political and economical consequences for Serbia.

The ICTY Office of the Prosecutor (OTP) was not entitled to take part in the hearing in which Serbia applied for the protective measures on the SDC documents. Only the judges and not the prosecutor can decide on protective measures to keep material from the public. When Del Ponte’s office received the October 2003 judges’ decision granting those measures, it sought leave to appeal against the Trial Chamber’s ruling.

Prior to the judges’ decision, Del Ponte had agreed in a letter sent in early May 2003 to Goran Svilanovic, then Serbia-Montenegro’s foreign minister, not to oppose Serbia’s request for protective measures on the SDC documents. Following her letter, Serbia opened the doors of the state archives. For the first time, OTP analysts were authorized to consult in May 2003 in Belgrade the secret archives to which access had been systematically denied.

‘It must be understood, however, that the interests of transparency of the trials require that such measures are applied only in exceptional circumstances and not on a massive scale’, wrote Del Ponte in her letter to Svilanovic. She added that Serbia’s request for protective measures should be in accordance with the ICTY rules. Such was not to be the case. The ICTY judges agreed that Serbia’s ‘vital national interest’ in not damaging its position in Bosnia’s case before the ICJ could be admitted as a ‘ national security interest’ applicable for the granting of protective measures at the request of a state.

Del Ponte’s office considered that granting protective measures for the sole purpose of shielding Serbia from responsibility before another international court could be considered neither reasonable nor in accordance with the law and the ICTY rules. For the OTP, the Milosevic trial chamber’s decision was wrong and needed to be overturned. However, the ICTY judges in charge of the Milosevic case refused to grant Del Ponte’s office leave to appeal their decision on the SDC documents. The OTP could do nothing but wait for a new opportunity to oppose the disputed judges’ ruling, which happened a year and a half later.

In September 2005, the ICTY Appeal Chamber was called upon to pronounce on a new decision by the Milosevic Trial Chamber in July of that year, denying a request by Serbia for protective measures on personal military files which showed clearly that VRS generals, including Ratko Mladic, were members of Serbia’s army (the VJ). The Appeal Chamber ruled that Serbia’s ‘vital national interest’ in the ICJ litigation was not receivable for imposing confidential measures. According to the appeal judges, all previous decisions of the Milosevic Trial Chamber protecting the SDC documents from disclosure because of potential prejudice to Serbia’s ‘vital national interest’ rather than a ‘national security interest’ were ‘wrong as a matter of law’.

Nevertheless, the Appeal Chamber considered that the earlier decisions had created ‘a legitimate expectation’ for Serbia that later decisions involving ‘similar material’ would be resolved in the same manner, so that it would be ‘unfair’ to deny the protective measures sought by the state. Hence, the appeal judges dismissed the July 2005 Trial Chamber’s decision and decided to grant Serbia’s request to withhold public disclosure of the military files.

The OTP used this ruling in order to challenge the Milosevic Trial Chamber’s 2003 decision regarding the SDC documents. On 6 December 2005, the Milosevic Trial Chamber eventually abrogated its initial decision and agreed to remove the protective measures on the SDC documents that had been in place since 2003. The unedited version of SCD meetings should have been made public soon after that.

Bosnia had not yet presented its evidence against Serbia before the ICJ. The hearings were scheduled in early spring 2006. Bosnia could have been in a position to provide the documents to the ICJ in time, if Serbia had not filed an appeal before the ICTY Appeal Chamber. It submitted this request in December 2005, citing Rule 108 bis of the ICTY Rules of Procedure and Evidence, which allows countries directly affected by the Tribunal's decisions to address the Appeals Chamber. Upon Serbia’s request, the ICTY Appeal judges agreed to postpone disclosure of the blacked-out part of the SDC archives until they rendered a final decision.

The Milosevic trial came to an end when the defendant died in detention at The Hague in March 2006. A month later, the 5- judge Appeal Chamber presided over by ICTY president Judge Pocar squashed the December 2005 Trial Chamber’s order to unseal the blacked-out part of the SDC minutes, insisting on Serbia’s ‘legitimate expectation’.

One kilometre away from the ICTY, the ICJ was hearing Bosnia’s genocide case against Serbia-Montenegro, filed 13 years earlier.

The SDC documents may be called as evidence in other ICTY cases. But a related Court decision stipulates that they can only be used under protective measures.

The prosecution may submit the SDC minutes in its case against Momcilo Perisic, VJ chief of staff during the war in Bosnia. He is the only remaining ICTY defendant who was present during the SDC meetings. Perisic was indicted for crimes against humanity in Bosnia, but surprisingly not charged with genocide or complicity of genocide at Srebrenica. Perisic was not even indicted as a participant in the Joint Criminal Enterprise for which Milosevic was prosecuted.

Serbia’s Supreme Defence Council was created on 28 April 1992, three weeks after the beginning of the war in Bosnia. It met 74 times between mid June1992 and mid March 1999. 57 meetings took place during the war in Bosnia. Milosevic was the only SDC member present at all 74 meetings. By order of the participants, no stenographic notes were taken during 17 SDC meetings, of which 9 took place in 1995, both before and after the Srebrenica genocide was committed.

Recently, international scholars, legal experts and rights activists have stepped up efforts to persuade Belgrade to open up the wartime archives and let them study the 1990s transcripts of its Supreme Defence Council, the highest political authority over its armed forces. However, although Serbia was acquitted of genocide charges in the case brought before the ICJ, Belgrade still insists on their confidentiality. Disclosure of the blacked-out part could challenge the ICJ’s ruling and the credibility of its judges, who refused point blank to seek from Serbia documents that were clearly crucial for the case upon which they were called to pronounce.

By privileging Serbia’s ‘legitimate expectation’ over the legitimate interests of the victims and the interests of the transparency of the trials, the ICTY Appeal Chamber had contributed to concealing the truth, paving the way for the ICJ not to seek evidence that it had a duty to hear.

The ICTY did not object to being told by a state that it should place restrictions on evidence because that same evidence ‘incriminates’ persons or bodies involved in crimes, who would then be found liable, in whatever forum (including the ICJ), to make restitution or payment to the victims of those very crimes. Thereby the ICTY Appeal Chamber violated the very UN Security Council resolution (827) that established the Tribunal in 1993. According to paragraph 7 of this resolution, ‘the work of ICTY shall be carried out without any prejudice to the rights of the victims to seek compensation for damages incurred as a result of violations of international humanitarian law’.

Florence Hartmann, author and journalist, was Del Ponte’s official spokesperson from October 2000 until October 2006. Her Paix et châtiment [Peace and Punishment], les guerres secrètes de la politique et de la justice internationales was published by Flammarion (Paris) in September 2007 and subsequently in Bosnian translation.