CHOKING INFORMATION FLOW FROM WAR CRIMES TRIBUNAL? EXPANDING THE BOUNDS?

- September 11, 2008

Florence Hartman will appear October 13 at the International War Crimes Tribunal for the former Yugoslavia, (ICTY), no longer as the Tribunal's spokesperson but as a defendant charged by the same court for contempt. Ms. Hartmann could face up to 7 years in prison and/or monetary penalties for disclosing purportedly confidential information related to the trial of Slobodan Milosevic, (even if this occurred after Milosevic had died and the trial was terminated, in 2007 and 2008). This unprecedented action has implications beyond the ICTY as well as raising questions regarding the purpose of this "indictment," the broader consequences for international legal practice and access to information and evidence:

-  Balancing "constitutional principles": confidentiality versus transparency, right of the public to know and

freedom of speech.

- Is there intent or possible effect of “muffling.” information flow? (Sir Geoffrey Nice, the prosecutor on the

Milosevic case, speaks.)

- What interests, other than security of witnesses and integrity of the judicial process, is ICTY empowered

to defend, (and does this include "national security interests" and of what countries?) Who is injured party in Hartmann's alleged offense?

- Who will determine and by what methodology the release of such information for public study?

- By initiating criminal proceedings versus non-combatant, "non-Yugoslav" official for violating

confidentiality, then will ICTY investigate and perhaps prosecute allegations of complicity with genocide and war crimes, more in line with its original mandate?

BALANCING CONFIDENTIALITY vs. PUBLIC'S RIGHT TO KNOW  

Besides bringing perpetrators to judgment, the Tribunal was established to deliver the sense of justice to victims and establish a collective historical record. Flow of information from the Tribunal is an essential part of this mandate. Tribunal officials certainly do have an interest in conveying that the process is legally fair and impartial both in substance and procedure. Is it up to Tribunal officials though to determine solely whether the appropriate standard has been met, without oversight from media and outside political, legal and historical experts? And, will national interests or officials of the most powerful states interject their preferred view of events and dictate history as well as guilt and innocence, indictment and arrest.

The ICTY was established by the United Nations Security Council as an ad-hoc institution. The UN Security Council is a political body frequently with divergent interests and constitutional cultures among its permanent and non-permanent members. There is no other apparent United Nations institution to provide oversight or take into consideration legal precedent in balancing concerns for confidentiality, transparency, freedom of speech and right to know. The UN Security Council is not either by procedure

or mandate designed to stand-in for a constitutional court.

"Whistleblowers" are now shielded from reprisal within most national systems. While the Tribunal's concerns regarding confidentiality may be entirely legitimate, it is not likely that victims, media and public will have access to information to the same degree as may be deemed appropriate within national forums. The Tribunal has the potential for and the appearance of conflict of interest. It is the sole visible arbiter when it is also the institution aggrieved by the alleged violation, as in the Hartmann case. (There is no allegation that witnesses have been endangered or exposed or that the case has been compromised, since there was no longer a case at the time of the purported offense). Worse, it could be speculated to be shielding the political interests of nations or officials who are deemed to hold sway by reason of influence or support for the ICTY and its operations. (Similar considerations are in effect for the work of the International Criminal Court, except that it is not established by the UN Security Council or directly beholden to such for funding).

MUFFLING EFFECT

Sir Geoffrey Nice, as Milosevic prosecutor, was the subject of some combative allegations by Florence Hartmann in her book and various articles. They have continued to clash through the media. They are not on friendly terms, to say the least. So, I asked Sir Geoffrey his view on the charges filed by the ICTY. (Sir Geoffrey and I have frequently exchanged communication and views since he interviewed me as potential witness in his prosecution of Milosevic).

Sir Geoffrey was unequivocal and offered this question for dissemination: Regardless of his unfavorable opinion of Ms. Hartmann and some of her statements, he wondered whether it was a wise option for the Tribunal from the perspective of legality, financial priority or political perception. (Some had tried to link Sir Geoffrey to the charges initiated against Ms. Hartmann, but he was clear to the contrary. And, there is at least some reason to believe that Sir Geoffrey may be as much a target of potential intimidation as possible source). As we wondered whether the charging of Ms. Hartmann was intended or would have a muffling effect on critics or perhaps those who implicate big powers or their officials in duplicity or complicity. Sir Geoffrey was undeterred and firmly indicated his resolve to initiate a more comprehensive review or inquest regarding yet unresolved questions, including Srebrenica and non-apprehension of war crimes suspects.

PROTECTING "NATIONAL SECURITY"

The ICTY has acted to protect sources, from witnesses to intelligence, in the execution of investigations and cases. The Tribunal has neither an elaborate intelligence gathering capacity nor ability to actually execute arrest or even search warrants. From personal interaction, I am convinced that the Tribunal has experienced and more than capable investigative and prosecution staff. Nonetheless, their efforts frequently are dependent upon cooperation with big powers, and some such staff had been effectively appointed and salaried by home states rather than ICTY.

Clearly "big powers" have legitimate reason to demand and defend confidentiality. Still, how can the Tribunal insure that it is not being fed selective or false evidence? More to the point, how can the Tribunal and global public be assured that evidence of duplicity or complicity of the "big powers" is not the information that is the subject of confidentiality actions.

It is troubling that Belgrade, whose highest political and military leaders have been the subject of prosecution, has been so far successful in convincing the Tribunal to maintain confidentiality regarding evidence on institutional as well as personal culpability. Evidence regarding Belgrade's direct culpability for genocide that was available to the ICTY was not allowed to be made available, by request of the Serbian government, to the International Court of Justice, ICJ, hearing Bosnia & Herzegovina's genocide claim against Serbia & Montenegro. If Belgrade was successful in demanding such confidentiality that prevented the ICJ from reviewing the evidence on a case before it, then it is reasonable to ask what other big powers and officials have such capacity to muffle evidence and information.

Here, it is not entirely clear what party has been injured by Hartmann's alleged offense, except perhaps the reputation of the ICTY itself. (The purportedly culpable disclosures were made after the Milosevic case was terminated and the defendant had died). The ICTY though did not even charge that Hartmann's culpable statements were false.

METHODOLOGY OF TRANSPARENCY

Regardless of the outcome of the Hartmann prosecution, both the citizens of the “ex-Yugoslav” region and the interested global audience does need to understand better what is the methodology that will assure transparency regarding proceedings. Further, when the ICTY is finally closed and no Court Judges are presiding, who will make decisions regarding release of reports, testimony and evidence of concluded processes, as well as those where no action was pursued? It is not entirely comforting that such decisions for transparency or posterity will be made by political institutions or officials of big powers, especially with possible conflicts of interest.

PROSECUTING COMPLICITY

While Ms. Florence Hartmann and Sir Geoffrey Nice do not agree on much, they are both of the opinion that there is still much to be investigated and explained regarding Srebrenica and other possible "deals" regarding non-arrest of indicted persons. Investigation could potentially lead to further evidence of complicity with genocide and war crimes, before and/or after the fact, by officials presumably acting on behalf of non-combatant states.

When the ICTY was at last empowered by UN Security Council resolution, in significant part due to urging and moral persuasion by individuals such as Amb. Madeline Albright, Amb. Diego Arria, Professor Cherif Bassiouni and me, it was left with a mission but no established methodology. Generations of Tribunal judges, prosecutors and related staff admirably tackled and largely overcame the hurdle of establishing judicial procedure and methodology, including protecting witnesses and process integrity. (As prospective witness before the ICTY, I do have confidence in the fundamental legality and fairness of this institution). On other issues, such as allowing Belgrade to deny submission of evidence to ICJ of its direct involvement in genocide and the Bosnian war, there may be disagreement. (The ICJ judges and ICTY have effectively placed the responsibility one upon the other for this misapplication of justice).

The ICTY was most directly mandated to investigate and prosecute war crimes and complicity before or after the fact would be apparently within its purpose and jurisdiction. By "indicting" Hartmann, the Tribunal has exhibited the willingness to go beyond previous bounds. (The ICTY had previously issued contempt charges, but for witness security breaches or current cases). Florence Hartmann is both a non-combatant and French. Has the ICTY established a precedent for prosecuting non-combatants and European or US officials? And, from the perspective of the victims, the development of international humanitarian law, and establishing a more true historical record, pursuing complicity would be substantively more in compliance with the ICTY's mandate. 

Muhamed Sacirbey

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Mr. Muhamed Sacirbey holds B.A. degree in history and J. D. degree from Tulane University in New Orleans. He also holds M.B.A. degree from Columbia University. Prior to becoming Bosnia’s Foreign Minister and Ambassador to the United Nations, he practiced as an attorney in New York City and worked for several years as an investment banker. He presently writes his book “A Convenient Genocide, in a fishbowl ” and is a commentator on human rights and political issues.

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