HARTMANN: THE AL CAPONE JUSTICE – November 16, 2008

- an interview with Mrs. Florence Hartmann, former spokesperson of the Prosecutor’s Office of the ICTY, who has been recently criminally indicted for disclosing confidential information showing behind-the-scene political calculations in the operation of the ICTY and its administration of justice.

Also available in Bosnian at Sarajevo-x.com

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Sebastian Aulich: Let me first ask about your reaction to the arrest of Radovan Karadzic. Were you surprised it happened because in your book you described so many behind-the-scene actions preventing his capture? Do you think there were any political calculations behind his recent arrest?

Florence Hartmann: I don’t see any calculations

in arresting someone on a basis of an arrest

warrant from an international tribunal for crimes like genocide and crimes against humanity. I was surprised because the arrest warrant was issued

in 1995 and we are now in 2008. I was surprised because many people thought that the arrest

would never happen. The reasons for arresting

him, which may have prevailed in the first months

or years since the indictment, were no longer in force. I thought that because they did not do it earlier, they would not do it at all. It was a positive, good surprise. I believe that they reached a stage, which I explained in my book, that even if they had some interest at some point for not taking an action – by “them” I mean everyone that we will speak about in details later on - that the problems of not-arrests of Karadzic and Mladic would be too dramatic for the region and this conclusion overcame the original interest of non-arresting them. Otherwise, the new generation coming from the genocide period would never find an answer and explanation why Karadzic and Mladic were not arrested.

SA: After Karadzic was arrested you gave an interview in which you said that CIA was behind the non-arrest of Karadzic and Mladic?

FH: There is plenty of evidence about that. If you go through many countries, the U.S., France, Britain – the countries involved in diplomatic resolution of the conflict in the former Yugoslavia - you will find evidence that they were giving, if not explicit than at least implicit, support for non-arrest of Karadzic and Mladic. Now, when you know the story after he was arrested that he was in the region and at least several people in Serbia knew about his whereabouts, the intelligence agencies were claiming they could not find him. But when the Prosecutor’s Office and its special team spotted Karadzic in the past, the international community did nothing about that. They did not check the information we provided but continued to claim that Karadzic is lost. They were indifferent even in instances when specific information was provided to them about Karadzic’s whereabouts. It was absurd and crazy. Obviously, it was not a priority to get them arrested. The international community was trying not to bring them to justice.

SA: Were those actions, which you just described, somehow connected to what Karadzic is presently saying that he had an immunity deal with Richard Holbrooke, which was supposedly made on behalf of the whole United Nations? How credible is Karadzic’s claim in your opinion?

FH: My problem is that now when he was arrested, we shouldn’t focus so much on this issue, although it should be investigated. Not because Karadzic has lost his friends, but because he is suspected of crimes against humanity and genocide. He has to get on trial. There was a mistake that he was not brought to justice earlier, but whether he had a specific agreement signed or concluded orally should not be an element of his trial. No one, legally, has the right to provide impunity agreement after someone has already been indicted. He could not possibly benefit from such an agreement because it was not valid. So there is no sense to speak about that at trial. There were, obviously, many indications that there was an agreement between Karadzic and Holbrooke, whether that was signed or initiated through diplomatic channels. Karadzic friends insist that the agreement existed but they have never provided any hard evidence. For sure, there was an impunity agreement because they were in the region. In 1996 Holbrooke went to Milosevic to ask that Karadzic and Mladic be removed from public life, although they could have just arrested them. That was quite ridiculous, the fact that they were asking Karadzic to leave public life and sign an agreement about that before the elections. They had another solution to remove him, a legal one, which was to arrest him according to the indictment. Now, we know that Karadzic eventually left to Serbia in the end of the 90’s, where international troops had no capacity to intervene to capture whomever. However, we were reporting, when I was at the Office of the Prosecutor in the Hague, that Karadzic was having surgery, we provided exact time and location of the surgery, but nobody did anything. Even if they could not have used their own troops, they could have worked closely with the Serbian authorities, but their only explanation was always that they still didn’t know where he was. There was an impunity agreement because there was a clear policy of non-arrest of Karadzic and Mladic for years. However the impunity agreement as of itself is invalid, because it is against the law and contrary to the indictment. The arrest warrants were valid; the Tribunal itself was established under Chapter VII of the U.N. Charter. However, I don’t now if Holbrooke signed any agreement, but for sure if there was a policy of non-arrest there was a consensus among the Western powers, i.e. the U.S., Britain and France, not to proceed with the arrests. If that were only a private agreement between Holbrooke and Karadzic, then probably France or Great Britain would have proceeded and arrested Karadzic and Mladic regardless.

SA: Do you think it is wise to have as much as 12 charges against Karadzic? It could end up like in the trial of Slobodan Milosevic, which lasted for years, Milosevic died and justice was not delivered. Perhaps the indictment should be narrowed to two, three basic charges so that the process can be speedy and efficient, like the one of Saddam Hussein?   

FH: That was not for the efficiency. It is a mistake everyone does. It is easy to say “make it short and deliver the justice”. But although the trial of Saddam Hussein was short, justice was not delivered. The impact of it is now easy to assess, because time has passed and people do not think he was justly convicted. The victims of his crimes did not see justice delivered. It was obviously a political decision to narrow the indictment. That’s not a way to do it. That’s not a sort of “Al Capone trial”, when you put a guy behind the bars with a conviction on whatever charges, just to have him behind the bars. If you want to deliver justice and justice to be seen by the victims, you have to address all crimes committed because it is an issue of mass killings. Of course you may not include absolutely everything and some victims will not be satisfied even if you include twelve, ten or eight charges, you still will not have a full story. But I don’t think that the purpose of the international justice, law and international tribunal should be to reduce charges. For example war crimes trials in former Yugoslavia have very short indictments; however that’s not for efficiency but for political reasons, just because they want to have these guys tried as perpetrators in order to hide that there was assistance provided to them. Nevertheless, if you do not disclose this assistance you will never stop mass violence because it is not just an initiative of some individuals, it is a system supported by a state or large groups. Therefore you have to try those at the top as well, not for what they perpetrated directly but for the system they put in place and authority over it, which led to the crimes. Milosevic trial was long because he conducted three wars and mass murders. Of course, there could have been a shorter indictment which would have stopped him earlier and the same for Karadzic, who was also at the top of the system. He conducted a project of forced expulsion of people, who were not his own, and he did so through mass violence until 1995. But I don’t think it is a way to deal with such cases. Justice was not rendered in the case of Saddam Hussein. We all believe that he was completely guilty, but it was superficial to make a short indictment for him. On the other hand, Milosevic killed himself. If he was not defending himself without assistance of a legal counsel, the trial would have been finished in time. However the Anglo-Saxon legal system, which was put in place and which is forbidden in other places, allows people, who are indicted for such grave crimes to defend themselves without assistance of a legal counsel. It allows a defendant to play with the system and this is what Vojislav Sheshelj is presently doing. However, because the defendants are not too cooperative, we should not reduce the indictments against them. Milosevic would have killed himself even if there have been a shorter indictment in his trial. There are people, who would like the “Al Capone justice”, but in such situation you betray the victims. It’s not what the international justice is designed for.

SA: So it seem like you are a proponent of truth and transparency in these trials.  But there are many documents filed with the ICTY under the “confidentiality” clause. Those documents are not being disclosed to the public and the victims. Do you know what will happen with those documents once the ICTY stops operating? Are they going to be disclosed to the historians, to the public, to the victims?

FH: I don’t know and you should ask the Tribunal. I have no idea what they are planning to do with the confidential evidence. There are many requests by NGOs and civil groups from different parts of the world, including the region of the former Yugoslavia, to disclose those documents. The ICTY has to find a way for the people of the region to have copies of those documents because it is pertinent for the modern history of the region to determine what truly happened. It would be useful not only for the historical account but also for a judicial process in the region. But the Tribunal is very slow in solving this problem. For instance, all the public documents in the cases which have been closed should have been attached to the judgments, but now it is technically impossible to get those documents. The ICTY should have already made all the documents which have been admitted in the court, including in the judgments, available to the public. The Tribunal has electronic system with the scanned documents, but it is not accessible by the public. It’s a pity.

SA: Aren’t you troubled that once there are documents marked “confidential”, the transparency of the Tribunal disappears? If it was not for people like you, and I mean your book which described many behind-the-scene mechanisms, or some other insiders, who now start to speak out, the public would never find out the full extent of political calculations and how the Tribunal really works?

FH: The rules of the Tribunal enable the documents to be protected for very precise reasons. The issue is whether those reasons are being implemented properly or the protective measures are applied without sufficient justification and legal basis. The Tribunal in certain situations was entitled to provide protection to some documents. The most important rationale was to protect the people, their names and testimony, so that their lives could be protected from revenge and so on. However sometimes these protective measures were applied to documents about which I wrote in my book. The story, which came out just recently, I mean the indictment against me, which is very specific, is very unusual for a Tribunal. Because there are protected documents, which are available to other courts and can be used on the basis of judicial assistance. The particularity of those documents in the Milosevic trial, which were said to be of the fundamental value for Milosevic to be indicted as a head of state, although he was indicted as an individual, were for sure the information of great value not limited only for the ICTY. However, the ICTY decided to agree to Serbia’s request to keep those documents confidential from anybody and away from the public, without any judicial process at ICTY or other judicial forums. I don’t know if the Tribunal would answer the question whether those were the only documents protected in that way from anyone, regardless whether that be a judge, a journalist, or someone from the region, who would like to fully study what happened in the Balkans. There were some documents provided, which were protected under Rule 70, for instance, when the source did not wish the public to know how he got into possession of those documents but in order to give the Tribunal the access to the evidence they were being protected so that the Tribunal could get closer to the sources of the documents. So, protective measures can be in some cases very constructive and helpful for the efficiency of justice. But sometimes, and there are examples, those measures were used only for convenience and because of political motivation and reasons.      

SA: You mentioned your own indictment, but isn’t the ICTY somehow trying to be a judge in its own case? The ICTY self-adopted its own substantive criminal laws under which you are being charged, the ICTY wrote the indictment and is your prosecutor, then, you will be tried by the ICTY itself and if you lose you may appeal the verdict to … the ICTY.  There is no any kind of a Supreme Court, which can review the ICTY’s verdicts and actions. Moreover, the ICTY was established to try war criminals, but now is indicting the journalists. What kind of precedent does it establish?

FH: Yeah, they are bringing the charges and they are judging at the same time. They are doing so to protect their own interests and not the protective measures. There is a real concern about the purpose for using the rule to which they are entitled, because it prevents any discussion about some issues. As there is no institution outside the Tribunal to turn to in case there is an error or something goes wrong, they have two very important obligations. They have to be fully qualified, especially the judges because if the Prosecutor’s Office makes a mistake, a judge is there to correct it. The judges have to be fully qualified, however to achieve public acceptance of their judgments, the justice has to be delivered on the basis of transparency. They have to be ready to explain, to discuss, and to justify their judgments. They need to be ready to elaborate on decisions perceived by the public as unfair. What is judges' perception of fairness as compared to the judgments of other courts? For example, in February 2007, the verdict in the genocide case between Bosnia and Serbia, when the International Court of Justice made a big mistake and did not request documents from the ICTY, produced a big problem. People were disappointed and were asking why such a judgment? The judges claimed they had good reasons for rendering such a verdict, but maybe they didn’t? They have an obligation to explain to the public all their actions.

SA: My point is that you, as a defendant at ICTY, have fewer rights than you would have had as a defendant, for example, in courts in France, Great Britain or somewhere else. There is no judicial review of ICTY’s actions and you cannot appeal its decisions to any Supreme Court. Nobody can check if your case was properly decided, if ICTY correctly applied laws, justly balanced competing legal and public interests or did not violate your constitutional rights.

FH: Yeah, I have no way of appealing it and there are no independent actors in my trial either. The judges will protect themselves rather than be thinking of delivering justice. The issue is not so much whether I have violated the laws and the protective measures, although they are saying that I have had, because they have violated those laws by themselves as well. They have violated the protective measures because they have allowed other people to speak about the confidential information, although they perhaps have not revealed the full story, while I told the ending. Therefore my case is different from theirs. My story is not in favor of the judges. Nevertheless, when there were stories describing the confidential information in question, however by putting the judges in good light, they did not take any action at all and did not issue any indictments although the protective measures were being violated. Now, if what I said in my book and the article was right, then there is a serious problem. The public was asking for this information even before I wrote my book and now the judges will have to explain to the public their actions.

SA: There are also some opinions in different magazines that your indictment could have been politically motivated and that the timing of the indictment, this is just after Karadzic was arrested and is asking for disclosure of certain confidential documents, was calculated to send a signal to people, who have a first hand knowledge of those documents and to keep them quiet? What do you make of this argument?

FH: It is probable. I believe there were many persons upset about my book, not only inside the Tribunal, but also outside of it. Especially in connection to the issue of international politics about which I spoke extensively in my book. The advantage of the Tribunal is that they have a rule, which enables them to try me before a criminal court, to bring the indictment and to charge me – more or less the same persons. But if they chose to challenge what I wrote outside the Tribunal they would have to bring claims of libel. But under libel laws, I could prove that what I said was true and I would not bear consequences, because there is no libel if you disclose the truth. You cannot offend someone for telling the truth. But they chose the criminal indictment at ICTY. Should someone be criminally indicted for writing something that is true? It is something that is already accepted in all democratic countries. But in criminal trial it is not an issue if what I wrote was true or not. It’s not going to be considered at my trial at all, even if I offended the judges and the justice. In any other court, but ICTY, I would easily win. However, at ICTY they don’t mind that what I said was truthful, they just want to cover it. It is actually interesting, because if I prove that what I said was true, it would mean that I am absolutely guilty of charges brought against me. If it was accurate what I disclosed, then it means that I have had very good information about certain things to which I was not entitled. They want to make an example of me, but they don’t want the story I wrote to be used by anyone asking them to explain their judgments. Because what they did was a mistake in law to grant protective measures to some documents and now they have to justify and explain to the public why they did so.