ICTY'S SECRET EVIDENCE - November 27, 2008

THIS SHOULD NOT BE ABOUT FLORENCE HARTMANN

This is about much more than the contempt charge lodged against Florence Hartmann by the ICTY. It is about the evidence that still is held secret at the discretion of the ICTY, but which is also the right of victims, citizens and history to see and evaluate. Whether one perceives Florence Hartmann's alleged actions, (disclosing purportedly confidential evidence and proceedings before the ICTY), as creditable or culpable, selfless or self-promoting, the victims, citizens and history need their concerns to be taken into consideration. That does not appear to be the case now.

CONCEALED EVIDENCE MORE DAMNING THAN ANTICIPATED

The information relayed to me is that: the evidence, (documents), suppressed at the behest of Serbian authorities as part of the Milosevic case, is not only terribly relevant, but far more damning to Belgrade and certain big powers than anticipated by most outside the inner circles. I have been told that the release of this evidence would also open-up new questions and the search for further culpability. Whether this is actually true can only be determined once such concealed evidence is made available. However, from that which has leaked out, there is more than enough cause to pursue the review and investigations further. 

THE RIGHT OF VICTIMS, CITIZENS AND HISTORY

Under the United Nations Security Council resolutions that established and empowered the ICTY, (International Criminal Tribunal for the former Yugoslavia), a key objective was the right to know, for the victims, the citizens of the region as well as the historical record. While witness protection and the confidentiality of proceedings is a legitimate, important objective of any court, we are not certain what is the purpose of keeping certain evidence secret, including the minutes of the Belgrade Supreme Defense Council?

LIFTING RESTRICTIONS TO ACCESS?

Restricting access to such evidence has definitively undercut BiH's efforts before the International Court of Justice. On the other hand, the logic for such secrecy is not consistent with either the mandate of the Tribunal or relevant legal reasoning. Some have suggested that the decision was politically motivated, and not only at the behest of Belgrade. While it may not be clear from this perspective as to whether it was the Office of the Prosecutor, under Carla del Ponte, or the Judge's Chambers who was responsible for keeping such documents from being reviewed by victims, citizens and history, the Tribunal can unilaterally remove, (or perhaps be compelled through the intervention of interested parties), the restrictions to access surrounding such documents and alleviate any confusion or mistrust surrounding the pronouncements that keep such secret.

At least one of the Tribunal's judges has indicated that the decision restricting access is under review. That is positive, if accurate. If, on the other hand, there is inexplicable delay or hesitation on the part of the Tribunal, then the effort to prosecute Florence Hartmann for contempt could be perceived as an attempt at stifling the flow of information to victims and others not consistent with the mandate, the objective given by the United Nations Security Council. Certainly the Tribunal should be seen as furthering access rather than restricting it, especially for the purposes of an accurate record.

INTEGRITY OF THE PROCESS & HISTORICAL RECORD

If the Tribunal does not act promptly and properly, the ICTY's "secret evidence" will nonetheless probably continue to flow out through "unauthorized sources." This would be chaotic, unseemly and ultimately undermine the very judicial process that is intended to provide a sense of objectivity and closure as well as justice. The Tribunal, rather than prosecuting now one and in the future probably more of its former and current officials, can best defend the integrity of the evidence and respect for the institution by moving quickly to make all evidence public, unless it specifically threatens personal security.

Victims, civil society institutions and related NGO's should also act to prompt the Tribunal to release the "restricted" evidence and information, to insure that the ICTY directly has their interests in consideration when reaching judgment. They are entitled to such consideration under the relevant international legal norms including the UN Security Council 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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