Hartmann convicted for contempt at the ICTY
September 18th, 2009 • ICL, Law
The judgement isn’t out yet, but EJIL:Talk! reports that Florence Hartmann has been found guilty of contempt by an ICTY Trial Chamber for disclosing information that was protected by an order of an ICTY Chamber.
This was a particularly controversial case – Hartmann used to work as a spokesman for the ICTY Prosecutor, there were some issues involving the rights of States, and the information that she disclosed, in a book and an article, was argued to be already in the public domain. The Chamber seems to have disagreed – finding that the information was not in the public domain and fining her €7,000.
From the looks of the summary of the judgement, it likes like the ICTY is continuing down a very strict reading of the Rules in relation to contempt, that lowers the bar for contempt prosecutions. While, as noted by Kevin Heller at Opinio Juris, “There is no question that Hartmann knowingly violated Tribunal rules”, should this be enough to justify a finding of contempt?
Rule 77 of both Tribunals states that “The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice” (it also provides some examples of actions that can result in a finding of contempt, including disclosure of information in contravention of an order).
Following Margetic, Jovic, Haxiu and Nobilo, and mostly recently Nshogoza, the Tribunals have taken a very strict approach to this rule.
Beginning by establishing that a ‘mere’ a violation of a court order is an interference with the administration of justice, Chambers have gone on to say that this means that the mens rea for contempt is satisfied by the deliberate violation of a court order – all the Prosecution needs to prove is that the person committed the act deliberately and not accidentally, this is enough to show the person was also trying to interfere with the administration of justice.
I think that this approach is valid legally, but from a policy perspective is it really fair?
First of all, it is not clear to me that just because someone violates a court order they necessarily are “knowingly and wilfully” interfering with the administration of justice. It is conceivable that while a person knows their action violates a court order (and therefore interferes with the administration of justice), at the same time their intent (or will) was not to do so. For example, Hartmann’s disclosure, while technically in breach of a court order, was arguably not done with an intent to interfere with the administration of justice given she believed the information to already be in the public domain (whether or not it actually was is another question).
More problematic though, Nshogoza appears to say that even if the person violating the court order believed that their actions were legal, this would not excuse their breach. While ‘ignorance of the law is no excuse’, when a Rule requires knowledge and intent it would appear that the state of mind of the accused is of the utmost importance.
Finally, just as the Appeals Chamber has found that Chambers should be using their power to sanction counsel for frivolous motions cautiously, I would argue that Rule 77 should be reserved only for cases that meet a requisite level of ‘seriousness’. While perhaps not a legal argument, though there are some ICTR Trial decisions supporting this idea, it would mean less wasting of the Tribunals’ time and resources, a system perceived to be fairer in regards to punishment and perhaps less allegations of ‘vindictive’ prosecutions (See also Bill Schabas he would prefer national courts deal with these contempt cases as opposed to the Tribunals).
Nshogoza is currently on appeal, and the Hartmann judgement is yet to be issued, so it will be interesting to see how the law in this area is actually developing.
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