In many respects, the International Criminal Tribunal for the former Yugoslavia is a groundbreaking institution. Founded in The Hague by the United Nations 16 years ago to prosecute perpetrators of genocide, war crimes, and crimes against humanity during the brutal civil war in the Balkans, the ICTY was the first war-crimes panel to be created since the Nuremberg and Tokyo tribunals some 60 years ago. But now it's breaking more sinister ground. In a move that has dismayed even some fervent supporters, the tribunal is prosecuting a French journalist it accuses of publishing unauthorized information about its own proceedings. If convicted, Florence Hartmann, 46, faces a possible prison sentence of seven years and a maximum fine of €100,000—about $126,000 at current exchange rates.
Hartmann is no ordinary journalist. She covered the civil war for the French daily Le Monde and served from 2000 to 2006 as the spokesperson for the tribunal's then–chief prosecutor, Carla Del Ponte. By all accounts, she has been an energetic champion of the tribunal's mandate to bring war criminals to justice. Last August, however, it indicted her on two counts of "contempt" for "knowingly and willfully" revealing "confidential information to the public" relating to the tribunal's case against Slobodan Milošević, the former Serbian leader who died in his cell in 2006 before the end of his trial for war crimes and genocide.
Why would the tribunal turn so vengefully on one of its own? Its website posts the terse indictment without elaboration. Many of the facts and motions in the case against Hartmann are secret. Nerma Jelačić, a tribunal spokeswoman, told me via e-mail that she would not discuss what precisely Hartmann allegedly disclosed, referring me to the indictment, which cites Hartmann's discussion of two confidential tribunal decisions in three offending pages of her 2007 book Peace and Punishment and an article she wrote in early 2008 for the Bosnian Institute. "The tribunal must take such alleged breaches of confidentiality seriously in order to deter persons from interfering with justice and to safeguard the rule of law," Jelačić said.
Jelačić noted that the tribunal had previously indicted four journalists—all of them from the former Yugoslavia—for "knowingly and willfully" disclosing confidential information. But none of them had worked for the tribunal. And these journalists had disclosed the names of protected witnesses or aspects of their testimony in closed sessions, information that clearly endangered the witnesses and hampered the tribunal's ability to find additional witnesses willing to cooperate. Jelačić said that three of the four journalists received fines ranging from €7,000 to €20,000; one spent three months in the tribunal's detention facility at The Hague.
In her defense, Hartmann's lawyers, friends, and associates claim, first, that the information she published was already available to the public, and second, that the public had a right to know about how the tribunal had handled the case against Milošević, one of 161 people it has indicted. Hartmann's real "crime," they assert, was embarrassing the tribunal by writing about how and why its judges decided to withhold evidence from the International Court of Justice (a permanent court also located at The Hague) that might have linked Serbia to numerous wartime atrocities, including the infamous massacre of 7,500 Bosnian Muslims at Srebrenica in 1995.
In her book and her article, Hartmann criticizes the tribunal's decision to accept military documents from Belgrade in exchange for a pledge that some of the material would not be turned over to the International Court of Justice without being redacted. Bosnia had sued Serbia for genocide in the International Court, which ruled in February 2007 that while the Srebrenica massacre qualified as genocide, there was insufficient evidence to conclude that Serbia was guilty of the crime. But the court's judges never saw the uncensored copies of the documents that the tribunal had obtained from Serbia. The ruling, which caused an uproar, effectively absolved the Serbs of having to pay enormous damages to the families of Bosnian Muslim victims that had brought the suit.
In an interview with me, Hartmann stressed that neither her book nor her article disclosed the contents of any of the material that Serbia had turned over to the tribunal. What she appeared to have disclosed, she said, was how Serbia successfully argued that concerns about its "national security interests" should prevent the tribunal from sharing this material with the International Court of Justice and the public.
The tribunal's defenders say that no international court can function effectively if those who work for it and agree to keep information about its proceedings secret violate their confidentiality pledges. Indeed, in a court appearance earlier this year, presiding judge Carmel Agius of Malta rebuked Hartmann for suggesting that her alleged offense was less serious than those of the war criminals whom the tribunal was prosecuting. "I suggest," the judge said, "that you do not underestimate even for a second the gravity of the crime of contempt." A defiant Hartmann has refused to yield or cut a deal. "For me," she explained, "this is a question of whether freedom of the press and free expression will prevail on a subject of intense public interest and importance."
Critics of the tribunal, among them former prosecutor Del Ponte, complain about its slow work pace, lack of transparency, and inability to convict some of the most prominent defendants. Milošević, for instance, died in the middle of his four-year trial, and though Radovan Karadžić, his military chief, has been arrested, another major culprit, Ratko Mladić, remains at large. But Richard Dicker, head of the Human Rights Watch's international justice program, calls some of the criticism unfair. "The tribunal has no police force," he says. "It had to rely on highly polarized police forces often reluctant to arrest their own." And because it was new, the tribunal had to "invent things as it went along." Prosecuting "tough cases of systematic abuse at a vast distance is not easy," he says, despite a staff of 1,200 and an annual budget from UN members of $120 million. Others note that the tribunal had to keep some evidence secret to protect the identities of endangered witnesses, its sources and methods of inquiry, and other diplomatically sensitive information.
The tribunal's indictment of Hartmann, however, has stirred outrage. "Never in my wildest dreams did I imagine that the tribunal set up to punish war criminals would be prosecuting a journalist who was part of the effort to bring justice to those responsible for terrible crimes," said Diego Arria, a former Venezuelan ambassador to the UN who helped create the ICTY. In fact, Hartmann's defenders say, the notion of such a tribunal's expanding its prosecutorial authority to issues of free speech is breathtaking. "She will be standing on the exact spot where Milošević stood!" said Dominique Dupuy, a French activist who campaigned for the creation of a war-crimes tribunal and is now helping run a website in support of Hartmann. "We all wanted the tribunal, but this has nothing to do with justice. It has to do with keeping the truth from victims and the public." More than 2,500 people have already signed protest petitions, and several journalists and human rights groups—among them, the London-based Article 19 and the Paris-based European Journalists Association—have urged the tribunal to drop the charges.
Mohammed Sacirbey, the former Bosnian foreign minister, called Hartmann's indictment "an effort to intimidate her." Meanwhile, her lawyers have challenged the impartiality of a special panel of judges formed to try her case.
In late March, the tribunal agreed to disqualify two of the judges who were to hear the case, including Agius of Malta, but there is still no indication of when Hartmann's trial might start. The tribunal, which has convicted 60 people so far, is scheduled to complete its trials by 2010 and hear all appeals by the end of 2011. Its action against Hartmann suggests that freedom of expression might best be protected by advancing that schedule.