Less than two hours before Radovan Karadžić was due to hear his verdict, Florence Hartmann was arrested as she tried to enter the UN International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Karadžić is the most important politician ever convicted by the tribunal, guilty of genocide, crimes against humanity and war crimes. He was sentenced to 40 years in jail.
Florence Hartmann, a former spokesperson of the legendary former ICTY chief prosecutor Carla Del Ponte, was intercepted by UN security guards in the tribunal building to follow the delivery of the judgement. After a short struggle, the UN guards and Dutch police hauled her away while she was yelling.
Hartmann is the only former staff member of the tribunal who has been convicted for contempt of court by her own former employer. France has refused for years to extradite the former Le Monde journalist.
Paris argues that its obligation to cooperate extends only to the “core crimes” under the tribunal’s jurisdiction (genocide, crimes against humanity and war crimes) and not to contempt, a crime which is not in the 1993 ICTY statute and for which the judges “usurped” jurisdiction later. Hartmann will now have to serve a 7-day sentence in the ICTY detention unit in Scheveningen.
Hartmann worked in the Balkans during the wars in the 1990s as a correspondent for the prestigious French newspaper Le Monde.
She has written a most learned book about her time in the former Yugoslavia (Milošević – la diagonale du fou) which was most helpful for journalists who covered the trial of Slobodan Milošević at the ICTY.
The former president of Yugoslavia, who transferred to The Hague in 2001, was the first-ever former head of state to stand trial before a modern international criminal court. He died in his cell in 2006 after more than four years of marathon trials. As the trial was still ongoing and there had been no closing arguments, there was no judgement in his case.
Maybe thanks to her book, Carla Del Ponte hired Hartmann as her spokesperson and policy adviser. After her tenure (2000-2006), she wrote another book, Paix et châtiment (Peace and Punishment) about her time at the ICTY. She implicitly accused the ICTY of having sabotaged the work of another UN court in The Hague, the International Court of Justice (ICJ), the principal judicial organ of the UN which decides on judicial conflicts between states.
During the Milošević trial, the prosecution struggled to prove Milošević involvement in the crimes in neighbouring Bosnia, which the former Bosnian Serb president Karadžić was convicted for. Milošević, an ethnic Serb, sat in his presidential office in Belgrade while ethnic Serbs in neighbouring Bosnia victimised ethnic Croats and Muslims.
The prosecution needed “linkage evidence” to prove that Milosevic had something to do with crimes in a different country. The prosecution requested the minutes of the Supreme Defence Council in Belgrade, where Milosevic would discuss the situation in neighbouring Bosnia with his generals.
By the time of the Milošević trial (2002-2006) Serbia had liberated itself from its former authoritarian ruler. The new government in Belgrade wanted better relationships with the West, the UN, and the European Union, so it wanted to show that it was prepared to co-operate with the ICTY.
But there was a problem: Bosnia had brought a case against Serbia at the ICJ. Bosnia accused Serbia of a violation of an international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide. The minutes of the Supreme Defence Council (SDC) could have proved Serbia’s involvement in the Bosnia genocide at the ICJ. Serbia was afraid that it might be the first and only country to be found guilty of a violation of the Genocide Convention by the world’s highest judges.
To convince Belgrade to deliver the SDC minutes, the ICTY judges put the SDC minutes “under seal” so that the document would not be available for the ICJ proceedings (the outcome of which was then quite favourable for Serbia).
Hartmann denounced this, published her book about the confidential court order, was indicted for contempt by the ICTY, and came to The Hague to stand trial. She was sentenced to a fine of 7000 euros (about Ksh795000) in 2009, which was affirmed by the Appeals Chamber in 2011.
When Hartmann refused to pay, the tribunal commuted the fine to a seven-day detention sentence. France refused to extradite her. It was probably her journalistic curiosity that motivated her to set foot in the tribunal in The Hague again on Thursday. Hartmann is segregated from the rest of the detainees and is under round-the-clock surveillance.
Significance of the judgement
The Karadžić judgement was not a surprise for experienced ICTY observers. As expected, he was acquitted of genocide in the concentration camps in Northwest Bosnia, something nobody has ever been convicted for because of a lack of the required evidence for genocidal intent. He was convicted for all the other crimes charged during the inter-ethnic war in Bosnia (1992-1995) that claimed thousands of lives. Some expected a life sentence, as for military commanders who have been found guilty before for their role in the 1995 Srebrenica genocide. However, the judges took mitigating circumstances into account for the 70-year-old, like his expression of regret, his good conduct in The Hague and the fact that he relinquished his presidential office voluntarily.
The Karadžić judgement of the ad hoc UN court provides important jurisprudence for the ICC. The world’s first permanent international criminal court has indicted several leaders such as President Uhuru Kenyatta of Kenya, Omar al-Bashir of Sudan, Former Ivorian President Laurent Gbagbo, Former Libyan President Muamar Gaddafi Deputy President of Kenya William Ruto. Almost all of these cases have not matured yet to the stage of judgement or even to the stage of arguing conviction or acquittal by respectively prosecution and defence during the closing arguments. (There is only Jean-Pierre Bemba’s conviction.) In the almost total absence of ICC jurisprudence, the parties at the ICC will look at ICTY jurisprudence on how to evaluate the criminal responsibility of political leaders.
No written orders from Karadžić hand have been found for the genocide after the fall of Srebrenica in 1995 or for the concentration camps and mass executions in Northwest Bosnia in 1992 – very much like the OTP at the ICC struggles with the lack of written evidence of Kenyatta’s and Ruto’s role in Kenya’s PEV in 2007/2008. The Karadžić trial chamber convicted him nevertheless because the accused “created an environment” in which the crimes became possible.
There was a “common purpose” to claim certain territories for the Serbs, and in the climate Karadžić created with certain hate speeches, it was “foreseeable” for him that local Serbs would commit crimes against their Muslim and Croat neighbours, even without explicit orders for mass executions or concentration camps. Karadžić “could have known” and as a political leader, he was “indifferent to that possibility”, presiding UN judge Kwon O-gon of South Korea said. Karadžić “willingly took that risk” and is therefore held responsible for crimes committed by others under his political leadership.
Watch: The Death of Yugoslavia
The writer is the President of the Association of Journalists at the International Criminal Court (AJICC).
