Contempt Charges and the International Criminal Tribunals

The last days have been busy in the international criminal law world with convictions in the Karadžić case at the ICTY and the Bemba case at the ICC, and the confirmation for trial of the Ongwen and Al Mahdi cases at the ICC. In the midst of all of this activity, Florence Hartmann, a former spokespersons of the ICTY’s Office of the Prosecutor, was arrested in connection with her 2011 conviction at the ICTY for contempt.

Fair debate is possible about the merits of the underlying Hartmann case, but some of the reactions to her arrest have been downright strange, even going so far as to question whether international courts should have any power to prosecute cases of interference with their judicial processes. This reasoning is unsound. The contempt power of international tribunals is critical to the work of these courts.

Hartmann was spokesperson for the ICTY OTP from 2000-2006, after which she resumed her career as a journalist. In 2007, Hartmann authored a book that disclosed two confidential Appeals Chamber decisions from the ICTY, while acknowledging their confidential nature. The ICTY Registrar then sent a letter to Hartmann expressing concern about this disclosure. Several months later, Hartmann did it again, publishing an article again discussing the Appeals Chamber decisions.

Hartmann was subsequently charged, tried, and convicted of contempt. The Trial Chamber weighed various aggravating and mitigating factors and imposed a fine of 7,000 euros. Both the conviction and sentence were affirmed on appeal in 2011.

Hartmann’s response was to willfully ignore the fine. Accordingly, the ICTY converted the fine to a seven-day prison sentence, which remained unenforced until Hartmann came to the Tribunal last week, at which point she was arrested.

Again, there can be argument over whether Hartmann should have been charged or convicted, and her very able counsel advanced all possible defenses during her case. But at the end of the day, these arguments were rejected and she was convicted. Respect for the rule of law requires that the sentence be enforced. Some commentators have suggested that the ICTY should have just let the matter drop. But others have been prosecuted at the ICTY for contempt, including for disclosing confidential information. Why then should Hartmann’s case just be “dropped”? What makes her case any different?

William Schabas, a prominent academic of international criminal law, advances an even more radical claim: that the international criminal tribunals should not investigate or prosecute any offenses against the administration of justice, and instead should leave them to states to pursue. It is difficult to take this suggestion seriously. The international tribunals have a responsibility to protect the integrity of their processes and must ensure that their orders are respected.

Moreover, as anyone who has prosecuted a case at one of the international criminal tribunals knows, witness intimidation and interference is a frequent feature of these investigations and trials. At the International Criminal Court, Jean-Pierre Bemba, his former lead counsel, and three others are currently on trial for a scheme to bribe witnesses in Bemba’s original case (in which he was just convicted). In the case against William Ruto, the Deputy President of Kenya, the judges specifically found interference with numerous witnesses. The Court must be able to combat these deliberate efforts to undermine its cases. In other words, the offenses against administration of justice cases are not separate and distinct from the principal cases of the tribunals, but are necessary to ensure their success.

While it may be possible in some cases to have contempt cases pursued by state courts, there are many instances where there exists no state with the will or capacity to support the court. For this reason, the very first set of Rules of the ICTY adopted in 1994 recognized the Court’s power to prosecute contempt, and the ICC Statute, now joined by 124 countries, includes a similar provision.

A central challenge of the international criminal tribunals is their limited power. For this reason, a proposal to limit their authority even further, in a way that would plainly undermine their ability to protect the integrity of their processes and investigations, should be rejected. 

About the Author(s)

Alex Whiting

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).