A striking consensus is emerging in Washington for a closer relationship with the International Criminal Court. Even some staunch conservatives have backed the idea of lending logistical, political, and diplomatic assistance to the ICC on a case-by-case basis – to act against the most shocking outrages of genocide, crimes against humanity, and systematic war crimes.
Yet, with notoriously bad timing, the path to this cooperation may be washed away, due to a troublesome and unnecessary fight brewing at a sister criminal tribunal in The Hague.
The fracas has arisen at the ad hoc United Nations war crimes court tasked since 1993 to try cases from the bloody ethnic war in the former Yugoslavia. This is a high-performing tribunal that has enjoyed strong leadership from its American judges and other admired jurists. The court is currently focused on the prosecution of Bosnian Serb leader Radovan Karadzic and has an indictment and arrest warrant waiting for fugitive Bosnian Serb general Ratko Mladic.
But this exemplary war crimes court also has a mess on its hands, partly of its own creation. The outcome will hold an important lesson for the transparency that any international criminal court should maintain, even amidst the difficulties of dealing with sovereign states. To be acceptable to democratic states and publics, an international court should make available the logic and effect of its rulings. There can be no secret jurisprudence, unavailable to debate and critique by an audience of lawyers, political leaders, and citizens.
Yet, in a summary proceeding now underway at the tribunal, three judges hailing from China, Turkey, and South Africa are threatening to send a French journalist to jail on a charge of criminal contempt for revealing the bare-bones logic of two appellate opinions. No witness has been endangered. No sealed arrest warrant was thwarted. And the criminal case to which the decisions pertained was ended by the fatal heart attack of former Yugoslav strongman Slobodan Milosevic in his jail cell in The Hague in March 2005.
The target of the contempt proceeding is a former Le Monde journalist who worked as a spokesman for the international prosecutor. In a French-language memoir entitled Paix et Châtiment (“Peace and Chastisement”) and a 2 ½ page essay for the Bosnian Institute web site, author Florence Hartmann gave a spare description of two appellate rulings of the UN Tribunal.
This revelation was hardly earthshaking. Indeed, the practical effect of the disputed decisions was widely reported in the press well before the publication of Ms. Hartmann’s essays.
But Ms. Hartmann’s book title references a more general delicacy that may have been provocative to tribunal sensibilities. The book is subtitled as a history of “The Secret Wars of Politics and International Justice.” Dispassionate observers of international criminal justice don’t need a book to know that a court such as the Yugoslav tribunal can be subjected to a certain amount of buffeting by the states that provide its assistance, as well as the states that resist its legal process. The varied personalities of international tribunals – added to the mixture of national legal cultures and difficulties of acquiring evidence without coercive power – necessarily produce more drama than an ordinary state criminal court. One wishes to maintain the dignity that any court deserves. But it is not a bad thing to have an accurate recorded history of the historical sturm und drang before it fades from view.
The explosive nature of this contempt case, though, turns on the aching quality of the international community’s underlying failure in Bosnia. In July 1995, United Nations peacekeepers remained impassive when Bosnian Serb forces carted off 8,000 Bosnian Muslim men and boys from the city of Srebrenica – an enclave that the UN Security Council had guaranteed as a “safe zone.” The 8,000 men and boys were taken into the woods, and summarily executed by firing squads.
Wearing blue berets, the UN peacekeepers did not resist the Serb takeover. They were under-equipped, but the defense minister of the troop-supplying NATO country also called UN officials to demand that no air power should be used. Nor did the peacekeepers demand the right to accompany the trucks, in order to guarantee the safety of the prisoners. From the shame of these events, the government of the Netherlands resigned from office, and the Dutch parliament launched a three-volume study of the episode. It is, of course, a quiet irony that the various international war crimes tribunals are headquartered in The Hague.
In prosecuting former Yugoslav president Slobodan Milosevic for crimes against humanity, war crimes, and genocide in Bosnia, it was helpful to the war crimes tribunal to show that he frequently met with Bosnian Serb military and political leaders during the critical events. As it turned out, Serbia’s defense ministry kept minutes and meeting summaries of an entity called the Supreme Defence Council, and the war crimes tribunal sought their turnover.
One can only sympathize with the difficulty of prying records out of a government that does not want to supply them. The availability of formal legal process does not mean much, when there is no way to enforce it. Still, it was probably unwise for tribunal prosecutor Carla del Ponte to send Belgrade a broadly-worded letter that promised “support in general terms” for Belgrade’s demands for black-outs and exclusions from the critical documents – even before she had the chance to see them. This would prove all the more troublesome when the prosecution was excluded from the key proceeding in the trial chamber where the blackouts were approved.
It was also bargaining away something that might not be hers to give. In particular, under the published rules of the war crimes tribunal, a state could request such omissions from documents only where a “national security interest” was at stake.
Instead, Belgrade’s asserted basis for the black-out request was avowedly to avoid justice in another court – fearing that the pending suit for civil damages brought by Bosnia against Serbia under the Genocide Convention in the International Court of Justice might be strengthened by the revelation of this evidence.
For reasons that still remain hard to fathom, the war crimes trial chamber granted much of Serbia’s request, by interpreting the published rules to permit blackouts from the documents in order to protect the Balkan state’s “vital national interest” – a term not used in the tribunal rules – and placing in that category the risk of civil liability in another forum. The prosecutor was denied the right to appeal the ruling to the appellate chamber.
This did not serve to thwart the criminal trial of Serbia’s strongman, since the documents were still available in full to the sitting judges of the criminal trial bench. Indeed, those judges later found that there was sufficient evidence to sustain a prima facie criminal finding of genocide against Yugoslav president Milosevic. But the documents were denied to its neighboring international court that had responsibility to adjudicate the civil case for genocide.
Eighteen months after the first procedural ruling, additional Serbian military files came to light that allegedly showed that the Bosnian Serb commander directing the Srebrenica massacre, Ratko Mladic, was in fact a serving officer in the Yugoslav armed forces. This could put Serbia directly in the chain of causation of the massacre.
On this occasion, the trial judges apparently refused the blackout of the files, and on Serbia’s appeal, the appellate judges finally had a chance to rule. They reportedly concluded that the trial chamber had applied the wrong legal test in framing the issue as “vital national interest” but that Serbia had relied on the error and so had a right to have the same standard applied. In another opinion, the appeals chamber ruled that the documents could not be released until after the appeals case was resolved.
The result, then, was to deny the availability of the records to the plaintiff and the judges in the International Court of Justice. The fault, if there is any, is likely to reside in a set of miscast tribunal rules that did not permit timely appeal from the first erroneous trial chamber ruling.
But this also shows why the judges might wish to reread the tale of the purloined letter. A judicial ruling whose logic is made public may provoke disagreement. But a ruling whose existence and logic are kept secret is likely to provoke suspicion.
The journalist in question, Florence Hartmann, has both admirers and detractors for her prior role as public spokesman to Yugoslav war crimes prosecutor Carla del Ponte. Ms. Hartmann apparently took a rather more active role at the court than an ordinary porte-parole. The tribunal was subject to contests and quarrels not always visible from the outside.
Still, the issue at stake in the current Hartmann contempt proceeding does not turn on the former spokesman’s conduct at the tribunal, but her limited revelations of these two appellate opinions afterwards. To be sure, any third-party government considering cooperation with an international tribunal wants to know that sensitive information will be protected. But Serbia was not a third-party government. Rather, it was the public instrument used by Milosevic to advance his agenda of nationalism and ethnic cleansing in the Balkans.
The judges of the appellate chamber include some venerable figures, including Judge Fausto Pocar, a widely respected Italian international lawyer and former member of the United Nations Human Rights Committee (and, I should say, a personal friend). So, too, Judge Theodor Meron, a former professor at NYU law school, who is also a friend, has innumerable admirers for his pioneering work in international humanitarian law.
But the Court has gone offsides in this contempt proceeding. The initial investigation conducted by the “amicus curiae” contempt prosecutor was deeply flawed – failing to provide a certified translator in taking the defendant’s initial statement and instead relying on an often inaudible tape-recording, and publicly eschewing any exploration of exculpatory evidence – a duty that is incumbent on any prosecutor. The ad hoc prosecutor pursuing the contempt seems to think it sufficient to characterize her as a “defiant” person.
So, too, in a matter of such public import, it is unrealistic to bury matters in the archive. The world was keenly interested in the parallel suit for genocide brought by Bosnia against Serbia in the International Court of Justice, a court that hears state-to-state complaints and can award damages. The blacking-out of evidence in the criminal trial meant that the international judges in the parallel civil case did not have the benefit of a full record.
The public study of the procedural rulings and potential misfires of international war crimes tribunals remains important in figuring out how to assure fair procedures in future international trials. It is no shame to admit that we don’t yet know how to get things right, in a world in which cases have to be proved in the teeth of uncooperative states. In the design of future war crimes tribunals, it is worthy of debate whether the rules that permitted this result must be changed.
To be sure, the judges at the International Court of Justice concluded, even without the disputed evidence, that Serbia was civilly liable for failure to prevent genocide. But no damages were assessed. This disparity will continue to haunt history and the conscience of all international lawyers who wish to believe that justice is possible even amidst high politics.
The possibility of reopening the thwarted genocide damages suit of Bosnia against Serbia in the International Court of Justice is distant, because the Bosnian government is divided among the three ethnic communities and the Serb member of the collective presidency would object.
But we should avoid such misfires in the future. It does not advance the cause of international criminal justice to threaten a person who described the boggled procedure with criminal contempt.