Ina Vukic, in her screeds against Carl Bild's visit to Sarajevo, reminds me that I haven't blogged yet about the Florence Hartmann case. (Although I have expressed my opinion on Opinio Juris in the past.) Normally I wouldn't write about a case that is quite clearly dead, but since my opinion seems to deviate somewhat from the conventional wisdom, I thought I'd briefly sum it up.
Florence Hartmann published a book that contained confidential information that she had access to in her capacity as a spokesperson for Carla Del Ponti, the former prosecutor of the International Criminal Tribunal for Former Yugoslavia. There seems to be no one suggesting that this was not against the rules.
(In 2009, I made the point by referring to art. 287 EC: “The members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information o fthe kind covered by the obligation of professional secrecy", as well as to the confidentiality agreement I had to sign when I did my stage at the Council.)
The only shadow of a defence seems to be that the information in question "was the subject of many press reports and public debates after the International Court of Justice delivered its judgment in February 2007 in the case of Bosnia and Herzegovina versus Serbia on charges of genocide", which according to the Humanitarian Law Centre raised the question why Ms. Hartmann was singled out. The answer, of course, is that she was the only person writing about this story who actually worked for the Tribunal, and was therefore subject to its confidentiality rules. Whether the information was already in the public domain or not is irrelevant. As long as it remains sealed by the Tribunal, the Tribunal's staff and former staff cannot reveal it.
The only real question is why the ICTY thinks it has the power to impose a criminal penalty for contempt. I think it is plausible that the power to punish contempt is part of the Tribunal's "inherent powers", just like its competence to examine its own jurisdiction in Tadic. However, as John Dehn commented last November, that does not necessarily mean that such contempt has to be criminal.
The French, in the meantime, have told the ICTY where to shove it. Presumably, their claim that their agreement with the Tribunal does not cover non-serious crimes reflects a policy preference not to cooperate. If they had wanted to help, they would have.
My take is that the Tribunal were right to go after her. She knew her obligations, and some kind of punishment was certainly in order. International tribunals need to keep their own house in order, just like other international organisations. Given that the information in question was mostly already in the public domain, the appropriate punishment was always going to be a modest one, and the € 7.000/7 days in jail she got sound right.
It would have behoved the French to appreciate this, and to assess the fine against her the same way they would for any other foreign fine that comes from a country that they have a mutual enforcement agreement with. I'm sure they could have done so if they had wished, given the cooperation agreement aforementioned. Now poor Florence is stuck in France, worried that if she travels abroad she will be arrested and sent to The Hague, which seems like a much more unfortunate outcome for all involved. Ms. Hartmann can't very well back down and pay the fine, given all her hooplah about free press, etc., but if the French government had simply enforced the fine against her, the whole thing would have been over with years ago. As it is, the ICTY will have to keep trying to get her, and Ms. Hartmann will be stuck in France until the Tribunal closes for business on 31 December 2014.