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Former ICTY spokesperson Florence Hartmann faces charges for "disclosing information", ARTICLE 19 urges tribunal to uphold international freedom of expression standards, strike careful balance between confidentiality and transparency

(ARTICLE 19/IFEX) - The following is an ARTICLE 19 press release:

Tribunal's Attempt to Silence Staff
International Justice and Transparency - Two Sides of the Same Coin

London: ARTICLE 19 urges the International Criminal Tribunal for the former Yugoslavia (ICTY) to uphold international standards on freedom of expression and to balance concerns for confidentiality with the importance of transparency in the case it has brought against Florence Hartmann, former ICTY Spokesperson.

"ARTICLE 19 recognises the need for some degree of confidentiality to protect the administration of justice. But any restrictions to freedom of expression must be justified as necessary in a democratic society. The information disclosed by Hartmann relates to the role and responsibility of international bodies in bringing justice to victims of genocide, war crimes and crimes against humanity. This is a topic of very significant public importance, which therefore warrants strong protection as an exercise of freedom of expression. The fight against impunity and transparency are two sides of the same coin," said Dr Agnes Callamard, ARTICLE 19 Executive Director.

In February 2009, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia will hear the case against Hartmann, who worked from 2000-2006 as spokesperson for then ICTY chief prosecutor Carla Del Ponte. Hartmann is charged with "knowingly and willfully disclosing information in knowing violation of a Court order". In her book, Peace and Punishment, published in September 2007, Hartmann allegedly disclosed information relating to the case of Slobodan Milosevic before the ICTY.

The ICTY had agreed to maintain confidentiality regarding the archives of Serbia's Supreme Defence Council related to the Srebrenica massacre. Access to the archives was sought in a case before the International Court of Justice (ICJ). That case involved allegations by Bosnia and Herzegovina that the then Federation of Serbia and Montenegro were responsible for direct involvement in the Srebrenica massacre, which both the ICTY and the ICJ have found to constitute genocide.

ARTICLE 19 recognises that there can be tensions between the principles of freedom of expression and openness, and the need for some degree of confidentiality to protect the administration of justice. A careful balance needs to be struck in these cases and any restrictions must be justified as necessary in a democratic society. In particular, the contempt measures should not be abused to illegitimately limit criticism of courts and judges. The freedom of expression aspect of this case means that it cannot be based simply on whether or not Hartmann committed a formal breach of the rules. ARTICLE 19 believes that this case raises critical issues in relation to preserving this balance.

The information disclosed by Hartmann relates to the role and responsibility of international bodies in bringing justice to victims of genocide, war crimes and crimes against humanity. This is a topic of very significant public importance, which therefore warrants strong protection as an exercise of freedom of expression. At the same time, the ICTY's interest in maintaining confidentiality in order to secure the co-operation of States is clearly a legitimate aim.

In assessing the appropriate balance to be struck in this case, the ICTY should carefully assess the extent of the risk of harm involved. In particular, it should consider whether a failure to convict Hartmann really does pose such a risk that other States will refuse to cooperate with it by providing sensitive information. If there is little or no solid evidence of such harm, the criminal measures against Hartmann cannot be justified.

This case also raises an issue of conflict of interest. The ICTY is effectively standing in judgement in a case which involves its own interests and in which it is the institution aggrieved by the alleged violation. Conflict of interest issues in analogous contexts, for example in contempt of court cases, have been recognised by some national courts. At a minimum, the ICTY should recognise this implicit conflict of interest and take all measures necessary to minimise it.

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