by William A. Schabas*
Alongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.
Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.
All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.
It doesn’t have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems.
If this were the case, by the way, the door would be wide open to the European Court of Human Rights. It could address the human rights issues that arise including arbitrary detention, imprisonment for debt, and freedom of expression. But the International Criminal Tribunal for the former Yugoslavia lives in a little glass bubble where it is immune from supervision by the European Court of Human Rights.
Florence Hartmann’s arrest did not, apparently, take place on the territory of the Tribunal, but well outside its gates. Can it really be the case that United Nations security guards have the legal authority to arrest individuals on Dutch territory outside the premises of the Tribunal?
The Security Council resolution establishing the Tribunal gives it jurisdiction over ‘serious violations of international humanitarian law’. Publishing a book in France does not fit within this concept. That may explain why France has refused requests from the Tribunal to arrest Florence Hartman for non-payment of the €7,000 fine.
Nobody should be put in prison for failure to pay a fine. This amounts to arbitrary detention. If the offence merits a jail sentence, then impose one from the beginning. But if it only justifies a fine of a relatively modest amount, it should not then be converted into jail time for non-payment, If the Tribunal wants to collect the money, let it file a civil claim before a national court and attempt to seize the money from the bank account of its debtor. That’s what the rest of us have to do when we are owed money.
*This article was originally published here.