Press "Enter" to skip to content

The Issue of Contempt of Court at the ICTY

Over the last few months there have been a number of decisions by the ICTY in cases involving contempt of the Tribunal. Cases of contempt of the Tribunal fall under Rule 77 of the ICTY Rules of Procedure and Evidence, entitled ‘Contempt of the Tribunal’. Part of this Rule, which has been amended several times over the years to allow the Tribunal to respond to different situations, provides as follows:

(A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question;

(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber; (Amended 4 Dec 1998)

(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber;

(iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or

(Amended 4 Dec 1998, amended 13 Dec 2001)

(v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber.

(Amended 4 Dec 1998, amended 13 Dec 2001)

(B) Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties. (Amended 4 Dec 1998, amended 13 Dec 2001)

The Tribunal can initiate contempt proceedings when there is reason to believe that a person has knowingly and willfully interfered with the administration of justice. As Rule 77 provides, this interference may include intimidation or other instances of tampering with witnesses, refusing to answer questions in court or to comply with an order to attend a hearing or produce documents, disclosing confidential court documents and breaching protective measures. The list of contempt cases on the ICTY website includes 23 cases of contempt of Tribunal. For more information on these cases see here.

An interesting case that has gone through both levels (Trial and Appeals Chamber) is that against Florence Hartmann, the one-time spokesperson of the former Tribunal Prosecutor, del Ponte.[1] The Appeals Chamber judgment of 19 July 2011 affirmed the imposition of a fine of €7,000, payable to the Registrar of the Tribunal in two instalments of €3,500 on 18 August 2011 and 19 September 2011 (see here). In an order of 16 November 2011 the Appeals Chamber converted the fine into a term of seven days imprisonment and requested France to deliver her into the custody of the Tribunal or to report immediately to the Registrar if it were unable to execute this warrant of arrest and to indicate the reasons for such non-execution (see the order here). It is somewhat doubtful whether states are under a strict legal obligation to cooperate with the Tribunal in order to execute punishments for crimes which do not fall under ICTY’s subject-matter jurisdiction, that is genocide, war crimes and crimes against humanity. That obligation seems to fade away especially when the penalty for that crime is a fairly small fine, which the person claims it is unable to pay. Moreover, in simple monetary terms it costs a multiple of the fine imposed upon Hartmann to execute the order for her imprisonment. Probably the best punishment in such a case would have been to translate the fine into community service and direct the French authorities to execute the order. For other discussions of Hartmann’s case see here and here. For accessing all the relevant documents related to her case see here.

Recent decisions on the contempt of tribunal cases include the judgment of 9 December 2011 against Dragomir Pećanac who failed to answer a subpoena to appear as a Prosecution witness in the Tolimir trial (see summary and judgment); that of 7 February 2012 against Jelena Rašić, a member of the Milan Lukić Defence team, for interfering with the Tribunal’s administration of justice by procuring a false witness statement and encouraging him to procure false witness statements from two other persons in exchange for payment (see summary of the judgment here); and, that of 24 February 2012 against Milan Tupajić for failing to comply with two subpoenas to appear as a Prosecution witness in the Karadžić trial (see summary and full judgment). While most of the cases relate to the refusal of witnesses to appear before the Tribunal, there have been also several cases involving interference with the Tribunal’s administration of justice by other persons, including journalists, and even misconduct by one Defence counsel. This topic would make for a very interesting LL.M. or even PhD thesis!


[1] The ICTY has found that Hartmann knowingly and willfully interfered with the administration of justice by disclosing information in violation of an order of the Appeals Chamber dated 20 September 2005 and an order of the Appeals Chamber dated 6 April 2006, through means of authoring for publication a book entitled Paix et Châtiment (“Book”), published by Flammarion on 10 September 2007, and by authoring for publication an article entitled Vital Genocide Documents Concealed (“Article”), published by the Bosnian Institute on 21 January 2008 (see the case information sheet at http://www.icty.org/x/cases/contempt_hartmann/cis/en/cis_hartmann_en.pdf).

2 Comments

  1. Itzik Kornfeld Itzik Kornfeld 28 February 2012

    Dear Gentian:
    This is an excellent post. It strikes me that contempt proceedings is an excellent way for the Court to maintain control of its proceedings, when the accused become unruly.
    I do however see a problem for the Court. It’s options in holding a party or other person in contempt are quite limited. That is, it cannot levy fines, or “punish” in very many ways, except for keeping the accused out of the proceedings, which it has always had the power.

  2. Gentian Zyberi Gentian Zyberi Post author | 28 February 2012

    Well, among others contempt cases are also a tool which ensures that the Chamber remains in control of the proceedings when facing an accused who is obstructing them through repetitive disruptive behaviour (see the cases against Seselj for example at http://www.icty.org/contemptcases/party/774/27). The Tribunal has quite broad powers in this respect and the punishment it has imposed for contempt include both limited terms of imprisonment and fines.

Leave a Reply to Itzik Kornfeld Cancel reply

%d bloggers like this: