* This text was reproduced and reformatted from the text available at the International Criminal Tribunal for the former Yugoslavia official website: (visited Oct. 21, 2009) <http://www.icty.org/x/cases/contempt_hartmann/tjug/en/090914judgement.pdf>.

1 In the Case Against Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, ¶ 89 (Sept. 14, 2009), available at http://www.icty.org/x/cases/contempt_hartmann/tjug/en/090914judgement.pdf [hereinafter Judgment].

2 Id. ¶ 3.

3 Id. ¶ 4.

4 In the Case Against Hartmann, Case No. IT-02-54-R77.5, Prosecution Final Trial Brief, ¶¶ 7-8 (Aug. 25, 2009), available at http://www.icty.org/x/cases/contempt_hartmann/custom5/en/090825.pdf.

5 In the Case Against Hartmann, Case No. IT-02-54-R77.5, Order in Lieu of Indictment on Contempt (Aug. 27, 2008), available at http://www.icty.org/x/cases/contempt_hartmann/ind/en/080827.pdf.

6 Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, IT/32/Rev. 43 (July 24, 2009), available at http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_Rev43_en.pdf.

7 Judgment, supra note 1, ¶¶ 20, 22.

8 Otherwise, the Trial Chamber summarily ignored ‘‘a number of arguments that it considers to be wholly lacking in merit,’’ stating that it maintained the discretion as to which legal arguments to address. Judgment, supra note 1, ¶ 23.

9 Id. ¶¶ 34-35.

10 Id.

11 Id. ¶ 46.

12 Id.

13 Id. ¶ 57.

14 Id. ¶¶ 58-61.

15 Id. ¶ 62.

16 See Prosecutor v. Jović, Case No. IT-95-14 & 14/2-R77, Judgment (Aug. 30, 2006), available at http://www.icty.org/x/cases/contempt_jovic/tjug/en/jov-jud060830e.pdf; and Prosecutor v. Margetić, Case No. IT-95-14-R77.6, Judgment on Allegations of Contempt (Feb. 7, 2007), available at http://www.icty.org/x/cases/contempt_margetic/tjug/en/margetic_judgement.pdf.

17 Judgment, supra note 1, ¶ 70.

18 Id. ¶ 74.

19 Id. ¶ 75.

20 See Rules of Procedure and Evidence, supra note 6.

21 Id. ¶¶ 80-85.

22 Ruth Wedgwood, The Strange Case of Florence Hartmann, EJIL: Talk!, July 9, 2009, available at http://www.ejiltalk.-org/the-strange-case-of-florence-hartmann-ruth-wedgwood/.

1 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (the ‘‘Tribunal’’).

2 Prosecution’s Statement of Admission of the Parties and Matters Not in Dispute, 6 February 2009 (‘‘First Set of Agreed Facts’’); Defence Motion Pursuant to Rule 65ter, 9 February 2009 (‘‘Second Set of Agreed Facts’’), Annex, p. 1.

3 First Set of Agreed Facts.

4 Second Set of Agreed Facts, Annex, p. 1

5 The Book was published in the French language.

6 Order in Lieu of an Indictment on Contempt, 27 August 2008, Annex, para. 2.

7 Order in Lieu of an Indictment, Annex, para. 3.

8 Order Assigning Judges to a Contempt Matter, filed on 23 January 2008 (confidential).

9 Order to the Registrar to Appoint an Amicus Curiae to Investigate a Contempt Matter, filed on 1 February 2008 (confidential).

10 Decision by the Deputy Registrar, 5 March 2008 (confidential).

11 Amended Order in Lieu of an Indictment on Contempt; see Decision on Motion to Amend the Order in Lieu of an Indictment on Contempt, 27 October 2008.

12 Decision by the Deputy Registrar on Assignment of Amicus Curiae, 1 September 2008 (Exhibit P5).

13 Decision by the Deputy Registrar, 23 September 2008.

14 Decision by the Deputy Registrar, 19 December 2008.

15 Decision by the Acting Registrar of 22 January 2009, filed on 23 January 2009.

16 Order Replacing a Judge, 28 January 2009.

17 Initially, the Accused had been summoned to appear for her initial appearance on 15 September 2008. At the request of the Defence, the Chamber postponed the date of her initial appearance first to 13 October 2008, and then to 27 October 2008, see Scheduling Order for Initial Appearance, 26 September 2008.

18 Scheduling Order for Further Appearance of the Accused, 30 October 2008.

19 Prosecutor’s Pre-Trial Brief Pursuant to Rule 65ter(E), 8 January 2009 (‘‘Prosecution Pre-Trial Brief’’); Pre-Trial Brief of Florence Hartmann, 15 January 2009 (‘‘Defence Pre-Trial Brief’’).

20 Scheduling Order for Commencement of Trial, 28 November 2008.

21 Motion for Voir-Dire Hearing and for Termination of Mandate of the Amicus Prosecutor, filed both confidentially and publicly on 9 January 2009 and Motion for Stay of Proceedings for Abuse of Process, filed both confidentially and publicly on 23 January 2009.

22 Motion for Reconsideration, filed confidentially on 14 January 2009 and publicly on 16 January 2009 (‘‘Motion for Reconsideration’’).

23 Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer in Charge of the Case, filed confidentially on 3 February and publicly on 6 February 2009 (‘‘Motion for Disqualification’’). The Motion for Disqualification was limited to two Judges on the bench as one of the Judges had been replaced prior to the Motion being filed, see supra, para. 12.

24 Order Postponing Commencement of Trial, 3 February 2009.

25 Decision on Motion for Disqualification, 18 February 2009, p. 2.

26 Report of Decision on Defence Motion for Disqualification of two Members of the Trial Chamber and of Senior Legal Officer, filed confidentially on 25 March 2009 and publicly on 27 March 2009 (‘‘Report’’).

27 Report, para. 53.

28 Report, paras 54-55.

29 Order Replacing Judges in a Case Before a Specially Appointed Chamber, 2 April 2009.

30 First Set of Agreed Facts; Second Set of Agreed Facts.

31 Prosecution witnesses: Yorric Kermarrec (T. 132-149) and Robin Vincent (T. 150-200); Defence witnesses: Louis Joinet (T. 236-379) and Nataša Kandić (T. 380-499).

32 Joint Admission [sic] by the Parties on the Evidence of Mr. Gavin Ruxton of 9 June 2009, filed on 10 June 2009 (‘‘Agreed Statement of Gavin Ruxton’’).

33 Prosecution Exhibits: P1-P11; Defence Exhibits: D1-D67.

34 Prosecutor’s Final Brief, filed confidentially 2 July 2009 and publicly on 25 August 2009 (‘‘Prosecution Final Brief’’); Final Brief of Florence Hartmann, filed both confidentially and publicly on 2 July 2009 (‘‘Defence Final Brief’’) along with a public Book of Authorities.

35 Prosecution Closing Arguments, 3 July 2009, T. 515-530; Defence Closing Arguments, 3 July 2009, T. 530-556.

36 Vujin Appeal Judgement, paras 13 and 18; Nobilo Appeal Judgement, para. 30; Marijaèić and Rebić Appeal Judgement, paras 23-24; Jović Trial Judgement, para. 11; Margetić Trial Judgement, para. 13; Haxhiu Trial Judgement, para. 9; Haraqija and Morina Trial Judgement,, para. 16; Jokić Trial Judgement, para. 9.

37 Vujin Appeal Judgement, paras 13 and 18; Nobilo Appeal Judgement, paras 30 and 36; Beqaj Trial Judgement, para. 9, see also paras 10-13; Marijaèić and Rebić Trial Judgement, para. 13; Margetić Trial Judgement para. 34; Haxhiu Trial Judgement, para. 9; Haraqija and Morina Trial Judgement, para. 16; Jokić Trial Judgement, para. 9.

38 Jović Trial Judgement, fn. 46. See also Prosecutor v. Slobodan Milošević, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeals on Kosta Bulatović Contempt Proceedings, 29 August 2005, para. 21.

39 See Rule 77 of the Rules; Marijaèić and Rebić Trial Judgement, para. 13.

40 Nobilo Appeal Judgement, para. 39; Margetić Trial Judgement, para. 13.

41 See Rule 77 (A)(ii) of the Rules. See also Marijaèić and Rebić Appeal Judgement, para. 24; Jović Appeal Judgement, para. 30.

42 Marijaèić and Rebić Trial Judgement, para. 17; Haxhiu Trial Judgement, para. 10.

43 Haxhiu Trial Judgement, para. 10.

44 Marijaèić and Rebić Trial Judgement, para. 17; Haxhiu Trial Judgement, para. 10.

45 Jović Appeal Judgement, para. 30; Marijaèić and Rebić Trial Judgement, para. 19; Haxhiu Trial Judgement, para. 10.

46 Jović Appeal Judgement, para. 30 (emphasis in original). See also Marijaèić and Rebić Appeal Judgement, para. 44.

47 Rule 77 (A)(ii) of the Rules; Marijaèić and Rebić Trial Judgement, para. 18; Jović Trial Judgement, para. 20; Haxhiu Trial Judgement, para. 11.

48 Nobilo Appeal Judgement, para. 54; Prosecutor v. Radoslav Brđanin, Concerning Allegations Against Milka Maglov – Decision on Motion for Acquittal Pursuant to Rule 98bis, IT-99-36-R77, 19 March 2004 (‘‘Maglov Rule 98bis Decision’’), para. 40.

49 Marijaèić and Rebić Trial Judgement, para. 18; Margetić Trial Judgement, para. 37.

50 Nobilo Appeal Judgement, para. 54; Maglov Rule 98bis Decision, para. 40.

51 Nobilo Appeal Judgement, paras 45 and 54. The Chamber notes that the Nobilo Appeals Chamber made no finding as to whether reckless indifference to the existence of an order satisfies the mens rea for contempt, stating that this question ‘‘can be left to the cases in which they arise for determination’’ (see para. 45). The Chamber further notes that the Nobilo Appeals Chamber conceded that ‘‘[t]here may, however, be cases where [an accused] acted with reckless indifference as to whether his act was in violation of the order. In the opinion of the Appeals Chamber, such conduct is sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order.’’ See Nobilo Appeal Judgement para. 54 (internal citations omitted). See also Maglov Rule 98bis Decision, para. 40. Cf. Haxhiu Trial Judgement, para. 11.

52 Nobilo Appeal Judgement, para. 45; Haxhiu Trial Judgement, para. 11.

53 The Defence argument of selective prosecution, for example, finds no basis in either fact or law (see Defence Pre-Trial Brief, para. 19 and Defence Final Brief, paras 14 and 38). In this respect, the Chamber finds that evidence that other persons may have committed similar acts to those alleged in the Indictment is irrelevant to the case at hand, as it does not prove or disprove any of the charges against the Accused.

54 Kvoèka et al. Appeal Judgement, para. 23; see also Èelebići Appeal Judgement, para. 498; Brđanin Appeal Judgement, para. 11; Beqaj Trial Judgement, para. 6.

55 Defence Pre-Trial Brief, para. 71; Defence Final Brief, paras 50-52, 160-166.

56 Defence Pre-Trial Brief, para. 71; Defence Final Brief, paras 51 and 166 (referring to submissions made in para. 157 pertaining to the test of ‘‘proportionality’’ in the context of the freedom of expression).

57 Defence Final Brief, paras 55, 59 and 62-65; Defence Closing Arguments, 3 July 2009, T. 551-553. The Chamber notes that this argument is also framed as one relating to the lack of actus reus in this case (see paras 67-70 of Defence Final Brief). The Chamber considers the argument more properly disposed of as one of jurisdiction, and therefore considers it unnecessary to further address it in the Section of this Judgement relating to actus reus.

58 Defence Final Brief, para. 55, fn. 77 referring to the Marijaèić and Rebić Trial Judgement, para. 50 and the Margetić Trial Judgement, para. 15. The Chamber notes that while the Trial Chamber in Marijaèić and Rebić used the word ‘‘serious’’ to describe the interference with the administration of justice, the Trial Chamber in Margetić did not.

59 Defence Final Brief, para. 124. See also paras 125-128 and 144-146.

60 Prosecution Final Brief, paras 19, 21; Prosecution Closing Arguments, 3 July 2009, T 518-519.

61 Prosecution Final Brief, para. 20; Prosecution Closing Arguments, 3 July 2009, T. 518.

62 Prosecution Final Brief, paras 21-22; Prosecution Closing Arguments, T. 520, 523.

63 Prosecution Final Brief, para. 16.

64 Prosecution Pre-Trial Brief, para. 21; Prosecution Final Brief, para. 16.

65 Prosecution Pre-Trial Brief, para. 21; Prosecution Final Brief, para. 17.

66 Defence Pre-Trial Brief, para. 9; Defence Opening Statement, 15 June 2009, T. 124; Defence Final Brief, para. 1.

67 Defence Pre-Trial Brief, para. 10; Defence Final Brief, paras 8, 9, fn. 16.

68 Defence Final Brief, paras 8, fn. 14. See also Defence Closing Arguments, 3 July 2009, T. 534.

69 Defence Final Brief, paras 3-4, 6. See also Defence Closing Arguments, T. 535-536.

70 Defence Final Brief, para. 5.

71 Defence Final Brief, para. 9, fn. 16.

72 Indictment, Annex, para. 2.

73 The Chamber notes in this regard the Defence submission during the Status Conference held on 30 January 2009, that as a result of its understanding of the Indictment being limited to the Four Facts as defined in its Motion for Consideration filed on 14 January 2009, it had a ‘‘legitimate expectation’’ that its understanding of the Indictment was correct, because the Prosecution in its Response to the Motion for Consideration did not take issue with this understanding (Status Conference, 30 January 2009, T. 54-55). However, the ‘‘Prosecution’s Response to Defence Motion for Reconsideration’,’’ filed 19 January 2009, submits generally that the arguments set out in the Motion for Reconsideration are ‘‘an attempt to refute the Prosecution’s showing that the Accused committed the actus reus, and possessed the mens rea’’ for contempt (para. 6). Further, the Prosecution’s Pre-Trial Brief, and therefore the understanding by the Prosecution of the Indictment, was filed a week before the Defence Motion for Reconsideration and its own Pre-Trial Brief, setting out clearly what it believed to be the scope of the Indictment (see paras 18, 19 and 21 specifically).

74 Statement of Amicus Curiae Prosecutor Concerning an Issue Raised by the Chamber During 30 January 2009 Status Conference, 2 February 2009, paras 4-5.

75 Exhibit P3.1, p. 2056, first paragraph includes the content of parties’ submissions made in closed session as cited in the text of the 5 September 2005 Appeals Chamber Decision (Exhibit P6) at para. 4; pp. 2055 and 2056 include on several occasions the content of the legal reasoning of the Appeals Chamber Decision of 5 September 2005 (Exhibit P6).

76 Exhibit P3.1, p. 2055, second paragraph includes reference to confidential Prosecution submissions as set out in para. 7 of Appeals Chamber Decision of 6 April 2006 (Exhibit P7).

77 Exhibit P4, see specifically, p. 1 second to last paragraph, as well as p. 2, paras 5, 6 and 9, revealing contents and purported effect of the Appeals Chamber Decisions (Exhibits P6 and P7).

78 See for instance Rule 54bis (F)(ii) of the Rules, which provides that a state may request a Judge or Trial Chamber to direct appropriate protective measures be made for hearing its objection pursuant to Rule 54bis (D), by, inter alia, hearing the objections of a state in camera and ex parte or order that no transcripts be made of the Rule 54bis hearing.

79 Defence Pre-Trial Brief, paras 14-16, 23-25; Defence Final Brief, paras 18-32.

80 Defence Closing Arguments, 3 July 2009, T. 542. See also Defence Opening Statements, 15 June 2009, T. 125. The Chamber notes that it is the position of the Defence that ‘‘[t]he existence of cases are [sic] part of the jurisprudence of the Court’’ see Defence Opening Statements, 15 June 2009, T. 169.

81 Defence Opening Statements, 15 June 2009, T. 125-126; Defence Final Brief, para. 21; Defence Closing Arguments, 3 July 2009, T. 536.

82 Defence Pre-Trial Brief, para. 25.

83 Defence Pre-Trial Brief, paras 24, 25; Defence Final Brief, para. 30.

84 Prosecution Final Brief, para. 17, fn. 46.

85 See Exhibits D21, D23, D58, D59, D60 and testimony of Robin Vincent, 15 June 2009, T. 165-179, 182-189. The Chamber notes that Exhibits D24 and D62, referred to by the Defence in support of a waiver of confidentiality of the Tribunal, pre-date the Appeals Chamber Decisions and therefore cannot logically qualify as acti contrarii lifting the confidentiality of these Decisions.

86 Second Decision on Redaction of Prosecution Exhibit and Related Defence Requests, 3 July 2009 (confidential), p. 3. The Chamber accepts that there are specific examples where it is not preferable, however, to provide the full or exact title of a specific decision, if by doing so sensitive information may be released to the public.

87 Robin Vincent, 15 June 2009, T. 199-200.

88 Robin Vincent, 15 June 2009, T. 166-167. The witness explained that he has come across situations where a Chamber made reference to a confidential decision in a public filing, but that he is also aware of a Chamber having avoided such a reference, ‘‘for some particular reason.’’

89 Defence Pre-Trial Brief, paras 27-29; Defence Final Brief, para. 39.

90 Defence Final Brief, para. 39, fn. 58.

91 Defence Closing Arguments, 3 July 2009, T. 533.

92 Defence Final Brief, para. 35.

93 Defence Final Brief, para. 37.

94 Prosecution Final Brief, paras 17, 70-75; Prosecution Closing Arguments, 3 July 2009, T. 526-527.

95 Prosecution Final Brief, paras 71-75, citing para. 45 of the Marijaèić and Rebić Appeal Judgement and para. 30 of the Jović Appeal Judgement.

96 Prosecution Final Brief, paras 46(iv), 76. See also paras 60- 68; Prosecution Closing Arguments, 3 July 2009, T. 524.

97 Marijaèić and Rebić Appeal Judgement, para. 45. See also Jović Appeal Judgment, para. 30.

98 Marijaèić and Rebić Appeal Judgement, para. 45.

99 Marijaèić and Rebić Appeal Judgement, para. 45.

100 Jović Appeal Judgment, para. 30.

101 See Robin Vincent, 15 June 2009, T. 159-161. The Chamber notes that in his testimony Robin Vincent cites one such example of which he had specific knowledge, and explained that the Prosecution, in that case, had informed the Trial Chamber of its intention to lift the confidentiality of the Indictment prior to doing so. See also T. 157-162 and 196-198.

102 Exhibits D9, D10, D42, D45. See also Exhibit D5 (the Chamber notes that this exhibit pre-dates the Appeals Chamber Decisions) as well as Exhibit D48 (under seal). See also testimony Nataša Kandić, 17 June 2009, T. 413-417, 1 July 2009, T. 443-450, 466-481 with respect to Exhibit D9; T. 396-402 with respect to Exhibit D5; T. 403-404 with respect to Exhibit D10; T. 405-409 (private session) with respect to Exhibit D48 (under seal); T. 409-410 with respect to Exhibit D42.

103 See supra, para. 33.

104 Marijaèić and Rebić Appeal Judgement, para. 45; Jović Appeal Judgement, para. 30; Margetić Trial Judgement, para. 49.

105 Nataša Kandić, 1 July 2009, T. 495-496 (private session). See also Prosecution Final Brief (confidential), paras 46(v), 47- 58, 59(i), 76.

106 First Set of Agreed Facts, pp. 1 and 2 of attached letter; Yorric Kermarrec, 15 June 2009, T.135; Exhibit P4; Exhibit P8.1; Exhibit P9, Recording 1003-2, pp. 1-2 and Recording 1004- 2, pp. 10-11.

107 Prosecution Final Brief, para. 29.

108 Prosecution Pre-Trial Brief, para. 23; Prosecution Final Brief, paras 25 and 27; Prosecution Closing Arguments, 3 July 2009, T. 519-521.

109 Prosecution Final Brief, para. 25.

110 Prosecution Final Brief, para. 25; Prosecution Closing Arguments, 3 July 2009, T. 519.

111 Prosecution Final Brief, para. 38.

112 Prosecution Final Brief, para. 27.

113 Prosecution Final Brief, para. 25; Prosecution Closing Arguments, 3 July 2009, T. 519.

114 Prosecution Closing Arguments, 3 July 2009, T. 519.

115 Prosecution Pre-Trial Brief, para. 24; Prosecution Final Brief, para. 26; Prosecution Closing Arguments, 3 July 2009, T. 519.

116 Prosecution Pre-Trial Brief, para. 24; Prosecution Final Brief, paras 26, 31, 32; Prosecution Closing Arguments, 3 July 2009, T. 519-520.

117 Prosecution Final Brief, paras 26, 32; Prosecution Closing Arguments, 3 July 2009, T. 520.

118 Prosecution Closing Arguments, 3 July 2009, T. 522-523.

119 Prosecution Final Brief, paras 33-36; Prosecution Closing Arguments, 3 July 2009, T. 522-523.

120 Prosecution Final Brief, para. 26; Prosecution Closing Arguments, 3 July 2009, T. 520.

121 Prosecution Final Brief, para. 28; Prosecution Closing Arguments, 3 July 2009, T. 520-521.

122 Prosecution Final Brief, paras 28, 38; Prosecution Closing Arguments, 3 July 2009, T. 520-521, 523.

123 Prosecution Closing Arguments, 3 July 2009, T. 520-521, 523.

124 Defence Pre-Trial Brief, paras 34-61; Defence Final Brief, paras 71-77, 79-123.

125 See supra, Section IV.

126 Defence Pre-Trial Brief, para. 35; Defence Final Brief, paras 77 (iii), 78-87, 90-94; Defence Closing Arguments, 3 July 2009, T. 540-541.

127 Defence Final Brief, paras 77(iii), 121(iv).

128 Beqaj Trial Judgement, para. 22; Maglov Rule 98bis Decision, paras 15, 40. See also Prosecutor v. Juvénal Kajelijeli, International Criminal Tribunal for Rwanda (‘‘ICTR’’), Case No. ICTR-98-44A-T, Decision on Kajelijeli’s Motion to Hold Members of the Office of the Prosecutor in Contempt of the Tribunal (Rule 77(C) (‘‘Kajelijeli Decision’’), 15 November 2002; Independent Counsel Against Brima Samura, Special Court for Sierra Leone (SCSL), Case No. SCSL-2005-01, Judgment in Contempt Proceedings (‘‘Brima Contempt Judgement’’), 26 October 2005. Although the Defence relies on the Kajelijeli Decision and the Brima Contempt Judgement the Chamber notes that the Kajelijeli Decision makes no mention of an alleged additional element of proof of mens rea requiring a showing of a specific intent to interfere with the administration of justice. Furthermore, the Chamber is of the view that the Brima Contempt Judgement refers to ‘‘specific intent’’ in the context of differentiating between the various mental states required for each form of contempt pursuant to Rule 77 (see Brima Contempt Judgement, paras 18, 19, 27).

129 Beqaj Trial Judgement, para. 22.

130 See supra, para. 21. See Jović Appeal Judgement, para. 30; Marijaèić and Rebić Appeal Judgement, para. 44.

131 Bulatović Contempt Decision, para. 17.

132 Margetić Trial Judgement, para. 14.

133 Margetić Trial Judgement, para. 14, referring to Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77, Decision to Deny the Accused Josip Jović’s Preliminary Motion to Dismiss the Indictment on the Grounds of Lack of Jurisdiction and Defects in the Form of the Indictment, 21 December 2005, para. 28.

134 Exhibit P9, Recording 1002-2, pp. 4-8, Recording 1004-2, p. 6.

135 Defence Opening Statements, 15 June 2009, T. 122-123; Defence Final Brief, para. 72.

136 Second Set of Agreed Facts, Annex, p. 1.

137 Exhibit P3.1.

138 Exhibit P9, Recording 1004-2, p. 9.

139 Exhibit P10.

140 Defence Final Brief, para. 120; Defence Closing Arguments, 3 July 2009, T. 556.

141 Defence Final Brief, para. 97. See also paras 14, 16, 48-49, 97-104, 106-119, 121, 122 and Defence Pre-Trial Brief, paras 37-61.

142 Defence Pre-Trial Brief, para. 53; Defence Final Brief, paras 48-49, 77(i), 103, 117, 121(ii) and (iii). Defence Closing Arguments, 3 July 2009, T. 538. The Chamber notes that it is submitted in the Defence Pre-Trial Brief that the original manuscript of the Book did not include references to the Appeals Chamber Decisions, and that ‘‘[o]nly after the matter was broadly publicized by the ICJ proceedings and in the press was the manuscript amended to include references’’ to the Appeals Chamber Decisions (Defence Pre-Trial Brief, para. 59). The Chamber notes that the Defence did not present evidence of this at trial and has made no reference to this matter in its Final Brief. Further, the Chamber notes it is not the Defence case that public disclosure in the media of facts pertaining to the Appeals Chamber Decisions would per se and in all cases have displaced the Chamber’s confidentiality orders. It is noted the Defence submits that the extensive and public discussion of ‘‘these facts’’ are relevant to, inter alia, a reasonable mistake on behalf of the Accused as to the confidentiality of these facts (see Defence Final Brief, paras 45, 48-49).

143 Defence Pre-Trial Brief, paras 55-57; Defence Final Brief, paras 119, 121(i); Defence Closing Arguments, 3 July 2009, T. 538-540.

144 Defence Final Brief, para. 108.

145 Defence Pre-Trial Brief, para. 58; Defence Final Brief, para. 121(v).

146 Defence Final Brief, para. 105.

147 Defence Pre-Trial Brief, paras 46-51; Defence Final Brief, paras 111-116.

148 See supra, para. 58.

149 Exhibit P2.1, Recording 1003-2, pp. 11-12 (under seal); Exhibit P9, Recording 1003-2, pp 11-12 (public).

150 Exhibit P9, Recording 1003-2, p. 2.

151 Jović Appeal Judgement, para. 27; Jović Trial Judgement, para. 21; Haxhiu Trial Judgement, para. 29.

152 Jović Trial Judgement, para. 21.

153 First Set of Agreed Facts.

154 Exhibit P9, Recording 1001-2, p. 10.

155 Exhibit P9, Recording 1002-2, p. 1.

156 Agreed Statement of Gavin Ruxton, para. 6.

157 Agreed Statement of Gavin Ruxton, para. 9.

158 Exhibit P1.1, Recording 1002-1, pp. 5-6

159 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1 November 1998 (ETS 155). Article 10, concerning the freedom of expression provides:

1. (1)

   (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. (2)

   (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

160 Defence Pre-Trial Brief, paras 72- 74; Defence Final Brief, para. 124.

161 UN General Assembly, International Covenant on Civil and Political Rights (‘‘ICCPR’’), 16 December 1966, United Nations Treaty Series, vol. 999, p. 171, Article 19(2).

162 UN General Assembly, Universal Declaration of Human Rights (‘‘UNDR’’), 10 December 1948, G.A. Res. 217A(III), Article 19.

163 See Jović Trial Judgement, para. 23; Margetić Trial Judgement, para. 81.

164 Jović Trial Judgement, para. 23.

165 Dupuis and Others v. France,, ECtHR, (Application No. 1914/ 02), 12 November 2007, para. 43.

166 Stoll v. Switzerland, ECtHR. (Application No. 69698/01), 10 December 2007, para. 102. See also Bladet Tromsø and Stensaas v. Norway, ECtHR (Application No. 21980/93), 20 May 1999, para. 65; Monnat v. Switzerland, ECtHR (Application No. 73604/01), 21 December 2006, para. 66.

167 See Jović Trial Judgement, para. 23; Margetić Trial Judgement, para. 81. The criminal sanction of contempt constitutes a legitimate interference with an individual’s freedom of expression where proceedings are proportionate to the legitimate aim pursued. See Handyside v. UK, ECtHR, (Application No. 5493/72), 7 December 1976, paras 48-50; Sunday Times v. UK, ECtHR, (Application No. 6538/74), 26 April 1979, para. 62: In this respect, the general aim of contempt proceedings is to secure the fair administration of justice and to achieve purposes similar to those envisaged under Article 10(2) of the ECHR of maintaining the authority and impartiality of the judiciary and preventing the disclosure of information received in confidence. See Sunday Times v. UK, para. 54.

168 Marijačić and Rebić Trial Judgement, para. 39. See also Jović Trial Judgement, para. 23.

169 Ibid.

170 See Rules 54bis and 70 of the Rules.

171 Robin Vincent, 15 June 2009, T. 153. The Chamber notes that this testimony was not challenged by the Accused.

172 See supra, para. 33.

173 See Stoll v. Switzerland, para. 113.

174 See Stoll v. Switzerland, para. 115.

175 The Chamber notes that this is contrary to Defence submissions. See Defence Final Brief, para. 127.

176 The Chamber has considered the evidence of Louis Joinet (T.237-379), Exhibit D3. The Chamber notes that Louis Joinet was called as a witness of fact rather than as an expert witness. His testimony nevertheless largely consisted of policy considerations and legal opinions. Consequently, the Chamber considers his evidence did not advance the Defence case. The scope and application of the law are matters for the Chamber to determine.

177 Jović Trial Judgement, para. 26; Marijaèić and Rebić Trial Judgement, para. 46; Margetić Trial Judgement, para. 84; Haraqija and Morina Trial Judgement, para. 103.

178 Defence Final Brief, para. 158; Defence Closing Arguments, 3 July 2009, T 538. See also Defence Final Brief, para. 56, 57, 67, 77, 157(v) and Defence Closing Arguments, 3 July 2009, T. 536 and 540.

179 Defence Final Brief, para. 158. The Chamber notes that all of these factors were listed by the Defence in support of the argument that a criminal conviction would constitute a disproportionate and impermissible interference with the Accused’s fundamental rights. In its Pre-Trial Brief, the Defence lists these factors in support of the argument that the facts of this case are not so serious as to justify contempt proceedings (Defence Pre-Trial Brief, para. 71). The Chamber deems it appropriate to consider these factors in relation to the gravity of the offence.

180 Prosecution Final Brief, para. 95; Prosecution Closing Arguments, 3 July 2009, T. 528.

181 Prosecution Final Brief, para. 95 (Emphasis in original.)

182 Robin Vincent, 15 June 2009, T. 152-154.

183 Prosecution Final Brief, para. 91(i); Prosecution Closing Arguments, 3 July 2009, T. 529. The Chamber notes that the Prosecution makes these particular submissions with respect to aggravating factors (Prosecution Final Brief, para. 91(i); Prosecution Closing Arguments, 3 July 2009, T. 529). The Chamber considers this to be a factor going to the gravity of the offence rather than being an aggravating factor, and has therefore dealt with it in this particular section of the Judgement.

184 Prosecution Final Brief, para. 91(ii). The Chamber notes that the Prosecution concedes that some of the issues raised by the Defence may be regarded as mitigating circumstances, listing the public discussion of the procedural history leading up to the Appeals Chamber Decisions. The Chamber considers this to be more appropriately dealt with as a factor pertaining to the gravity of the offence.

185 Exhibits D1, D2, D4, D6, D7. See also Exhibit D9, excerpts from the transcripts of the Humanitarian Law Centre conference in Belgrade on 29 June 2007, ‘‘Regional Debate on the Judgment of the International Court of Justice on Genocide.’’ See also D10, Verbatim record of public sitting before the International Court of Justice on 8 May 2006. The Chamber notes that Exhibit D5, which is dated 17 May 2005, pre-dates the issuance of the Appeals Chamber Decisions. The Chamber also notes that some of the articles in the public domain postdate the Accused’s publications, see Exhibits D3 and D8.

186 Marijaèić and Rebić Trial Judgement, para. 50.

187 Robin Vincent, 15 June 2009, T. 154.

188 Defence Pre-Trial Brief, para. 71(viii).

189 Marijaèić and Rebić Appeal Judgement, para. 44 (internal quotation omitted).

190 Yorric Kermarrec, 15 June 2009, T. 136.

191 Exhibit P4, endnote on p. 3.

192 Prosecution Final Brief, para. 91(i); Final Prosecution Arguments, 3 July 2009, T. 529.

193 Prosecution Final Brief, para. 91(ii); see also Prosecution Closing Arguments, 3 July 2009, T. 529.

194 Defence Final Brief, paras 93, 158(vii) and (viii), and 171. The Chamber notes that this argument is made by the Defence with respect to its position that a criminal conviction would constitute a disproportionate and impermissible interference with the Accused’s fundamental rights. The Chamber, however, considers it to be more properly discussed as a mitigating factor.

195 Defence Final Brief, para. 90; Defence Closing Arguments, 3 July 2009, T. 539.

196 Yorric Kermarrec, 15 June 2009, T. 144.

197 Nataša Kandić, 17 June 2009, T. 386-387.

198 Yorric Kermarrec, 15 June 2009, T. 142-143.

199 Registrar’s Decision, 13 November 2008.

200 Defence Final Brief, para. 170.

201 Prosecution Final Brief, para. 98; Prosecution Closing Arguments, 3 July 2009, T. 530.