Contempt of court is a unique crime at the ICTY; it is the only one not contained in the statute. Penalties range from the monetary (EUR 7,000 in the case of Florence Hartmann, before it was converted into a sentence of 7 days imprisonment for failure to pay) to seven years imprisonment. The latter is a heftier sentence than has been meted out in some of the Tribunal's sentences for war crimes. That contempt of court can be regarded as more serious than war crimes must surely come as a surprise to some people.
In practice, sentences have hovered around the three month mark. Jelena Rasic was an outlier at 12 months imprisonment. However, she has served only about 78 days, the remainder of her sentence having been suspended on the condition that she is not convicted of any other crimes in the next two years. In arriving at this decision, the Trial Chamber took into account the impact of quasi-solitary confinement (as a result of being the only female in the detention unit) on her unstated health condition, the fact that this was her first prison sentence, and her relatively young age.
Jelena Rasic was born on 19 April 1983. She was twenty-five years old when the relevant events occurred. Her indictment for contempt centered on the procurement of false statements for use in the Lukic defence case while employed as the team's case manager. She had no legal or investigative training. Without ever having met Ms. Rasic and having no first-hand knowledge of the case, I could not possibly begin to fathom whether she "knowingly and willfully" interfered with the administration of justice." But I can say this, from experience: when working on a multi-million dollar war crimes case, with multiple accused, at an international tribunal, being broadcast to the world on a daily basis, nobody leaves a twenty-five year old woman in charge.
The Chamber partly recognised this, commenting that:
"it is obvious that another or others connected to the Lukic and Lukic case in some way were responsible for recruiting her to commit these offences. In this respect, the Chamber has considered the personal circumstances of Jelena Rasic, including that she was relatively young at the time of the crimes and that she was inexperienced in the role of investigator in which she was put by the Milan Lukic Defence, even though she was employed as case manager."
Unfortunately, the reality is that there are some case managers - male and female - who know very little about the law or legal ethics. It is not for stupidity or laziness, but for a complete lack of legal education or support structures that this situation arises. If case managers are lucky enough to get trained in at all, it is too often by someone who isn't up to the task. In most circumstances case managers have zero job security. A typical workday entails horrifying amounts of time spent updating excel spreadsheets, as well as photocopying, tabbing, proofing and pdf-ing. Some of those people might pick up a few bits and pieces of law along the way, but after a thirteen hour day, seven day week of typical case management, most non-lawyer case managers won't have a lot of time left over for the study of law.
The witness whose testimony Rasic is said to have bought was not a stranger to the ICTY. The OTP apparently had several statements from him in which he indicated that he would cooperate in exchange for money. In this case, it appears that the OTP refused to play ball. But sometimes Prosecution witnesses do receive a benefit that is somehow connected to their evidence in a case, such as relocation, visas, permits, support for asylum applications; things that make life for people from a post-conflict region a bit easier. And in spite of frequent and vigorous protestations from the Defence to the contrary, there is nothing improper about the assistance provided to witnesses in the majority of cases. There are, however, the exceptional cases where the witness's pre-relocation statements contradict each other or aren't corroborated by any other evidence in the case, but assistance is granted anyway, paving the way for the witness's testimony. No such cases have ever lead to contempt charges nor would they in all likelihood.
There can be no question that the conduct to which Ms. Rasic pleaded guilty must be addressed. It is contemptuous not just of the Court, but of the parties, the victims, and the other accused who play by the rules day in and day out. Whether Defence or Prosecution, no one should be allowed to interference with the administration of justice. But it must at the same time be observed that the practice of the Tribunal is much greyer than we might like to think. And I would respectfully suggest that the power to deprive individuals of their liberty, conferred on the Tribunal by the Security Council under Chapter VII of the Charter of the United Nations, was not intended to reach individuals such as Ms. Rasic. This cannot have been the best way to deal with an extremely unfortunate situation.
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