Serge Brammertz is the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Previously, he was Deputy Prosecutor of the International Criminal Court, in charge of the Investigations Division of the Office of the Prosecutor when the investigations of crimes committed in Uganda, the Democratic Republic of Congo, and Darfur were initiated. He holds a law degree from the University of Louvain-la-Neuve, a degree in Criminology from the University of Liège, and a PhD in international law from the Albert Ludwig University in Freiburg, Germany.
In an interview with The Fletcher Forum, Serge Brammertz discusses the significance of the ICTY and the future of international criminal law.
FLETCHER FORUM: 2013 marks the 20th anniversary of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the precursor of the so-called ad hoc tribunals that put international criminal law in the spotlight forty years after the Nuremberg trials. Looking back at the history of the ICTY, what are its most relevant contributions in your view?
BRAMMERTZ: The tribunal was set up in a moment when the conflict in Yugoslavia was still ongoing. I believe that if there had been no tribunal, an important number of key political and military figures from the former Yugoslavia would probably never had been prosecuted and many victims would have never seen justice done. This is an extremely important contribution. Today, while we are getting close to the end of the Tribunal, we are providing more and more support for the national war crimes investigations. We have in our database 9,000,000 pages of documents, and thousands of them are requested every year for use by local prosecutors. The lesson learned is that, while twenty years ago there would have been no justice if there had not been international justice, we see now that national justice can really take over the remaining work of the hundreds of cases that still have to be conducted. This way of ensuring accountability for the commission of war crimes would not have happened without the creation of the tribunal.
FLETCHER FORUM: How would you assess the contribution of the countries concerned? Did their willingness to contribute evolve over the years?
BRAMMERTZ: It has been a long road and a difficult one. In the early years, countries like Serbia and Croatia did not even accept the jurisdiction of the tribunal, saying that the tribunal was not competent to deal with the cases. It has also taken a number of years for the tribunal to be granted access to political and military archives, because those allegedly responsible for the crimes were still in power. It was five or six years after the conflict ended that the situation changed. One of the key factors there has been the EU enlargement process. In 2003-2004, the EU set a conditionality clause saying that those countries that wanted to join the European Union had to fully cooperate with ICTY, and at the same time, they had to meet the EU criteria for membership. The Balkan countries had to invest in their national juridical systems. This double exercise—political pressure from outside and the investment in capacity building—paved the way for the present situation, which is characterized by strong partnerships in the region.
FLETCHER FORUM: You took office as prosecutor for the ICTY in 2008. You came from a difficult position as the president of the United Nations International Independent Investigation Commission established to investigate the assassination of Rafic Hariri, the former Prime Minister of Lebanon. 2008 wasn’t an easy moment for the ICTY, either. You had to deal with a Tribunal that was on its way to a close with Carla del Ponte’s legacy. What are the greatest difficulties you have met in these five years as Prosecutor?
BRAMMERTZ: Of course it was a big change. Coming from Lebanon, where I lived in a high security environment, being in The Hague was a different professional environment. The biggest challenge I found when I arrived in January 2008 was the fact that the deadline for the closing of the Tribunal was still 2010-2011 and that the international community was very pessimistic about the possibility of arresting Radovan Karadžić and Ratko Mladić, who had been for many years the most important fugitives. The challenge was therefore arresting the remaining fugitives given the remaining time. We were very pleased that after six months the first two fugitives had been arrested. The arrest of Karadžić in July 2008 gave the tribunal a new boost. At that time we thought the arrest of Mladić would easily follow, but it took almost two years. In 2010, Goran Hadžić was also arrested. The biggest challenge was therefore to maintain enough interest in the public domain so that the international opinion would help in putting pressure on Serbia to arrest the fugitives. We were aware that time was running out.
FLETCHER FORUM: In your June 2013 report at the Security Council annual debate on the ICTY, you started your briefing by expressing your acceptance of but also disappointment with respect to the last acquittals ruled by both the Court of First Instance and the Court of Appeals. In February 2012, General Momčilo from the Bosnian Serb army was acquitted. The same happened in November to Croatian generals Ante Gotovina and Mladen Markač. Two Serbian state security officials were also recently acquitted: Jovica Stanišić and Franko Simatović.
BRAMMERTZ: A lot has been written about Gotovina’s and Perišić’s acquittals—and more recently about the acquittals of Stanišić and Simatović. As a prosecutor, I am a party in the proceedings. Therefore, I have no choice but to respect the decision of the judges. That said, I must confess that we fundamentally disagree with the decision. In regard to the Gotovina case where a unanimous decision was taken in First Instance by a three-judge chamber after a two-year trial based on solid evidence, we were confident that the decision would be confirmed in Appeals. Three out of five judges in the Appeals chamber changed their minds, and the two dissenting opinions spoke for themselves. As I say, the biggest criticism about the judgment is in the two dissenting opinions. The prosecutor could never be as outspoken and critical as the two dissenting judges have been in relation to the rule of the majority. In the long term, the situation is even more problematic in the acquittals of Perišić, Stanišić, and Simatović, because it is our opinion—and the Appeals judges of course disagree—that the Appeals Chamber has changed the criteria for the conviction for aiding and abetting. For the “aiding and abetting” theory, before it was enough to prove that somebody was providing substantial support to a party in the conflict knowing that that party was committing crimes. The additional element now added is the “specific direction” criterion, which we think is a new element. The Appeals Chamber, nevertheless, is of the opinion that this is a constant element. We disagree with that interpretation.
FLETCHER FORUM: As you just said, in all these cases the Tribunal seems to have introduced a new standard to establish culpability: the so-called “specific direction” standard. This seems to be not only a departure from previous standards but also a very narrow one. What’s your opinion on this new direction?
BRAMMERTZ: I will not enter into the ongoing political debate. I want to remain very factual and very legal. The Appeals Chamber is of the opinion that this was constant jurisprudence. However, we think that this is a new element. If you look at the articles in the legal field published on that respect, a large majority of them see the “specific direction” criterion as a new element. What will be the repercussion of this? I do not know. One has to see whether this ruling will become jurisprudence and be followed by other tribunals. In any case, the result is that in the future it will be much more difficult to convict someone who was not directly in the battlefield but who was providing support from a distance.
FLETCHER FORUM: The ICTR is closing and many of its remaining responsibilities, such as appending appeals and search of fugitives, were transferred to the Arusha branch Mechanism for International Criminal Tribunals (MIT). On July 1, 2013, the Hague branch of the MIT will start taking over some of the ICTY responsibilities. Furthermore, the ICC is welcomed as the end of the ad hoc international criminal tribunals and the beginning of a world criminal court. What is the future of international criminal law in your view?
BRAMMERTZ: In the last twenty years we have witnessed the creation of many tribunals. Between Nuremberg in the 1940s and the creation of ICTY almost nothing happened, and then many tribunals were created. As a result we have had a lot of global engagement with international law. Examples include the cases of the Red Khmer, Charles Taylor, Lebanon, or the Rwandan genocide. In a few years the International Criminal Court will be the only one. One consequence is that in the future there will be perhaps less justice at the international level than today. The ICC will only conduct a limited number of cases. That’s why I think that the future of international law will be largely domestic justice. The international community will have to look much more into capacity building and supporting national judicial authorities to make sure that they are partners together with international justice. The concept will change. I think there will be a kind of “domestication” of international justice. The ICC is not applicable to everybody. ICTR or ICTY were Security Council creations under Chapter VII of the UN Charter with an obligation for everybody to comply.
FLETCHER FORUM: How will the fact that some of the most powerful countries in the world are not part of the Rome Statute shape the future of the ICC?
BRAMMERTZ: Why many countries have not yet ratified the Rome Statute is of course a long story. There’s always been the tendency that smaller countries felt a bigger need and appetite for international organizations than superpowers. That’s a fact of realpolitik. When I started at the ICC as deputy prosecutor in 2003, there were only sixty countries that had ratified. Now there are already 124. Thus, there has been an important development. If the ICC shows in its daily work that it is impartial and that it does not follow a political agenda and the international community sees that that is the case, perhaps even more countries will ratify. When I worked at the ICC, it was impossible even to imagine that there would be a Security Council referral unanimously passed, which happened in relation to Libya. What we have seen over the last ten years with respect to the ICC is a different attitude. For example, look at the attitude of the United States ten years ago and their attitude now. It’s like day and night. There is a new tendency in some of the major players that shows growing cooperation and support, although they have yet to ratify the Rome Statute.
FLETCHER FORUM: The task of a prosecutor is, grosso modo, to investigate and present cases in court. Your job is to do your best so that criminals are convicted. In principle, no other considerations should inform your decisions. However, the ICTY is a tribunal that aims to punish criminals and bring about reconciliation. How do you balance these two often-difficult-to-match objectives as a prosecutor?
BRAMMERTZ: As long as we make our decisions based on objective and factual criteria and explain and support them in an objective way, our cases are normally accepted, even if not necessarily liked. What I have experienced over the last five years is that while we have indeed prosecuted members of each ethnic community, our cooperation today is seen as totally normal. In my office there are liaison prosecutors from Serbia, Croatia, and Bosnia that have taken out 400,000 documents from our databases over the last four years to be used in national proceedings. At the professional level there has been no problem for my office to prosecute a number of individuals from Serbia, Bosnia, and Croatia. There has always been cooperation from their end, at least during my period as prosecutor.
Reconciliation is a topic about which a lot has been said and written about. My impression is that people have normally overestimated the possibilities of international justice. I would never argue that prosecution alone can achieve reconciliation. I am certainly convinced of the fact that prosecution and accountability for crimes committed is the starting point—a condition sine qua non for reconciliation. This is something I have learned during these five years. Before the arrest of Karadžić and Mladić, I met with victims’ organizations in many places. In Bosnia, I met with the mothers of Srebrenica and they always said to me: “We want to see Karadžić and Mladić arrested, otherwise we cannot start thinking about the future.” I am absolutely convinced that accountability is crucial, but that it is only a starting point. Reconciliation must come from within society and cannot be achieved only by justice or imposed from the outside.