During the nine years Serge Brammertz has served as the chief prosecutor for the International Criminal Tribunal for the former Yugoslavia, he has worked to hold individuals accountable for violations of international law committed in the early 1990s. Established in 1993, the ICTY has influenced the strategies and mechanisms used by war crimes tribunals around the world. World Policy Journal spoke with Brammertz about the ICTY’s effect on international jurisprudence and how national judicial systems must continue its work after the tribunal closes at the end of this year.
WORLD POLICY JOURNAL: Looking back on the legacy of the International Criminal Tribunal for the former Yugoslavia, what have been its most significant contributions in the realm of international law?
SERGE BRAMMERTZ: Impact really depends on what angle you are looking at it from. In a more institutional sense, the ICTY and the ICTR [International Criminal Tribunal for Rwanda] being the first international tribunals since Nuremburg, they were a more modern way of delivering international justice in terms of structure as well as substance and jurisprudence. The experiences of the ICTY and ICTR indirectly formed the basis of other models, like hybrid or mixed tribunals and the International Criminal Court. We see people who worked at the ICTY and the ICTR now involved in all those other accountability mechanisms. For the last 25 years, it has been an important school for analysts, investigators, prosecutors, judges, and support staff to develop the professions of international investigators, prosecutors, and judges.
If you look at jurisprudence, developments related to genocide have been very important. The explanation of genocide not as a question of numbers, but as a question of intent, was very interesting jurisprudence. Looking at command responsibility, in the many conflicts going on today, having military commanders be responsible for what their troops are doing is extremely important. As we have seen in past conflicts and continue to see today, the attitude, behavior, and control mechanisms put in place by military commanders of troops are key to avoiding and preventing crimes. Our jurisprudence places high responsibilities on the shoulders of military commanders. And this strict jurisprudence, which is also applicable to non-military leaders, has shown that a political leader, under certain circumstances, can be personally accountable for crimes committed by his or her troops.
A third example is conflict-related sexual violence—another subject we, the international community, are speaking much more about today than ever before. It’s much higher on the political agenda, and on the agenda of prosecutors, but the reality is that these crimes are taking place at exactly the same magnitude as in former conflicts. We see it in the DRC on a daily basis, we see with Yazidi women and others [in Iraq and Syria], but we also see that the jurisprudence is going in the right direction. In the early days of the tribunal, we had a number of cases where we were unsuccessful in convicting military commanders or military personnel for sexual violence because we could not link them directly to the conflict. Judges would issue opinions that sexual violence was considered “collateral damage” or “opportunistic crime,” not directly linked to the conflict. But since then we have been able to establish that sexual violence can, in many situations, be a weapon of war, can be used in the context of an ethnic cleansing campaign, can be part of the crime of torture. And in the last two to three years a number of commanders have been convicted for the sexual violence committed by their troops, because those crimes were considered “foreseeable.” It’s an important development that commanders are not only personally responsible for the acts of their troops that they have ordered—such as ethnic cleansing or execution of prisoners—but they are also liable for foreseeable crimes, such as the expectation that rape will take place when troops are sent into a village on an ethnic-cleansing operation.
We often speak of so-called “complementarity,” and the way our tribunal managed over the years to coordinate with the national judiciaries is one of our most important added values. When the tribunal was established, there was no independent judiciary in the former Yugoslavia, and in the early years there was relatively little cooperation between the national governments and our tribunal because many of the politicians still in power were those allegedly responsible for the crimes we were investigating. But after 10 or 15 years, once the Completion Strategy [to complete the ICTY’s work and coordinate between the ICTY and domestic legal systems] was decided by the Security Council, we engaged much more with national jurisdictions. We transferred thousands of cases to prosecution offices, mainly in Bosnia-Herzegovina, but also in Serbia and Croatia. Today we receive many more requests for assistance—more than 100 a year—from countries in the former Yugoslavia than we send on to them. So this interaction between the international and national levels has, over time, been a positive experience and one that is reducing the impunity gap, because while the ICTY is closing at the end of the year, this won’t mean the end of accountability. In Sarajevo alone, there are ongoing investigations in relation to 5,000 individuals. This is possible at the national level in part thanks to years of interaction between our office and the local offices. The Office of the Prosecutor alone has 10 million pages of documents, and very year we copy and send tens of thousands of pages to the region to be used in trials.
WPJ: What other resources have you helped provide local courts, and how has the relationship with those courts changed?
SB: A month after I arrived in January 2008, my first meeting was with all 40 of the war crimes prosecutors from the region—from Serbia, Croatia, and Bosnia. I remember asking them what we, as the ICTY, could do to support their national prosecutions. The main request was access to information, but the problem was that they didn’t have the resources to send personnel to The Hague on a regular basis, where they would need to spend days and weeks looking into the databases. We put in place a number of mechanisms to help with efficiency. We improved online remote access to the open parts of our OTP database—not confidential witness statements or protected witnesses—comprising about 93 percent of the Office of the Prosecutor’s databases. At the same time, we proposed to the European Commission a system of liaison prosecutors. We are the only international tribunal that has ever used this model, and the integration of liaison prosecutors from Serbia, Croatia, and Bosnia into the structure has been extremely successful. They remain national prosecutors and are paid by national authorities, but their costs here in The Hague are covered by the European Commission. This year alone, thousands of documents have been used by those three liaison officers in national proceedings.
We also released an English-language publication on conflict-related sexual violence last year. It covers our experiences investigating sexual violence, including the prosecution, analysis of the jurisprudence, challenges and lessons learned, and next steps. With the help of the Swiss government and the Organization for Security and Co-operation in Europe, it was translated into Serbo-Croatian language and released two months ago. It will be an important resource for our colleagues in the region.
WPJ: How do you communicate with citizens in the Balkans seeking legal help? What are the challenges of the geographical distance of The Hague?
SB: We’ve set up a number of information centers in the region, with the objective of outreach to ensure that future generations and students have access to information about the crimes committed, persons prosecuted, and judgments. The Office of the Prosecutor looks into reports and forensic evidence to make sure that this material, from radio intercepts to military expert reports, is made available for current and future investigations and prosecutions. We want to ensure that no information is lost in the transition from the ICTY, and that all this data is still accessible for our colleagues in the region. All countries have legislation in place that allows information and reports collected from ICTY to enter into proceedings.
You raise the issue of being geographically remote. This has been, and still is, an issue. Wherever it is feasible, security-wise, it’s always better to deliver justice close to the communities affected, to the victims, and to the perpetrators’ communities. It’s also better to use a language people can understand, and if possible, apply a legal system used in the country concerned—or at least one that is very, very close. The proceedings in The Hague involve a complex legal system, very different from the civil procedure in the former Yugoslavia. They’re conducted primarily in English and a little in French, and then are translated into BCS, so countries in the region have very little direct access. We have also seen very little reporting recently about the cases in The Hague. This has been the case for a while because journalists from the region don’t have the financial means to follow cases that are take years to complete. We have identified as one of the major consequences of The Hague being so remote and our judgments being difficult to digest that very often politicians in the region can easily distance themselves from what has been decided in The Hague. The denial, the revisionism, is stronger today than it was years ago. No political leaders are accepting the reality of the Srebrenica genocide, even now. In Republika Srpska, where Srebrenica is located, the leadership denies the genocide, and two months ago, the ministry of education banned in all school curricula any reference to the siege of Sarajevo or genocide in Srebrenica, supported by its president saying, “It is normal that it should be banned, because it never happened.”
Unfortunately, the people who have been prosecuted in The Hague and served sentences are welcomed in their respective communities as heroes, not as convicted war criminals. We have obviously not been able to communicate, through our judgments, that there is a difference between a soldier fighting for the freedom of his or her country and an individual who is raping and executing prisoners and killing children. This is one of the biggest challenges we face today, and we have seen in Serbia in the latest elections that almost all parties had former or convicted war criminals as special guests to support their political programs.
WPJ: If the verdict is announced for Radko Mladić, do you suspect violence to break out due to the polarizing nature of individuals like Mladić who are seen as both war criminals and war heroes?
SB: I don’t think so. [Radovan] Karadžić’s arrest in 2008 or Mladić’s in 2011 may have been moments when one could have expected reactions. But this is already a number of years ago. People have followed the trial and already have their own opinions. As the Office of the Prosecutor we have presented our best possible case and are confident we have been able to convince the judges. But of course, we have to wait until November to hear the verdict. I’m not expecting any violence or demonstrations as a result, but I expect that we will again see a large part of the Serbian population saying, “Those are political decisions, this is not reflective of reality. He was only defending the Serbian cause, and not responsible for the crimes that have been committed.” This denial, closing their eyes to the reality, is unfortunately something we see every day and I’m very much afraid that this will not change with a judgment against Mladić.
WPJ: What is the most challenging aspect of your job?
SB: I think the challenges have been different than for [my predecessors] Richard Goldstone, who came in at the very beginning, Louise Arbour afterward, and Carla Del Ponte, whose term saw the highest number of arrests. But the challenge we probably all have in common—and it was definitely the most important for me when I arrived—was the non-arrest of Karadžić and Mladić, and in 2008, the overall pessimism that the tribunal would close in 2010 or 2011 with those criminals still at large. This was an extremely dark period in the history of the tribunal, with [Slobodan] Milošević having died before the end of his trial and Mladić and Karadžić not having been arrested. When I first came to office, the emphasis was on trying to expand or improve the hunt for the fugitives and, in this context, to improve our cooperation with Serbian police and law enforcement in general. And I saw, as all international prosecutors do, that you can have the best investigators and prosecutors on earth, you can have the strongest commitment and legal case you could hope for, but it’s impossible to make arrests without the support of the international community. Every international prosecutor learns very quickly that realpolitik is a reality you cannot ignore and you have to work with.
I had a very positive experience with the role the European Commission and the European Union played in this regard. The EU made it very clear in the context of the so-called “conditionality policy” that countries could move to the next level of EU integration if they fully cooperated with the Office of the Prosecutor. And I think the reports I submitted to the U.N. Security Council, but also presented a number of times to the European Council of Ministers, had a major impact. This very much shows that for international tribunals to be successful, having an international community that speaks with one voice is critical. This is certainly the reason why our tribunal is, today, the only international tribunal that has managed to arrest all fugitives—the European Union has spoken with one voice and made it very clear that without these arrests, there would be no progress. The “stick-carrot policy” in our case has worked very well.
WPJ: What criminal justice work will continue once the ICTY is closed?
SB: It is extremely important for the work to continue. During my last trip to Sarajevo, the acting chief prosecutor mentioned that almost 4,000 individuals are still subject of investigations, and a new war crimes strategy has to be put in place to ensure that those cases can move forward. Last week the new Serbian war crimes prosecutor visited The Hague—she also still has a lot of work to do. And even in Croatia, a new EU member state, there are still dozens and dozens of cases that need to be processed. It’s worrying that regional cooperation is still far from satisfactory. On one hand, in Serbia, Bosnia Herzegovina, and Croatia we need to see the political will and political support for national authorities to conduct the investigations, but there are problems in regional cooperation. Because there are no extradition agreements between countries in former Yugoslavia in relation to war crimes cases, we have dozens of cases where investigations are ongoing in Bosnia Herzegovina but where the perpetrator is in Serbia with no prospect of being arrested and extradited. For the cases that are transferred to Serbia for prosecution, we are not convinced that there is the support necessary to conclude them successfully.
This interview has been edited and condensed for clarity.
Visit the Talking Policy archive page for more World Policy interviews.
[Interview conducted by Alana Sheppard]
[Photo courtesy of the Foreign and Commonwealth Office]