On October 5, Serge Brammertz, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), joined Professor Alex Whiting and a standing room only audience for a discussion entitled, “International Criminal Justice: Challenges of Investigating and Prosecuting War Crimes.” As a former Professor of Law at the University of Liège, Brammertz clearly felt comfortable in front of the student audience, noting his own appreciation for the interaction between the judicial world and the academic one.
Brammertz’s fluency in four languages served him well as a Belgian federal prosecutor, where he focused on organized crime, terrorism and international humanitarian law. In 2003, Brammertz moved to the International Criminal Court (ICC), where – as a member of the Investigations Division of the Office of the Prosecutor (OTP) – he conducted the inaugural investigations of crimes in Uganda, the Democratic Republic of the Congo and Darfur, Sudan. Following the 2005 assassination of former Lebanese Prime Minister Rafik Hariri, the United Nations Secretary General appointed Brammertz to the UN Independent Investigation Commission.
Charged with closing out the ICTY, Brammertz must finish current trials and locate remaining fugitives. Thus far, the ICTY has indicted 161 persons, with seven cases still to be completed. Brammertz enumerated some of the Tribunal’s difficulties, including the balancing of victims’ needs against keeping each case manageable. Recalling how former Yugoslav President Slobodan Milošević died before the completion of his trial after five years in The Hague War Criminal Prison, Brammertz said, “We must formulate the indictment to represent the magnitude of the crimes, but we must also be able to present it in a reasonable time.”
Speaking of the ICTY, he said that “no one expected it to last for 15, 20 years.”
The recent arrest of Radovan Karadžić, after thirteen years in hiding, highlights many of the challenges facing the ICTY. Brammertz noted the heightened significance of the Karadžić trial, especially as it may be one of the Tribunal’s last important cases. Even with the scope of the indictment still pending, Karadžić has begun contesting the Tribunal’s competency, while attempting to claim immunity from prosecution per an agreement with United States Ambassador Richard Holbrooke. The indictment itself, which charges Karadžić with, among other things, genocide and crimes against humanity stemming from his participation in the Bosnian War, including the 1995 Srebrenica massacre, has also given rise to tensions. With only 300 hours to make its case, the Office of the Prosecutor must make difficult decisions regarding which charges to pursue. The OTP currently refuses to make additional cuts to meet these limits, as Brammertz explained, in doing so, “the case would no longer be representative of the crimes committed.”
Even as the ICTY nears its end, the Chief Prosecutor must maintain pressure to find and arrest the remaining fugitives. “We must wait and see what the future will show us in this regard,” Brammertz said. “We have a tendency to forget what happened 15 years ago, but we must remember how awful the crimes have been that were committed.”
As part of his visit to the US, Brammertz will met with UN officials in New York to discuss the ICTY’s completion strategy. Now set to end in 2012, with appeals lasting through 2013, the Tribunal must maintain the pace of trials, even while facing a 60% downsizing of human resources. In addition, residual mechanisms must be developed to deal with on-going and future issues, such as the remaining fugitives and witness protection. The ICTY aims to send a strong message from the international community that the closure of the Tribunal does not equate to immunity for those not yet charged. A permanent working group, as well as increased engagement with local and regional prosecutions, will likely fill this gap.
“The success of the ICTY depends on how local prosecutors continue,” Brammertz said.
While his presentation focused on the ICTY, Brammertz touched briefly upon other international tribunals and special courts, using each to underline the variety of tests facing the international justice system. He connected each back to the International Criminal Court and other possible regional courts, saying, “The way those challenges are resolved will have direct impact on the future of all tribunals.” Brammertz further compared the ICTY’s resources to those of the International Criminal Tribunal for Rwanda (ICTR), which faces many of the same struggles, even while it cannot call on local colleagues to continue prosecutions in the same manner. The reality of limited resources impedes several international courts, including the Special Court for Sierra Leone must continue its case against former Liberian President Charles Taylor despite financial hurdles.
Throughout his discussion, Brammertz connected and distinguished his range of domestic and international experiences. Where national trials may focus on convictions, international tribunals must account for a broader range issues regarding victims, scope and legitimacy. In addition, each system faces different practical problems in terms of political obstacles and prosecutorial decisions, as well as access to crimes scenes, intelligence information and witnesses. To illustrate his point, Brammertz noted that, in the first years of the ICTY, the continued power of Milošević made evidence collection nearly impossible, even while Serbian authorities further complicated investigations by removing bodies from mass graves.
Before opening the floor to questions, Brammertz outlined some of the credibility problems facing the international community. One of the questions has become, he explained, how to establish a more homogeneous system. “We are reinventing the wheel every time,” Brammertz said. Other possible options include the establishment of a standing task force to collect evidence whenever a crisis arises and increased reliance upon the international community. As the ICC can only process a limited number of cases, there can still be support of prosecutions at the local level, even in areas lacking a strong judiciary.
“A more objective system will increase the credibility of these mechanisms,” Brammertz said.
Whiting’s War Crimes Clinical, along with the Human Rights Program and the Bernard Koteen Office of Public Interest Advising (OPIA), hosted the event.