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Interview: 'Decisions Have Shaken The Tribunal,' ICTY Prosecutor Brammertz Says

"No one can deny that those more recent decisions have shaken...the tribunal," says ICTY prosecutor Serge Brammertz.
The International Criminal Tribunal for the former Yugoslavia (ICTY) was expected to quietly wind down in a few years' time, but some recent controversial acquittals have made many, especially in the Western Balkans, question the workings of The Hague court.

RFE/RL correspondent Rikard Jozwiak sat down with ICTY prosecutor Serge Brammertz to discuss the criticism and what the decisions mean for the legacy of the tribunal.

RFE/RL: Do you think that the legacy of the ICTY will be damaged after several recent acquittals? I'm referring to former Yugoslav Army chief Momcilo Perisic, whose conviction of crimes against humanity in Bosnia[-Herzegovina] and Croatia was overturned in February, and the May acquittals of former Serbian intelligence chief Jovica Stanisic and his deputy, Franko Simatovic, who had been charged with war crimes.

Serge Brammertz:
It remains to be seen, of course. The fact is that the tribunal or our office has large indictments against 161 persons. And a majority of those proceedings have been concluded, and I think an important number of decisions have been taken.

Now, no one can deny that those more recent decisions have shaken, if I may say, the tribunal. I made a number of statements in this regard. Of course, as a party in the proceedings, we have to accept the decisions coming from the judges, but we made it very clear that we do not think that those are the right decisions, and we do not think that those decisions are reflecting the reality of the evidence. But, as I said, we are a party in the proceedings.

Jovica Stanisic (left) and Franko Simatovic at the ICTY in May.
Jovica Stanisic (left) and Franko Simatovic at the ICTY in May.
What would be the long-lasting impact of the legacy of the tribunal we will see, but in my office we are mainly concentrating on a number of other appeals proceedings where the same question of specific direction which led to the acquittal in the Perisic case is discussed again.

So, we are focusing our energy on trying to have this appeals jurisprudence changed and, of course, we have three very important trials ongoing: [former Bosnian Serb leader Radovan] Karadzic, [Bosnian Serb military leader General Ratko] Mladic, and [Croatian Serb wartime leader Goran] Hadzic. And we will, of course, make sure that those proceedings can continue and we are confident that they will have the right outcome.

RFE/RL: The Hague tribunal was established to contribute to peace and reconciliation in the Western Balkans. Do you really think it can achieve this goal after the recent developments?

Take, for example, the most recent decisions on Stanisic and Simatovic. That victims cannot be satisfied with this decision is obvious. The judges on one hand have confirmed that Stanisic and Simatovic, as responsible for the Serbian intelligence service in Belgrade during the wartime, were the ones creating those special units (Serb paramilitary groups responsible for atrocities in Bosnia and Croatia), that they were the ones supporting financially those units, and that they de facto also were the ones who had a certain control of those units.

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To have as a conclusion that they were acquitted because they have not specifically directed their support to a commission of crimes is, of course, a notion very difficult for victims to understand. And even at my office, we considered it as a break from the previous jurisprudence where it was sufficient to prove that somebody who was providing substantial support to a party in the conflict had actual knowledge about the commission of crimes by those groups.

So, we were very much disappointed and unhappy about this decision, too, and if we as prosecutors have already difficulties in agreeing or accepting the legal reasoning behind it, of course, how would you want victim organizations to understand?

Goran Hadzic at the ICTY in 2011
Goran Hadzic at the ICTY in 2011
RFE/RL: What do you make of Judge Frederik Harhoff's leaked letter in which he slams the ICTY, describing it as being subject to political influences and pressure?

What we have done or what my office has done is that we have publicly reacted to this letter on the one hand, saying that we do not want to enter the debate in relation to those very specific allegations, but at the same time saying that we also are not very pleased with a number of decisions but that we, of course, stick to all the legal means we have in our possession to challenge those decisions.

And I also somehow made the comments that, you know, totally independently from the Harhoff letter, there has been a lot of criticism in the media, there have been dozens and dozens of critical articles in relation to those decisions, and I think as a tribunal we should not ignore this criticism and should allow this criticism.

And this was also one of my messages during the last two events we had at the tribunal, at the 20th anniversary but also the opening of the MICT (the Mechanism of International Criminal Tribunals, a new UN body that will take over some of the ICTY's functions once its mandate ends) to say if there is criticism we should face the criticism, we should accept constructive criticism, and we should not shy away from having internal discussions about how this tribunal should work.

RFE/RL: Have you experienced political pressure in your role as ICTY prosecutor?

No, I have said it very often. I am now a prosecutor for more than 20 years. I never felt as independent in any of my previous functions. It is really from a prosecutor's perspective a very independent position. It is not an easy one because you have to take important decisions about who are the individuals you are prosecuting. But I have, in relation to my office, always considered the interaction with the international community much more as support than as pressure, especially in relation to the arrests of fugitives.

I think that without the support and pressure from the international community, and especially from the European Union, it could be that we would still be looking for the fugitives today.

RFE/RL: Many of the people who have been tried and even sentenced at the ICTY have received a hero's welcome when they come back to their home countries like, for example, Biljana Plavsic, the former Bosnian Serb president who was freed in 2009 after serving six years for war crimes. Can the ICTY do anything to stop the glorification of people who have committed war crimes?

Former Bosnian Serb President Biljana Plavsic arrives back in Belgrade in October 2009.
Former Bosnian Serb President Biljana Plavsic arrives back in Belgrade in October 2009.
Brammertz: It is for sure an issue of concern, and I have witnessed it many times over the last five years. We have seen it when we were looking for the last fugitives like Karadzic and Mladic, where in surveys in Serbia and Republika Srpska there were a large majority still against their arrests. You mentioned the example of Plavsic who was also received like a hero after having served her sentence. And she had pleaded guilty, so she had accepted responsibility for the crimes committed.

We see that today, unfortunately, a number of politicians are still using this relatively nationalistic approach, if I may say, for purely political purposes, trying to create an association between the individual and the specific ethnic group which we think, of course, is a very strong mistake because as a tribunal we are prosecuting individuals for their individual criminal responsibility and we are not prosecuting groups or countries or ethnicities.

So I think it is still an area of concern but, of course, we very much hope that perhaps the next generation will have a more objective view on these events.

RFE/RL: What will happen to the ICTY archives once the tribunal shuts down?

Since the first of July this year, the so-called residual mechanism has taken over certain parts of our work, and once this tribunal will close in 2015 or 2016 or 2017 -- I don't know when the tribunal will finish -- all this documentation will, of course, be used by this smaller successor organization for the remaining appeals proceedings, which will take place before this mechanism.

Once all the judicial work done by this mechanism is also over, the archives have to go somewhere. It is a decision to be taken by the [UN] Security Council. I don't know where at the end of the day those archives will be, but very personally I hope that they will stay within the UN. Why not in The Hague? But again, it is a decision to be taken by the UN because it is UN property.