LONG READ -- Brammertz: Hope is the crucial legacy of the ICTY

13 November 2017 by Boro Kontic
ICTY prosecutor Serge Brammertz (Photo: Flickr/ICTY)
Image caption: 
ICTY prosecutor Serge Brammertz (Photo: Flickr/ICTY)

On the eve of the verdict in the case of Bosnian Serb military commander Ratko Mladic ICTY prosecutor Serge Brammertz has given a lengthy interview to Serbian and Bosnian media. Here is shortened version of the interview conducted by Boro Kontic which has appeared in Novi magazine and Oslobodjenje newspaper. 

 

You have been the chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) for ten years, since 1 January 2008. How do feel now that it is coming to an end?

Serge Brammertz (SB): It’s not the end. The closure of the ICTY is only the beginning of the next chapter. It’s important to be clear that war crimes justice and our work will continue. Looking back at the ICTY’s twenty-four years though, I am very satisfied with what the office of the prosecutor has accomplished. We prosecuted many of those most responsible for the crimes, and secured what have to be considered landmark convictions. We uncovered the truth of what happened, and presented that in the courtroom so everyone could see.

Recently I have been thinking about the situation when I assumed this position in 2008. No one thought (Bosnian Serb leader Radovan) Karadzic and Mladic would ever be arrested. Yet Karadzic has now been convicted at trial, and Mladic will hear the judgment against him in less than two weeks.

At the same time, I am as aware as anyone else how much we did not accomplish, and how much remains to be done. My office must regard the acquittals in cases like (Croatian General Ante) Gotovina, (Kosovar former KLA leader Ramush) Haradinaj,(Naser) Oric and (Yugoslav army chief of staff Momcilo) Perisic as setbacks, because we were convinced that we had the evidence to prove their guilt yet did not succeed. And there are still so many victims waiting for justice today, or who do not yet know the fate of their loved ones.

But for me, recognizing what the ICTY did not yet achieve is the motivation to now continue working to support our colleague prosecutors in the region. For many years, my office was in the driver’s seat. Now, our colleagues are in charge and have to set the direction. We will provide them our full support and assistance, because the task ahead is immense. I trust in their professionalism, but I worry that they do not have the same kind of political support that my office always enjoyed. The governments in the region have not yet shown that they have the courage to support war crimes justice, acknowledge the wrongdoings of the past and promote reconciliation.

What do you think is the ICTY’s crucial legal legacy?

SB: The ICTY has so many legacies. (There is) the law: we were the first tribunal since Nuremberg, and are responsible for the creation of modern international criminal law. Among many other issues, we achieved significant advances in the law on command responsibility, the crime of genocide and recognition of conflict-related sexual violence as a violent crime that may be committed as part of ethnic cleansing campaigns.

The truth (is another legacy): we proved in the courtroom what really happened during the conflicts, that men possessing great power abused it to create war, destruction and devastation, hurting the people that they were sworn to protect.

But I think another crucial legacy is hope. Because of the ICTY, we now know that justice is possible even for the worst atrocities. Leaders who set in motion plans to attack civilians and commit crimes can be held accountable. And victims everywhere see that justice can be a reality, not simply a dream. So I think the ICTY is really a source of immense hope for a better, more peaceful, more just future for all of us.

 

What would you personally like to have done differently during your time as ICTY prosecutor? All of your predecessors have voiced regret at some issues what would be on your list? 

SB: The office of the prosecutor had to confront a lot of challenges for the first time, and we didn’t have a lot of guidance to rely upon, so it’s not really a surprise that all of us realize there are things we wish could have been done differently.

For me, I would say there were three issues most of all. First, finding the right compromise between prosecuting all the crimes that we knew were committed and having a case that can be presented in the courtroom in a reasonable amount of time. Every time we had to take decisions about cutting crimes from an indictment was personally very difficult. It’s our job, so I fully accept responsibility for the decisions we made, but I also know the impact that our decisions had on the victims.

Second, early release. Right now, it appears as if all convicted persons are being automatically released after serving only two-thirds of their sentence. This is extremely unsatisfactory to me, and to the victims. If there is a possibility of early release, it should be with conditions, the most important of which have to be accepting responsibility and the crimes. Every time I see a convicted person walk out of prison and deny the crimes, I am incredibly frustrated, and I know victims are as well.

Third, our distance from the region, and the people for whom we are fighting for justice. I am absolutely convinced that justice is best served when it is delivered closer to the affected communities. My office has tried hard to overcome this challenge, but the reality is that our impact has been less because we are in The Hague rather than in the region. In the future, I hope that this lesson is given full consideration.

Had you ever been to the former Yugoslavia before you took office? 

SB: One of my first vacations abroad was actually to the former Yugoslavia when I was 16. It was an amazing experience that I have never forgotten. So much beauty, history and culture, and the people I met were wonderful. I visited places in Croatia where the Karl May movies had been made, movies that I loved when I was a child. So you can imagine how much it affected me when I later saw the pictures from the wars. I couldn’t believe so much destruction and devastation was possible in a place I remembered as once so beautiful, a place in the middle of a Europe that I had always known to be at peace. Even today, after all this time, I simply cannot understand how the political leadership of those communities could impose so much suffering on their own people.

I’ve always felt a sense of connection with the people of the former Yugoslavia, and a sense of what was lost. Belgium as you know is also multi-ethnic. And personally, I am from the smallest minority, the German-speaking community of Belgium. So I understand how important issues of language, religion and culture are in a diverse country, and how differences can be used to divide instead of being seen as making society richer and fuller. But at the same time, I know that it is possible for different groups to live in peace in a multi-cultural state, that ethnic nationalism is not the only path, so that gives me some hope for the former Yugoslavia, despite everything.

In your numerous interviews I've noticed that you always insist victim’s rights and victim’s dignity. On the other hand, the general public in the former Yugoslavia has been focused on the accused with this idea of "our boys" in the dock in The Hague. How do you see this dramatic discord?

SB: This is something that has been greatly discouraging over the last few years. War criminals are increasingly glorified as heroes, and the truth of the past is being ignored in favor of false histories. It is very difficult to understand the mentality that sees someone like (convicted Serbian general Vladimir) Lazarevic or (convicted Bosnian Croat politician Dario) Kordic as heroes. Honorable soldiers don’t attack civilians, burn their homes and cause hundreds of thousands to flee in terror. Responsible political officials don’t plan attacks to ethnically cleanse an area or order the detention of civilians in appalling conditions.

And yet the real heroes are ignored. Men like Admiral Vladimir Barovic ( who refused to bomb Croatian towns during the way) and Srdjan Aleksic (a Bosnian Serb soldier who died after stepping in to help a Muslim neighbor). And the witnesses who had the courage to come to the Tribunal, confront those who wronged them and seek justice. As well as young people today who are fighting against ethnic nationalism and the rhetoric of hate, who have much to teach their supposed leaders about what citizenship and civic responsibility really mean.

I believe that there is a silent majority throughout the former Yugoslavia who are not interested in glorifying war criminals and denying atrocities. They are embarrassed when they see a dormitory named after Radovan Karadzic, or a hero’s welcome given to Lazarevic and Kordic. They just want to have safety, security and prosperity, which can only come through deeper integration. I hope they can find their voice and influence the political leadership in their countries.

One of the leading Bosnian writers wrote that the most terrible thing in the society is ‘the obedience ensuing from the collectivity’. You have seen millions of documents about the war in the former Yugoslavia. You faced many people. Have you made a conclusion about these crimes and the criminals?

SB: I’m not a philosopher, just a prosecutor. And it seems to me that there’s never just one explanation or factor. But what I have seen is leaders who weaved webs of lies, who deliberately inspired fear and hatred, only to serve their personal political power. And that is how ordinary men were led to commit unspeakable atrocities against their neighbors, who were no longer Croats, but Ustasha, not Serbs, but Chetniks, not Bosniaks but Balijas, not Albanians but Siptar terrorists.

Of course, there were criminals and psychopaths who were freed of all constraint in war, and small men who took the opportunity of chaos to exact revenge for the grievances they nursed.Yet that doesn’t explain leveling Vukovar, terrorizing Sarajevo for four years or Srebrenica. And it doesn’t explain the bureaucratic machinery that methodically implemented persecution and ethnic cleansing in so many villages and towns. That relied on ordinary men, many of whom were otherwise unremarkable and probably decent. One thing you notice looking at war crimes cases is how many perpetrators had never committed a crime before or since.

What needs to be learned is that propaganda and lies in the service of power led ordinary people to commit, support and stay silent about atrocities. Unfortunately, it seems too often today that the same lies are being believed again. When I see young people wearing a Mladic t-shirt, giving the Ustasha salute I am greatly concerned about the future.

Your work would have been difficult, if not impossible, without the cooperation with the countries of the former Yugoslavia. What aspect of the cooperation – access and protection of witnesses, access to documents and archives, search for the accused - were you not satisfied with or where were you relatively successful?

SB: What I’ve found is that cooperation is usually strongest with the justice sector and difficult when it comes to security, intelligence and military bodies. In my first years, obviously there were a lot of challenges. Access to information was often difficult, such as with the Serbian national intelligence agency BIA and definitely in relation to the Croatian military archives. Of course, the main challenge in cooperation was securing the arrests of the remaining fugitives. It is well-known that fugitives were protected by elements within state military and intelligence structures.

Yet my office generally received stronger cooperation from police, prosecutors and judges. My cooperation with colleague prosecutors in the region has always been good, because we are all professionals sharing a common commitment to justice. Similarly, the cooperation we received from the police was important in arresting a number of high-profile fugitives.

One thing I’ve learned is that there is often a focus after conflicts on removing political actors from the scene, and we’ve seen vetting of police, prosecutors and judges. Yet many military, security and intelligence agencies remain the same. And within those structures, there are individuals who do not have an interest in revealing the truth and ensuring accountability. That’s something that should be more seriously considered in the future.

How do you see your legacy in light of the recent resurgence in the former Yugoslavia of nationalistic rhetoric, religious radicalism, glorification of war criminals, old-new leaders, limited return of refugees, no reconciliation, no justice?

SB: I think I’ve always been clear that I do not avoid the difficult questions, and do not ignore the challenges we are confronting today. I absolutely believe that the tribunal has left a positive legacy for the region and international criminal justice more globally. We played a decisive role in achieving accountability for some of the worst atrocities, and brought low before the bar of justice men who had possessed ultimate power.

But of course, we could have done better, and we didn’t prosecute all the crimes that were committed. That’s why it is so essential that national courts now continue our work. I agree that justice alone will not bring reconciliation. Accountability is one part. The truth we established in the courtroom and that we are leaving behind in our archive is another. Yet everyone should agree that reconciliation cannot be imposed from the outside. Real change in society can only come from self-reflection and acceptance. That is one of the many reasons why my office strongly supports truth and reconciliation initiatives, which are needed today more than ever.

So yes, we must start working immediately towards reconciliation and sustainable peace. But we should also not expect that it will happen overnight, or that one can move forward without ever moving back. My hope is that those struggling to bring the societies of the region closer together through reconciliation do not lose their conviction. I hope they continue believing that while the arc of the moral universe is long, it does bend towards justice, not because history is on our side, but because we can make our own history.

You have often pointed out that the history of the Sarajevo siege and  the Srebrenica genocide are taught everywhere in the world, but not in the area where they happened. What does this tell you about the future of these societies where much of the legally established truths of what happened during the 1990s wars seem forgotten?

SB: In my years in this job, no one has ever put forward a convincing explanation for how the societies in the region can have an agreement on the future while still fundamentally disagreeing on the past. It is easy to criticize the tribunal and its shortcomings, or point to tensions today as proof that the tribunal did not succeed in achieving reconciliation.

But what alternative solution is being offered? That the people in this region will simply ignore the past? That peace can be built on a foundation of impunity and deliberate ignorance? When every day we see that one historical injustice is always linked to another in an endless cycle of perceived victimhood and recrimination? I don’t find that very credible.

Refusing to discuss and acknowledge the past just makes all discussion impossible. We see leaders who use this fact as an excuse for not resolving problems or finding solutions.

Of course I am deeply concerned about the future. When the next generation is being taught false histories and mythical national narratives, you have to be concerned. But the greater the lie, the more unsustainable it is. So that the facts are being taught everywhere else in the world is a cause for concern, but it is also ultimately one way the truth will eventually be known here as well.

The first instance judgement  in rhe case of Ratko Mladic is expected by the end of this month as well as the final judgment in the case against officials of the Bosnian Croat leadership. What can the victims expect? Have you done everything for them to feel the justice?

SB: I don’t want to speculate about the outcomes. What I know is that my office presented our best possible case and arguments. I would never say we achieved everything to secure justice for the victims. A conviction won’t bring back their loved ones. And they have been waiting too long to see someone like Mladic brought to justice. If the victims feel that some measure of justice has been delivered, then our work has been worth it.

How do you define your strategy after 31 December 2017 when the tribunal officially closes its doors? You are also prosecutor for MICT mechanism set up to deal with residual issue from the ICTY and its Rwandan sister tribunal ICTR. What are the plans to bring the activities of the court closer to the general public in the former Yugoslavia ? 

SB: As I said before, the closure of the tribunal is not the end, but the beginning of the next chapter. My office intends to continue supporting national prosecutors, advancing justice and promoting reconciliation. Our colleague prosecutors in Belgrade and Sarajevo have already requested that we continue and strengthen our cooperation together in the coming years. We share the same goals: to achieve the commitments made in national war crimes strategies by processing the backlog of cases, particularly complex cases involving senior- and mid-level officials, and achieving the benchmarks for further progress in EU and Euro-Atlantic integration. My office will also work to improve regional judicial cooperation, which unfortunately has been moving in the wrong direction, and build trust in the judiciary. Trainings and capacity-building will be part of that, but we will also continue directly engaging to identify challenges and find solutions.

We also hope to contribute to the reconciliation process. I don’t like to talk about bringing our results closer to the region, because that sounds like a soliloquy. I think what we need to do is enable civil society in the region to use our materials and results to speak to their fellow citizens and spark local dialogue. The SENSE documentation centers in Pula, Pristina and Potocari are really a model of that. So my office will be looking at how we make our evidence and judgments more easily available to groups like RECOM, HLC, Youth Initiative, Dokumenta, TRIAL International and many others.

The fact is, the MICT will remain in operation for a number of years, and my office is going to use the time available to us by contributing to the more accountability and justice, and by helping to address the significant challenges facing war crimes justice and reconciliation in the former Yugoslavia today.

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