Prosecuting Sexual Violence in Conflict and the Future of International Criminal Justice

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BIGIO: Welcome to the Council on Foreign Relations. My name is Jamille Bigio. I’m a senior fellow here at the Council in the Women and Foreign Policy Program. Our program has worked with leading scholars for more than a decade to analyze how elevating the status of women contributes to advancing our foreign policy and security objectives around the world. We’re pleased to co-host today’s discussion with CFR’s International Institutions and Global Governance Program. Before we begin I do want to remind everyone that the presentation, discussion, and the question and answer period are on the record.

Today, we’re pleased to welcome the chief prosecutor of the International Criminal Tribunal for the former Yugoslavia and the Mechanism for International Criminal Tribunals. Today we will discuss the prosecutor’s perspectives on what’s happening in the former Yugoslavia and the effect of the Tribunal and the efforts that it’s undertaken.

As we look at places like Syria and South Sudan how impunity is continuing for atrocities against civilians there. Supporters of international criminal justice are trying to lay the groundwork to hold accountable those who are responsible for genocide, torture, sexual violence, and other war crimes. And among these proposals actors are looking to establish new tribunals for contemporary conflicts. It’s critical, therefore, that we do draw on the experiences of past tribunals to ensure justice efforts are as effective as possible. And that’s where it’s important to look at the lessons of the ICTY, which was the first modern international tribunal since the World War II prosecutions.

As it prepares to close its doors at the end of this year, it’s an important moment to take stock of what they’ve learned and what this means for ending impunity in today’s conflicts. And some of what they have looked at in the former Yugoslavia will, of course, resonate as we look at what’s happening in today’s conflicts. The conflict in the former Yugoslavia resulted in millions of refugees and internally displaced persons, widespread and systematic crimes against civilians, including sexual violence, and, of course, the destruction of cultural property. Today the ICTY has indicted 161 individuals, including heads of state, prime ministers, army chiefs—nearly 60 percent of whom were charged with sexual violence crimes. It has demonstrated how international law can be successfully implemented. And it has many lessons for future tribunals to draw from.

So, with that, let me turn to our speaker. We’re lucky to be joined by the chief prosecutor who, beyond his experience with the ICTY, has a long career in investigating and prosecuting grave international crimes, including as the first deputy prosecutor of the International Criminal Court, in which role he initiated the first ICC investigations in Uganda, the Democratic Republic of Congo, and in Darfur.

Let’s begin our discussion today looking at the challenges of ensuring accountability in places like Syria and South Sudan. What do you see as the most important lessons from the ICTY’s experience and legacy, where it succeeded and where it’s faced challenges?

BRAMMERTZ: Thank you very much, Jamille.

Good afternoon, everyone. Very pleased to see all of you. And thank you for your interest and your time.

You know, the Tribunal for the former Yugoslavia was established more than 20 years ago. It’s an old conflict, many people even don’t remember it. Everybody is looking at what is happening today in Syria and other places. And now that the ICTY is closing its doors before the end of the year, it’s really time to reflect a little bit on what have we done well, what could we have done better, and, indeed, what are the lessons learned for other tribunals that may be set up.

I would like to start by noting, well, an unfortunate reality. When the wars in the former Yugoslavia occurred, and when the genocide in Rwanda was committed, at least the Security Council could agree on setting up a judicial mechanism, an investigation commission followed by a tribunal. When we look at the situation like in Syria, though, we have already three times as many victims as in the former Yugoslavia, with a war which is already going on for twice as long, while the international community has failed to find a solution to address accountability properly.

There have been, of course, a number of initiatives—investigation commissions in Geneva or this new mechanism as decided by the General Assembly. But all those are pieces of a puzzle of solutions. And there’s no global approach to the problem. So I would say in general terms that international criminal justice is more needed than ever, but it’s not really in a very good shape, as we can see by the attitude of many world leaders towards international justice.

Now, what are the lessons learned? Well, perhaps one word about a frustration from last week. I come every six months to New York to report to Security Council about progress, challenges, problems we are facing. And we were happy to report that we are on track to finalize the Tribunal’s last cases, with the judgement in relation to General Mladic expected to be issued before the end of the year.

But at the same time, last week the minister of education in Republika Srpska in Bosnia Herzegovina said publicly, we will ban from school books all reference to the Srebrenica genocide, and all reference to the siege of Sarajevo. And he was supported in this later by Milorad Dodik, the president of Republika Srpska, who said, of course, this has to be banned from the school books because it never happened. And this was the day before our report to Security Council.

And the day after the report to the Security Council a concert was organized in Mostar, which is also very symbolic city. The bridge of Mostar, as you probably remember, was subjected to military attacks and collapsed. Well, in Mostar, three days ago a very nationalistic singer, who is prohibited from performing in many European countries, gave a concert in honor and as support to six individuals which have been convicted for war crimes and crimes against humanity in The Hague, and whose appeals proceedings are still ongoing with a decision expected before the end of November.

So one of the lessons learned or frustrations is that in addition to bringing war criminals to justice, we need to find better mechanisms to explain what we are doing. Our tribunal, located in The Hague, is far away from where justice is needed. This is one issue. Working in a different language is another one. A different legal framework also does not make things easier.

So what was really this time our main message in the Security Council was to say that with this very aggressive denial of the crimes of the past, it is even more difficult today to speak about reconciliation than five years ago?

I’m in this job now for 10 years. I was more optimistic five years ago than I am today. Regional cooperation is not functioning as well as it should. You mentioned 161 indictments our Tribunal has issued, which is a lot compared to other tribunals. It’s more than all other tribunals together, including Nuremburg Tribunal, the ICC, and all the ad hoc or mixed tribunals. But it’s very little in relation to the numbers of perpetrators.

I was in Sarajevo three weeks ago. There are still more than approximately 1,500 investigations in relation to 5,000 individuals on Bosnia Herzegovina alone. So one of the lessons learned as well, even a tribunal which is in function for 25 years will never, ever be able to address in a comprehensive way crimes which have been committed. You always need an international and a national component.

Which brings me to, you mentioned Syria, where we all know that the Security Council failed six times to refer the situation to the ICC. And, of course, as a Belgian, I’m a strong believer in international justice and in the ICC. And I would, of course, like to see a world where all countries ratify the Rome Statute and where we have one universal international justice standard for everyone, and not different justice based on the territory where the crime was committed or the nationality of the perpetrator or the victims. But the fact is that even if there were today a referral to the ICC, it would never represent a comprehensive solution for the magnitude of crimes which have been committed. So an ad hoc or mixed or local or regional solution still would be needed as well.

And I can say a little bit more about it later on, but I think that where we in the Office of the Prosecutor at the ICTY really worked well is to create this transition from an international tribunal to a national one, especially because in 2004 the Security Council put this completion strategy in place, asking us to transfer the remaining cases to the former Yugoslavia, with the result today that our Tribunal, which was created as an ad hoc tribunal with primacy over national jurisdictions, is receiving many more requests for assistance from the former Yugoslavia than requests we are sending out. Last year alone, more than 100,000 of pages were taken out of our databases to be used in national proceedings.

While the ICTY will close at the end of the year, there is the Mechanism which will deal with the remaining functions. And we are expecting many hundreds of requests for assistance in the years to come to request access to the 10 million pages of documents we have in relation to the former Yugoslavia. And this is something I think which will be interesting for the discussion afterwards where, on one hand we have this completion strategy and will close very, very soon, but have transferred all the remaining cases to the former Yugoslavia, where the ICC has this problem that more than 20 situation were opened but no situation has yet been closed in the last 17 years.

So what will be very much be needed for the ICC would be a completion strategy in relation to each situation. It’s not enough to go into a situation. You also have to find a solution to go out at a moment when the country is in a better situation. And so capacity building, supporting national structures is very, very important. And it’s not really happening in the countries where the ICC is operating.

This is a kind of short introduction. Please interrupt me whenever you want. I have this on/off button, so I can speak for hours—(laughter)—about what we are doing because, you know, I still consider it as one of the most interesting jobs out there. When successful, we really can make a difference. But of course, it’s tough to deal with all the frustrations we have. Please.

Q: Quick question. Just to skim what you just said. Caroline Brown (sp), attorney-advisor with the Treasury Department, formerly DOJ.

Regarding this database of information, which I find particularly interesting, do you have certain access restrictions? Are there certain parties or jurisdictions that can have access to this, certain parties or jurisdiction that are not allowed access, particularly with regards to who is a party to the Rome treaty, or not? Is there any sort of—

BRAMMERTZ: No. So we are a United Nations office. So we were created by Security Council based on Chapter 7 of the UN Charter. So there’s an obligation for all countries to cooperate with us. So, in this regard, we don’t have the political issues or the access issues or cooperation issues the ICC would have, because we are a subsidiary organization of the Security Council.

Records from all the cases which are public records are, of course, accessible, mainly via the website of the Tribunal.

The 9 million pages I mentioned, this is Office of the Prosecutor’s evidence collection, a database where we have organized remote access to the non-confidential part of our OTP database, in order to make life easier for prosecutors, especially in the former Yugoslavia. Of course, regarding protected witnesses or so-called Rule 70 material, which is material made available by friendly countries in relation to military operations, telephone intercepts, radio intercepts, that protected material is not accessible to anyone else without permission.

But regarding the non-confidential part of our evidence collection, colleague prosecutors from the former Yugoslavia have direct access electronically. And the system I put in place nine years ago was also to have liaison prosecutors from Serbia, Croatia, Bosnia integrated into our office, a project financed by the European Commission. We consider this very much as a capacity building initiative as well. And we are the only tribunal which ever has tested the system to have those colleagues physically in our offices. They are still Serbian, Croatian, Bosnian prosecutors, paid by their offices, but the European Union is paying all their expenses in our offices, so that they can work with us.

As I said, last year alone more than 120,000 pages of documents were like this taken out of our databases to be used in national proceedings, in addition to many expert reports, forensic reports, ballistic reports, which have been produced by our office in the context of our cases, which has been used as evidence in proceedings in the former Yugoslavia.

BIGIO: Yes.

Q: I’m Jane Stromseth. I’m a professor of law at Georgetown. And I served as deputy to the ambassador in the State Department’s Office of Global Criminal Justice. So I’ve worked with Serge in that capacity. Serge, can I just ask your first point about the denial—the aggressive denial, and your point about the need to not only convict people but to explain what the court is doing in some credible way. And some scholarship has shown that in many, many contexts people look at the legitimacy of a court based on, you know, who is being prosecuted. If their side is being prosecuted, they’re more likely to be skeptical. If the other side, they’re more likely to think it’s justice. And in light of that, I’m just curious what more you think should be done, could be done, you know, what more your court could have done, on—whether it’s on outreach, to try to communicate the fundamental principles of justice and why these people were held accountable because of the nature of their conduct, and so forth. If you could just say a little bit more about what you think could be done, should be done more effectively on that score.

BRAMMERTZ: Yes. And we visited your former offices yesterday for bilateral talks about a number of issues we are looking at. Now that I have taken over the remaining functions of the Rwanda Tribunal, where we have still eight fugitive, we are looking for support and strategies to hunt our remaining fugitives for the Rwanda genocide, which is an interesting part of the work as well.

Well, one of the lessons learned is that our Tribunal started with outreach a few years after we were established, and some people argue reasonably it was too late. I personally think that our outreach has also a limited presence in the region, and not always the fully appropriate persons representing outreach. So for sure more could have been done. Now, I understand we are on the record, so I have to be always a little bit measured in my words.

I really think the major problem is the political generation, the political class in the former Yugoslavia, where many of those who played roles, not in the first row but in the second row during the lead-up to the conflict, are still very much in power and are back. They are not capable of improving the economic situation of their countries, and are trying to stay in power by coming up with those nationalist slogans, us against them. You know, we are the victims. They are the aggressors. And you have this in many societies, where you have strong ethnic groups, where politicians really try to get the support of their own ethnicity or their own group and to be reelected by them independently from whatever progress they are having or not having.

So I really think that one of the major problems is the political leadership in the former Yugoslavia. If you see that, for example, in Serbia, where you had elections recently, political parties invited convicted war criminals as special guests to their political events.

And, if you take Srebrenica. You all know about the massacre in Srebrenica, where within a few weeks’ time, 7,000 men and boys were executed, more than 30,000 women, elderly, and children were expelled, with a lot of sexual violence and abuse, et cetera. Those who are a little bit older in this group may remember perhaps the pictures and Madeleine Albright in the Security Council showing the satellite imagery of the mass graves.

It took—even though the Tribunal was already in existence—it took still one year for the first investigator to be on the ground to work on those mass graves. And the Bosnia Serb leadership moved those more than 7,000 bodies from primary graves to secondary graves and even tertiary graves. Still today, some of those graves have not been discovered. And every year on the 11th of July, the bodies which have been found, or body parts which have been found, are buried in Srebrenica. Because very heavy equipment was used to move the bodies from the primary grave to the secondary graves, some of the victims’ body parts are found at several secondary graves.

So can you imagine the perspective of the survivors, who got a body part, an arm, a leg five years ago, and are getting another one this year. They see Karadzic in the courtroom challenging the number of victims in Srebrenica by saying, well, I understand that you found of the same individual several body parts at different places. Perhaps you counted this person twice or three times. So I challenge the number of victims, and the fact that it was genocide.

But we have video footage about the killing. We have convictions at our Tribunal in first instance and in appeal. And the International Court of Justice also qualified it as genocide.

There was the 20th anniversary of the genocide two year ago, but the Security Council could not agree to call genocide genocide, despite the fact that two U.N. tribunals have called it genocide and have the mandate to do so. So just to say that politically it was difficult to have something obvious just confirmed in a resolution.

Prior to the war, you had a majority of Bosniaks, Muslims, living in Srebrenica and a minority of Serbs. Now, after the conflict, the ratio changed. The Serbian parties in Srebrenica in the past could not agree on having one candidate, so until last year there was always a Bosnian mayor in Srebrenica.

Now, this year, you have for the first time a Serbian mayor in Srebrenica because you have now a majority of Serbs living there. And he’s saying publicly, well, yeah, there have been people killed, and this is unfortunate, but of course, it was not genocide. We will never accept that it was genocide.

I know many of the survivors of Srebrenica. Munira Subasic, the chairperson of the Mothers of Srebrenica, I think she lost more than 20 male members of her family. So she’s living in a city where the mayor is saying, well, the crimes you pretend being a victim of never really happened. This is the political reality in which we are. And how do you want a society to move forward if you have this kind of attitude from the political leadership? Long answer, but it shows how absurd the situation partially is.

BIGIO: So if I can pick up the point. You’ve talked in some of your writing about how international criminal law remains a gendered regime. You have here the lessons that you have gathered together at the Tribunal from prosecuting conflict-related sexual violence. I wonder if you can share with us what you’ve seen as some of these key lessons, how the international criminal law regime is gendered and what are some of the strategies that you have pursued to overcome that.

BRAMMERTZ: I started with 500 staff members 10 years ago. I now have 150. So people are really leaving. A lot of people with a lot of expertise are leaving, going to many different organizations. Some working still in the field of international justice, but many going into private practice or back to national jurisdictions. And we were really thinking, well, we really need to keep a record of our experiences. And so we made a list of a number of topics we wanted to work on in relation to command responsibility, in relation to hunting fugitives, lessons learned. We could definitely talk about the search for fugitives. Looking into the use of forensics, use of modern technologies.

But one of the areas we were really looking at was sexual violence-related crimes, because while we are, I would say, in the fortunate situation that we had sexual violence charges in more than 50 percent of our cases, we have seen that in the former Yugoslavia, the number of sexual violence cases in court are a very small percentage of the reality of rapes that took place. And even at our Tribunal, we have seen that we have not always been successful—especially in the early years—obtaining convictions for sexual violence. And we wanted try to find out what we could have done better in addressing sexual violence, what are lessons learned, and what has been the development in terms of jurisprudence over the years.

Now, I want you to read the book, so I will be very short in the explanations. (Laughter.) 15 colleagues from the office have been involved in writing it. A victim’s organization in the former Yugoslavia is getting the proceeds from the book. The Swiss government financed a translation. So in two weeks at our closing legacy conference in Sarajevo we will present the version in Serbo-Croatian of the book, and we will create a joint working group with the acting chief prosecutor in Sarajevo to have our colleagues working together with her on very concrete cases, to really give a special push to this area.

And just to take a kind of example as a starting point of the problem, when I spoke with the acting chief prosecutor in Sarajevo telling her: Look, we want to help you on cases of conflict-related sexual violence. She told me that just a few weeks before her office took the statement of a woman who came to report that she had been raped in ’94. And of course, I asked immediately what was the explanation why she was coming now? The prosecutor said, well, she wanted to wait for her husband to die first because she would never had reported the rape while he was alive.

This is in a country which wants to join the EU, where one would think that society is developed in a way where a woman would get all the support necessary—especially also from her family. But the reality in the former Yugoslavia at that time is the reality you have with the Yazidi community today, you have in the Arab world very much, where you still have the old stigma problems we all know. And this has been an issue in the early days at our Tribunal as well, where probably the composition of the investigation teams was not always reflecting the necessary gender balance to really go into those issues, where dealing with victims of sexual violence was not always done in the proper way.

In the early days the ICTY was even criticized for concentrating more on sexual violence against men than against women. Why? Because in many cases of sexual violence against men, they were much more easier to prove and were much more often reported because this was sexual violence in public, where men detained were forced to perform sexual acts on each other just to humiliate them in this very macho society in the former Yugoslavia, but with many people standing around and many witnesses. Where the majority of all cases of sexual violence, take place hidden from the public. And it’s very much dependent on the reporting by the victim of the sexual violence herself or himself. And if you are not looking for certain crimes, you do not find them. So I think that in the early days we were not actively enough looking for these kind of crimes.

There’s always been the tendency also by judges to consider sexual violence as very opportunistic and, excuse the expression, a kind of collateral damage. It’s not the focus on the military attack. It is just men who are not controlled committing rape, which are as such not linked to the conflict, and as such not representing war crimes or crimes against humanity or part of genocide.

Q: So what have you found to be the key evidence in making that link that this was a part and parcel of the conflict as directed by those in power?

BIGIO: If you could introduce yourself.

Q: I’m Jill Morrison, Georgetown Law.

BRAMMERTZ: In the early days of the Tribunal we were not getting the same rate of convictions for sexual violence compared to other forms of violent crimes—like killings, like looting, where it was obvious that this was taking place. And we really had a change only a few years ago, when we were able to convince our judges to say that those are foreseeable crimes. And where our judges agreed that as long as you intend to commit certain crimes and at the same time other crimes are foreseeable, the military leader can be individually responsible for those foreseeable crimes as well as the intended crimes; which means that if you send your troops into a village intending that violent crimes will be committed, it may also be foreseeable that sexual violence crimes will take place. And if they are foreseeable, the leaders can be convicted for both the intended and the foreseeable crimes committed by their soldiers.

So it’s really a very important development. And of course, there are a number of elements we have to prove. Of course, that it is a violent attack, obviously. There you have a lot of indicators. And foreseeability has to be proven. When you have men and women being separated and being in different camps, you already can know in advance what is happening. If you give uniforms to people who are more armed groups of criminals, who obviously not at all trained soldiers, the risk is even higher that they will commit those kind of crimes. And this has really been the game changer in relation to our jurisprudence so that we establish the linkage between the rape committed by the individual soldiers through the commander by saying, well, the commander intended to commit certain crimes, and this crime of sexual violence was foreseeable. So the commander was, himself, convicted for the foreseeable crimes of sexual violence.

And another element which was really important in this regard was consent. You know, in many national jurisdictions, the prosecutor has to prove the absence of consent by the victim. Which, of course, is quite complicated. And we had a number of cases, for example, where in camps or other places women would be kept in an apartment where every day they would be raped by different guys, and where the defense strategy was to say, well, they had a phone. They could call whoever they wanted. The doors were not closed, so they could leave whenever they wanted. So they consented to the sexual intercourse. And where the judges followed us by saying, well, those apartments and those houses were in a war zone. If they had left the apartment, they would have been killed or raped at the next corner. They were forced to remain in reality. So there was a total absence of consent, it was an inherently coercive environment where freely given consent was impossible. You can prove it out of the circumstantial elements.

So there has been a lot of additional awareness in relation to these crimes, where the jurisprudence really had a very strong development in the right direction. But the reality is that today sexual violence is still everywhere and in all conflicts very predominant and very little is done. And then in addition, you have peacekeepers who go into a region after the conflict to make sure that things are getting better, and then even peacekeepers are involved in sexual violence, which, of course, is a major problem.

There is a lot of discussion ongoing within the U.N. to say: We have to find a way to address this properly, because what is happening today if peacekeepers are involved in sexual violence, as the U.N. has no criminal jurisdiction over those people, they are kicked out of the U.N. system. They are sent back to the contributing country, where one hopes that national investigations and prosecutions are taking place. But I personally have very, very little knowledge of successful cases which have then been conducted at a national level. So this, of course, is also an important issue, where zero tolerance should be the rule.

BIGIO: Yes, yeah. If you could put up your placards.

Q: Are you hampered in any way with your work by the fact that the United States has never ratified or joined the International Criminal Court? You just mentioned there about sending them back to their own country.

BRAMMERTZ: As I said earlier, as we are a U.N. organization. The most experienced prosecutors in my office are all Americans. So historically the U.S. has always been very, very supportive for our Tribunal, making, since day one, a number of prosecutors available from the Department of Justice. And some of them are still with us. We never had any problem in terms of cooperation because the U.S. is a permanent member of Security Council. So the political context is totally different from the ICC. With a number of countries, especially the U.S., we had an excellent interaction.

Just as an example, when Slobodan Milosevic was arrested, this was very much thanks to U.S. policy by linking financial support for Serbia after the war directly to the arrest of Milosevic. So no, we have a lot of support. So as far as we are concerned, there are no problems at all.

BIGIO: Great. Jeff, if you can introduce yourself, please.

Q: Sure. Yeah, I’m Jeff Smith. I helped cover the war for The Washington Post.

And some of the stories we wrote were turned to cases at the Tribunal. And some of the cases that you developed at the Tribunal were turned into stories at The Washington Post. I have the greatest respect for you and your colleagues.

BRAMMERTZ: Thank you.

Q: And the people that I met on the Tribunal staff were just really top-rate.

I have a couple of questions. As you look back over your experience, could you comment a little bit about how successfully or poorly you think the Tribunal protected its witnesses? I mean, a gentleman in Croatia who was a witness against—a witness of crimes there was killed in a—who I interviewed and wrote a story about—was then killed in a car bomb. He was one of many witnesses or prospective witnesses who were killed over the course of the Tribunal’s life.

I’d also like to get your impressions about the—how well or poorly you think the countries with significant intelligence information contributed that information to you, and the channels that you described as being protected. I never had the impression that the United States disgorged all that it had in its files. And I knew in some cases it had not. And I’m just wondering if you have a similar impression, or whether your impression is more generous than mine.

And finally, I’m—you know, it’s so dismaying, as somebody who lived in the Balkans for the better chunk of four years, to hear your appraisal of where things stand now. And of course, I keep track of it, so it’s not a surprise. But it’s still dismaying that the Tribunal, its work, the disclosure of crimes has not posed a greater deterrent to misconduct elsewhere. And it doesn’t seem to have imposed—created much of a deterrent to misconduct in the region. And I’ve just—that must be discouraging to you, but I’d just like you reflect on that a little bit.

BRAMMERTZ: Witness protection, of course, is the biggest problem all international tribunals face. Witness protection is already a difficult issue at a domestic level. As federal chief prosecutor in Brussels, I was also the chairperson for the witness protection program in Belgium where, we had a lot of partners, with our witnesses going to foreign countries and their witnesses being in our system, but in a peacetime situation. Those were witnesses in terms of organized crime cases, where it was already extremely, extremely difficult to protect them.

Now, if you look at international tribunals, it is obvious that the possibilities a tribunal has to protect witnesses are very, very limited. The easy answer to your question would be to say, well, the Office of the Prosecutor is not involved in witness protection, it’s the court which has their own section who is dealing with it. But this, of course, would be a too-easy answer, because we want, of course, our prosecution witnesses to be protected. And I have to say, that over the last 10 years I am not aware of any problem of the nature you mentioned, of witnesses being killed.

In the early years, it’s very possible that this happened. And it’s always very difficult to assess if it was an ICTY witness or a witness in national proceedings. But it is a big challenge because you have limited resources. You need to have in advance agreements with friendly countries who are willing to take your witnesses. And only a limited number of countries are willing to do so. If they take witnesses, they may take them for a limited number of people. They’re restricted to the immediate family. And you know perfectly well that if you go to an area like in Kosovo, where you have very large families, where do you start and where do you stop in providing protection to family members?

So it remains a very, very difficult issue. In one of our Kosovo-Albanian cases, we had all the difficulties in the world to bring a witness to testify. He was subpoenaed. He was even arrested and brought to the Tribunal. And he was asked to testify by the judges against this Kosovo-Albanian. And he refused to testify. And the judge told him: You will go to jail for three months if you refuse to testify. And he said, well, OK. So be it.

If someone prefers going three months to jail than testifying against an influential person, then it’s, of course, difficult for a prosecutor to really convince someone to testify, because our possibilities are limited. So this has been a big issue. It is a big issue for the ICC. How can you protect witnesses living in Sudan or in the DRC, where there is no functioning state you would be able to rely on?

In terms of U.S. disclosure. We could have now a long discussion about the U.S. positions in international justice and the ICC. And of course, I have my personal opinion on the issue. But in relation to ICTY, I don’t think this criticism is justified. The U.S. has really been one of our strongest partners. We had access to a lot of information, intelligence, military information, satellite imagery. We are today still working with the U.S. in relation to missing persons, because one of the project we’re working, knowing that there are more than 8,000 people still being missing, we are with friendly services now trying to go through all our records and to go through all satellite imagery to see if we missed something. This is another area where our U.S. partners are really, really, really helpful.

Tribunal and deterrence. I always take the example of Srebrenica. The Tribunal was set up, and Srebrenica still happened one year later. So it’s even worse. The fact that the Tribunal had been created, knowing that investigators are watching, did not prevent the Bosnian Serbs from killing in such massive way. So deterrence is an issue. And of course, as I mentioned earlier, I really would like to see more countries believing in the ICC, ratifying the Rome Statute, and, you know, sending their best prosecutors and judges to this tribunal to work.

When the ICC was in its early years, we had sometimes members of Congress from the U.S. coming to visit. And American diplomats would ask me to speak with them about international justice, also to show, well, you know, we are all professionals doing as well as we can. And one of my comments was always to say: It’s really unfortunate that the U.S. is not involved in the ICC, because the most experienced prosecutors in international criminal justice are all Americans. And they would logically have been the leading prosecutors at the ICC as well, giving all the guarantees some countries think they need to have the Rome Statute ratified.

And so I found it unfortunate. But again, as we always say, we respect the sovereign decisions by countries to join or not to join. But will it be in the long term necessarily the best approach? Historians will decide. But my point is that deterrence is already a very relative issue, as we have seen with Srebrenica. Now you have the president of Sudan, who is under an arrest warrant for eight years now. Even countries which have ratified the Rome Statute are not arresting him when he is on their territory.

This is totally undermining the entire system, and the credibility of the system. And of course, where deterrence is already in itself a problem if those countries who ratified the Rome Statute are even not having the political will to implement the decisions taken by the tribunal they created by themselves, well, then you have much more of a problem. And that’s why I’m always saying, when people speak about the crisis of international criminal justice or the crisis of the ICC, I’m saying, well, it’s not the crisis of international courts. It’s a crisis among the countries who should support strong international justice, because they put it in place.

Remember when the Security Council sent to the ICC a referral in relation to Sudan in 2005. One could argue that because no one could find the political solution, a feel-good decision was taken to send a referral to the ICC. Which brings me to also one point, to say that international justice can never resolve a political problem or a political situation. The political issues will not be solved by sending a referral about Palestine to the ICC, which I think is an important, big issue. Courts won’t resolve the issue, which has to have a political solution. But my point is really, if countries are not sufficiently supporting international justice, it cannot function, cannot work.

BIGIO: Meghan, introduce yourself.

Q: Yeah. I’m Meghan Stewart. I’m with the Public International Law and Policy Group. And I advise foreign governments and rebel groups on peace negotiations, including working with a number of the Sudanese rebel groups in the ongoing peace negotiations there right now. And we’re in the process of writing letters to the U.N. Security Council on the UNMIK Mandate and such.

But two questions for you. One is thinking about peace agreements serving as a foundation now for many transitional justice and reconciliation mechanisms. And as somebody who implements these types of mechanisms, what sorts of provisions do you think would be helpful to include in peace negotiations to help ensure the smooth implementation of these justice mechanisms? So number one.

And then number two, we’re doing quite a bit of work with civil society organizations right now on documentation and ongoing conflict. So in Iraq, in Syria, and South Sudan. And I’m interested in your opinion on those civil society documentation efforts, and if they’re useful, and if so how might they be improved as well?

BRAMMERTZ: There is this still ongoing debate about peace versus justice. What should get priority? And the majority probably would agree to say peace is more important. As an international prosecutor, of course, you would never hear me saying that, because I think that both are part of the same solution, and that peace without justice will not survive. So I always think that justice is a precondition to have lasting peace. But in itself, it cannot achieve the results, you know? It’s very often the comments I’m getting about the former Yugoslavia where people are telling me, well, look at the Tribunal, look at the political situation. Your reconciliation efforts had zero results.

And then my answer is always to say, well, it has never been the main purpose of the international tribunal to achieve reconciliation. Reconciliation has to come from within society and needs some responsible political leadership. But accountability is a precondition to reconciliation. I have seen this from interacting and dealing with victims’ organizations for so many years. The Mothers of Srebrenica, their main request was always: We want to see Karadzic and Mladic arrested. We cannot move forward. We cannot even think about reconciliation if those persons are not arrested and brought to justice. So I always think it is very much a precondition to move forward.

Now, I know that the realpolitik is very much different. In the context of the Syria discussions, issues about accountability have, until today, never been on the table of the negotiations. People are saying, well, we keep it out or we delay it or whatever.

You know, when I’m giving lectures to students about those issues, I often ask: how many in this group would be willing to give full amnesty and immunity to the main leaders of the conflict in Syria if there was as a result tomorrow onwards not a single person who would lose his or her life. I’m surprised at even asking this question to students in diplomacy, a large majority is immediately saying: OK, yeah, peace agreement has priority. We go for peace without justice.

But even when I ask this to law students, it’s almost like 50/50, where I would have hoped that in a society after 20 years of international tribunals, everyone would agree that immunity, amnesty, impunity can never be a solution. And I’m always then explaining to the students to say, can you imagine what this would mean if the main perpetrators of atrocity crimes would get away with it, this would be the signal to all those dictators out there, well, kill your own people as long as you want. And once the situation’s becoming a little bit tricky, make a peace agreement, go to a nice island, and find a country who will finance the rest of your life. So I’m quite disappointed to see that in the mentality of people, despite the existence of the tribunals now for so many years, people are still very quickly thinking, well, let’s give priority to saving the life of people who would have been killed tomorrow than accountability for what happened in the past.

BIGIO: Larry. Please introduce yourself.

Q: So, Larry Garber, formerly of USAID.

Curious, I mean, following up on the last two questions. I mean, is there anything specifically that could have been put into the Dayton peace agreement that would have changed the dynamic, in your mind, of what today you’re describing exists on the ground, regarding attitudes towards justice and accountability, you know, as projected by the various populations in the—in Bosnia-Herzegovina? And as it relates to, you know, future peace agreements, you know, what specifically would you suggest be put into them to address this issue? Because, again, I mean, the negotiators do face the real live problem that you’re suggesting, which is, OK, if we can cut a deal tomorrow, you know, why shouldn’t we if it stops people killing, and the like? So what is it that they should be aware of and conscious of in terms of being able to put into a deal that would be, you know, acceptable and get the peace and justice that we’re all looking for?

BRAMMERTZ: I’m going to answer your second question. I start with the civil society documentation efforts. I think that today we see it with what’s app, with videos, with social media, that individuals are playing an important role, civil society is playing an important role. And you see today much more early documentation about ongoing conflicts, which represents, of course, its own challenge in terms of evidence and where is it coming from, what is the credibility about it, et cetera.

We see in the former Yugoslavia that you have a number of initiatives which have been there for many years to put in place a kind of truth commission. And it’s never getting the political support. So we have excellent contact with a number of NGOs, civil society groups in the former Yugoslavia, but they are getting very, very little support from governments. We see that when politicians are taking, you know, those very unreasonable decisions, you have very often civil society organizations which are fighting against it, but with very limited success, unfortunately. But I think they are playing a very, very important role. Civil society, but also big NGOs, which are very often on the ground before international tribunals are, with, of course, the experience we had at our Tribunal, but also at the ICC, that it can, of course, be a little bit tricky if you have NGOs or civil society groups who are taking statements of victims which, of course, can counter somehow our evidence later on.

The Dayton peace agreement. I think it would be very arrogant for me to say, well, so many years later this should have been done differently. Dayton ended the conflict, which I think was the main achievement. But Dayton also is partially responsible for the problems which are currently in Bosnia-Herzegovina in general, because everybody is still relying on Dayton. Because it ended the conflict but it never brought peace. And I don’t know if there is political willingness to open this box to find a solution which would be more appropriate to the political needs today. So it was a blessing on one hand, but it’s also today I think preventing the country from moving forward, because it has this very, very complex structure.

Q: It’s not only opening the box, it’s putting—I mean, so, yes, you have 20 years that have gone by. So you may not want to open the box for all kinds of reasons related to Bosnia. But it does relate to the broader issue of if you don’t look at what the decisions and the choices that were made in Bosnia, we’re going to face the same ones when we, you know, hopefully, come to the point in Syria or hopefully come to the point in Sudan—South Sudan, where these issues will be on the table again. So it’s important to look back.

BRAMMERTZ: I see your point. But I do not consider myself an expert on peace negotiations and what one should do or not do in this regard. And it is, of course, tricky for a prosecutor. But the second part of your question, you know, future peace agreements, as I said, giving impunity or immunity in the peace agreement should never be the solution. And so one has to see what will happen in Colombia, for exampleThe peace agreement in Colombia, where you have an agreement for prosecution of the senior leaders, where you have a kind of intermediate solution, up to eight years of prison for those who confess their crimes and cooperate. And then you have amnesty for the lower-level perpetrators.

I’ve not studied in detail all the concepts, but if a majority of organizations, including victims organizations, who went through a conflict of 40 years, 50 years, consider this as a kind of acceptable compromise, who am I to say, well, this is not enough, this is not sufficient?

Just in relation to that, five years ago we organized training for 200 colleagues in Bogota in relation to international crimes, chain of command crimes. We had one of my colleagues on a request from U.N. Women three months ago for one weekend in Bogota, helping to make sure that in the war crimes strategy of the prosecutor general’s office, enough attention is given to gender-related crimes, based on our experience.

So it is a compromise. You will have a lot of people who will consider this is not sufficient. But this would be what I would say: I think there are intermediate solutions. If it’s not realistic to prosecute everyone for every crime, we have to see in practice how this kind of compromise will work.

BIGIO: Jane.

Q: I had a question. First of all, this is a great book and I really enjoyed reading it. And in your concluding chapter, you talk a bit about prevention and how the experience of the ICTY can—and the jurisprudence that you talked about with foreseeability and command responsibility can be a vehicle for prevention. And could you say a little bit more about that? I mean, you mentioned putting commanders on notice that there are indicators of atrocities. You talk about training of commanders. Just in terms of looking forward for, you know, longer-term structural prevention, what can you say about the lessons of your work and how more can be done to have a more preventative impact?

BRAMMERTZ: We have seen in a number of our cases, if we look at crimes committed in camps, killings, beatings, and sexual violence, in some camps you had a lot of crimes and in others a very limited number. And the difference was the commander of the camp. So the major impact you can have on the behavior of troops anywhere is by focusing on the leadership, on having them being properly trained and responsible. But also, as we have now this new jurisprudence, having it quite clear that the commander is responsible for the rape by his troops, even if he has not ordered those rapes. If he had reasons to know or has not done anything to punish them if he learned about those crimes.

You mentioned the early warning systems. When Serbians troops were committing massive crimes in Kosovo, my predecessor, Louise Arbour sent a letter to the leadership to say, we have information about your troops committing these and these and these crimes. You have to do something about it. Because what you have seen in some cases, in our cases but also at the ICC, the commanders would say: Well, we had no knowledge about it. And now, of course, you have all the media reporting about mass crimes.

Q: Was the Humanitarian Law Center in Serbia a help?

BRAMMERTZ: They are very, very, very active. So, there are a lot of avenues.

We will be involved in giving a training to more than 300 military officers in Mexico in November on command responsibility and other areas of crimes, just to also better educate military leaders who are called to be involved in the war against drugs or other areas. So really focusing on the leadership, there are a number of studies also by the Red Cross which very, very clearly demonstrate that this is the major impact you can have.

BIGIO: Well, please join me in thanking the prosecutor for sharing these reflections with us. And I think it’s heartening to hear as well the continued training and continued work that you all are doing to pass these lessons on and to ensure that the future efforts really draw on the experience that you and your team have amassed in the course of the Tribunal. So thank you so much.

BRAMMERTZ: Thank you. (Applause.)

(END)

This is an uncorrected transcript.

 

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