‘Investigating and Prosecuting International Crimes’ is the second course in Leiden University’s new series on International Law in Action. The first course covered international courts and tribunals in The Hague in general. This second course provides an insider perspective into the work of international criminal courts and tribunals. You will learn about the investigation and prosecution of international crimes in The Hague. Atrocities produce unspeakable forms of violence. We will explore whether and how international criminal justice contribute to what UN Secretary-General Ban Ki Moon called the ‘age of accountability’. The theory is, those who commit the worst of human crimes, are held accountable, whether they are rank-and-file foot soldiers or military commanders, whether they are lowly civil servants following orders or top political leaders. We will test how this can be done and if this is realistic. During this course, you will be offered a look into the ‘kitchen’ of the Hague international criminal courts and tribunals. You will learn how international criminal justice functions, who the actors are, what outcomes it produces, and how it can be improved. If you want to gain a better understanding of international criminal cases, like the Lubanga case, the ICC’s first ever trial, and the legal legacy of UN international criminal tribunals, then this course is definitely for you! This course is free to join and to participate in. There is the possibility to get a verified certificate for the course, which is a paid option. If you want a certificate, but are unable to pay for it, you can request financial aid via Coursera.
Interview with Chief Prosecutor of the ICTY: Serge Brammertz
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來自 Universiteit Leiden 的課程
International Law In Action: Investigating and Prosecuting International Crimes
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Universiteit Leiden
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從本節課中
The International Criminal Justice System: Justice Institutions and Procedures
In this second week we will examine justice institutions and the different stages of the justice process. We will study how major international criminal cases emerge. We will cover the role of different actors in the process, including prosecutorial strategies and legal and political challenges.
與講師見面
Carsten StahnProf. dr International Criminal Law and Global Justice
Grotius Centre for International Studies
Sergey VasilievAssistant Professor
Grotius Centre for International Studies
We're here at the Yugoslavia Tribunal,
the tribunal where many famous cases took place.
The Karadzic trial, the Milosevic trial, the Tadic trial.
Today, we will interview prosecutor Serge Brammertz.
So please, come and join me.
We are here today with one of the most successful prosecutors in international
and criminal justice, with prosecutor Serge Brammertz.
Prosecutor Brammertz has been a domestic prosecutor in Belgium.
He's been deputy prosecutor at the ICC,
he was chief prosecutor of the Yugoslavia Tribunal, and
he has also recently been appointed as prosecutor of the MICT.
Prosecutor Brammertz, what makes, in your eyes, a good prosecutor, and what
makes the investigation and prosecution of international crimes so special?
>> Good afternoon, thank you for inviting me for this interview.
For a prosecutor this extremely important I would say professional integrity,
I would say this is a number one condition being guided by the facts and
being guided by law.
Of course, the work of a national prosecutor is very different
from the work of an international prosecutor.
I worked 15 years domestically, I was national coordinator for organized crime,
head of the Federal Prosecution Office and
if a crime was committed in Belgium, we had direct access to the crime scene.
We were working in a clear legal framework.
I had all the resources I needed, and all the expertise necessary to make
a proper crime scene management, with the support by the public opinion,
because everybody wants success in justice and investigations.
And the political level is very supportive, because governments want
a judicial system functioning as an important part in a democratic state.
As a prosecutor, once you have to send a request for assistance abroad,
you know that you will lose time and that it will get complicated and
that you are somehow losing control of your investigation.
Well, what is the exception at the national level,
is the rule at the international level.
For international prosecutor, almost the entire investigation is done abroad,
very often linked to request for assistance.
Do we have access to crime scenes?
No, for example, for the Srebrenica genocide despite the fact
that the tribunal was putting place in 93, the crimes took place in 95 but
it still took one year for the first investigator to get on the ground.
In the mean time, the perpetrators have moved thousands of bodies from
primary graves to secondary graves, making the investigation much more complicated.
So access to crime scene is very difficult.
Resources, international tribunals have very limited resources compared
to national jurisdiction, with much less investigator,
investigating massive crimes.
So the legal framework is not always very, very clear.
Is there support by the public opinion?
Not necessarily.
Because many people prosecuted by international tribunals are considered as
heroes in their own communities, and the same at the political level.
For the majority of international investigations,
the politicians in charge are not necessarily supportive.
So the framework in which you are functioning is very, very different.
And cooperation is key.
In addition, the type of crimes we are speaking about are very, very different.
Very often, or mainly the perpetrators,
are those who have the duty to protect the population and the victims are most often
the most vulnerable in a society, women, children, elderly persons.
So we speak of a totally different dimension of crime,
in terms of magnitude, in terms of political dimensions,
with less means and an absolute need to rely on cooperation.
>> Mr. Prosecutor, the role of the prosecutor has evolved over time.
As a prosecutor, you must be independent and impartial.
But you are also dependent on the state cooperation, and
most importantly, on witnesses.
How can you reconcile this tension between dependent and
interdependent on the other hand?
>> Yeah, it's a challenge, again, at the national level you are guided by law.
Nothing else above the law.
At the international level you have to accept that there is a real politic out
there which will, in one way or another, impact on your investigation.
And as we all know, international prosecution officers don't have a police
force or a military force which can be sent out to arrest fugitives or
to conduct investigations.
We have heavily to rely on cooperation with the countries on
which territory the crimes have been committed and
to rely on countries who have the possibility to put some pressure or to
create political incentives on the country which is not really willing to cooperate..
And we have at the Tribunal for the former Yugoslavia,
a lot of experience in this regard.
In the early years,
there was no willingness to cooperate with the tribunal.
The jurisdiction was even not accepted.
We had no access to archives and fugitives were not arrested.
We remember Karadzic and Mladic being indicted in 95 for
some of the worst crimes committed during the war in the former Yugoslavia,
the ethnic cleansing in a number of municipalities.
Siege of Sarajevo,
where more than 10,000 people lost their lives, the genocide in Srebrenica.
But it took 13 and 17 years to have both arrested and finally brought to justice.
So cooperation was very important, and why is today our tribunal, the Tribunal for
the former Yugoslavia, the only one with no fugitives at large?
It's the only one, the ICT are closed, we've still eight fugitives at large.
The Tribunal has not been successful in having any arrests secured so far.
And we all know the challenges, the ICC has in securing arrests.
If we have been more successful,
it is because there has been a clear international political agenda.
In the earlier years, very much financial incentives, from the US side to have,
for example, Milosevic arrested and surrendered to the tribunal.
And over the last years, more recently since 2003,
2004 the conditionality policy of the European Union, because all countries
of the former Yugoslavia want, sooner or later, to join the European Union.
Croatia already did.
And one of the conditions to move forward in the process was
full cooperation with our tribunal.
And I'm personally absolutely convinced that this, don't want to call
it pressure but those incentives created by the European Union have played a very
important role in convincing governments to finally arrest fugitives.
>> Mr. Prosecutor, can a tribunal successfully investigate and
prosecute crimes in country that is in ongoing conflict or
that defies the exercise of international jurisdiction?
>> It is a difficult exercise and we have seen for
the the Tribunal for the former Yugoslavia.
But we have seen it in the Libya case for the ICC or
the Sudan case of the ICC, that it's very difficult to operate
in a country when the conflict is still ongoing.
I remember the first investigation we had at the ICC in my function as deputy
prosecutor in 2003, 2004 was in Uganda,
where we're investigating the Lord's Resistance Army.
But the in the north of the country, where the majority of crimes have been
committed, this group was still very active.
So it was very difficult to conduct investigations.
Remember, when we got the referral from the Security Council relation to Sudan.
Well until today,
Sudan has never authorized any investigator to come on its territory.
So the investigations were mainly conducted in refugee camps or
in places outside the country to take witness statements.
Of course it makes investigations extremely complicated.
It makes it impossible to go to crime scenes.
It makes it impossible to collect a number of evidence and
well but that's the situation.
Of course it would be easier to conduct investigation once there's a political
solution and there is an agreement by all sides to have an investigation opened.
But unfortunately this is not the case in many cases, but
one has to be realistic, an investigation cannot be an alternative
to a political solution which still needs to be found in any crisis.
>> International prosecutors typically have a greater scope of discretion
in deciding which cases to bring.
How do you decide what cases to bring and what cases do you actually leave out?
>> This I think it's the biggest challenge for international prosecutor but
also the biggest frustration.
Challenge, because we all know that we have to make choices.
An international prosecutor can only prosecute a limited number of cases where
we know that there are thousands of crimes which have been committed.
And each of them in a national system would be a major trial,
perhaps the most important trial of the year.
And we have to do selections.
We have to do selections about the individuals to be prosecuted,
where we have to be guided by a strategy.
We have to be guided by objective elements, which generally are those who
bare the greatest responsibility need to be prosecuted.
We have to go for the military and the political leadership.
But our experience has shown that sometimes it's necessary or an advantage
to start with prosecuting mid-level perpetrators to really gain information,
expertise about a conflict.
Which is always a very, very complex, historical, and factual situations.
So while our tribunal In the more recent years had,
of course, concentrated the activities on the main responsible.
And while 15 years ago people were criticizing
the ICTY for concentrating on lower level perpetrators.
Our lessons learned today is to say, well there can be advantages of having top down
and bottom up investigations in order to get a more global picture of the conflict.
And by also working with lower level perpetrators you find your insider
witnesses which are key because one of the big challenges in relation to
commanders or political leaders is to establish the link between the crime.
Where it is not so difficult necessarily to identify the physical perpetrators but
the chain of command to really establish that the one we are prosecuting is also
individually responsible for the crimes committed.
So first problem, identifying the individuals you want to prosecute based
on the facts, knowing that you also want to be perceived as being objective and
looking at crimes committed by all sides.
The second challenge is to determine, what are the crimes,
you want to put in the indictment.
And when you have almost a philosophical question, okay,
what is the objective you want to achieve.
Is it getting the best conviction off of the shortest trial, or
is it giving a platform, giving a forum where you
can expose to the international community the crimes which have been committed and
giving a voice to as many victims as possible.
Personally I think it's not just about getting a conviction.
Which very often at a national level can be a guiding principle.
I think at the international level the role is broader.
The importance of the public trial is even more important than at a national level.
And then it's about finding a compromise between a case which is reflecting
the magnitude of the crimes committed, but still manageable.
And in the early years at the ICTY,
one could argue that the indictments were too broad, too comprehensive.
We have, by the way, when and were arrested,
reduced the indictments by almost 40%.
There were still more than 100 individual incidents, but
we reduced the scope to keep the trials manageable.
I think, at the International Criminal Court, in a number of cases,
you had the opposite, where you had cases which were very focused.
One, some would say, too focused.
And perhaps putting too much responsibility on a very limited number of
shoulders.
So I think where prosecutors have really to look at is, well,
I need objective criterias to identify the persons I have and I want to prosecute.
And in relation to the crimes for which I'm having indictment they should reflect
of course the multitude of crimes which have been committed but
still should be manageable to avoid that cases are taking too many years.
>> Mister prosecutor as prosecutor you're an agent of justice.
There's a duty to investigate and prosecute, incriminating, and
exculpatory evidence.
Is this is a realistic objective given the limited resources?
>> I think so.
I think so.
For the majority of us international prosecutors,
we are coming from Domestic system and, you know, for example.
We consider the prosecutor as being the first judge of a case.
So, for me it's absolutely part of my duty not only to look for
evidence supporting a prosecution case, I want to find out the truth.
So, I'm looking actively for information elements.
Which would be in favor of the defense.
So if we want the outcome of a trial to be accepted by the victim's community,
but also by the perpetrator's community,
it is important that the entire process is seen as impartial.
And the search for justice and that is not about winning or losing, or about getting
conviction and if you're not getting conviction that you have lost notes.
I think the international prosecutor has an important role to play to serve justice
and to allow judges to decide about the judicial truth at the end of the day.
>> The criminal justice process is typically adversarial in nature.
Can international criminal investigations bring out the truth and
is there a moment of truth that you've personally witnessed in the court room?
>> Absolutely.
You know over the last 20 years
more than 4000 witnesses have testified in the court room.
We have in the OTP loan, ten million pages of documents in relation to the conflict.
We have, I think two million pages of transcripts in relation to all the cases.
So, the records of the tribunal are will be
permanent records which can be opposed to all those who today In a very active
are denying, or have revisionist theories,
saying that, well, all those crimes, in fact, never happened.
So I think there is a very important role to play, also,
by our archives in a later stage.
And there have been many moment of truth in the courtrooms where
victims have confronted their perpetrators and of course,
there are many very touching emotional important elements I
could put forward but let me just mention one.
I remember in one case where one victim testified she had lost her husband and
her brother which had been allegedly executed by Bosnian Serb forces.
And in the court room when she finish her testimony about how her husband
was taking away and her son is taking away and
then for the last 22 years she has never heard or seen anything of them.
At the end of her testimony, when the presiding judge said,
well do you want to say something?
She said, well can I ask a question to the accused?
And, she look at the accused and said,
well please tell me.
Where is my husband and where is my son?
And the accused after a few moments of reflection said,
well I tell you where they are.
And he gave in the court room the location
where those bodies were buried with many others.
It was a very strong moment where you could see that, even the perpetrator,
who was convicted, had this moment of humanity where he thought,
well, I will help this woman in this specific situation.
There have been many other cases, we have of course victims which
have testified into our, traumatized also in the courtroom.
Others have said after they've testified in rape cases,
this was the most important day of my life that I could publicly speak about it.
So each experience for each victim and witness is so different.
But they are really the key component of our trials.
>> Mr. Prosecutor,
the tools of fact-finding have evolved significantly over the past decades,
with new technologies emerging, and new means of evidence.
But most trials still rely on witness testimony.
What role do you foresee for new technologies, and
can you imagine a criminal case without witnesses?
>> Well the future will show.
I've seen in our tribunal that we have
relied very much on forensic reports.
We have very much relied on supplied imagery.
We have very much relied on expert reports on ballistic on demography.
We very much relied on radio intercepts,
telephone intercepts by friendly services, etc.
So we have used the traditional means of supporting a case,
but still, despite all of these elements, witness statements and I mentioned it,
more than 4000 individuals have testified, has been really, really key.
Will modern technology, you know, internet, videos, play a role?
Perhaps it will be an additional element, but
I don't think that anything can replace testimonies in our international cases.
I think it's of paramount importance, also for the judges,
to see and to listen to the victims of those crimes.
Those are crimes committed by humans, against other humans, and
I think this human factor, it's very, very important in the courtroom.
To see how the perpetrator is reacting, and how a victim is testifying.
And to determine the truth, I still think that listening to a few witnesses which
have themselves been victims gives you a much better sense out of the gravity.
And the impact on those individuals of the crimes than some sophisticated technology,
which i think, should support.
But should not replace witness testimonies.
>> The attack tribunals have been pioneering and investigating and
prosecuting sexual and gender based violence.
What are some of the main lessons that can be learned from this experience
by other courts and tribunals?
>> Yeah this is for sure one of the areas where
International tribunals years ago could have done better.
And where a lot of emphasis is put on those cases today.
If you look at historically at our tribunal or other international
investigations, sexual violence was very often seen as opportunistic crimes.
They are happening, they are not part of the conflict.
They are not part of the campaign of ethnic cleansing.
They are isolated from the conflict, and
therefore, not seen as war crimes or crimes against humanity.
What we've seen over the years Is that, of course this is not the case.
And we have seen that the jurisprudence of the tribunal very much developed
in this regard.
And as office of the prosecutor, we have argued in a number of cases,
successfully that in fact sexual violence crimes are foreseeable crimes.
That are even, very often part of a campaign of ethnic cleansing.
And that from the moment that crimes are foreseeable,
our judges have accepted alternate appeals that those who are the commanders.
Those who are the military and political responsible can individually
be prosecuted and liable for sexual violence committed by their soldiers.
You know, I was, last week, in fact, in Sarajevo, every six months
we go to Bosnia-Herzegovina for our security council preparation.
And I had a meeting with a prosecutor,
and we started speaking about sexual violence cases.
And she said that, the same day,
she took a statement of a woman she was raped in 93' and
she came now in 2016 to give her statement.
And I was surprised and I asked my colleague prosecutor why has she waited
22 years and their answer was well I wanted to wait for my husband to die,
because never, ever could I have spoken publicly about what happened to me.
And have done this to my husband, which means that this feeling of guilt
in relation to victims is still very, very present and it is very unfortunate.
The stigmatization of victims of sexual violence,
which are rejected very often by society and even sometimes by the husband.
It is unacceptable that in the middle of Europe,
a woman feels obliged to wait so long before testifying.
And what is true from Yugoslavia is true everywhere in the world.
So we really think that putting more emphasis,
on sexual violence investigations, extremely important, and
we have been relatively successful in recent years in getting convictions.
And we have not later than this week, published an entire book on
conflict-related sexual violence, experience from our tribunal.
Starting with the composition of investigation team making
sure that those aspects are part of it.
Making sure that you are not looking at sexual violence in isolation but
integrated into the investigation plan.
Because sexual violence is an important part as are killings,
are looting or forcible displacements.
So you have to integrate it Into your strategy.
And you have to make sure that it is properly reflected in the indictment.
So, we have analyzed what we have done well, what we could have done better.
We have analyzed the jurisprudence and
we're convinced that this relatively modern way of looking at
the presentation of evidence in those cases will be important.
And we are giving every year, training to a number of colleagues around the world.
We will do it in a few months time for prosecutor colleagues from Tanzania,
Rwanda, Kenya.
To really raise with even more attention of colleagues in relation to
those specific crimes.
>> Mister prosecutor with the completion strategy and
the establishment of the net, the age of the ad hoc tribunals comes to a close.
Looking back throughout the years, what are in your view some of the main
contributions and what are some of the main weaknesses of the tribunals?
>> Well it will be up to others to evaluate the work of the tribunal and
as for all tribunals' opinions are very very different.
I think the region would look very differently today if the tribunal
had not indicted and prosecuted and convicted a number of men responsible.
So it's of course very difficult to measure what would have happened
without the tribunal.
So I think in relation to allowing those countries to move forward,
it was a very important step.
I don't think that the local judiciaries would have been able
to handle those high-level cases.
I think the tribunal has advanced through its jurisprudence, International Law.
In relation to command responsibility.
In relation to the definition of genocide.
In relation to sexual violence which is not considered anymore as an opportunistic
crime but as a forseeable crime in the context of conflict.
So I think that there are a lot of experiences
which make it a valuable experience.
Could it have worked better?
Of course, 161 persons have been indicted in total.
It is more than the other international tribunals.
But it's little compared to the number of perpetrators.
I mentioned it, I was recently in Sarajevo,
there are several thousand cases still under investigation.
But I think, looking back,
the tribunal will be able to say mission accomplished.
Hundreds of colleagues have dedicated years of their life to this tribunal.
And i think I'm proud of what our teams have achieved.
What could we have done better?
Well, it is a fact that explaining what is happening,
explaining the importance of decisions has always been difficult in the region.
There is still, many communities consider
individuals prosecuted by the tribunals still as heroes in their own communities.
And the majority consider themselves only as victims and have difficulties accepting
that they were also perpetrators within their communities.
So, if I would have to select one area where I would say,
well what could you have done better, it's for sure explaining what we are doing
especially as we are remote from the region working in a different language,
in a different legal system, which makes it sometimes difficult to communicate.
>> One of the main challenges of international criminal justice
is the remoteness from local communities.
How can some of this remoteness be breached
through cooperation with domestic jurisdictions?
>> Our tribunal is in existence for more than 20 years.
And one of the advantages is that we have
over the years developed a very strong interaction with our colleagues.
As you know in 2004 [COUGH] the Security Council has decided about the Completion
strategy.
Meaning that since 2004, there are no new indictments, and
that we have been asked to transfer remaining cases and
investigations to the countries in the region.
This forced very much the office of the prosecutor to establish bridges
of cooperation.
Cooperation in which in the early years, as I mentioned earlier,
was very difficult.
Because at the first years after the conflict, no fugitives were arrested and
countries were reluctant to cooperate with the tribunal.
Over the years, this has very much changed.
I took over myself in 2008.
And my first mission was to the region to meet with all walk-in
prosecutor from Croatia, Bosnia, Serbia, Macedonia, etc.
And ask them, well what can we do to help you?
And the now, one question was access to your information, access to your databases
but we don't have the budget to send every week our investigators to.
So we looked into two ways.
One, remote electronic access to our OTP databases.
We have more than 10 million pages of documents.
The largest part of this is available electronically for
workers prosecutions offices in the region.
And thanks to a project financed by the European Commission, we have liaison
prosecutors integrated from Serbia, Croatia, Bosnia into our office.
And the last six months alone, they have copied more than 100,000
pages of documents, out of our databases to be used in national proceedings.
It has this huge advantage that once our tribunal is closing,
well, the work will continue in the region.
And I think this will be one of the big challenges for
the international criminal court.
I was, some time ago, at a press conference with
Fatou Bensouda and I remember I got this question.
Well, the ICC is there forever, but
your tribunal will close soon, so you have the completion strategy.
So what you say, Mr.?
And I said, well It is true that we have the completion strategy but
the challenge for
the ICC is that ICC will need a completion strategy for each individual situation.
So far many situations have been opened but it is difficult to close one.
And our experience in our tribunal history,
well If you have the possibility, you know there must be a political will.
You need the time, you need the resources.
If there's a possibility to really establish links between the international
level and the national level, you create really,
the best conditions to have to address in a comprehensive way, the impunity gap.
And this will be, I think, one of the challenges for the future.
To find bridges between international prosecutions and national prosecutions
because I think one of the experiences of all the international tribunals is that
we can only deal with a very small part of the crimes committed.
And as long as there's not a mechanism at the domestic level to deal with
the highest number of cases, well,
international justice is only partially successful.
>> Mr. Prosecutor,
what advice would you give to future lawyers and
future professionals who would like to work and become involved in this field?
>> Yeah, that's not so easy.
We have 80 interns every year.
All of them want to start working in international justice
because once we have touched the topic, it's difficult to leave it.
Now the good news, if I may be a little bit sarcastic,
is that there are many conflicts, and what is needed is more justice.
We're in the world today where the number of conflicts have never been as high,
the number of refugees has never been as high as today,
the number of internally displaced persons within conflicts is huge.
And if you look at the crimes, the number of civilian casualties, civilian victims,
compared to military casualties is much, much higher than years ago.
So there will be a need for justice, but
not only for justice, but also for prevention, for peace-keeping, and for
dealing with victims and witnesses after the judicial process has been closed.
So I think there will be many opportunities for
the new generation of interested students.
What would be my advice to them?
Well, be critical.
We all are coming from a national system where we are teached
to think in one way or another.
If you work at international level, you have to understand that what you consider
as being normal or the truth can be seen very differently elsewhere.
That nothing is black and white.
Critical thinking and travelling, to really learned by doing,
learned by travelling about different mentalities and
different parts of the worlds.
It was very much an experience for
me when I left the domestic level after 15 years to come internationally,
where we have our way of thinking what is right and what is wrong, but when I
started working in a number of parts of the world, in Latin America or Africa.
What we considered being the right solution is not necessarily the one
other colleagues are looking for.
So be critical, be open-minded, and believe in what your are doing.
I think this is what is probably one of the big privileges to work
in the field of international criminal justice.
We are doing something which is meaningful.
Whenever we're successful, there are still many problems to be addressed, but
we need even more believers in international criminal justice, and
that's what I'm also trying to say to my students.
If you want to work in this field, and you really think you can make a difference,
well, you will be successful and you will find a job,
in addressing international criminal justice.
>> Thank you, Mr Prosecutor, for your inspiring remarks.
You've set international criminal justice and
the role of the prosecution in context for us.
You've inspired future generations of justice.
We're very honored and pleased that you addressed us today.
Thank you so much.
>> Thank you very much.
