In Conversation with Mr. Serge Brammertz, Chief Prosecutor of the United Nations International Residual Mechanism for Criminal Tribunals
Chief Prosecutor Brammertz at the International Residual Mechanism for Criminal Tribunals in The Hague (Netherlands). Undated - Photo: ©Courtesy of the Mechanism for International Criminal Tribunals (IRMCT)
By: Lara Manbeck: Staff Editor
In the world of international criminal law, few figures loom larger than Serge Brammertz. Since leaving his role as Belgium’s Head of Federal Prosecution in 2003, he has traversed the globe, spearheading investigations and prosecutions on behalf of numerous multilateral institutions. Among his many appointments, Brammertz served as the International Criminal Court’s first Deputy Prosecutor, in which capacity he was charged with establishing his office’s Investigations Division, and initiated the first ICC investigations in Uganda, the Democratic Republic of Congo, and Darfur; Commissioner of the UN International Independent Investigation Commission into the assassination of former Lebanese Prime Minister Rafik Hariri; and Prosecutor of the International Criminal Tribunal for the former Yugoslavia. In 2016, the UN Security Council appointed Brammertz Chief Prosecutor of the International Residual Mechanism for Criminal Tribunals, a position he has occupied ever since.
The Mechanism, as UN officials call it, was established in 2010. It is a judicial body charged with performing the remaining functions of the International Criminal Tribunals for the former Yugoslavia and Rwanda, two ad hoc courts whose combined corpus of decisions on humanitarian law, substantive international criminal law, and procedure have shaped international criminal jurisprudence as we know it. Earlier this summer, the Mechanism concluded all of its major judicial cases, and entered a new operational phase focused on supporting domestic authorities in investigating and prosecuting war crimes, crimes against humanity, and genocide.
On a recent afternoon in The Hague, Mr. Brammertz spoke to me about his professional trajectory from local prosecutor to one of the world’s preeminent international criminal lawyers, recent milestones at the Mechanism, and his predictions for the future of international criminal law. Our discussion has been edited for length and clarity.
You started your career at a time when international criminal law was in its infancy. What was your path from Eupen to The Hague?
From my first day of law school, I knew I wanted to be a prosecutor. As a student, I pursued every criminal law-related course and professional opportunity I could find and, upon graduating, looked for the first available prosecutor position in Belgium. I ended up working in a small tribunal—it was, in fact, the only one in Belgium which operated in French and German, and which bordered Germany, the Netherlands, and Luxembourg. This area offered a transit route between France and the Netherlands and, as a result, the majority of our cases involved cross-border criminal issues. In my domestic system, and other civil law systems, prosecutors lead the investigations; much of my work therefore required that I visit crime scenes and collaborate with police officers.
My experience with cross-border crime, as well as my fluency in numerous languages, ultimately facilitated my selection as one of the country’s three Deputy Prosecutor-Generals working on international organized crime, terrorism, and violations of international humanitarian law. In this capacity, I worked closely with the United States’ DEA and FBI, and international police services like Europol and Interpol. Serious institutional dysfunction around this time—most famously manifest in the Dutroux Affair—and a subsequent parliamentary investigation ultimately led to massive reforms, which included the creation of a federal prosecution office responsible for prosecuting high-profile cases and coordinating work between the country’s 27 jurisdictions.
At 39, I was lucky enough to be appointed as Belgium’s Federal Chief Prosecutor. I served in this role, and as President of the European Judicial Network (a network of prosecutors across all EU Member States), for a few years. At this point, the International Criminal Court was being established. I was invited to give a talk there, after which I was encouraged to apply for the role of Deputy Prosecutor. I was elected, and stayed at the ICC for three years until, one day, I received a call from New York saying that Secretary-General Kofi Annan wanted to see me. He ultimately offered me the role of Commissioner of the UN International Independent Investigation Commission into the assassination of former Lebanese Prime Minister Rafiq Hariri. I was meant to be “on loan” from the ICC for six months; I ended up staying in this position for two years until, at the invitation of Secretary-General Ban Ki-moon, I became Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia. Then, six years ago, I assumed my current role.
How did your domestic experience impact your ability to work on international issues?
When I was a law student, there weren’t courses on international criminal or humanitarian law. One could maybe study the Nuremberg Tribunal, but any such course employed a historical framework, not a legal one. After all, international criminal tribunals had yet to be established. We had no direct precedent.
My rise through the ranks of the Belgian justice system allowed me to understand the intricacies of the criminal justice process, from police investigations, to national cooperation, to working with victims and witnesses, and so on. That’s why I've always been consistent with interns who ask me for career advice. I always say, look—before you pursue employment with an international criminal tribunal, work for a few years at the domestic level, and understand how domestic criminal justice institutions operate. There are so many advantages to starting out domestically.
Under your tenure, and to the astonishment of many, the Tribunal has located numerous high-profile, long-sought fugitives. What was the key to your success?
Traditionally, international tribunals invest little in fugitive tracking, and rely on regional and domestic law enforcement agencies for arrests. After all, these entities possess the requisite authority, mandate, and resources to perform such functions. However, issues arise when the general whereabouts of the fugitive are unknown. If we don’t know the country in which the fugitive is hiding, how can we assign responsibility to a national authority?
This was an area of great concern for me. When I became Prosecutor of the International Criminal Tribunal for the former Yugoslavia in 2008, Radovan Karadžić and Ratko Mladić, then the world’s most wanted war crimes suspects, were still at large. When I assumed responsibility over the Tribunal for Rwanda, no one had been arrested in ten years, and eight fugitives remained unaccounted for. My colleagues and I undertook a complete review of our tracking system, and realized that the team had been relying primarily on sources – you know, informants. Often, their insights were not only outdated – these cases had been cold for over ten years – but also of questionable accuracy. With this overhaul, we began to invest in modern tracking technology, collaborated more closely with police and intelligence services, and really made use of all of the tools available to us. As of today, none of the ICTY’s fugitives remain at large, and five of the ICTR’s eight fugitive cases have been resolved.
The recent arrest of Fulgence Kayishema, alleged to have orchestrated the killing of approximately 2000 Tutsi refugees during the Rwandan genocide, must have felt like a major achievement.
Yes! He had been at large since 2001. For many years, we had encountered difficulties working with South Africa, where we believed he was hiding. But last April, President Ramaphosa instituted a long-awaited investigatory task force. Similar task forces were also put in place in Eswatini and Mozambique. Working together, we all came to a similar conclusion: that many persons of interest who had refused to cooperate had entered South Africa with fake Burundian passports, seeking asylum as mass atrocity victims despite their membership in the Rwandan military. Using this information against them, we incentivized these previously silent witnesses to disclose Kayishema’s location. And the rest is history.
Speaking of national cooperation, you recently established a team in your office that works with national jurisdictions to advance accountability against lower-level war crimes offenses. Do you think that the future of international criminal law rests with domestic institutions?
With the passage of time, people’s appetites for various justice solutions have shifted. When international criminal tribunals were created in the nineties, I think that people were more optimistic about the future of international justice than they are today. At the moment, it’s difficult to imagine the Security Council agreeing to the establishment of a new judicial mechanism for any ongoing crises. Multilateralism and, in connection, international criminal justice institutions, are under immense pressure.
I’m of the opinion that justice, for both victims and the accused, is best served at the domestic level. Parties can operate within a community and language they understand, and use a system with which they identify. However, we know that this is impossible in some situations, when countries cannot or do not prosecute. The ICC, of course, is founded on this principle of complementarity; it has secondary jurisdiction after national courts, and can only act if a state is unwilling or unable to prosecute the crimes within its borders. However, since its inception, the ICC has had to confront many challenges, leading some to heavily dispute its effectiveness.
That’s why I think that, in the near future and until the political climate changes, domestic institutions will play an increasingly prominent role in international criminal justice. For example, domestic jurisdictions are leading investigations and prosecutions of atrocities committed in Syria. This is the case with many crises today. Today, war crimes units in Germany, France, and the Nordic countries have far more cases than they had a decade ago.
In August, the Appeals Chambers handed down its decision to indefinitely halt your case against Félicien Kabuga, who was accused of financing Hutu militias, as well as broadcasting ethnic hate speech on his station, Radio Télévision Libre des Milles Collines. Unsurprisingly, the outcome received criticism from survivors of the 1994 genocide. You later issued a press release stating that “this was not the end of the justice process.” What did you mean by that?
During my time at the Mechanism, I’ve met frequently with victims associations, including IBUKA (the umbrella organization for survivors of the Rwandan genocide) and the Mothers of Srebrenica (an activist association representing survivors of Bosnia’s Srebrenica genocide). These victims’ organizations remind us every day why our work is so critical, even thirty years later. Meeting with them, and seeing the difference we can make to their lives, is extremely rewarding. At the same time, such moments together are also difficult, because you realize the limits of your capacities. You cannot bring back loved ones; there’s nothing you can do about their pain. There are also expectations you may not be able to meet, due to the gap we often see between true “justice,” and what legal institutions can provide. Rules and procedures must be applied equally to everyone, even to those who have committed unimaginable atrocities. After all, these procedures are not about vengeance, but justice.
With Kabuga, we’d hoped that some sort of alternative procedure could be established—one that would be respectful of his rights and accommodating of his illness. The survivors and victims whom I visited in Rwanda, who are living in very modest circumstances, have never received reparations or compensation for the genocide. I was hoping that something could be done for them. They deserve visibility and recognition, and to have the atrocities committed against them on the historical record. Anyway, the decision is what it is, and we respect it.
But when I said that it’s not the end of the story, I was referring to two things. Firstly, survivors and victims are still pursuing civil claims, as a significant amount of money and real estate have been seized. Second, we’re continuing to work with the Rwandan Prosecutor-General’s office in Kigali, which has over 1,200 outstanding warrants issued across several continents.
The fight is not over, and it must continue. Although we can’t win every time, we must always seek justice. It is our job.
Lara Manbeck is a J.D. candidate at Columbia Law School and a staff member of the Columbia Journal of Transnational Law. A graduate of the University of Cambridge and New York University, her work has recently appeared in The Routledge Handbook of the History and Sociology of Ideas (Stefanos Geroulanos & Gisèle Sapiro eds., 2023) and the Chicago Journal of History.