Hague Tribunal: New Chief Prosecutor, Fresh Approach?

In his first public statement as chief prosecutor at Yugoslav tribunal in The Hague, Serge Brammertz this week set out how he would fulfil his mandate before the court closes in three years’ time.



An “absolute priority”, he said, was bringing the remaining four fugitives – particularly Bosnian Serb army commander General Ratko Mladic and wartime political leader Radovan Karadzic - to face trial in The Hague.



Brammertz, who at the beginning of January was appointed chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, ICTY, said that in the coming weeks he planned to discuss the issue of cooperation with the tribunal in talks with the authorities in the former Yugoslav republics and with representatives of other countries and international organisations, including the European Union.



His predecessor, the fiery Swiss lawyer Carla Del Ponte, was instrumental in linking Serbia’s hopes of accession to the EU with cooperation with the tribunal, and her use of media pressure against the Balkans is credited with bringing dozens of fugitives to the Hague tribunal.



But observers say that while the promise of EU membership had leverage in the past, it is no longer the carrot and stick it once was in securing Serbian cooperation.



The EU is showing signs of giving Serbia an easier path to EU membership. Its Slovenian presidency is eager to sign a Stabilisation and Accession Agreement, SAA, with Serbia – a precursor to future membership negotiations.



This would not only keep Serbia closer to Europe, but would also boost the moderate president Boris Tadic’s chances against radical challenger Tomislav Nikolic in the upcoming presidential elections.



"Full cooperation [with the tribunal] is one of the conditions [for the signing of the SAA.] The problem is how we decide [what full cooperation is]," said Slovenian foreign minister Dimitrij Rupel in an agency report published on January 8.



Meanwhile, ongoing debate over Kosovo’s future and the imminent elections means that cooperation with the ICTY is low on Belgrade’s list of priorities.



In recent months, Serbian prime minister Vojislav Kostunica has been growing closer to Moscow, and the European Commission has expressed concern at Russian energy giant Gazprom’s controversial takeover bid for Serbia's oil monopoly.



Kostunica has also warned that the SAA will be annulled if the EU carries out its plan to send a “civil mission” of administrators and police to support Kosovo once, as is expected, it becomes independent next month.



Although Serbia seems to be turning away from Europe, James Lyon of the International Crisis Group believes the EU still has the power to force Belgrade to hand over Karadzic and Mladic.



“The EU and international community have shown that conditioning progress on EU integration has worked with Serbia,” he said. “We have a proven track record of this.



“If enough pressure is put on Serbia, the [authorities] will arrest Mladic.”



While Kostunica has no desire to join the EU, he cannot ignore the fact that domestic opinion polls show consistently high public support for European integration.



However, Lyon is concerned that the EU is currently trying to do a deal where Serbia would get membership in return for a “soft no” on Kosovo, meaning that Belgrade should effectively accept independence while continuing to object to it in principle.



“The problem with this is Serbia isn't going to do it – they will not trade Kosovo for EU membership. Brussels just doesn't seem to get it,” said Lyon.



Political and economic analyst Braca Grubacic thinks that the only way the remaining fugitives will end up in The Hague is if Brussels keeps up its demands for full cooperation from Serbia.



At the moment, however, EU members have other things on their minds.



“Most European countries are now more focused on what will happen with Kosovo’s status and the European Mission in Kosovo, and what will be the result of the Serbian presidential elections, and the ICTY is marginalised on the issue,” said Grubacic.



According to the analyst, while “everybody knows Mladic is in Serbia, the current government at this moment is absolutely not doing much on chasing after [him] and there is no serious pressure from European Union to do it”.



Dr Jonathan Eyal, director of international security studies at the Royal United Services Institute, said that at present, the EU had little leverage in pushing Serbia to deliver the men.



“I do not believe that EU membership as such, at this particular moment, has much influence in general, over Serbian politics,” he said.



“I think that the reality is that in Serbia itself, the whole issue [of membership] is now related directly to Kosovo, and the rather offhand dismissal by Mr Kostunica of what he calls trade-off between EU membership and the loss of Kosovo has transformed the debate.”



So how should the new chief prosecutor proceed in persuading Serbia to hand over the suspects?



Lyon argues that it is vital for Brammertz to maintain Del Ponte’s policy of pressing the EU to insist that Serbia hands over the remaining fugitives before it can join.



Experience shows that when the EU softens its stance, this only leads to reduced cooperation from Belgrade, he argues. “The minute [the EU] backs down and start to show flexibility towards Serbia, Serbia stops all cooperation, and we see this time and again,” he said.



Lyon dismissed any suggestion that discussions over the fugitives be shelved until the Kosovo’s future is settled, pointing out with a 2010 deadline looming for the tribunal to finish its work, the pressure is on.



He argues that as long as Karadzic and Mladic continue to evade justice, the possibility of further conflict in the Balkans remains.



“The wars in the Balkans will not end until these people are brought to justice,” he said.



“If we put off these guys’ arrests, we need to be aware that there will be renewed ethnic cleansing and violence, and no EU membership is going to be able to patch that up.”



But according to Eyal, it is unrealistic to expect Belgrade to hand over the men while its pride is freshly bruised over the loss of Kosovo.



Brammertz may just have to accept that Serbian cooperation is unlikely for the time being. “The prosecutor will have to take the long view,” said Eyal. “Nobody is in a position to accept de facto the loss of Kosovo and say, ‘And, by the way, we are now also handing over war criminals to The Hague’.”



But waiting for the dust to settle over Kosovo carries its own risks.



Grubacic suggested Brussels could eventually drop its demands for Serbia to turn over the suspects as a way of somehow compensating it for the loss of the province.



“I think that if Kosovo becomes independent and is recognised by European countries and United States, in a way EU and the others will be ready to kind of turn a blind eye on cooperation with ICTY because they don’t want to punish so much Serbs after all this time,” he said.



Over the coming months, it will make sense for Brammertz to retain the political backing of European governments, and keep the issue of cooperation with the tribunal on the agenda.



“Although, for the moment, everyone [in Europe] seems to be behind this issue, it is possible to envisage a decision to turn a blind eye [to Serbia’s failure to yield the fugitives] in return for a normalisation of relations between Europe and Serbia after the storm over Kosovo is over,” said Eyal.



In addition to engaging European heads of state, the new chief prosecutor might also find that negotiating with Serbia behind the scenes rather than publicly applying pressure could yield greater results.



The choice of Belgian lawyer Brammertz as Del Ponte’s successor has led many to suggest that UN officials saw a need for a change of tack in the tribunal’s negotiations with Serbia.



Brammertz, a former deputy prosecutor at the International Criminal Court who also led an international investigation into murder of former Lebanese prime minister Rafiq Hariri, is known for working quietly behind the scenes, rather than in the full glare of the media spotlight.



During her eight-year tenure, observers questioned Del Ponte’s grasp of the political situation in Serbia, and argued that her public attempts to pressure the Balkans countries into submission at times appeared counterproductive.



In a comment piece on the website of Belgrade-based radio station B92 on January 6, a former United States ambassador to Croatia and Serbia, William Montgomery, argued that Del Ponte's “bull in the china shop attitude towards the fragile democratic governments in the region… actually made it harder, rather than easier to transfer indictees to The Hague”.



Eyal accepts that on certain occasions, the timing of Del Ponte’s statements was off.



“I’m not saying that we have to accept the Serbian position; I’m merely saying that you’re not advancing your case a great deal by coming in the middle of an electoral campaign and threatening eternal isolation unless the Serbs comply immediately [with the tribunal].”



There is a view that a lower-key, more diplomatic approach could be more effective.



“There was somehow a feeling with Ms Del Ponte that any sort of confidential, secret negotiations were somehow dirty and compromising the tribunal,” said Eyal. “At the end of the day, we have to admit that there is a large political element in any tribunal that relates to war crimes.”



The analyst acknowledged that while private negotiations could lead to certain concessions being agreed - such as safeguards, plea bargains or other terms - in exchange for the delivery of the fugitives, they were vital in making progress.



“While there is a danger in negotiating behind the scenes, I see this is the only way for handing these people over.”



Caroline Tosh is an IWPR editor in London.