Thursday, July 25, 2013

Brammertz No Longer Has Jurisdiction Over Gotovina Case

Radio Free Europe today published an "exclusive" interview with ICTY Prosecutor Serge Brammertz, in which Brammertz comments that his office is "dissatisfied" with the acquittals entered in the Gotovina and Perisic cases and is "examining all legal means to contest these decisions."  This is consistent with a press release issued by Brammertz on 24 June 2013 in which he announced, "[r]egarding the Gotovina et al. case, my Office is considering whether the specialized threshold required for review of Appeals Judgment is met.  If so, we will initiate proceedings within the prescribed one-year time frame."  Having received repeated requests from the media to respond to Mr. Brammertz's comments, I wish to note as follows:

First, I know of no evidence that exists (or that even could theoretically exist) which would satisfy the specialized threshold required for review of the Appeals Chamber Judgment.  Furthermore, I believe that if Mr. Brammertz believed he had such evidence in his possession, he would have filed a Motion for Review of the Appeals Chamber's Judgment by 30 June 2013.  

My first point leads into my second point:  on 1 July 2013, the ICTY lost jurisdiction over the Gotovina case, because jurisdiction as of that date was assumed by the new International Residual Mechanism ("MICT").  According to the Statute of the MICT, "[t]he Mechanism shall have competence to conduct, and complete, all review proceedings for which the application for review of the judgment is filed on or after the commencement date of the respective branch of the Mechanism [i.e., 1 July 2013]."  (See page 18 at Article 3(2) in the Annex to the MICT Statute titled, "Transitional Arrangements.").  

Thus, if a Motion for Review of the Appeals Chamber Judgment in Gotovina is filed, it must be filed before the MICT (not the ICTY) by 16 November 2013.  Furthermore, it must be noted that Mr. Brammertz is not a Prosecutor before the MICT.  The MICT Prosecutor is Mr. Hasan Jallow (also the Prosecutor at the International Criminal Tribunal for Rwanda), and any decision to file a Motion for Review in the Gotovina case therefore must be made by Mr. Jallow, not Mr. Brammertz.  Mr. Brammertz can, of course, ask Mr. Jallow to file such a Motion for Review, but the final decision as to whether a Motion for Review will be filed with the MICT rests exclusively with Mr. Jallow.  Mr. Brammertz's recent public comments might inadvertently mislead the public into believing that Mr. Brammertz has the authority to file a Motion for Review of the Gotovina Appeals Judgment.

Accordingly, if Mr. Brammertz believed he had a basis to file a Motion for Review in the Gotovina case, it is my view that he would have filed such a Motion by 30 June 2013, when he still had jurisdiction to file such a Motion at the ICTY.  By allowing the 30 June 2013 deadline to pass, and allowing jurisdiction over the Gotovina case to transfer from the ICTY to the MICT, I can only conclude that Mr. Brammertz did not believe he had a basis to file such a Motion, i.e, he does not have evidence in his possession sufficient to seek Review of the Gotovina Judgment.  This does not mean that Mr. Brammertz may not later conclude that new evidence has been discovered that would justify a Motion for Review, but if he does discover such new evidence he will have to ask Mr. Jallow to file a Motion for Review at the MICT.

Finally, I cannot but take note of Mr. Brammertz's additional comments in the Radio Free Europe interview in which he discusses the public criticism of the Tribunal's recent judgments.  Mr. Brammertz states that, "we in the Tribunal have to allow for such criticism, which was my message at the last two events we held at the ICTY. If criticism exists, then we have to deal with it; we have to accept constructive criticism and we should not hide from internal discussions about the work of the Tribunal."  Having lost several high profile cases recently, Mr. Brammertz is now a strong advocate for public debate about the ICTY's judgements, and a proponent of the notion that the Tribunal's judges should take into account public criticism in arriving at their judgements.

Mr. Brammertz's newfound position should be juxtaposed with his position in 2011 in response to comments made by Croatian officials criticizing the Gotovina Trial Chamber's conviction of Generals Gotovina and Markac as well as Croatia's criticism of the Trial Chamber's finding that Operation Storm amounted to a Joint Criminal Enterprise.  Mr. Brammertz reported Croatia to the Security Council for its criticism of the Gotovina Trial Chamber Judgment, telling the Security Council that it is “unfortunate that in the aftermath of the judgment, the highest state officials failed to comment objectively on the outcome of the case.” 

In light of the Appeals Chamber's subsequent decision to overturn the Gotovina Trial Chamber's Judgement, it is clear that Croatia's criticism of that Trial Judgment was not only "objective," but fully justified.  Perhaps in his next interview Mr. Brammertz can explain his conversion from his 2011 role as "The Silencer" of public criticism of ICTY judgments to convict, to his 2013 role as the defender of the right to freedom of speech to criticize acquittals.

One would hope that Mr. Brammertz's conversion is not based on naked opportunism masquerading as concern about the legacy of the ICTY.

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