ICTY Prosecutor’s Naked Opportunism Masquerading As Concern For ICTY’s Legacy?

Serge Brammertz   Photo: Reuters

Serge Brammertz Photo: Reuters

Brammertz No Longer Has Jurisdiction Over Gotovina Case

Reblogged from miseticlaw.blogspot.com

By Luka Misetic

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.

Luka Misetic    Photo: Darko Tomas/Cropix

Luka Misetic Photo: Darko Tomas/Cropix

About Luka Misetic: Lawyer, based in the United States of America. Luka Misetic represents clients in state, federal and international litigation, including commercial, civil, white-collar criminal and international criminal cases. In business litigation, Mr. Misetic represents corporations and partnerships, as well as their directors, officers and partners in breach of contract and fiduciary duty claims, regulatory matters, trade secrets claims, fraud and negligence suits, and a variety of other claims. Mr. Misetic represented Croatian General Ante Gotovina before the International Criminal Tribunal for the former Yugoslavia in The Hague, The Netherlands


  1. Reblogged this on Croatia Business Report.

  2. Branko B. says:

    From Facebook: Brammertz and his squalid gang of Serbian witnesses and groupies are acting like a bunch of obnoxious drunks that can’t come to terms with the fact they’ve spent all their beer money.

  3. One wonders how it’s possible for someone like Brammertz to have been appointed as ICTY prosecutor. It’s absolutely abominable – that man does not seem to even entertain the possibility that someone charged with crimes could actually be innocent of those crimes. He seems to have made it his business to pick and choose whom to charge for war crimes and then go about weaving webs of flimsy and suspect evidence…and now that some have been acquitted he is unable to count his losses and let justice (as found by say, appeal court) prevail.

  4. Spectator says:

    What a great article by Mr Misetic. No doubt in my mind – Brammertz is a bitter hasbeen when it comes to prosecuting crime. He has often said that convictions of war crimes are a starting point to reconciliation and while that may be true, it is also true that no reconciliation can possibly occur where the same prosecutor does not accept rulings of appeal courts.

  5. Can’t wait to see the back of Brammertz. He has polluted the very standards of justice just as his friend Carla del Ponte did. The apparently suffer from delusions of grandeur evidently thinking and trying to dish out guilt where there was none. This especially goes for the Gotovina and Markac, Croatian generals case. Hmmm something like Communists used to do

  6. Google translation of Aliosa comment in Romanian: I do not crush the world’s corolla of wonders
    and do not kill
    secrets of mind that you’ll meet
    my way
    in flowers, eyes, lips or graves.
    Light to others
    strangling spell impenetrable hide
    in the depths of darkness,
    but I
    I light my world to increase the mystery –
    And just as the white moon with its rays
    not lessen, but trembling
    increases even more mystery night
    so înbogăţesc too dark horizon
    with large flowers of sacred mystery
    and all that incomprehensible
    change-in and greater neînţelesuri
    my eyes-
    because I love
    flowers and eyes and lips and tombs ”

    Lucian Blaga
    nice weekend

  7. therealamericro says:

    Brammertz is curiously silent on the Stanisic and Simatovic rulings.

    Savo Strbac, the Milosevic, Martic, Mrksic, Babic, Stanisic, Simatovic, Hadzic and Perisic Joint Criminal Enterprise participant that the ICTY was in a gross conflict of interest (and morality and elementary logic and reason) with when it began working with him and his Milosevic government-financed and created sham NGO “Veritas” in 1993 (when Strbac was the then “Secretary” of SRAO “Krajina”), stated himself on “RS” television that there was no ethnic cleansing but a planned mass withdrawal: http://www.youtube.com/watch?v=qSRXAYeSo3M.

    Verified by the VJ Supreme Defense Council in August 1995 and by the rant of the “Vodz” himself: http://www.youtube.com/watch?v=qsyjCBA_qIg.

    Brammertz can take his fantasies and fables and pound them up his arse.

    The ICTY’s attempt to whitewash Serbia’s role as the genocidal aggressor (and the UK’s, France’s, Netherland’s and Sweden’s roles as genocidal aggressor enablers) and slyly trying to indict US foreign / military policy by railroading Gotovina and Markac doesn’t have a chance.

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