By Katherine Iliopoulos and Milanka Saponja-Hadzic
An attempt by Serbia to have former Bosnian President Ejup Ganic extradited from the UK was rejected by a London magistrate on July 27, 2010. Senior District Judge Timothy Workman of the Westminster Magistrates’ Court ruled that the request was “politically motivated” and an abuse of the British judicial process. Ganic is wanted for prosecution in Serbia for atrocities committed in Sarajevo in 1992, at the beginning of the 1992-1995 Bosnian war.
Serbian lawyers say Dr. Ganic ordered attacks on a medical convoy and the execution of surrendered soldiers on May 3, 1992, allegations that if proven would constitute grave breaches of the Geneva Conventions of 1949.
The ramifications of the case could extend to a possible finding that Serbia committed an act of aggression against Bosnia in violation of international law.
Ganic was arrested at London’s Heathrow Airport on February 28, 2010 in accordance with the bilateral agreement between UK and Serbia a day after Interpol received information on his whereabouts.
Ejup Ganic, a professor at the Faculty of Mechanical Engineering in Sarajevo, was named the provisional president of the Presidency of Bosnia-Herzegovina during the chaotic conflict between the Yugoslav People’s Army (YPA) and the Bosnian defence forces, one month after the Bosnian declaration of independence and the beginning of the war.
This happened at the start of the four-year Siege of Sarajevo, which lasted from April 5, 1992, to February 29, 1996. The shelling of the city killed 10,000 people (including 1,500 children) and wounded 56,000 (of which 15,000 were children).
The specific allegations against Ganic centre on events that occurred in the Bosnian capital on May 2 and 3, 1992, when Ganic – in the absence of Bosnian President Izetbegovic who had been kidnapped by the YPA – had assumed the role of Acting President of the Presidency of Bosnia and Herzegovina.
According to Jovan Divjak, a retired General of the Army of Bosnia-Herzegovina, the events on May 3, 1992 must be considered in conjunction with those of the previous day, May 2, when the YPA sought to regain control over Sarajevo.
After a one-month siege and continuous shelling, at the end of April the Bosnian defence forces blockaded six barracks and the YPA agreed to negotiate with the Bosnian authorities and restrict the movement of the army to exceptional situations such as emergency interventions and food supply. The Bosnian side expected that the YPA would withdraw soon from the newly formed, internationally recognised state. However, early in the morning of May 2, the YPA launched a failed attempt to occupy central Sarajevo. It shelled the city centre, including the building of the Presidency and the old part of the city which has great historical and cultural significance. Sabotage disabled 60,000 telephone lines and blocked communication between the Bosnian headquarters and their units in the field.
The YPA then arrested and abducted President Izetbegovic at Sarajevo Airport upon his return from failed peace talks in Lisbon.
Ganic is accused of personally directing an attack on a military hospital, the YPA Officers’ Club, a convoy of medical vehicles and 42 YPA soldiers leaving Sarajevo along Dobrovoljacka Street under a UN-brokered safe passage. The convoy was retreating as part of what the YPA thought was a truce and swap deal for Izetbegovic. Their column also was loaded with ammunition and weapons that Serbian forces would use during the three-year Siege of Sarajevo.
The Bosnians and Serbs have been thoroughly investigating the shootings in Dobrovoljacka Street in order to establish responsibility for the deaths of the soldiers. General Divjak, who participated in the events, is convinced that the shootout was an accident and that nobody from the Presidency of Bosnia-Herzegovina could have ordered it. He notes that the small Bosnian assault units, composed of just a few people, were separated from each other and lacked any means to communicate with one another and headquarters. He also says that eight soldiers were killed and 215 were captured. This stands in stark contrast to the figures cited by the Serbian Prosecutor’s Office which is investigating Ganic over the deaths of 42 YPA members, the wounding of 73 and the capture of 215.
In considering Serbia’s extradition request, the Westminster Magistrates’ Court focused on several key issues: whether Ejup Ganic committed any grave breaches of the Geneva Conventions and whether Serbia’s request amounted to an abuse of process.
Judge Workman stated that if the conduct alleged is capable of amounting to one or more grave breaches of the Geneva Conventions for which Ganic could be held responsible, then the conduct would amount to an extraditable offence.
The judge found that for the purposes of this case, the events in Sarajevo amounted to an international armed conflict, although he did not examine this issue in depth. “Grave Breaches” of the Geneva Conventions of 1949 can only occur in connection with an international armed conflict that arises between two or more of the High Contracting Parties. The independent State of Bosnia and Herzegovina was created by a declaration of independence on March 3, 1992, and recognised by the European Union and others on April 6, 1992, approximately one month before Ganic’s alleged crimes.
Bosnia submitted that Serbia could not have claimed at the time to have been a high contracting party to the Geneva Conventions. Judge Workman proceeded on the basis of ‘state succession’ without elaborating further, stating that it would appear that the Federal Republic of Yugoslavia (Serbia and Montenegro) had in fact assumed the obligations of the Socialist Federal Republic of Yugoslavia. Interestingly, the issue of automatic succession to treaties arose in the Application of the Genocide Convention (Bosnia Herzegovina v. Yugoslavia) case before the International Court of Justice in 1996. Bosnia had argued the opposite: that the FRY had automatically assumed the obligations of the SFRY as a party to the Genocide Convention. Yugoslavia denied this, and the ICJ did not make a finding on the matter.
An attack on a military hospital or medical vehicles would amount to a breach of the First Geneva Convention and Article 12 of Additional Protocol I, which applies in international armed conflicts. Judge Workman stated that if it could be proven that Ganic issued the command to attack the hospital, “these would amount to allegations of grave crimes under the Geneva Convention and are therefore extradition offences.”
An attack on a military installation, such as the YPA Officers’ Club, would be an attack on a legitimate military target and thus would not amount to a war crime. In fact, the judge made this specific finding, saying: “There is nothing in the request to indicate why in an international armed conflict such an attack would constitute a grave crime contrary to the Geneva Conventions.”
An attack on a military convoy is also a legitimate act, as it is a military target and does not enjoy immunity from attack. Thus, in relation to the attack on the YPA column, the judge did not find that such an attack amounted to a grave breach of the Geneva Conventions.
However, the judge referred to the allegation that Ganic expressly ordered an attack upon the Ambulance within the convoy and stated, “to that limited extent I am satisfied that the conduct amounts to an extradition offence.” He was not satisfied that the remainder of the convoy was entitled to protection or that the soldiers in the 30 vehicles were prisoners of war.
Two previous investigations found Ganic had no case to answer.
The first was carried out by the International Criminal Tribunal for the Former Yugoslavia (ICTY) pursuant to the ‘Rules of the Road.’ The Office of the Prosecutor told the Crimes of War Project that it reviewed the material based on information provided to it by the authorities of Republika Srpska, the Serbian part of Bosnia and Herzegovina at that time. On the June 17, 2003, the ICTY concluded that the evidence was insufficient to provide reasonable grounds for believing that Ganic committed any serious violations of international humanitarian law. For reasons of confidentiality, the OTP refused to provide the Crimes of War Project with a copy of the decision.
“Our decision cannot be considered a final opinion in this case, because this is not a judicial decision based upon all facts,” said Frederick Swinnen, the political consultant of The Hague Tribunal’s Prosecutor, and the case was left to the State Prosecution of Bosnia-Herzegovina, which is still working on the Dobrovoljacka Case, including the role of Ejup Ganic.
Under the Rules of the Road scheme, the Office of the Prosecutor would provide an independent review of war crimes cases based on information provided by the Bosnian authorities. The OTP would make recommendations as to whether a prima facie case for war crimes existed and would advise local prosecutors as to whether there was enough evidence to proceed. The OTP would examine material contained in the file only to determine whether the evidence was sufficient under international standards to justify the arrest or indictment of a suspect or continued detention of a prisoner. The scheme ended in October 2004.
Judge Workman attached considerable weight to the fact that no prosecution was brought against Ganic at the ICTY, even though he acknowledged that such a decision did not constitute a formal bar to his prosecution elsewhere.
A second investigation in May 2002, carried out on behalf of the Office of the Prosecutor of the State of Bosnia and Herzegovina by British lawyer Philip Alcock, found that the case against Dr. Ganic was politically motivated. Mr. Alcock was called as a witness during the extradition proceedings and told the Court that he believed “it is in the interests of justice that war crimes that took place in Dobrovoljacka Street are brought to trial but it is very much in the interests of justice to make sure one brings the right people to trial. As far as Dr. Ganic is concerned I can see nothing, except a politically motivated trial against him to justify an indictment.
Mr. Alcock believed that war crimes had been committed, but not by Ganic, while the ICTY-OTP said that it did not believe Ganic was responsible for any breaches of international humanitarian law. Two possible inferences can be drawn from these conclusions. The first is that there was insufficient evidence to prove Ganic’s responsibility, although he may well have been responsible. The second is that another person gave the orders.
Dr. Schwarz-Schilling also gave evidence in the proceedings. He had been the High Representative of Bosnia and Herzegovina from 2005 to 2007 as well as the Special Representative of the European Union. He told the court that he was “of the absolute opinion that the prosecution was politically motivated and that it was geared towards achieving political aims.” He noted that the Prime Minister of Republika Srpska had “made statements to the effect that it was about high time that Mr. Ganic ended up behind bars.
Judge Workman concluded that the proceedings were being brought “for political purposes and as such amount to an abuse of the process of this court,” and it was on that basis that he refused to grant the extradition request and ordered Ganic’s release.
Well before the Ganic Case was dealt with by the London Court, independent legal experts in Belgrade made claims that the current political mood in Serbia is not conducive to a fair trial. It is a common practice in Serbia for politicians to inform the media on how they assess the more important court proceedings, thus exerting pressure upon the judiciary.
This happened in the Ganic case, and to an even greater extent during the trial of Bosnian citizen Ilija Jurisic who was arrested in Belgrade and sentenced to 12 years in prison for an attack on the convoy of the 92nd Motorised Brigade of the Yugoslav National Army (‘the Tuzla convoy’) on May 15, 1992.
Jurisic’s lawyer Djordje Dozet claims that his client was sentenced without the prosecution providing any evidence, and the judge refused to hear the testimony of any witnesses apart from Meho Bajkic, the chief of police in Tuzla where the event occurred, who gave evidence against Jurisic. That this amounts to a serious violation of the Serbian Criminal Procedure Code is illustrated by the fact that the Appellate Court in Belgrade planned to hear the proposed witnesses in September before actually dealing with the appeal on the decision issued in the first instance.
Serbia is reluctant to deal with war crimes and does so very rarely, normally when forced to do so, for example in the case of Ratko Mladic when ICTY Prosecutor Serge Brammertz paid a visit to Belgrade. Even in such high-stakes cases, its efforts are minimal and it seeks symmetries and accountability for the war on all sides. Civil society activities to confront the past are ignored by the economic power centres, the political structures and the media which remain firmly under their control. As the war years fade into the past, the level of discourse on the issue is diminishing to the point where there is practically no public debate.
The only institutions dealing with war crimes on a regular basis are the Special Chamber for War Crimes and The Office of the War Crimes Prosecutor in Belgrade. And while legal experts assess the work of the Belgrade Special War Crimes Chamber in a positive light, saying that it is making perhaps the biggest contribution to confronting the past in Serbia, they are critical of the Office of the Prosecutor, which has issued 30 indictments against principal perpetrators only and not against those who issued the orders.
Lawyer Dragoljub Todorovic, who represented the victims in 13 cases (Albanians, Bosnians and Croats), says that prosecutors are working in a very unfavourable climate. Not only are they operating within a deeply divided Serbian society, but they face enormous pressure from politicians who bow to the strong right-wing forces and their influence upon elections. At the same time, these politicians avoid taking timely, positive gestures which could influence the public to change their attitudes towards the recent past.
“Among the total number of those accused, more than 90 percent are Serbs, and they cannot get hold of the others. They got Jurisic, Ganic and a few Albanians, but without proper preparation and valid evidence. The Office of the Prosecutor is under high pressure from the nationalist public and is trying to establish parity,” claims Todorovic.
That the prosecutors are the weakest link in Serbia’s legal system is illustrated by the fact that none of the five requests for extradition issued by Serbia were answered favourably, whether they related to war crimes, organized crime or ordinary crime. Refusals came from Hungary and the UK, as well as from states which Serbs like to believe are well-disposed towards them such as Greece and Russia.
A major consequence of the Ganic extradition case might be that Serbia could be held responsible for committing an act of aggression against Bosnia in contravention of the UN Charter. In the request, Serbia accused Ganic of grave breaches of the Geneva Conventions and claimed that the war amounted to an international armed conflict. This runs counter to the strategy of the Federal Republic of Yugoslavia – and afterwards of Serbia – of the last twenty years which argues this was an internal, or non-international, armed conflict.
In its extradition request, Serbia had referred to the conflict as “The International Combat Conflict” but then was almost forced to acknowledge that the conflict at the time was one of an international nature because otherwise the Grave Breaches provisions of the Geneva Conventions would not apply. During the proceedings, Ganic’s representative, Mr. Fitzgerald QC, submitted that the term “International Combat Conflict” was used by Serbia to avoid a finding that it was an international armed conflict which might have rendered Serbia responsible in international law for aggressively entering Bosnia. If such responsibility could be established, Serbia would be required to pay reparations to Bosnia.
Following the London ruling, Ganic’s lawyer Damir Arnaut said that “the document submitted by Serbia is an explicit confession to aggression. This is not only a legal standpoint, signed by the prosecutor Vladimir Vukcevic, but also the standpoint of the Republic of Serbia because the document was also signed by the Minister of Justice Snezana Malovic.
Depending on the other evidence available, Bosnia could potentially institute proceedings before the International Court of Justice against Serbia for acts of aggression in contravention of the United Nations Charter, which prohibits the use of force except in self defence. In this way, it could obtain reparations, a request denied to it by the ICJ in relation to the 1996 genocide ruling.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Milanka Saponja-Hadzic is a journalist from Belgrade.
The City of Westminster Magistrates’ Court
July 27, 2010