The day when British justice humbled the British and Serbian governments
Author: Damir Arnaut - interview
Uploaded: Saturday, 21 August, 2010
Ejup Ganic’s lawyer, Damir Arnaut, talks to Dani about his client’s arrest and trial in London, stressing among other things the UK role in the initial arrest, official disclaimers notwithstanding
Dani.: Did you expect the London court to decide against Ejup Ganic’s extradition to Belgrade?
Arnaut: Those who were present in court could see how it would end. We worked hard on presenting our evidence, but we relied also on the mistakes of the Serbian side, committed largely through their staggering arrogance. Imagine a situation in which the Serbian deputy public prosecutor, Milan Petrovic, asserts under cross-examination that he ‘had no proof that Juka Prazina was dead’, or that he ‘didn’t read the ICTY findings on Dobrovoljacka’ street, because they ‘didn’t interest him’. The only witness for the prosecution, he proved to be the best witness for the defence. Although one cannot ever be sure how such a trial will end, I was pretty confident we would win. The only thing that surprised me was the verdict’s clear presentation of the manipulation practised by the Serbian side. Courts normally spare sovereign states from such precise characterisation, usually reserved for petty tricksters
How do you explain the fact that the Serbian government decided to ask for Ganic’s extradition, even though it had not a shred of evidence with which to back it up?
It was unclear at first how Ganic came to be arrested, because this wasn’t done through an Interpol warrant. That had been suspended last year, on Tarik Sadovic’s intervention. The London district court asked the British Crown Prosecution Service (CPS) to provide details, and what this revealed was shocking indeed. Namely, when Ganic entered Great Britain on 26 February, the British authorities contacted Serbia on their own initiative, told them that Ganic was in London, and invited them to apply for his arrest directly, bypassing Interpol. Serbia did so on the following day by way of its London embassy, and after a meeting held at the Foreign Office at which representatives from several British ministries were present, the request was passed on to to the local court. This admission on the part of the CPS shows that the British ambassador to Sarajevo wasn’t telling the truth when he said, on the day after Ganic’s arrest, that this was a purely judicial issue and his government had played no part in it. At all events, Serbia was evidently encouraged by this direct offer on the part of the former British government, and must have believed that the policy extended also to the British courts. Thanks to Judge Workman, however, it turned out they had made a big mistake.
Were you surprised by the judgement on the quality of Serbian justice which Judge Workman made in his verdict, and which Serbian president Boris Tadic described as ‘offensive to Serbia’?
Boris Tadic was kept fully informed about the political negotiations in this case, because he took part in them. He knew too that Serbia had failed to keep all the promises it had made, in return for which it had gained concessions from us. I testified before the court about the negotiations, and the court found my testimony ‘truthful and convincing’, so I am not surprised at the court’s judgement. The judgement is offensive to Serbia . The worst thing that can happen to a sovereign state engaged in a legal case is for the court to describe its legal system as ‘either incompetent or politically motivated’. Especially when the judge described the testimony of the Serbian prosecutor, who had sworn to tell the truth, as ‘unconvincing’. But in the Serbian case these are the facts, whether they are offensive or not.
Is it true that the trial and sentencing of Ilija Jurišic by a Belgrade court was mentioned during the proceedings before the court in London?
Yes, we used his example to prove that Ganic would not have a fair trial in Belgrade. Because Jurišic was sentenced on the basis of an alleged agreement about the JNA’s peaceful withdrawal, which the Serbian prosecutor insisted was signed on 26 April 1992 by Alija Izetbegovic and Blagoje Adžic. During Jurišic’s trial, the Serbian prosecutor’s office did not produce the supposed document - because there is no such document - but instead a witness who lied, saying that he had been present at its signing. M ilan Petrovic, the prosecutor in Jurišic’s case, admitted in London under cross-examination that the alleged agreement was pure fiction, once we presented extensive documentation to show this. The judge said in his verdict that Ganic could not expect a fair trial in Belgrade, because Jurišic was sentenced there to 12 years in prison on the basis of an invented document. It is interesting that some people criticised us for allegedly ‘prejudicing Jurišic’s appeal’, because we talked about his case in London. We have for some time been in contact with Jurišic’s defence team, however, and gave them all the documentation, in this way strengthening considerably Jurišic’s defence. For no truly independent court could confirm a sentence based on a purely invented document. If Serbia wishes to expunge its shame and show Europe that has an independent judiciary, then this is an opportunity for it to do so.
Would you agree that the most spectacular, and historically most important, event in Ganic’s trial was Serbia’s formal admission that up to 15 May 1992 the war in Bosnia-Herzegovona was an international military conflict, in which the Yugoslav Army fought under Belgrade’s command?
This submission was the only one I didn’t expect Serbia to produce. It was clear that they saw Ganic as a trophy, but not that they would sacrifice their strategic interests to get him, particularly as we bluffed them into producing this paper. Namely, for a British court to be competent in Ganic’s extradition, it had to be sure that an international military conflict was taking place in Bosnia-Herzegovina at that time. There was never any doubt about that, given that it was how the ICTY had characterised the war in Bosnia-Herzegovina on a number of occasions; and the judge declared in his verdict that this was sufficient to make the court competent in the case. But by insisting that Serbia itself should make clear its view on this matter, we led Serbia into a position where it was worried that it could lose the case over the issue of competency. The result of this was an official, written Serbian admission that it was a case of an ‘international armed conflict in which two concerned parties took part, namely Bosnia-Herzegovina on one side and Serbia on the other’. They didn’t even try to duck the question. They didn’t refer solely to the JNA as before, but also to the state of FRY, to which Serbia is the successor. They simply copied the definition of international armed conflict from a textbook on international law; and since it occurred on Bosnian territory, they copied also the definition of aggression from the UN Charter, and of aggression and aggressive war from the amendment to the International Criminal Law statute. The historical importance of this document is immense. After all, it is one thing for someone to write in a book that the ICTY established that Serbia waged war against Bosnia-Herzegovina, and quite another to be able to say that Serbia officially admitted this on 10 June 2010.
What could be the legal consequences of this admission on the part of Belgrade? Is this not a new essential fact that could provide sufficient grounds for reopening the Bosnian charge against Serbia before the International Court of Justice?
This is a very important step forward, but not sufficient. We still have to prove that Serbia had the intention, the so-called mens rea, to conduct genocide in Bosnia-Herzegovina, which we probably could do, if we could gain access to the blanked-out documents in the ICTY’s possession, or to direct witnesses. Given, however, the copious and most useful documentation which we managed to gather for the needs of this - in the wider context - relatively minor case, I am convinced that we could also achieve that. We have time to do so up to 2017, but I am sure that we could complete it by as early as 2014, if given a chance.
Does Serbia’s admission that it took part in the war against Bosnia-Herzegovina in the period up to 15 May 1992 provide sufficient basis for a legal claim against Serbia to pay reparations to those Bosnian citizens who were victims of its aggression before that date?
That is a much easier thing to do. Serbia is probably now aware that this admission will be with it for the next few decades. While working as a lawyer in the United States, I was involved in several cases concerning Germany and German firms initiated not by those who had survived the Holocaust but by second and third generations. These trials, which grew in scope in the late 1990s, resulted, through decisions by American courts or through out of court settlements, in Germany having to pay over eight billion dollars to Holocaust victims and their heirs. American courts are competent in all cases involving infringements of any principle of international law initiated by persons who can show some connection with the United States, and 300,000 of our citizens who have taken refuge there or their descendants surely can do that. Most of these people suffered some injury, be it human or material, committed by Serbia, which has now admitted that it participated in the aggression against Bosnia-Herzegovina. But the practice of law is still in its infancy in our country, and we still give too much importance to sovereign states’ immunity in trials, which the American legal system has largely abandoned. Also, Serbia evidently doesn’t have a proper legal system that could deal with such cases. This is why I favour the idea that such cases should be first brought before American courts, where one can win colossal damages, and on the basis of precedents acquired in that manner then extend legal actions against Serbia to our own and Serbian courts.
Are you surprised by Ejup Ganic’s assertion that the Bosnian state did nothing to help him after his arrest?
I am not. We talked about that. Mr Ganic said what he really meant was what we all know - that due to many obstacles Bosnia-Herzegovina cannot behave like a proper state. The only thing we can do in such a situation is to rely on individual officials who do have a proper attitude to the Bosnian state. I hasten to add I don’t have in mind solely the Bosniaks, nor do all Bosniaks have such a consciousness. The [Jewish] foreign minister Sven Alkalaj, and the [Croat] Bosnian ambassador to London Jadranka Negodic, helped a great deal, and played a key role in the success of this important case. I would like to mention here also the Croat member of the Bosnian state presidency, Željko Komšic, who appointed Negodic and gave her full support. On Beriz Belkic’s initiative, all deputies of the B-H Federation and two from RS signed a petition to the British parliament about the Ganic case. Rude Vidovic’s chief of staff was among the first to congratulate me on the victory. My colleague Elvir Camdžic, Osman Topcagic and Amir Ahmic, as well as the secretary of the ministry of justice Juso Halilagic, and Asim Fazlic of Bosnian Interpol, were always ready to help. But none of this would have been possible, including my own engagement, without the determination and steadfastness of the president of the Bosnian presidency, Haris Silajdžic. He risked all his political capital with a single aim in mind - to defend Bosnian state dignity. His example motivated others - I had never seen so much elan and courage as during this case. It was indeed a struggle between David and Goliath - the Serbian team always had at least five people in the courtroom, not to speak of the Belgrade machinery which worked throughout at full speed. It may be that our difficult situation led Serbia to underestimate our real chances. This is why I hope that our most important long-term contribution will be that we have established a model of how to react when someone attacks our state. I would like us to have the same relationship with Serbia as we have with Croatia and Montenegro, and that they refrain from doing such things to us because they wish to have good relations. But if Belgrade will respect us only because it fears us, then it is my obligation and duty to make them afraid.
The highly professional London legal team which Mr Ganic engaged has praised your contribution, saying that it was crucial for the success of the case.
We celebrated afterwards with a glass of champagne. I went over to congratulate them, but they said in one voice that they couldn’t have done it without me, that my testimony was crucial for success of the defence. I was pleased that I did well, but the fact is that I only did my job, that I was guided solely by truth. My Berkeley education and my Washington experience were of immense value to me, because one learns there that each case is a story in its own right, and that everything you know or you think you know you must constantly check and double-check.
What motivated you to return to Bosnia-Herzegovina? Is it true you had a much higher-paid job in the United States?
People here find it difficult to believe that I was earning $180,000 a year with the legal practice White& Case, and that they offered me $230,000 to return after a year. All this is documented and available on internet. I have no explanation other than the newly elected president of my country invited me, and such invitations are not declined. People in Bosnia can be cynical, so I occasionally hear them say that only a crazy guy would opt to go down to KM2,000 a month. According to this principle, in 1992 only a madman would have gone to confront the Serbian tanks in trainers and with nothing but a gun. But had there not been for guys who didn’t think that way, we wouldn’t be talking here today.
You work closely with the president of the Bosnian presidency, Haris Silajdžic. How much do you influence his views?
When you look at Silajdžic’s statements from our independence on, you see that they have remained unchanged: Bosnia as a multi-ethnic state belonging to all its citizens, rejection of ethnic divisions and solutions that go in that direction. Sanela Jenkins [who help pay for Ganic’s defence] keeps saying that she first came across Silajdžic during the war, when his interviews to foreign media filled her with hope that Bosnia would survive. I know exactly what Sanela means, because as a student in the United States I experienced that hope whenever he appeared on television. I met him for the first time in 2006, after I had resigned in protest from the State Department and produced an analysis of the ‘April package’ of constitutional amendments, the main aim of which was to give Serbia compensation at Bosnia’s expense for the loss of Kosovo. Silajdžic had already made it clear he was against the package, and my analysis helped him to argue the legal side of his case. Had he not taken that position, my analysis would have remained merely an ineffectual academic paper. This doesn’t mean that I influence Mr Silajdzic’s views, but rather that our positions on key aspects of the state are the same. It is simply my privilege that I can help him to defend and affirm these positions.
Translated from a longer interview in the independent Sarajevo weekly
B-H Dani, 6 August 2010