Interview with Damir Arnaut, advisor for constitutional and legal issues to the member of Bosnia and Herzegovina presidency Haris Silajdzic, and head of Ejup Ganic’s defense team before the Westminster court.

Were EU officials, during the procedure for the extradition of Ejup Ganic to Serbia, informed about the fact that, parallel to the court proceedings, political negotiations between high ranking state officials in Sarajevo and Belgrade regarding concessions for withdrawing the request were being carried out?

Of course they were informed, but they told us this was an issue between our two states, or that it was a legal issue they did not want to interfere with. When Serbia failed to fulfill all the promises and agreements, we presented the details to the London court. We tried to solve this issue at the level of our two states, but when we realized Belgrade was only trying to buy time and political concessions, we used this as the ace in Ganic’s defense, that is, a legal issue no one could interfere in anymore, even if they wanted to.

That means the EU was aware that the authorities in Bosnia and Herzegovina gave false support to the text of the Declaration on Srebrenica, in exchange for the release of Ejup Ganic?

EU itself participated in this – the Declaration was supported by almost all EU countries, although avoiding the term genocide in some of these countries would represent the crime of genocide denial. EU and Belgrade have a relationship based on the principle: “You pretend that you are abandoning Milosevic’s politics or that you are searching for Mladic, and we will pretend to believe you.” This is a result of a successful bluff carried out by the current authorities in Belgrade – that they are better than the alternative. One the basis of these scare tactics, they have, for years, been given concessions from the EU without true steps towards reconciliation. However, there is an alternative in Serbia, there is Cedomir Jovanovic and people with similar political views, and the international community has the responsibility to support these forces, instead of taking the path of lesser resistance. The fact is, however, that the verdict of the London court, in combination with the increasingly open confrontation of Belgrade regarding Kosovo, will have the effect of waking up the sleeping European bureaucracy. We already have the information that the London verdict forced some EU countries to take their heads out of the sand.

Why did you concede to these conditions, if, as you claim, you knew Serbia was loosing the case for certain?

When Serbia itself gave us this ace – in regard to political concessions, it would have been irresponsible not to take advantage of it, and in the light of the interest of Bosnia and Herzegovina to cut down, at the root, similar adventures of Serbia in the future. We knew that we could free Ganic based on the fact that the Hague Tribunal already decided that JNA forces on the streets of Sarajevo on May 2nd and 3rd 1992 were a “legitimate military target”. The court in London reached the same conclusion, and even expanded it to members of JNA who were barricaded in the JNA Hall that day. However, when Serbia itself gave us, on a silver platter, an argument in favor of its political motivation, we naturally used it to legally outplay Serbia in case such shenanigans were to come to its mind ever again.

Are you expecting negative consequences regarding European integrations, as improving regional relations is one of the most important conditions for this process?

On the contrary – we had no choice. Belgrade threatened us – in the classical sense of the word. Back then, we said that this was not beneficial to the reconciliation process and that it was better to solve both questions in a way that will satisfy both parties. Only when Belgrade refused this did we start the negotiations. It was a catastrophic mistake made by Belgrade, caused both by their arrogance, as well as surprising incompetence. The moment negotiations started, I knew Ganic would walk free. Namely, from that moment, there were only two possibilities on the table – either Belgrade would honor its promises in exchange for our concessions, or the court will declare these negotiations to be a politically motivated process. As a former US lawyer, I knew that, when a state which initiated court proceedings enters political negotiations related to these proceedings, it has made sure it will loose the case. Naturally, we used this incompetence of official Serbia, but it is also a fact that we warned them, during the negotiations, that they would certainly loose and that it was better for them to end everything while they still had the chance to save face and credibility of the Serbian judiciary. Serbia did not listen to us, and the result was that Serbia was proclaimed, in the legally binding verdict of the London court, to be a banana republic.

Considering that the Serbian Deputy Prosecutor for War Crimes, Milan Petrovic, admitted that Ilija Jurisic was convicted to 12 years in prison based on falsified documents (article 36 of the verdict of the London court), is the release of the former high official of Bosnia and Herzegovina Ministry of the Interior also a subject of political negotiations with Belgrade?

In London, Serbia showed us that its promises cannot be trusted, so there are no negotiations in this case. However, faced with comprehensive documentation we presented in London, Petrovic, who has been in charge of the case against Jurisic, admitted that the agreement was pure fiction, that it was simply never made. The judge noted this in the verdict, with the conclusion that Ganic could not receive a fair trial in Belgrade either. We have forwarded all of this documentation to Jurisic’s lawyers, and I can vouch that Jurisic would be found not guilty in any democratic state. I’m stressing the word democratic, since Serbia has yet to prove that it wants to go in that direction. However, based on the fact that both the indictment and the first instance verdict in the case against Jurisic have been based on the “violation” of a nonexistent agreement, any verdict besides a not guilty verdict would be only another confirmation of the fact that the Serbian judiciary is neither impartial nor independent.       

How do EU officials react to this admission made by Milan Petrovic, and, do they, and in what way, insist that Serbia release Jurisic from prison?

We have awakened their interest in this case, as well as the interest of several international organizations which, until now, refused to get involved. In the future, they will follow this case very closely. In the light of the verdict of the London court, the decision in the appeals proceedings will have implications for Serbia and its future efforts towards EU integrations. However, this is an opportunity for Serbia – Judge Workman accurately and meticulously described the flaws of the Serbian judiciary, and Serbia can use Jurisic’s case to prove, once for all, that it is abandoning such approach to judiciary issues. If Serbia fails to do so, Jurisic will – and I am convinced of this – eventually win this case before the European Court for Human Rights. I don’t think that it is in the best interest of Serbia to suffer yet another legal embarrassment on the international level.

You have announced that an appeal to revise the verdict in the proceedings for war crimes Bosnia and Herzegovina led against Serbia will be filed, based on the fact that, for the first time, Serbia officially, during the Ganic trial in London, admitted that the conflict in Bosnia and Herzegovina was actually an international armed conflict?

The document submitted by Serbia is an explicit admission of aggression, and, what is important is that this is not only a legal standpoint, which was signed by Vladimir Vukcevic, but also a political standpoint of the Republic of Serbia, since this document was also signed by the Justice Minister Snezana Malovic. The document even claims: “The Republic of Serbia believes…”  This is a great step forward, but it is not what we need – the proof that Serbia had the intent, the so-called mens rea, to commit genocide. This proof lies in blacked-out documents in the Hague Tribunal, and our deadline for reinitiating the proceedings before ICJ is six months from the moment we receive this evidence, and, at latest, before 2017. After London, considering the unavoidable closing down of the Hague Tribunal in the near future, I believe we will receive this evidence before the deadline expires.

In your opinion, what practical consequences will the citizens of Serbia feel if Bosnia and Herzegovina wins this case?

In the original case, material compensation was not our primary concern. Furthermore, had Serbia shown penitence and accepted its role in the genocide committed in Bosnia and Herzegovina, this process might not have been necessary at all. However, the insincere Declaration on Srebrenica shows that Serbia is still not willing to face this role. I am completely honest when I say that this process of facing the past is something Serbia needs much more than we do. We know what took place in Srebrenica and the rest of Bosnia and Herzegovina, but, until Serbia decides to rid itself of this burden, until it initiates a catharsis, its citizens will be frustrated because they are being fed a lie – that they are victims.  I cannot even imagine what this hysteria would look like if the Army of Bosnia and Herzegovina, even for one day, shelled Belgrade, or if its members killed 8, not 8,000 civilians on the territory of Serbia.

Did you talk with the representatives of the international community, and what reactions did you see, in regard to the pressure by Serbia that Bosnia and Herzegovina sign an agreement on waiving jurisdiction for war crimes proceedings in favor of another state, which is also something mentioned in the verdict of the Westminster court in Ganic’s case?

The international community is taking the path of lesser resistance and is generally supporting “everything the parties agree to”. This is a disastrous recipe for the future of this region, because, when these issues are at stake, there can be no moral equivalence. But, as I said before, the London verdict changed everything. Up till now, the international community treated the Serbian judiciary as a legitimate mechanism for prosecuting war crimes. After all the manipulations, incompetence, political motivations and tricks of that judiciary came into the light in London, this is less and less the case.

Bosnia and Herzegovina will, in any case, adhere to the standpoint that it will not question the jurisdiction of its own courts regarding crimes committed on its own territory, and it will fight to challenge every politically motivated process against its citizens on the part of Serbia.  If, after Ganic, Serbia tries something like this again, I promise you I will win again, before any court in any democratic state.

Translated by Bojana Obradovic, 30.08.2010.

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