Israeli Supreme Court 311.
On June 25, the Israeli Supreme Court will be facing a wrenching dilemma as it
is asked to rule on whether to allow extradition in a case of alleged genocide.
Only this time the accused is not German but an Israeli citizen with Balkan
Alexander Cvetkovic, a native of the Republic of Srpska, now
citizen of Israel, is in detention in the Ramla prison awaiting resolution of an
extradition request against him that was filed by Bosnia and Herzegovina on
behalf of the prosecutor of the State War Crimes Court in Sarajevo.
case is now in the appellate stage.
A bit of background is in order. The
detainee, Alexander Cvetkovic, during the Bosnian civil war was a member of a
unit of the Army of the Republic of Srpska called the 10th sabotage detachment
and he is charged with taking part in an episode at a site called Pilica where
several hundred Muslim prisoners of war are alleged to have been shot. When
authorities in Bosnia and Herzegovina found out that he was residing in Israel,
they accused him of genocide and other war crimes and submitted a request for
For the past 20 years Cvetkovic has been married to a
Ukrainian Jewish woman and has two sons with her. His wife immigrated to Israel
and is now an Israeli citizen, and so are their children. Cvetkovic acquired
Israeli citizenship through his wife and has been living in Israel with his
family since 2006.
Following an adverse first instance decision, the
defense headed by Jerusalem public defender Vadim Shuv geared up for its last
shot at blocking extradition at the June 25 Israeli Supreme Court hearing before
the matter lands on the desk of the Minister of Justice.
The case raises
some disturbing issues if this Israeli citizen is handed over to Sarajevo
authorities. Serious misgivings have been raised as to whether a non-Muslim
accused of grave war crimes against Muslims can expect to receive a fair trial
there. The record of the Sarajevo war crimes court and prosecution is
abysmal. Some of the major problems bear mentioning.
majority of indictees are predictably non-Muslim (133 Serbs, 21 Croats, and only
29 Muslims). They generally receive lengthy sentences, compared to minimal
punishment meted out to the relatively few Muslims who were tried for crimes
committed during the Bosnian war 1992-1995. Equality of arms is a concept barely
acknowledged and rarely practiced in Sarajevo. The defense are allowed scant
resources for adequate personnel and investigation as they face a well funded
and staffed prosecution machine. Witness intimidation by the prosecutor is
standard procedure, and dozens of prosecution witnesses were threatened with
being put on trial themselves unless they gave evidence to fit the prosecution’s
case. Some have already come out with disturbing stories of pressure and
One notorious such case was on March 17, 2011, involving
protected witness S- 101 in the Dusko Jevic Srebrenica-related genocide trial.
At one point, the witness refused to answer any further questions and, turning
to the judge, he asked, “May I now finally start to tell the truth?” Then, in
open court, he spilled the beans on the strong-arm tactics used by prosecutor
Ibro Bulic and his investigators to extract false testimony against the
defendants, which witness S-101 publicly retracted to the enormous embarrassment
of the chamber and the prosecution.
But that is only the tip of the legal
iceberg when it comes to the dangers posed by judge Cohen’s ruling in favor of
Bosnia and Herzegovina’s request for the extradition of Alexander
From the standpoint of the Israeli national interest, a
fundamental dilemma posed by the extradition is the highly problematic precedent
it would set for Israel. This situation appears to be distinguishable from past
extraditions of Israeli citizens. The other cases involved mostly common crimes;
this one is based on accusations of very serious breaches of international law
and acts against humanity, including a controversial charge of
While Israel is understandably sensitive to charges of genocide
and is loath to be perceived as shielding a potential culprit for that offense,
there is a serious cautionary argument to be made. Israeli soldiers and
officials are themselves subjects of grave accusations leveled by the other side
in the Middle Eastern conflict, and a precedent of this nature could function
greatly to their detriment.
Equally concerning is the thinness of the
prima facie evidence submitted by the Bosnia and Herzegovina authorities to
support their extradition request. It is based in large part on the questionable
evidence of Drazen Erdemovic, wartime member of the same unit to which Cvetkovic
belonged, who after arrest made an advantageous deal for himself with ICTY
Erdemovic is the Sarajevo war crimes court’s chief accuser.
But as doubts have surged in relation to the many holes and contradictions in
his courtroom narrative, Erdemovic has not been used at all as a viva voce
witness in Sarajevo. Only the transcripts of his previous ICTY testimony at the
Hague have been submitted, without the possibility of cross-examination. That is
in itself a grave violation of a defendant’s procedural rights which, in a case
involving an Israeli citizen, Israel arguably should not permit.
of the prima facie extradition evidence is even shoddier.
inherent in accepting for extradition purposes prima facie evidence that is
manifestly defective is that it lowers the bar to an extraordinary degree. It
sets a precedent that in the future would operate very adversely against Israeli
suspects whose extradition is sought by other countries.
This is a case
that features many significant legal and moral aspects. Its implications are
much broader than merely for the accused and his family.
Not just because
he is an Israeli citizen, but also because he is a human being who is inherently
entitled to a fair and transparent trial, Cvetkovic should not be extradited to
the scandal-ridden war crimes court of Bosnia and Herzegovina. He should be
tried in Israel on whatever real evidence the authorities Bosnia and Herzegovina
might manage to submit to demonstrate his culpability.
Such an outcome
would protect the state interest of Israel as well as serve the cause of justice
because it would mark the first time that a Srebrenica defendant is tried by a
fair court, outside the ICTY/Sarajevo “judicial” apparatus.
Let us hope
that the Israeli Supreme Court will take the hint and make the right
decision.The writer is the president of the Dutch NGO, Srebrenica
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