To extradite or not, that is the question

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 roots.

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.

The 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 his extradition.

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.

The overwhelming 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 blackmail.

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 Cvetkovic.

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 genocide.

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 prosecution.

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.

The rest of the prima facie extradition evidence is even shoddier.

The danger 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 Historical Project.