Immediately after the sentencing, some of those knowledgeable about the trial, began pointing out that some facts indicate that the trial to "Abdic's man" Dedovic was a political show trial. Lawyer Senka Nozica, who was directly involved in the trial, points out one of those facts.
"When the Court in the Hague approved Dedovic's arrest based on the Rome Rules of the Road, Dedovic was a member of the Federation of Bosnia-Hercegovina Parliament. I found out about the arrest from the media, since I hadn't been yet given the case and was not aware that that would be important for me in the future. According to the information we have, Dedovic's immunity was removed before the start of the investigation. Thus, at the time of the arrest, he obviously had immunity from arrest and prosecution. Dedovic at the time hadn't been accused of war crimes that could justify his arrest, but was only under 'well founded suspicion' according to the Rome Rules of the Road. In any case, it was necessary to first remove immunity and then proceed with the arrest. I was especially surprised with the method of arrest, in the Parliament. Regardless of all legal norms that may in certain cases approve of such an arrest, as a citizen of Bosnia-Hercegovina I can certainly not approve of it. I believe that the state, namely the Police, committed an act that brought in question the legitimacy of both the Police and the state. Because, those who do not care about the dignity of all three institutions, undermine the dignity of the whole state. This wasn't the first Dedovic's visit to Sarajevo; he had been there before and it was possible to execute the arrest in a legal manner and preserve the dignity of the state."
Has Dedovic ever been given an official summons or an arrest warrant?
No. He even had a written guarantee from president Izetbegovic, Mr. Schteiner and the Office of High Representative that he wouldn't be arrested. True, he had received information that he was under investigation, but he simply believed, as he repeated in his closing address that he was "clean", that he was not responsible for anything and had no fear from arrest. Just the contrary, as a defender I have to quote my client, he was convinced that his arrival would contribute to reconciliation among the people and prove to the people who fought on his side during the war that there was not reason for fear, that the Dayton Agreement had amnestied people who were on different sides...
Can you clarify the Rome Rules of the Road?
After the establishment of the Court in the Hague, that Court received the sole authority to prosecute all individuals who have committed war crimes in the former Yugoslavia. However, on February 18 1996, the Court outlined the procedure for the submission of cases to the International Criminal Court for the former Yugoslavia in accordance with everything agreed prior to that date. That is called the Rules of the Road, and since the instructions were signed in Rome, therefore the Rome Rules of the Road. The Rules outline in which circumstances and how documentation can be sent to the Hague Tribunal. More importantly, it is envisaged that the Hague Tribunal can give an approval for the arrest and prosecution of certain persons for whom there is a firm suspicion that they have committed war crimes as outlined in domestic laws, once the prosecutor of the Hague Tribunal checks the documentation.
Your comment?
The Hague Tribunal gave its approval because of its inability at the time of founding to prosecute all those responsible for war crimes. Thus, it could be said that it agreed that trials for "less serious" crimes be conducted according to local laws, while the Tribunal reserved for itself those case where it had already issued a warrant. As far as the Rome Rules of the Road are concerned, the Tribunal prosecutor uses them to evaluate whether there are grounds for prosecution. The prosecutor allows that the whole process be executed according to the local laws, including the investigation and issuing of an arrest warrant. A contradiction arises because the Hague Tribunal follows different rules from those used by the domestic courts, especially when war crimes, grave violations of the Geneva Convention and crimes committed in a civil conflict are concerned.
What is the difference?
The difference is in the way in which responsibility for certain crimes is established. According to our war crime laws (practically, copied article 147 from the Fourth Geneva Convention) a war crime can be committed only by an order or execution. However, the Hague Tribunal includes the principle of subordination according to which a commander can be responsible for war crimes as long as he knew about the committed crimes, or could have known about them and did nothing to prevent them or punish the responsible individuals. Therefore, the Hague Tribunal sets much wider standard for responsibility. In this case, as well as in a series of others, the Hague Tribunal uses its rules to establish the grounds for prosecution. However, those rules are much wider than in our law according to which it has to be proven that someone ordered or committed any particular action: bombardment of civilians, unlawful arrest of civilians... Since we are talking about Dedovic, I'll mention only those violations of the Fourth Geneva Convention that he was most frequently charged with: unlawful arrest, torture, mistreatment, harassment... Our court was obliged to, according to the Rome Rules of the Road, inform the Hague Tribunal about each one of its decisions. However, the Rome Rules of the Road do not specify what the Hague Tribunal can do if it disagrees with a decision made by the domestic court. That was left to the domestic legal system and, in practice, once a trial based on the domestic law begins, the Hague Tribunal does not get involved any more. The Hague Tribunal showed a lot of trust in the domestic legal system. Unfortunately, this particular trial, according to the public and international organizations, is turning into a political trial, instead of a war crimes trial as was specified in our law.
What do you mean by the term "political trial"?
Unfortunately, after the Dayton Agreement, there have been very few trials for the grave violations of the Geneva Convention where the accused are from, so to speak, "our side"; instead, the accused in such trials are mostly found among political and wartime opponents. All that produces a political dimension and in a way destroys legitimacy of the state that gives it the strength to try and investigate all individuals who have committed war crimes, regardless of their affiliation. Only then, we will be in the position to have legitimacy as a state in the eyes of the whole world and the Tribunal. Thus, I believe that the Hague Tribunal rather incautiously agreed to the Rome Rules of the Road. I, as a lawyer, not as Dedovic's defender, believe that it can cause more harm than good to the state.
Dedovic was acquitted of the war crimes against prisoners of war, but was accused of war crimes against civilian population. What is the difference, since in both cases the accusations focus on war crimes?
When Martin Raguz and I were hired as the defenders, it was established that the warrant for investigation dates from 1996 and that an investigation had been conducted in Bihac. Various witnesses were questioned and there is no doubt that that was an illegal procedure. Since the Hague Tribunal had not approved the investigation, an investigative magistrate conducted the questioning. In practice, the investigation started from scratch in Sarajevo. According to the first investigation warrant, Dedovic was charged with war crimes against civilian population and prisoners of war. These crimes were specified as Dedovic's orders to set up detention camps, orders for arrest, torture and killing. Later, exclusively prosecution witnesses were questioned, since in that phase Dedovic defended with silence. We chose not to offer any evidence hoping to obtain an indictment as soon as possible and get out of the phase of the process in which Dedovic defended with silence. We advised him to do so, since in that phase of the process we didn't have the right to unrestricted contact with him. That is one of the reasons why international organizations claim that Dedovic didn't have a fair trial. The indictment claimed that Dedovic ordered arrests, that all camp guards were under his direct control and command, that the detainees were killed and tortured and, secondly, that Dedovic similarly ordered arrests of prisoners of war. Later, the indictment was modified twice. The first modification took place in July of this year. The prosecutor chose a rather unusual modification of the indictment. He charged the accused with ordering arrests, and for everything else he used the terminology used by the Hague Tribunal: "the accused failed to point out their actions to his subordinates [sic]".
How did the defense react to that?
We proposed a number of witnesses. The court selected and heard, rather randomly, only four or five witnesses, although we proposed witnesses for specific events. We are convinced that the court failed to hear even those witnesses whose testimony was crucial for the establishment of the defendant's responsibility for those actions he was finally sentenced for. However, the prosecutor changed the indictment one more time and, as I said in one of the main hearings, that indicates that the whole trial was a show trial. I don't like big words but I must say them because as a lawyer I was hoping that we would eventually reach the phase in which the trial would be conducted according to the law. This is my first political trial. I haven't seen previously in my career that an indictment is changed thrice, always based on the same evidence, once the prosecutor realizes that he cannot prove the original accusations. The last modification was done in September. According to the most recent version of the indictment, Dedovic is only charged with ordering arrests of civilians. Let me emphasize that orders or execution must exist in all cases for someone to be guilty of war crimes. Therefore it must be proven that Dedovic "ordered arrests of civilians", then "ordered torture, maltreatment and infliction of light and serious injuries"... Since the prosecutor had no evidence it is preposterous to claim that Dedovic ordered that prisoners be tortured, although it is true that civilians were beaten in prisons, but not in the manner described in the indictment. The indictment put all the individual stories together and in the end it turned out into a fierce mistreatment. The Fourth Geneva Convention requires a "higher degree" of suffering, lacking a better term, for a war crime. I fully sympathize with victims, but in order to treat an act as a "grave" war crime, according to the Fourth Geneva Convention, the suffering must be significant. The prosecutor states that all the suffering was the consequence of arrests. Dedovic is not accused of ordering that anyone be tortured. The whole issue of prisoners of war will be the object of our appeal. The prosecutor states in the indictment that Dedovic ordered that prisoners of war be placed in detention camps. Article 19 of the Third Geneva Convention specifies that prisoners of war should be interned in camps. Otherwise, prisoners may be lynched and killed by someone. Since the prosecutor couldn't show causality between arrests and torture of prisoners, he dropped the charges regarding prisoners of war. But in the first part of the indictment he leaves all the claims regarding Dedovic's authority in both autonomies, while prisoners of war were arrested during the second autonomy.
The judge reduced witness lists for both the prosecution and defense, but the prosecution was allowed ten times as many witnesses as the defense. Who testified for the prosecution?
All witnesses for the prosecution were people who were detained in camps. Only one witness was a member of the Supreme Command of the Autonomous Region West Bosnia. His testimony confirmed the need to check the claims made by the prosecution, whether Dedovic had the same authority in both autonomies, and specify the situation during the first and second autonomy. All witnesses testified to the fact that they were imprisoned, tortured and beaten in a camp, and none of them saw Dedovic. Actually, one or two witnesses saw him when he visited the camp and observed some construction work. It is necessary to check the connection between the witnesses' presence in the camp and Dedovic. We offered evidence along these lines but the court rejected it. Nor were we allowed access to the documentation held somewhere in Bihac or Kladusa. That documentation would show the character of the autonomy and was important because of the court's opinion that the conflict in question was an international conflict. We based our claim that the conflict in Western Bosnia was not an international conflict precisely on the character of the autonomy and didn't even touch upon, for example, the verdict in the Tadic case, which is still under appeal. Nevertheless, the Tribunal even holds that the conflict between the Republic of Srpska and Bosnia-Hercegovina was not an international conflict after May 19 1992, but an internal conflict. Therefore, we simply wanted to prove that the character of the autonomy was such that it was simply an armed rebellion. In that case, the Fourth Geneva Convention cannot be applied, since it only applies to international conflicts.
When did the political character of the trial become obvious for the first time?
To be honest, it was there from the start. Since the moment of arrest, during the trial... It was there, since that is unavoidable in such a situation, but once the verdict is delivered it becomes important. I accept the opinion of the international organizations because a day after sentencing I heard from the people in the streets that it was a political trial after all. Probably, the people reason like this: if the judge himself during the reading of the verdict stated that there was no evidence that Dedovic tortured people and did this and that, that implies that the trial was a political trial. The whole story smells of politicians' involvement in the judicial process, and worst in that is what I call political retaliation. The revenge against political enemies through trials and sentences. We need strength to get away from that.
Who needs to find strength for that?
The court. But in these political circumstances, I find it hard to believe that the court has strength to do something like that and that's why I said, after sentencing, that I felt sorry for the court. I believe that the court understood many of the arguments mentioned in our closing word. I think that it is very dangerous if in a trial you are not allowed to prove some obvious facts, for example that one and one is two. Forget about Dedovic. What happens if in the future I end up in court, what will happen if you, or the judge end up in court and politicians do not find it in their interest to let him go free... What if you and me, only because we were members of a certain organization or a side in a the war have to take responsibility for everything regardless of whether it has any connection with our personal and individual responsibility? As a lawyer, I support legitimacy and moral dignity of the court because I feel as a part of the court. I am a single brick in the judicial system and I wished the court had enough courage to overcome all that pulls us backwards and makes up a non-democratic state. But the court is an integral part of this state and cannot differ from the general situation.
Translated on 12/5/98