I am your client, Refik Hodzic. Perhaps you are surprised to hear this since we have never met and you are not directly familiar with my name, but allow me to explain the two bases of our relationship, which stems from your role in the team that submitted the futile application for revision of the International Court of Justice’s judgment from 2007 in the case of Bosnia and Herzegovina vs Serbia.
I come from Prijedor, northwestern Bosnia and Herzegovina, Mrakovačka Street, a small street on the northern outskirts of the city. Edin Mušić Muha and Damir Arslanagić Danicin, my childhood friends, were also born and raised in the same street. Nedžad Delkić, another childhood friend of mine, lived the next street down. He introduced me to comic books, which is precious guidance in Bosnian teenage culture as you can easily be led astray toward Marvel or DC Comics, and so entirely miss the Belgian and Italian schools of the graphic novel. Nećko made sure I got into the best stuff. Well, Edin, Damir and Nedžad were all killed in 1992. As were Sabahudin Kuburaš Kuba and Zedin Delkić Zedo, also my childhood friends. Kuba was incredibly good at football, or soccer as you Americans call it, and had an ilustrious future ahead of him. He was killed at Korićanske Stijene, I am sure the place will ring a bell. As will the Omarska camp. Perhaps you will also remember a reference to one of the most horrendous killings committed there, described in the Tadić judgment as follows: „All three detainees were made to get out of the pit onto the hangar floor and Witness H was threatened with a knife that both his eyes would be cut out if he did not hold Fikret Harambasic’s mouth closed to prevent him from screaming; G was then made to lie between the naked Fikret Harambasic’s legs and, while the latter struggled, hit and bite his genitals. G then bit off one of Fikret Harambasic’s testicles and spat it out and was told he was free to leave. Witness H was ordered to drag Fikret Harambasic to a nearby table, where he then stood beside him and was then ordered to return to his room, which he did. Fikret Harambasic has not been seen or heard of since.”
Fikret Harambašić was my cousin. He was a star cop in Prijedor police district. He taught me and his younger brother Mufid the best way to barbecue fish.
My uncle Hasan and his son Amir also lived in Mrakovačka Street. They were also detained in Omarska. But they survived, together with my other uncle Husein and cousin Nedžad, who experienced the hell of Keraterm. They survived the camp, I mean, but my uncle Hasan died not too long after, never having recovered from what he went through in this death factory run by officers on the payroll of Slobodan Milošević at the time. Just as were those who killed Edin, Damir, Nedžad, Kuba, Zedo and more than 3000 of my fellow citizens of Prijedor. I could go on like this for pages, but I will stop here, since I think you understand what I am getting at: I have a serious, substantive and specific interest in your work supposedly representing the interests of victims’ families in the case of Bosnia and Herzegovina versus Serbia at the International Court of Justice.
The second basis of my entitlement to the truth I am seeking from you in this letter is the fact that I am a citizen of Bosnia and Herzegovina, I own property there and I annually pay my share of taxes to the various manifestations of the state. My interests as a citizen in this case are twofold: that the standing of my country in the international arena is not negatively affected and that my tax money is not misused in any way. As I am sure you will agree, in a country like Bosnia and Herzegovina, ruled by people deeply steeped in corruption and incompetence, it may seem laughable to be concerned about these things, but that does not mean one should not insist on standards promoted by our international friends who have so keenly demonstrated their eagerness to help us ever since the war ended.
Based on these two elements I request some answers about your recent (and possibly ongoing) engagement in the application for revision of the judgment of the International Court of Justice in the case of Bosnia and Herzegovina vs Serbia in the matter of Serbia’s role and responsibilities in the breaches of Convention on prevention and punishment of genocide, which was recently rejected by the court in the most embarassing (for me as a Bosnian citizen) of manners. Ordinarily I would keep this correspondence confidential, but your interview to N1 TV from 15 of March compelled me to address you publicly as you chose to adress the public of Bosnia and Herzegovina, comprising hundreds of thousands of clients like myself, in the most public of ways with some unpalatable explanations. After all, we will agree that if anything, after all these years of mystification and manipulation, after this adventure with the application buried the last hopes we would get at least some truth about Serbia’s responsibility for crimes in our country from the ICJ, we deserve complete transparency and honesty from you.
I will appreciate receiving your responses in whatever form you prefer to the following questions:
- Who do you work for?
In a recent interview to the TV channel N1 you stated that there might be „some other options“ to pursue this case even after the application for revision was so unceremoniously rejected for not constituting a proper application on behalf of a state, as is the minimal condition for matters to be discussed before the ICJ. You also said that you were not „authorized to discuss these options further“. On whose behalf are you continuing to „consider further options“, or more precisely – who are you working for? It certainly is not the state of Bosnia and Herzegovina, as we both well know that there have not been decisions by any of the relevant state bodies to enter the process of revision (after all, this was the reason the ICJ rejected your application without consideration), nor, to my knowledge, to pursue „other options“. It can’t be the Bosniak member of the Presidency of BiH Bakir Izetbegović as he himself said on several occasions, including in an interview to BHRT on 24 February that „he did not file the application“, and only supported it, whatever that may mean. It surely cannot be Mr. Sakib Softić, as it is unfathomable that a lawyer of your credentials would engage in an adventure of this kind solely on the invitation from a man who referred to himself in 2013 as a „former agent“ and who last year received clear instructions from the relevant officials of the ICJ that he has no legitimacy to represent Bosnia and Herzegovina in the proceedings of revision of the judgment from 2007. So, Professor Scheffer, please clarify for me who was it that you thought you were representing here, on what basis, was there a contract that I can see and, most importantly, who is not authorizing you to disclose these „other options“ to the people in whose name you are supposedly doing this?
- How do you explain your continued engagement in the team led by Mr. Sakib Softić in light of the clear communication from the ICJ in May 2015 that he needs a new decision from appropriate state authorities to file the application for revision of 2007 judgment?
Was it really that you were taking „a gamble“ on something of such historic importance and with tectonic consequences, as you indicated in your N1 interview? A gamble that the court will ignore the its own previous communication with precise instructions as to what is needed for the application to be legitimately submitted on behalf of the state of Bosnia and Herzegovina? A gamble in a situation where – even if there did not exist such an explicit instruction from the court regarding Softić needing a new decision of the state of Bosnia and Herzegovina to file the application for revision – there was sufficient reason to believe that Softić would have no legitimacy before the court as explained in recent texts by legal scholars Dapo Akande and Marko Milanovic, who deconstructed the flimsy theory that court should have taken a decision from 15 years ago, made before the case was closed in the final judgment in 2007, and treated it as proof of Mr. Softić’s legal standing in these new proceedings, which would run counter to its own position communicated in the letter from May 2015. I am convinced that a respected lawyer like yourself or anyone with experience in litigating similar cases would never take such a gamble, so this is why I am looking forward to your clarification.
- How can you, as a senior member of the team, justify such blatant absence of transparency and honesty in a case which is supposed to aim for the ultimate transparency – that about a state’s involvement in genocide in another state?
Professor Scheffer, it would pain me to recite all the ugly detail of the most inappropriate dealings behind the scenes that have gone on in the past year or so around this case. Most of them have now surfaced in the media through accusations and counter-accusations of some people we now know were involved in closed conversations about a matter of enormous importance for the wider public of Bosnia and Herzegovina. I am sure more will come out in due course (for example, I personally know experts who were approached by shady „representatives“ from Sarajevo with offers of huge monetary compensation to take on this case (and rejected the offer), and there is now an investigation into the matter before the state prosecutor. However, the public still knows nothing about how decisions were made, when and by whom, and, most importantly, what does the application actually contain. The incredible explanations that „secrecy was needed to avoid Serbia subverting the case“ we heard from people claiming to have been part of the team beggar belief in light of the fact that application for revision of the judgment is possible only „when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision.” We are talking about a FACT of such decisive nature that would change the ruling from 2007 in relation to Serbia’s role in genocide in Bosnia and Herzegovina. To think that Serbia is not already aware of such a fact is utterly ridiculous. In fact, to think that the existence of such a decisive fact is not already known to anyone but your team and the mysterious people around it is utterly ridiculous. And lastly, even if such baseless explanations could be taken seriously before the application was rejected, what on earth is the justification for keeping the content secret from the public and victims now that it is all over?
- What new evidence were you counting on to satisfy the provisions of the Article 61 of the ICJ statute?
Do you not think that, as your client, I deserve to know with what were you going into this crucially important process? All that those of us outside the privileged circle invited to the consultations in Sarajevo City Hall on February 17 could hear so far is nonsense about a „mosaic of evidence“ from various times, sources and trials that „accumulated“ over the last 10 years, that decisive evidence came from the trial of Ratko Mladić and that exhumation of the Tomašica mass grave serves as illustration of such key evidence. I so desperately hope this is exactly what it sounds like – nonsense of those who do not know anything about the ICJ judgment from 2007, about the article 61 of the Statute, about the trial of Ratko Mladić or cases concerning Prijedor where genocide was charged – and that you will give me a response worthy of your credentials. I can’t accept as necessary a serious discussion on the mentioned concept of „mosaic of evidence,“ as I am sure you will agree, as this is nothing but language of political spin, entirely divorced from the reality of the case and 2007 judgment. But I will say that one of the people who prosecuted the case against Ratko Mladić told me that “the Mladic case (the most recent litigation of those issues) is not likely to be seen as advancing significant new evidence of Serbian involvement, which in any event was not the focus of the case.” And Serbian involvement is what constitutes any allegation of responsibility based on the Article 9 of the Convention on Prevention and Punishment of Genocide, which is the sole basis for ICJ’s jurisdiction in this case, no? As for Tomašica, being from Prijedor this was a particularly difficult „explanation“ to digest, that the discovery of this mass-grave will somehow overturn the court’s and ICTY’s jurisprudence on charges of genocide in Prijedor (and I imagine other places). I am sure someone of your knowledge and experience in the mater will know, Professor Scheffer, that despite being charged in 14 separate cases, charges of genocide were never proven in relation to Prijedor. Unfortunately, and for me, unacceptably. But they were not. And the size of Tomašica mass grave was not going to do it, either. If only sizes of mass graves were able to prove genocide. For we in Prijedor would already have several such genocide judgments and the ICJ judgment itself would be different in its findings, since the mass grave in Stari Kevljani near Prijedor, discovered in 2004, contained 456 remains of bodies, 19 more than what have been able to exhume from Tomašica thus far.
- How were you going to overcome the provision of the article 61 that clearly seeks that any such decisive evidence must be submitted within 6 months of coming to light?
We both well know that had the case passed the first test, had your team had a valid decision of the state to submit the application, and had it come to the discussion of admissibility, that Serbia would have attacked this as the weakest point in the submission. We also know that the infantile explanations given by some of Izetbegović’s spin masters that this would have been circumvented by relying on the closing arguments in the trial of Ratko Mladić is just that – infantile. This because closing statements contain no evidence as such, especially not any new facts of the nature required by the provisions of the Article 61 of the ICJ Statute, and that the prosecution case from which such evidence was supposedly drawn – even if such decisive evidence was presented in it, contrary to what those who prosecuted the case have told me – closed in February 2014. How can anyone serious have expected judges to accept that the new fact required for the revision of the 2007 judgment was then only discovered two years later?! And so much for the blasted „mosaic of evidence,“ which in the interpretation of some of Izetbegović’s spokespeople includes evidence „discovered“ in similar ways in trials like Perišić’s, which were completed even earlier. Unless we count as discovery some sort of epiphany on the part of the team that emerged from this „mosaic of evidence.“ I am sure that you would have found it an interesting, challenging and perhaps even enjoyable feat to try and argue the impossible before the judges, but you will understand that for me such legal adventurism in a matter of this magnitude is not only irresponsible, but also bordering on unethical.
- Were you not at all concerned that the application may be seen as not in good faith by the judges of ICJ, considering that it was submitted literally two days before the expiration of the 10 years deadline, in a bizarre manner where Mr. Softić is delivering cardboard boxes with the evidence from the trunk of his car?
I will not elaborate this question further, but ask you to see the relevant language in the decision on the application for revision in the case of El Salvador vs Honduras. I do not think I will ever overcome the embarrassment I felt watching the images of our application being „submitted“ in this incredible manner.
- Have you at any point had any thoughts, warned or communicated in any way to the people who contracted you about the obvious consequences of the failure of the application making it to the discussion of meritum?
I am sure you are aware of the consequences now, as you yourself could witness the humiliation and distress of victims upon receiving the news of ICJ’s decision, or the crisis eroding the fragile institutions of the state of Bosnia and Herzegovina, or the strengthening of the denialist politics of Milorad Dodik and his allies in Republika Srpska and Serbia who could not hope for a better gift in their effort to reject responsibility for the crimes committed by Serb forces, or the loss of support in the international community for keeping the pressure on Serbia to face up to its responsibility for crimes in Bosnia and Herzegovina, and so on, and so on. Today all this is obvious, but my question is, did this ever occur to you as possible repercussions before you „took the gamble“, as you said in the N1 interview. Were you aware what you were gambling with? And what the losses incurred by Bosnians would be if you lost? What was at stake for you personally in this gamble as opposed to the hopes and expectations of the tens of thousands of victims who pinned their hopes, however naively, on this adventure?
- Can you disclose financial arrangements surrounding your involvement? Is there a contract for your services? With whom? How much did your services cost and if they were covered by a third party who is that third party? How much did the services of other international members of your team Allain Pelet, Paolo Plachetti, Phon van den Biesen, cost? Who covered their costs?
- Lastly, do you believe that the public in Bosnia and Herzegovina and Serbia are served well when in the aftermath of a decision by a court of such standing as the ICJ, a lawyer of your experience and standing claims that the decision in the matter he litigated in (or attempted to litigate, to be more precise) was made by a court that did not “honor its own rules and statute” without providing anything in support of such an inflammatory claim?
I am sure you are aware of the rampant culture of denial that exists in both Serbia and Bosnia and Herzegovina, where despite mountains of evidence and multiple ICTY judgments establishing facts beyond reasonable doubt, leading politicians in Serbia and Republika Srpska still deny that genocide happened in Srebrenica or that non-Serbs were exterminated from Prijedor and 36 other municipalities in the RS. Do you think that your statements help counter this culture of denial of judicial findings or in fact inflame it further with such open rejection of court decisions?
Professor Scheffer, it is with eagerness that I expect to receive your response. If we ever had a chance to meet, I could tell you about some other expectations of mine. Like those I had that ICTY trials would produce a judgment of genocide for what happened to me and mine in Prijedor. I could tell you about hours I spent in those Hague courtrooms thinking that there can be no way judges will not agree that what happened in my hometown was genocide. Yet, they never did. Just as the ICJ judges did not in 2007. It took me years to understand their reasoning and overcome the rage and the crushing disappointment I felt because of their decisions.
But let’s say that those expectations of mine are irrelevant for this matter. In any case, they can hardly measure up to the expectations of mothers who lost their children, survivors of concentration camps, those raped and tortured, expectations of all justice-thirsty direct victims in Bosnia and Herzegovina, which skyrocketed when they were led to believe by Mr. Izetbegović and those around him that this application had genuine chances of success, that the fight will „go on for years,“ without knowing how utterly baseless in fact this adventure is. I am sure you are aware of the destructiveness this outcome had on those among us that are most vulnerable – victims and their families. And here I am not talking about the privileged few you likely interacted with, who operate in a kind of symbiosis with political operators like Mr. Izetbegović, and who were directly involved and greatly benefited from various budget lines which paid out millions over the years for activities on the „implementation of the ICJ judgment“ or other handouts by the Bosniak masters of budget funds. No, I am talking about the likes of Mina, mother of my friend Zedin, whose expectations from this were such that any words of caution would have been seen as a personal insult. If you care, you can read about her reality in the text I am attaching to this letter. The only thing greater than her expectations raised by the project on which you were one of the key protagonists, would be her disappointment and humiliation. It is because of her I am writing to you, as she is just like me – another client of yours who deserves these answers.
In expectation of your response.