Nick Kaufman only met for the first time with Aleksandar Cvetkovic Wednesday morning two weeks ago, in the Jerusalem District Court. His new client, his head wrapped in a gray hooded sweatshirt, had arrived from Nitzan Prison for a hearing on the extension of his custody. He had been arrested a day earlier in his home in Carmiel, in the Galilee, on suspicion that, together with his colleagues in the 10th Sappers Unit of the Bosnian-Serbian army, he participated in the massacre in Srebrenica, a Muslim town in Bosnia, in July 1995.
Last August, the Bosnian government asked Israel to extradite Cvetkovic. A representative of Israel's State Prosecutor's Office (which had received investigative material from the Bosnians), who asked the court to declare Cvetkovic "liable for extradition," presented eyewitness accounts describing how innocent civilians were taken off buses with their hands bound and were led in groups to the killing ground. There, while they stood with their backs to the firing squad, they were shot and murdered.
"An evening before the hearing on the extension of custody, the Public Defender's Office got in touch and asked me to join the case," says Kaufman, who meets with Haaretz in a Jerusalem cafe. "Srebrenica is undoubtedly one of the most notorious acts of mass extermination in post-Holocaust Europe. In the course of a few days, about 8,000 Bosnian Muslims were murdered [by members of the Serbian Army of Republika Srpska]. What set off the pursuit of Cvetkovic is old testimony of a member of his unit, who was tried in The Hague and sentenced to five years in prison. According to that testimony, it was said that Cvetkovic not only participated in the shooting but also complained that the pace of killing was too slow and wanted to switch to the use of a M84 machine gun. During that incident, over 1,000 people were murdered at the Branjevo [Military] Farm, between 10 A.M. and 3 P.M. [on one day.]"
Kaufman is an expert on international law. He accepted the urgent request to join attorney Vadim Shub and to defend the Israeli who is being sought for trial in Bosnia for crimes of genocide.
Kaufman: "This is a rare legal event. It's the first time that someone suspected of genocide was arrested in Israel. Until now, Nazi criminals Ivan Demjanjuk and Adolf Eichmann were tried in Israel. But they weren't Israeli citizens, and they were captured abroad and brought to trial in Israel. This is a historic moment in Israeli law, a moment in which, for the first time, an extradition proceeding of an Israeli citizen for crimes of genocide has begun ... This is of tremendous significance.
"To tell the truth," he reveals with surprising candor, "I didn't even interpret the concept 'genocide,' which hovered in the district court, as something shocking. I didn't have time to look at my client and to ask myself questions of that kind: whether the man I'm representing was involved in the acts attributed to him by the Bosnian government." In any case, he adds, "That's not something I usually do. Of course a judicial case that deals with genocide is not at all a simple matter, but the moment that you're dealing with numbers of that magnitude, everything loses meaning ... During those moments I was busy with the legal aspect, I asked myself only one thing: Can the prosecution prove its claims? In such a situation there's no emotion - everything is very professional."
Kaufman, formerly a senior district attorney in the Jerusalem prosecutor's office, was the first Israeli prosecutor to work in the International Criminal Court in The Hague. His list of clients includes Kaing Guek Eav (better known as "Comrade Duch" ), head of the Tuol Sleng Prison, in Phnom Penh, one of the symbols of the atrocities of the communist Khmer Rouge that ruled Cambodia in the mid-1970s. In his trial, which took place in Cambodia, Eav, who was called "the hangman of the Khmer Rouge," admitted that he was involved in the torture and murder of about 12,000 people. Last July, he was convicted of crimes against humanity and sentenced to 35 years in prison.
Only recently did Kaufman leave hastily for Paris, in order to meet Callixte Mbarushimana, an activist in the underground movement of Hutu refugees in Congo (the Democratic Forces for the Liberation of Rwanda, FDLR ), in La Sante Prison in Montparnasse.
"It was just like in the movies," says Kaufman in disgust. "There's a wing of highly placed prisoners - a kind of despots' wing. Manuel Noriega, the dictator from Panama, is there now. Klaus Barbie, the Nazi criminal who was dubbed the Butcher of Lyon, was imprisoned there after his conviction for crimes against humanity. I arrived at this horrifying prison a day after Mbarushimana was arrested. Immediately, at the moment of his arrest, someone called on his behalf and informed me that police were taking him from his home."
His arrest came in the wake of reports of the mass rape of 500 women in the Kivus district in northeastern Congo last July. It also emerged that dozens of United Nations soldiers who were nearby had not prevented this. The charge sheet against Mbarushimana, which received wide coverage in the media, attributes personal responsibility to him not only for the acts of rape in Kivus, but for all incidents of rape and murder carried out by the FDLR in the Congo since 2009.
In all, there were 11 counts against Mbarushimana - five of crimes against humanity (murder, torture, rape and persecution ) and six of war crimes, including attacks against a civilian population and destruction of property, which "were carried out with the purpose of creating a humanitarian catastrophe."
"According to the claim," says Kaufman, "Mbarushimana served as the military secretary of the FDLR and therefore bears responsibility for the crimes ostensibly committed by the organization. But the prosecution has to prove the claim that he really was the military secretary, as well as the claim that he conspired to commit the acts attributed to him. While some of the players are already under arrest in Germany and others are serving in senior positions in the Congo government or in Rwanda, he has become a lone and easy target. The world is now alarmed and wants to catch someone on whom to pin responsibility. They wanted a scapegoat."
Do you feel that Cvetkovic is also being persecuted for the wrong reasons?
Kaufman: "Definitely. After all, he didn't flee to Israel, as they're trying to describe it. He even gave testimony on the matter a few years ago, of his own free will. He cooperated then; nobody tried to have him stand trial, in spite of the fact that others were tried. The request for extradition contains political elements that cannot be ignored. Today everyone agrees that genocide was committed in Srebrenica; the question that remains open is whether those who participated in the killing had the intention of committing genocide. Bosnia's policy is that anyone involved in the massacre should be tried for genocide. To this day only two commanders have been convicted of this charge. They were sentenced to life imprisonment, and their case is still being appealed. The soldier on whom the accusations against Cvetkovic are based was not convicted of genocide. That's why there's a whiff of discrimination in Cvetkovic's case. Because if a fellow member of his unit was convicted of murder and sentenced to five years in prison, why is Cvetkovic, who was in exactly the same unit and is suspected of behaving in a similar way, accused of involvement in genocide?"
In that case, such a charge could paradoxically help him, in the legal sense.
"Yes, because in my opinion it will be very difficult for the country to prove such a harsh charge. In such a legal situation, it's not enough to prove elements of killing and murder. There is need for the additional component, which is extremely hard to prove: the intention to eradicate an ethnic group. I can kill a hundred Jews without intending to eradicate an ethnic group. Genocide with intent is true of Hitler, who admitted his intentions. Usually, the best way to prove the intention of eradicating an ethnic group is through the testimony of the suspect himself. In our case, Cvetkovic denies any involvement in the murder."
But he admits that he was there.
"He was the driver of a bus that transported soldiers, but he didn't participate in the shooting. Therefore, I ask myself, if we're talking about a rank-and-file soldier, not a big commander, isn't it going too far to attribute such charges to him?"Guilty in the Diaspora
Kaufman, who lives in Jerusalem's Pisgat Ze'ev neighborhood, was born in Liverpool, England; his father was a surgeon and his mother a housewife. When he was 2 years old the family moved to Birmingham.
"You could describe my family as a traditional Jewish family," he says. "We observed kashrut and Jewish holidays, we attended synagogue often, but we didn't observe Shabbat. We were always connected to Israel. In my childhood I was a member of a youth movement, but the ideological aspect wasn't so important; I went mainly in order to participate in the summer camps. But it's true I always felt guilty about living in the Diaspora rather than in Israel. As a boy, every time I came for a vacation in Israel, I felt that this was my place. In that sense I'm a kind of strange bird, because although Judaism and tradition are a significant component of my identity, I don't define myself as a religious Zionist, nor do I wear a skullcap."
At the age of 18, he started studying law at Cambridge University, but that was a concession "because my big dream was to be an actor. That's why I was initially attracted to libel trials, which were the closest thing to appearing on stage, a very interesting field in which the trials, at that time [in the U.K.], were conducted before a jury."
When he completed his clerkship, he returned to Birmingham, where he switched to criminal law and began working as an independent defense attorney. But in the summer of 1993, aged 25, he decided to immigrate to Israel.
"All my friends had already immigrated to Israel and I was still in England," he says. "In Birmingham there weren't many Jews and I felt quite lonely there. That was the trigger that got me out of there."
Before coming he made a pilot trip: "In the Foreign Ministry, they had no interest in talking to me, but the deputy military advocate general at the time, Col. Yossi Telraz, agreed [to talk to me]. After meeting him I decided to immigrate and to enlist in the army."
In 1996, after serving in the Military Advocate General's Office for two years and participating in the legal processes associated with the Israel and Jordan peace agreement and the "Gaza and Jericho first" agreement, Kaufman joined the Herzog Fox and Neeman law firm in Tel Aviv.
"I didn't get along there," he recalls. "Corporate and tax law didn't interest me much. After a year, my Hebrew was already good enough to work in criminal law, and I wrote to Moshe Lador, today the state prosecutor, and then the Jerusalem district attorney ... I knew that I would acquire experience there, that that's where the action was, that you appeared in court."
Lador appointed Kaufman as a prosecutor in the Jerusalem District Attorney's Office. After a successful 16-year career, he contended for a position as department head in the State Prosecutor's Office, dealing with representing Israel in international legal processes. He says he "very much wanted the position" and, when he understood it wasn't to be, left the prosecutor's office last year.
Today, Kaufman is still bitter about the process which, he contends, was not carried out fairly. "The selection totally ignored the rules of the Civil Service Commission." In fact, the professional organization of the state prosecutors protested the process, and eventually, the Justice Ministry was required to reissue the tender for the position, but by then, he says, "I was already somewhere else."
At the same time he was asked to join the defense team of Jean-Pierre Bemba, former vice president of the Democratic Republic of the Congo, one of the most senior political figures ever brought to international trial. With some reluctance ("I immigrated to Israel in order to serve the country" ) and trepidation, he accepted the offer.
Kaufman: "It wasn't an easy step. It was very frightening to resign for the sake of a single case. Because a defendant is not like a country: He can wake up one day and decide that he doesn't want me, tell me goodbye and I'm left without a livelihood. I asked myself if I would even succeed outside. It was a complex dilemma, because I could have continued to be a rank-and-file prosecutor in the Jerusalem District Attorney's Office, and in another 10 years retire on a pension."From palace to prison
Kaufman also provides legal assistance on a volunteer basis to captive soldier Gilad Shalit's father Noam and to Nadia Cohen, the widow of Israeli spy Eli Cohen. And last month, he flew twice to Holland to meet Bemba, whom he had met last year for the first time in the ICC jail following his arrest in May in a suburb of Brussels. According to the indictment, which attributes three war crimes and two counts related to crimes against humanity, Bemba's loyal soldiers have turned mass rape into a horrifying instrument of war. All, the prosecution claims, for the purpose of "preventing civilians from helping the rebels" in the Central African Republic.
Bemba's trial began about two months ago. "Every time he wants to meet with me, I fly to him. I started representing him about a year ago. He is in effect my first client as a defense attorney. In meetings with him I was very impressed by him. He's a charismatic person, very smart. For him, this downfall is a serious blow. He's used to an entirely different standard of living, he came from the palace to a prison. After the civil war and the peace agreement signed in the Congo in 2003 he served as President Joseph Kabila's deputy. In effect, he controlled the Congo's northern districts."
The actions for which Bemba was indicted involved soldiers from his former rebel group, the Movement for the Liberation of Congo, "who were sent as a peace force to the neighboring Central African Republic, after a revolt erupted there under the leadership of Francois Bozize, the former army commander."
That was in October 2002. "They claim that his soldiers raped and looted," explains Kaufman. "In fact, at first Bemba was accused of direct responsibility, giving orders and actually committing the crimes ... Since I started handling the case, the indictment for direct responsibility has been removed; today he is accused only of command responsibility. In this context, the charge is that he didn't prevent his soldiers from carrying out the deeds that were done and did not punish them."
Kaufman says he believes Bemba "wholeheartedly": "I don't have, and didn't have, any problem representing him," he says determinedly. In fact, Kaufman is convinced that the prosecution of his client is politically motivated.
"Bozize, who came to power after a coup, apparently with Kabila's encouragement, is the one who initiated the request that led the ICC to intervene and to open an investigation of Bemba. When I sat with him for a week in the prison, every morning, we went over the evidence and the accusations in the file and I couldn't shake the impression that he was in The Hague because of the desire of various political forces to harm him. Probably Kabila, the incumbent president in the Congo, and Gen. Bozize, the incumbent president of the Central African Republic, are profiting from the fact that Bemba was removed from the picture.
"The court in The Hague has become the arena in which African leaders settle political accounts," he says, carefully choosing his critical barbs. "This is a worrisome phenomenon that deserves attention. What's happening in Africa is that anyone who feels politically threatened, who doesn't want anyone to run against him in elections, who doesn't want to send his soldiers to guard the border, extradites his opponent to the court in The Hague. I think, for example, that Bozize played a very significant role in everything that happened in his country in 2002-2003. He is definitely not without blemish, far from it. After all, he came to power as a result of a coup. Is the ICC prosecutor, Luis Moreno-Ocampo, investigating Bozize's deeds? Is anyone concerned about the legality of the request made by a country headed by someone who carried out a coup?"
How is it that the ICC is being dragged, according to your description, into such a culture of finger-pointing?
"Because the policy of the chief prosecutor is to encourage African countries to direct crisis situations to it, the court doesn't have much choice. According to Article 14 of the Rome Statute of the International Criminal Court, the moment a member country of the ICC sends a case to the prosecutor on its own initiative" he can begin an investigation immediately, without the approval of the court.
Do you share the feeling of Israelis that the ICC is a threat to them?
"There really is too much preoccupation with The Hague and I haven't been able to understand why. In my opinion, Israel has no reason for concern. I don't think the prosecutor would make such a hasty decision during his tenure and open an investigation against us. If the United Nations Security Council doesn't turn to him, the only way he can open an investigation against us is to accept the request of the Palestinians to investigate and judge violations of international law in their territory. Such a decision requires him to recognize the Palestinian Authority as a state." Kaufman says "it's hard to believe" that will happen.
What is your opinion of Israel's consent to begin the extradition proceeding against Cvetkovic? Does that undermine the Israeli approach that maintains we don't cooperate with countries and judicial bodies that are likely, according to the same principle, to request the extradition of Israel Defense Forces soldiers and their commanders?
"On the contrary. Israel should have no problem extraditing people to the war crimes court in the former Yugoslavia. We are actually required to extradite those wanted by that court by dint of Article 2a of the Israeli Extradition Law, and that is a step that was taken with the consent of the Knesset. Israel's problem is with the ICC, which was established according to the Rome Statute in 2002. Israel doesn't recognize it, due to the fear that this specific court, which is run by an independent prosecutor, will act against it. The possibility that some country or other will act against Israeli citizens, on the basis of its universal authority to judge people who are not its citizens, for deeds that were carried out outside its borders is not at all connected to Cvetkovic's extradition proceeding."The most serious crime
In 2005, Kaufman became the first Israeli prosecutor to participate in a legal proceeding in the ICC. Dozens of people accused of war crimes have been tried in this court. Kaufman, for example, was one of the three prosecutors in the case in which Gen. Pavle Strugar of Montenegro, the commander of the Yugoslav army's attack on the Croatian port of Dubrovnik, in 1991, was convicted.
"The moment they hit Dubrovnik, a historic city that was recognized by Unesco as a World Heritage Site, the world's attention was drawn to the war," recalls Kaufman. The heaviest round of shelling took place on December 6, 1991, when a commemoration of the 200th anniversary of Mozart's death was taking place.
"One of the witnesses whom I brought to testify in that trial," recalls Kaufman, was Djelo Jozic, the conductor of the Dubrovnik Symphony Orchestra who, exactly at the time when the shelling began, was conducting a Mozart symphony. In my opinion, until that shelling, the battle there didn't interest anyone. Because the disintegration of Yugoslavia was seen as an undesirable thing, the world supported the Serbian [Slobodan] Milosevic to some extent. They preferred to give him the backing and to leave Yugoslavia whole. That was until he began to attack Dubrovnik. Then genuine doubts about him began to arise."
Did you feel a sense of mission as a prosecutor in an international court for war crimes?
"I have always considered crimes against humanity and genocide as the most serious crime there is ... That's why I was attracted to working there. I loved my work as a prosecutor in the ICC, the idea that this is work that combines criminal and international law .... Most of the criminal cases that I deal with now are war crimes committed by primitive means - murder with machetes, knives and bayonets - while the war in the Balkans was a 20th-century conflict, in terms of the weapons. From a legal point of view, a battle of that type is more interesting."
It seems it was hard for you to sever yourself from the experience there.
"Yes. After I returned to the Jerusalem District Attorney's Office, I was unable to stay away from that type of work. That's why in 2008 I once again went out to work for about two years as a prosecutor in the ICC. This time I was assigned to African cases, including that of Joseph Kony, the leader of a rebel militia from northern Uganda [the Lord's Resistance Army], who is responsible for many acts of murder and horrors committed in Uganda over the last decade. He sees himself as a prophet, it's not clear what exactly his agenda is, but he and his army, child soldiers, go from place to place in northern Uganda and commit murder. He has yet to be extradited to The Hague, although an arrest warrant has been issued against him."
Do you feel comfortable with the transition from the prosecutor who brings the most heinous criminals in the world to trial, to being their defender?
"That's my work, I'm a criminal defender. I'll represent anyone who needs my services. Of course I wouldn't represent a Nazi war criminal, because that would be in total contradiction to my being a Jew and an Israeli. But that's an ethical question and I'm not a philosopher. I'm a lawyer. My job is to represent people. I don't judge them when they come to me, just as a doctor doesn't judge the patients who come to his clinic. As long as there's no conflict of interest, I'll represent anyone. When I represent someone, I don't ask myself ethical questions, it's irrelevant. The only question that concerns me is: Is there or isn't there evidence?"
Is that the sum total of everything?
"When I was working as a British attorney, there were days when I appeared in court in eight cases. In half of them I appeared as the prosecutor on behalf of the state and in the other four I appeared on behalf of the defendant. According to British tradition, the prosecutor doesn't identify with either of the parties, he can appear on behalf of the state as well as on behalf of the defendant. He sells his abilities - analyzing evidence and speaking ability. He's a mercenary, that's the beauty of the legal system."
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