Sunday, March 25, 2007

IWPR Update and Spanovic

Couldn't really think of a catchy title.

The IWPR has updated their tribunal section; including an article about Milan Spanovic's extradition hearing in London.

This issue has already been dealt with on the very timely and informative, Neretva River blog; but there were a few things that caught my eye when reading quotes from the judge from the IWPR article.


“I have in mind that the alleged offences were said to have occurred during a period of civil war in which inevitably evidence will be hard to find or reconstruct,”


"Witnesses’ memories after such a lengthy period during which radical change took place will have faded or be inaccurate. Inevitably, some witnesses may be unavailable or impossible to trace.”


1. Is there an undue emphasis on the "civil war" aspect here? Reading these quotes admittedly out of context; the judge seems to convey a rather lax attitude about alleged war crimes committed during a "civil war."

2. The judge must also be clairvoyant as well as he apparently knows that the witnesses' memories are now inaccurate and that some of them are MIA.

3. I think this issue goes far beyond this one case, or even about British immigration laws. Already the Spanovic ruling has served as "inspiration" to one "Captain Dragan." I have a feeling that this case will be of "inspiration" to many more war criminals from all around the world.

4. How much time needs to pass before a crime is no longer worthy of being dealt with in a court of law? In other words, how much time must pass before an alleged crime ceases to be a crime?

5. I'm sure I would not have to do a very intensive "Google" search to find at least one story of an immigrant/asylum seeker, including perhaps a Croatian-Serb extradited from the UK to his/her native country under dubious legal circumstances. Chances are that said person is not alleged to have been involved in atrocities.

11 comments:

Yakima_Gulag said...

I think some people in the U.K. have a hidden agenda on this sort of crime, because of events in Northern Ireland in the last three decades of the 20th century.

Owen said...

Shaina, the basic situation is that Spanovic isn't an asylum-seeker. he was granted asylum in 2002, so an application for extradition had to be judged in the light of overturning that status, not quite the same as the usual often brutal treatment of refused asylum-seekers identified as economic migrants.

Whether or not Spanovic should have been granted asylum status is another matter, but the chaos and inconsistency at the Home Office is enough to explain a lot of things even if untoward motives may be involved in some cases.

I hope you'll excuse me lifting the following (which I've slightly modified) from the comments I posted at Neretva River after you pointed me there - thanks for that, I'd completely missed the decision.
It certainly does raise some very important issues of judgment but I don't think it's simply a matter of judicial ignorance or hidden agendas (Yakima Gulag, it looks as if tomorrow the UK govt's hidden agenda will be successful in handing over power in the Northern Ireland Assembly to the two parties of war criminals elected to represent the democratic majority).

Timothy Workman, the senior magistrate at City of Westminster Magistrates Court, seems to be very wary of the motives of governments applying for extradition. He refused the Russian government's applications for the extradition of Ahmed Zakayev and Boris Berezhovsky (as a result he may have been the target of an assassination attempt by Russian intelligence services in January 2004 when a retired lieutenant colonel with the same surname was murdered in a village near where he lives - there seemed to be no obvious motive and the killer hasn't been found).

Workman also seems to have been influenced in reaching his decision by the fact that the Croatian government had taken no action against Spanovic previously even though Spanovic's presence in the UK was known to the Croatian embassy which Spanovic visited 10 to 15 times from 2001 to 2006, to apply for Croatian passports for his sons and deal with legal matters relating to property in Croatia.

As far as his references to the difficulty of prosecuting the case against Spanovic Workman may have been influenced by the problems of prosecuting War Crimes Act cases in the UK in the past. I think only two cases ever came to court. The Szymon Serafinowicz case collapsed when the jury found Serafinowicz (86 years old) mentally unfit to plead. Anthony Sawoniuk was given life sentences on specimen charges of murdering 18 Jews with the help of evidence from elderly eyewitnesses (one aged 13 at the time of the crimes) but while Sawoniuk's (albeit expensive) conviction was a precedent for establishing the truth in difficult circumstances, it was the only conviction achieved in 400 War Crimes Act investigations.

All the same it's hard to imagine Workman accepting the "civil war" and "passage of time" arguments in relation to Former Yugoslavia if there'd been expert input. Unfortunately the Metropolitan Police disbanded its war crimes unit in 1999 after controversy over the cost and lack of success of the War Crimes Act investigations.

Since then the Met has been asked to investigate so many war crimes suspects by the Home Office and security services that they proposed setting up a specialist unit with its own detectives, office staff and travel budget could be justified. However Ken Livingstone and the Metropolitan Police Authority (MPA) considered that funding should come from central government rather than the London council tax payer (the previous war crimes unit was funded by the Home Office).

When there was no agreement between the MPA and the Home Office over who would pay the Met's plans for the unit seem simply to have been shelved - yet another decision which anywhere else would have seemed incomprehensible but here in the UK against the background of the Home Office's incompetence, culture of priority targets and general "unfitness for purpose" it seems only too understandable.

Amnesty cite the Tharcisse Muvunyi case as one that illustrates the problems of not having a special investigational unit with specialised legal and practical knowledge.

"Although victims, the press and non-governmental organizations alleged that Lt.-Col. Tharcisse Muvunyi was responsible for genocide, torture and other crimes under international law in Rwanda, the Metropolitan Police reportedly informed those acting on behalf of the victims that they were taking legal advice on whether they were obliged to act with respect to crimes committed during a non-international armed conflict. They never opened an investigation into the allegations, but months later the Rwanda Tribunal requested Muvunyi’s surrender and he was promptly arrested. Had a special unit existed, a decision could have been reached immediately on the jurisdictional question. Similarly, the slow pace of criminal investigations of cases based on universal jurisdiction in Belgium appears to have been in part the result of having no special unit devoted to crimes under international law."

http://web.amnesty.org/library/pdf/IOR530172001ENGLISH/$File/IOR5301701.pdf

I think the current situation is that one-off investigations are funded by the Met from its own reserves but there's no "centre of excellence", so to speak, to provide input for the courts. All the same, though, I'd have thought that the Croatian government's lawyers should have been prepared to deal with the prosecutability issues in the hearings.

Bg anon said...

Thanks Owen for clarifying. From this distance its easy to jump to conclusions.

observer said...

Owen,

My understanding is that Milan Spanovic was denied asylum, but granted indefinate leave to remain in the UK.

Owen said...

Observer, as far as I know "indefinite leave to remain" is what you're granted when your asylum application is accepted and you're granted refugee status. If Spanovic's asylum application was refused I think he might have been granted "exceptional leave to remain".

observer said...

Okay, what I'm having trouble understanding is that his asylum was denied - but Workman states, 'In October 2000, the defendant was granted exceptional leave to enter the United Kingdom for a period of four years. In 2000 that was further extended by the grant of indefinite leave to remain.' Was the latter a reversal of the previous asylum denial? If so, what were the grounds?

Owen said...

More complicated than I thought, per http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/11/09/uwarcrim109.xml.

"According to the Home Office, ILR is granted for reasons including coming to the UK for employment or family purposes where as asylum is granted when an applicant has shown a "well-founded" fear of persecution if they return to their home country. Asylum and ILR can be revoked in criminal cases. A person granted asylum can also be granted ILR the Home Office said."

Spanovic's original asylum application was refused, which is fairly standard, then he appealed and at some stage he was granted four years exceptional leave which was then made indefinite leave to remain, which would indicate that he was granted refugee status.

His status can still be revoked by the Home Secretary on the grounds of involvement in war crimes or crimes against humanity so it remains to be seen what the Home Office response is. And then any appeal against the Home Office decision, and then if his status is revoked any new application for extradition, and so on.

Owen said...

I don't know why the reversal occurred. Someone from an African conflict area I know who was under threat if forced to return had his (procedurally OK) application refused. After a long period of him enduring all sorts of difficulty the Home Office abruptly changed its mind. No explanation was given. My interpretation of what happened was that because the Home Office had lost all his papers (not an uncommon event) this was the least embarrassing solution for them, particularly after his MP wrote to ask what was happening. The Home Office needs a modern-day Dickens to memorialise it.

observer said...

Thanks Owen,

I hope cases like Spanovic's don't harm those whose fear of persecution is genuine. It is the arguments Workman used to deny the extradition, 'passage of time,' 'events occured during civil war,' and 'Croatia's belated attempt to pursue the extradition,' that I find troubling. But, as you said, if there had been expert input, Workman might not have relied upon those arguments and the ruling could have been different.

Owen said...

Observer, although it may have been tough on Croatia in this instance I think Workman was right to err on the side of caution regarding the principle of delayed applications. However I agree with you overall concerning the "passage of time" and "civil war" issues. Even taking account of the lack of input from a specialist war crimes unit and the history of War Crimes Act proceedings I'm surprised that Workman with his specialist expertise in handling extradition applications in the City of Westminster jurisdiction hasn't familiarised himself with developments in international law. Unless, of course, he has, and this is more fall-out from the ICJ decision.

Shaina said...

Owen, thank you very much for the further clarification.