Peter Siebelt: Wife of Dutch prince -Soros Foundation Brussels director Mabel Wisse Smit bears responsibiity for Srebenica massacre'
August 8, 2006
MIM: In his meticulously documented book, Dutch researcher Pieter Seibelt documents how Mabel Wisse Smit, (the wife of Dutch Prince Friso, and former director of the Soros Foundation office in Brussels) and her then lover Bosnian Foreign Minister Mohammed Sacirbey were aware of the tensions between the Serbs and Muslims in Srebrenica but chose to underplay it - together with Muslim leaders who provoked the Serbs and also targetted the Dutch peacekeepers (The Blue Helmets), in order to orchestrate a situation which would garner world sympathy and money for the Muslim cause.
This strategy worked, since the Bosnian Muslims have been able to use this event to this day to gain support and funding from the West. Without anyone recalling that it was Bosnian Muslims who were photographed gleefully holding the decapitated heads of Serbs which they pushed into a box with their booted feet.
One media savvy group of Bosnian Muslims hired a PR firm to 'spin' the 'massacre' as a from of Holocaust genocide to wealthy Jewish groups in the United States, (The Bnei Brith, ADL, and American Jewish Committee) whose knee jerk reaction obscured the small fact that the very same Bosnian Muslims had formed an Islamist SS brigade during WWII under the leadership of Hitler's ally, Grand Mufti Al Husseini. The Hanjers (sabre division) wore a deathshead insignia on their fezes and volunteered to help implement the Final Solution.
The wife of Prince Friso of Holland now Mabel van Oranje -Wisse Smit is the director of EU Affairs of the Open Society Foundation of George Soros.
Translation by Beila Rabinowitz director on MIM
Mabel is responsible for Srebenica (Interview with Peter Siebelt on Dutch website)
Investigator Peter Siebelt has written a book about the the Bosnian connection of Mabel Wiss Smit the fiance' (and now wife) of Prins Johan Friso. Crudely put "she is a lying bitch".
There is a veritable Mabel frenzy. Bert van der Meer has just come out with a book. Tomas Ross and Theo van Gogh are busy writing. And now you as well. "Mabel is a name which has, since the situation with Klass Bruinsma (a murdered drug lord), intriqued the Dutch. But they have not yet learned the complete truth, especially over her sinister role in Bosnia".
Q:Before we begin: What is your general impression of her?
A:"An intelligent ambitious woman. I can well understand why Beatrix is so taken with her and doesn't drop her. With her international connections and charm she is tailor made to advocate for the interests of The House of Orange, and falls ideologically into their framework".
Q:What do you mean by that?
A:"Since the Second World War the Royal House has deliberately tried to win over the progressive left wing movement. Wilhemina had personally experienced that the monarchy was in danger. After the liberation she decided to chart a different course. One of her first acts was to name William Schemerhorn as advisor, a politician with extreme left wing sympathies. Wilhemina's sucessors have also followed that tactic with the difference being that they believed in it. Juliana put her daughters into the school of the notorious pacifist anarchist Kees Boeke,who was being watched by the internal security services. That is how Beatrix got introduced into red politics while young. Her marriage to Claus, who was the darling of the progressive intelligensia did the rest".
Q:Back to Mabel. Is she also in that corner?
A:"Yes, although she comes from a liberal background, and she was formed by the progressive lecturer at the University of Amsterdam. She is co founder of War Child in Holland, works for the Soros Foundation, which waged a vicious campaign against Bush, and was the founder of the European Action Council for Peace in the Balkans (EACPB)- which is in reality a lobby club for Bosnian Muslims".
Q:Was that a standard leftwing hobby horse?
A:"Absolutely, It was Mient Jan Faber, Jan Pronk, Relus ter Beek and in the background Prince Claus who came with the disasterous concept of safe havens, because the wanted to perserve a multi ethnic Bosnia per se. That past namely into their ideal of a multi cultural society, In that way the Bosnia Muslims were wrongly perceived as victims. This policy resulted in the war lasting longer".
Q:Was Mabel's role in what you call the ' Bosnian -lobby' important?
A:"She was the right had and the lover of the influential Mohamed Sacirbey, the Bosnian U.N. ambassador who is now jailed in New York on suspicion of corruption. Both of them knew how to effectively manipulate their national and international contacts . Anyone who has ever been in that world of humanitarian relief knows that you mostly find girls in ball gowns. If then suddenly a blonde women of the world with a deep decollete' stands in front of you, as diplomat or politician you certain listen and try to do something".
Q:Did Mabel lie about her relationship with Mo' Sacirbey?
A:"Yes, it's the same old story as with Bruinsma. Mabel didn't tell the truth about the intensity of the relationship, not about the duration, and not about her attempts to get her former lover out of jail. Crudely put: "She's a lying bitch".
Q:According to Mabel she only wanted to plead for an 'honest trial'.
A:"It is an established fact that Mabel lobbied ambassadors and other prominent people in her network. Sacirbey has his back against the wall. He won't hesitate to put his accomplices under pressure by threatening to reveal what he knows about them. He is a man without scruples, a schemer".
Q: Sacirbey was accused of having misappropriated 619,000 dollars while U.N. ambassador. Was Mabel aware of this?
A: "Let's turn this around: Why should she not have been aware of this? She was not only his lover, they fought side by side for the years for the Bosnian cause including collecting money for Bosnian Muslims. Sacirbey once said: "I trust her with my life".
Q: According to the 'friends of Mo" there is no proof of corruption because the money vanished.
A:"What a lame excuse! Maybe the money was spent in the casino. Sarcibey was a fanatical gambler. According to lawyers he used part of the money to travel to The Hague for the Yugoslavia tribunaal. But the accountants have checked and found that nothing important happened during that time. What did he do in Holland? What is certain is that he regularly stopped in at by Mabel in Amsterdam. For all anyone knows they may have gone to the casino".
Q:Another affair centering on Sarcibey are the illegal weapon deliveries to the Muslim fighters in Bosnia. Was Mabel involved with that?
A:"Her organisation also acted as advisor for possible weapon deliveries. She gave to among others Senator Bob Dole detailed information about weapons which could be effective against the Serbians, and over the way in which the Muslims could stock up. Obviously Mabel provided the information about the routes!"
"Sarcibey has never made a secret that he found the embargo to be nonsense - that Muslims had to "defend" themselves. As a Muslim I can imagine myself in that situation. But a young Dutch Duch woman? In that way Mabel is partly responsible for the drama in Srebrenica".
Q: You are going quite quickly here.
"At the time of the weapon embargo Muslim rebels were provided with weapons. They organised theft and murder excursions into Serbian villages outside the enclave.I am not claiming that the Serbs did not in any event purge Sebrenica but it is certain that their anger was stoked by this".
Q: Do you also see a link between the Bosnia - lobby and Islamist terrorism?
A: "One of the Madrid bombers had received his training in Bosnia. What is always underexposed,is that the Bosnian leaders, such as president Izetbegovic only cherished one ideal: the creation of an Islamic state based on fundamentalist law.
Thus is the reason that Izetbegovic worked together with the Nazis in the second world war- he was a membe of an SS- division. His bloodbrother was the father of Mo Sacirbey. People like Claus and Mabel must have known this. But yes, the royal house in blind in one eye- the left one it would seem".
Q:You call yourself a monarchist. I can't imagine that The House of Orange is very happy with this book.
A: "I am a supporter of the monarchy, but only if they are above party partisanship. That has not been the case for a long time. The House of Orange profiles itself as the advocate of the progressive left".
MIM: Url and original text in Dutch of interview translated above:
Mabel is medeverantwoordelijk voor Srebrenica'
Onderzoeker Peter Siebelt schreef een boek over de Bosnische connectie van Mabel Wisse Smit, de aanstaande van prins Johan Friso. ‘Grof gezegd: she's a lying bitch.'
E r is een heuse Mabel-hausse. Onlangs kwam Bert van der Veer met een boekje. Tomas Ross en Theo van Gogh zijn druk aan het schrijven. En nu u dus. "Mabel is een naam die, sinds de toestand met Klaas Bruinsma, miljoenen Nederlanders intrigeert. Maar de volledige waarheid hebben ze nog niet leren kennen – vooral niet over haar duistere rol in Bosnië."
Voor we het daarover hebben: wat is uw algemene indruk van haar?
"Een intelligente, ambitieuze vrouw. Ik begrijp goed waarom Beatrix zo verzot op haar is en haar niet laat vallen. Ze is met haar internationale contacten en charme geknipt voor het behartigen van de belangen van de Oranjes, en valt ook ideologisch binnen het plaatje."
Wat bedoelt u?
"Sinds de Tweede Wereldoorlog is het koningshuis bewust de progressief-linkse gemeenschap gaan inpalmen. Wilhelmina had aan den lijve ondervonden dat de monarchie gevaar liep. Na de bevrijding besloot ze het roer om te gooien. Een van haar eerste daden was het benoemen van Willem Schermerhorn tot informateur – een politicus met extreem-linkse sympathieën. Wilhelmina's opvolgers hebben dezelfde tactiek gevolgd, met het verschil dat zij er ook in zijn gaan gelóven. Juliana deed haar dochters op de school van Kees Boeke, een beruchte anarchist en pacifist, die door de Binnenlandse Veiligheidsdienst in de gaten werd gehouden. Zo werd Beatrix al jong in de rode grondverf gezet. Haar huwelijk met Claus deed de rest: die was de lieveling van de progressieve intelligentsia."
Terug naar Mabel. Zit zij ook in die hoek?
"Ja, hoewel ze uit een liberaal nest komt, is ze gevormd door progressieve hoogleraren aan de Universiteit van Amsterdam. Ze is mede-oprichter van War Child in Nederland, werkt voor de Soros Foundation, die fel campagne voert tegen Bush, en was oprichter van het European Action Council for Peace on the Balkans (EACPB) – in feite een lobbyclub voor de Bosnische Moslims."
Was dat een links stokpaardje dan?
"Absoluut. Het waren Mient Jan Faber, Jan Pronk, Relus ter Beek en op de achtergrond prins Claus die met het desastreuze concept van de safe havens kwamen, omdat ze per se een multi-etnisch Bosnië wilden behouden. Dat paste namelijk in hun ideaal van een multiculturele samenleving. Daarbij werden de Bosnische Moslims ten onrechte gezien als de slachtoffers. Door dit beleid heeft de oorlog jaren langer geduurd."
W as de rol van Mabel in wat u de ‘Bosnië-lobby' noemt belangrijk?
"Ze was de rechterhand en het liefje van de invloedrijke Mohamed Sacirbey, de Bosnische VN-ambassadeur die nu in New York vastzit op verdenking van corruptie. Effectief wisten die twee hun nationale en internationale contacten te bespelen. Iedereen die weleens in dat wereldje van de humanitaire hulpverlening heeft rondgelopen, weet dat je daar vooral meisjes in soepjurken aantreft. Als dan ineens zo'n blonde vrouw van de wereld met diep uitgesneden decolleté voor je staat – tja, dan wil je als diplomaat of politicus wel luisteren of de buidel trekken."
Heeft Mabel gelogen over haar verhouding met ‘Mo' Sacirbey?
"Ja, het is hetzelfde verhaal als met Bruinsma. Mabel heeft niet de waarheid gesproken over de intensiteit van de relatie, niet over de duur ervan en niet over haar pogingen haar voormalige minnaar uit de gevangenis te krijgen. Grof gezegd: She's a lying bitch."
Volgens Mabel zou ze slechts hebben gepleit voor ‘een eerlijk proces'.
"Vaststaat dat Mabel ambassadeurs en andere prominenten uit haar internationale netwerk heeft bewerkt. Sacirbey is een kat in het nauw. Hij zal niet schuwen zijn medeplichtigen onder druk te zetten door te dreigen een boekje over hen open te doen. Het is een man zonder scrupules, een intrigant."
Als VN-ambassadeur wordt Sacirbey ervan verdacht 610.000 dollar te hebben verduisterd. Heeft Mabel daar weet van gehad?
"Laten we het omdraaien: waarom zou zij er niet van op de hoogte zijn geweest? Ze was niet alleen zijn geliefde, ze knokten jarenlang zij aan zij voor de Bosnische zaak – tot aan het inzamelen van geld voor de Moslims toe. Sacirbey heeft zelf gezegd: ‘Ik vertrouw haar mijn leven toe.'"
Volgens de ‘friends of Mo' is er geen bewijs voor corruptie want het geld is onvindbaar.
"Wat een drogreden! Misschien is het geld wel opgemaakt in het casino. Sacirbey is een fervent gokker. Volgens zijn pleitbezorgers zou hij een deel van het geld hebben gebruikt voor reizen naar het Joegoslavië-tribunaal in Den Haag. Maar accountants hebben uitgezocht dat gedurende die periode niets van belang gebeurde. Wat deed hij dan in Nederland? Zeker is dat hij geregeld langswipte bij Mabel in Amsterdam. Wie weet gingen ze dan naar het casino."
Een andere affaire rond Sacirbey zijn de illegale wapenleveranties aan de moslimstrijders in Bosnië. Was Mabel daarbij betrokken?
"Haar organisatie wierp zich op als adviseur van mogelijke wapenleveranciers. Zo verschafte zij onder anderen de Amerikaanse senator Bob Dole gedetailleerde informatie over wapens die effectief zouden kunnen zijn tegen de Serviërs, en over de wijze waarop de Moslims zichzelf konden bevoorraden. Kennelijk gaf Mabel ook de routes aan!
"Sacirbey heeft er nooit een geheim van gemaakt dat hij het embargo onzin vond – de Moslims moesten zich ‘verdedigen'. Als Moslim kan ik me dat in zijn geval voorstellen. Maar een jonge Hollandse vrouw? Nu is Mabel medeverantwoordelijk voor het drama in Srebrenica."
U gaat wel heel snel.
"Ten tijde van het wapenembargo werden moslimrebellen van wapens voorzien. Ze organiseerden roof- en moordtochten in Servische dorpen buiten de enclave. Ik beweer niet dat de Serven niet sowieso Srebrenica zouden hebben gezuiverd, maar zeker is dat hun bloed hierdoor nog sneller aan de kook is geraakt."
U legt ook een link tussen de Bosnië-lobby en het islamterrorisme.
"Een van de bommenleggers in Madrid had zijn opleiding in Bosnië genoten. Wat altijd is onderbelicht, is dat de Bosnische leiders, zoals president Izetbegovic, een ideaal koesterden: het creëren van een moslimstaat op fundamentalistische grondslag. Om die reden werkte Izetbegovic in de Tweede Wereldoorlog samen met de nazi's – hij was lid van een SS-divisie. Zijn bloedbroeder was de vader van Mo Sacirbey. Mensen als Claus en Mabel moeten dit hebben geweten. Maar ja, het koningshuis is aan één oog blind – het linker wel te verstaan."
U noemt zichzelf monarchist. Ik kan me niet voorstellen dat het Oranjehuis erg blij is met uw boek.
"Ik ben een voorstander van de monarchie, maar dan moet die wel boven de partijen staan. Dat is al heel lang niet meer het geval. Het huis van Oranje profileert zich als de belangenbehartiger van progressief-links." |
Peter Siebelt: Mabel – ‘Koninklijk' Bal Masqué. Aspekt. €22,95.
Mabel Wisse Smit was jarenlang in dienst van George Soros, een Amerikaanse multimiljardair die de anti-Bush-campagne in de VS financiert. Zij en haar minnaar, de Bosniër Sacirbey, waren adviseur van het Nederlandse ministerie van Buitenlandse Zaken en maakten deel uit van een links netwerk met als hoofdrolspelers Ed van Thijn, Jan Pronk, Relus ter Beek en Mient Jan Faber.
In zijn boek, dat volgende week verschijnt, laat Siebelt zien dat de aanstaande vrouw van Johan Friso zich geen vreemde zal voelen aan het hof. Sinds Wilhelmina zich inliet met verlichte politieke ideeën leggen Oranjetelgen linkse sympathieën aan de dag.
Ook de naam van koningin Beatrix is in dit verband diverse keren in serieuze media genoemd. Het Amerikaanse weekblad Time onthulde in 1976 dat Beatrix en Claus sinds hun bezoek in 1972 aan de Sovjet-Unie op goede voet stonden met de Russische ambassadeur in Den Haag, Aleksander Romanov. Hij zou vaste gast zijn geweest op Drakensteyn.
Zelf vindt Siebelt het nog het schokkendst dat Beatrix in 2001 de GroenLinks-politica Andree van Es vroeg de inburgering van Máxima Zorreguieta voor haar rekening te nemen. „Zij heeft niet alleen erg linkse ideeën maar kent ook de extreemlinkse actiewereld van binnenuit. In 1981 verklaarde ze zich solidair met de militante actiegroep Onkruit van Wijnand Duyvendak. In 1990 gaf ze het startschot voor de verkoop van het boek "De tragiek van een geheime dienst". Daarin werden opzettelijk privé-gegevens van politiemensen gepubliceerd met alle gevolgen van dien."
Te denken geeft volgens hem ook het optreden van de Koningin in het satiredebat. Siebelt: „Premier Balkenende toonde liefde voor het Oranjehuis door stelling te nemen tegen kwalijke vormen van satire. Eerst viel de pers daarover en vervolgens kwam de Koningin met de uitspraak dat ze helemaal geen last had van satire. Zo'n denigrerende bejegening heeft Balkenendes voorganger Kok nooit gekregen."
In Den Haag doet al langer het verhaal de ronde dat koningin Beatrix Balkenende niet zag zitten als premier. Dat wordt door een eersteklasbron tegenover deze krant bevestigd. „Als het waar is, is het tekenend", vindt Siebelt.
Een groot deel van zijn boek gaat over de rol van Mabel op de Balkan. Zij had jarenlang een liefdesrelatie met de gehuwde, prominente Bosnische diplomaat Mohammed Sacirbey. Maar er was meer. Zij was hem ook behulpzaam bij zijn politieke lobby ten behoeve van de Bosnische moslims. Momenteel zit Sacirbey, die betrokken was bij illegale wapenhandel, vast in de VS op verdenking van fraude.
Welke rol zij exact heeft gespeeld, is nog onduidelijk. Haar gangen op de Balkan blijven schimmig. Maar wat er aan feiten bekend is, is volgens Siebelt meer dan genoeg om haar in de beklaagdenbank te plaatsen. Hartstochtelijk deed ze mee met de linkse Nederlandse kliek die zich beijverde voor een multicultureel model in Bosnië. Daarbij werden de Bosnische moslims ten onrechte gezien als slachtoffers. Door dat beleid heeft de oorlog op de Balkan volgens Siebelt jaren langer geduurd en zijn ook de omstandigheden voor het Srebrenica-drama gecreëerd.
De auteur wijst op de innige samenwerking tussen Mabel en Mient Jan Faber, indertijd secretaris van het Interkerkelijk Vredesberaad (IKV). Van hem was het „desastreuze concept" van de "safe havens" (veilige havens) afkomstig. Faber noemde Mabel een „golden girl", maar wil tegenover deze krant niet verder op haar rol ingaan. Op haar verzoek doet hij er het zwijgen toe. Met gepaste trots voegt Faber er nog aan toe dat hij gast zal zijn op haar bruiloft.
Het meest kwestieuze vindt Siebelt dat Mabel en haar medestanders zich gewillig voor het karretje hebben laten spannen van moslimfundamentalisten die geen ander doel hadden dan in Bosnië een islamitische staat te vestigen. „Achteraf blijkt dat Al Qaeda in Bosnië tamelijk ongehinderd haar gang kon gaan. Een van de terroristen van Madrid heeft gezegd dat hij zijn opleiding genoot in Bosnië. Al die feiten moeten toch bij het Koningshuis bekend zijn? Daarom kan ik moeilijk klein krijgen waarom de Koningin Mabel zo enthousiast heeft binnengehaald."
Wednesday, March 02, 2005
Dutch Liberals scared of QueenOfficially the Netherlands is a constitutional monarchy. Many years of state and media propaganda have lead many Dutch people to believe that the Queen has no political power. But the last decades Queen Beatrix has steadily worked to enlarge her political powers. In a recent speech at the university of Leiden she praised the politicians that she that the last decades they have given her much more freedom.
There have been many incidents. Not a long a go it became public that the royal family gave direct orders to the intelligence service, without the responsible minister even knowing about it. Not generally know but a long time practice is that the Queen even has her own shadow cabinet and every Monday prime Minister Balkenende goes to her "working" palace to speak through the current affairs of the country. She also can order any minister to her palace to let him or her explain his or her actions. There is much more to tell, but I think this shows that she is certainly not only ceremonially figure. Queen Beatrix and her son Willem Alexander the heir to the thrown, have already said several times that they are not interested in a pure ceremonial role.
After the murder on Theo van Gogh the royal family wrote in a letter to the family of Theo van Gogh that they did not had time to attend the funeral. But a day after the funeral they could be seen at all kind of multi culture events. That same week, the queen was even giving rewards to ‘liberal' Muslims. Who in the press blamed Dutch sociaty for the circumstances that lead to the murder of Theo van Gogh. The royals seem to be one of the staunchest supporters of the multicultural society (See also: Royal Support for Muslims)
The queen does not change her political agenda, but the Dutch politicians do not feel comfortable with the low legitimacy the have. Trust in the government has never been so low. Many political parties are rewriting their manifesto's. Also the Dutch liberal party (VVD) recently wrote a new liberal manifest. But now newspaper AD reports that the writers of the new liberal manifest wanted to propose the removal of the political power of the Queen. But they did not include it in the manifesto, because they where afraid it would get to much media attention.
"They did not dare to touch the monarchy. About god, the Queen and the tax deduction for house owners you don't talk as politician" says a prominent liberal (VVD) parliamentary. The liberal (VVD) has always supported the monarchy for practical reasons, does it sound within the liberal leadership.
In parliament there has always been a large majority of political parties who say they are against the monarchy, but in practice they support it for political reasons. Traditionally the more leftwing parties always said they were against the monarchy. Take for example the social-liberal D66, they always made a big point about constitutional reforms and their former leader, Thom de Graaf, proposed 6 years ago to make the queens role purely ceremonial. But now they are in the government they stay silent. Although, Thom de Graaf, is now special minister for constitutional reform in the current administration. The tiny D66 has only a few minister posts in the administration, but made Brinkhorst whose daughter married a Royal prince (3th in-line), minister again. Not surprisingly Brinkhorst said after the murder on Theo van Gogh that Hirsi Ali her movie Submission was a provocation.
At the time of the 2002 election the poles indicated that Pim Fortuyn was, with more than 25% of the votes, to become the biggest political party and that would most likely make him the next prime minister of The Netherlands. Fortuyn had already promised that he as Prime Minister would give Queen Beatrix a pure ceremonial role. But that is all history now, he was assassinated a week before the elections.
Statement by Mabel Wisse Smit, Executive Director, Soros Foundation
Chairman, Excellencies, Ladies and Gentlemen,
I join previous speakers in thanking the European Commission and World Bank for organizing this important meeting.
The Soros Foundations Network has been active on the ground in Serbia and Montenegro throughout the last decade. Since 1991, our network has provided more than $100 million to projects in Serbia and Montenegro. This year, we will spend $10 million in grants. Of this sum, at least $5 million are allocated to structural reform that is part of the recovery and transition program presented today—in education, legal reform, the judiciary, and public administration.
I would like to say a few words about reform of the judiciary, in particular. Radical reform of the judicial system is the most urgent process needed now. Judicial reform is key to halting further criminalization of society. It is crucial for the success of privatization and de-nationalization. Without comprehensive reform, the judiciary will be unable to meet the challenges before us. Failure in this sector will spell disaster for Serbia and Montenegro, and for our neighbors.
Groundwork must be laid for new legislation on judges and courts, prosecution, the bar and judges' exam, misdemeanors, constitutional and military courts. The Federal, Serbian and Montenegrin ministries of justice need resources to reorganize, operate more rationally, establish expert groups and build infrastructure that can accomplish monumental tasks in the shortest possible time.
Judges need to be retrained. A special training center should be established with curricula based on the continental European legal system. Of central importance is special training for prosecutors and their staff on war crimes and organized crime. Juvenile judges, prosecutors and police officers should also be taught how to treat victims of crimes such as trafficking, sexual violence and child abuse.
Immediate support is needed in justice administration and the enforcement of judgements. It is essential to link the entire judicial system to an information system. This includes the computerization of courts, as well as specialized training for judges and the courts' staff. The conditions of detainees and prisoners need to improved. Current legislation on detention and imprisonment needs to be brought into synch with international standards of human rights.
Another crucial area of support is a temporary bridge fund to improve the financial situation of judges. In addition to all other employees in the judiciary, judges are poorly paid. This has contributed to their humiliation and has paved the way for corruption and inefficiency. Donors could provide a loan or grant to the state budget in order to provide a stipend for judges who enrol in retraining.
We will continue to work closely with the authorities in Belgrade and Podgorica. We will pay special attention to strengthening the absorption and implementation capacity of the authorities and other local institutions. The transformation process in Serbia and Montenegro will not be successful unless all donors coordinate their activities closely with each other. We look forward to cooperate with all of you.
Donors Meeting for the former Yugoslav Republic of Macedonia
Statement by Soros Foundations Network/Open Society Institute
by Ms. Mabel Wisse Smit
Chairman, Excellencies, Ladies and Gentlemen,
I join previous speakers in thanking the European Commission and World Bank for organizing this important meeting which comes at a most critical time.
Over the last decade, the Soros foundations network has been active on the ground in Macedonia. Since 1992, our network has provided more than $50 million to projects in the republic. This year, we will spend $5 million in grants. Most of these resources are allocated to areas linked to the implementation of the Ohrid Framework Agreement, including inter-ethnic programs, decentralisation, institution building, conflict resolution, elections and support for the South-East European University.
I would like to say a few words about the crucial role of local stakeholders in the peace and rehabilitation process.
We believe that the signing of the Ohrid Framework Agreement was just the first step towards peace and reconciliation in Macedonia. To achieve the full implementation of the agreement - including decentralisation and the holding of free and democratic elections - the cooperation of the Macedonian government and parliamentary opposition is necessary. But that alone is not enough. To achieve a lasting peace, another ally is needed. An ally who has taken a stand against war. That ally is civil society in Macedonia.
We believe that the international community needs to work more closely with civil society organisations and to devise a strategy for their support. Many program areas where international aid is most needed, including justice and home affairs, require not only an effective government strategy, but also the involvement of civil society. That is the way to build a durable peace and to foster stability in Macedonia and the region as a whole. Without this, our efforts are likely to falter.
The experience that most of us assembled here today have gained over the past ten years in South Eastern Europe demonstrates that local initiative and ownership are crucial to the long-term effectiveness of reform efforts. This approach ensures that assistance is delivered in the most efficient and responsible way possible. It also empowers and reinforces local capacity and institutions.
There is no substitute for the competence and commitment of local organisations. After all, the future of the local population is at stake. Their efforts are an investment in their own future. If we want to support lasting change in Macedonia, we - the donor community - must make certain that our resources support the efforts of the real stakeholders in the reform process.
We offer our local experience and expertise as a resource to the donor community, and look forward to cooperate with all of you.
Open Society Institute - Macedonia / Bul. Jane Sandanski 111 / POB 378 / Skopje, Macedonia 1000 / Tel: 389-2-444488 / Fax: 389-2-444499 / E-mail: [email protected] / Mr. Vladimir Milcin
Open Society Institute - Brussels / 26, rue des Minimes / 1000 Brussels / Belgium / Tel. 32-2-5054646 / Fax 32-2-5024646 / E-mail: [email protected] / Ms. Mabel Wisse Smit
Open Society Fund - Bosnia and Herzegovina, Banja Luka branch office
MIM: Background information on Bosnia and the long standing connections to Nazism and terrorism. Writers like Stephen Schwartz portray Bosnia Muslims as the 'moderate' who are a counterweight to the Wahhabists. In reality Bosnia has beeb the European training center for Jihad for decades, and former Bosnian President Alija Izetbekovic (whom Schwartz admires see picture below of him praying at Izebekovic's grave) advocated establishing an Islamist state. Many Bosnia relief agencies in the United States were closed down for terror funding as well. The head of the AMC, Abdulrahman Alamoudi, was jailed for 23 years and had been closely involved in fundraising for Bosnian Muslims. The American Jewish Committee has also been in the forefront of aiding them, having bought into the crafted hype by a professional PR firm hired by Bosnian Muslims, that the Srbrenica massacre was a repeat of Nazi massacres of Jews during the Holocaust.
Bosnia: Terrorist Links
Relative youth is a hallmark of radical Islam in Bosnia as well, some proponents having returned from educations abroad, some having fought in the notorious El Mujahid brigade, a militant irregular unit that operated in central Bosnia during the 1992–95 war.
Two youth organizations are at the forefront of the movement: the Young Muslims and the Active Islamic Youth (A.I.O.).
One of the founders of the A.I.O., Muris Cupic, a former fighter himself, has repeatedly argued that there is no danger of militant Islam in Bosnia. But his colleagues in the A.I.O., which has a few hundred members, are often identified as promoters of fundamentalism. They have issued strong statements of criticism addressed to their fellow Muslims for not behaving like true believers and having acquired too much from their Christian neighbors.
The A.I.O. were put under surveillance in the aftermath of the 9/11 terrorist attacks and were found to have been funded by the Saudi Al-Haramain Foundation, later declared by the United States to be a sponsor of terrorism.
The Islamic Community in Bosnia, under the leadership of Rreis-ul-Ulema (Chief Imam) Mustafa Ceric, often described as a pro-American promoter of tolerance, has been trying to assimilate these groups even though they hold sharply conflicting views on Islam.
Ceric, who holds a Ph.D. in Islamic studies from the University of Chicago and is a recent recipient of a UNESCO award for intercultural understanding, seems to be able to keep a fine balance between reassuring the West that Bosnia is safe and cultivating relations with the radical Muslim offspring in his backyard.
A case that put A.I.O. in the spotlight was the 2003 murder by a young Muslim fanatic of three ethnic Croat returnees on Christmas Eve. The killer claimed he was a member of the A.I.O., which the organization denied, conceding that he might have attended some lectures. Ceric swiftly condemned the act and called on young Muslims to "stay away from superstition, false books, and teachers who do not want to understand the authentic life in our homeland," a clear reference to outside hardliners.
But in an interview he gave last year to the Islamic youth magazine Saff, Ceric rejected anonymous statements by fellow Muslim officials that organizations such as A.I.O. should not be considered part of the Islamic Community. "The Islamic Community is more important than me, us, and them," he said. "Thus, we are all the Islamic Community...
MIM: At a recent Woodrow Wilson conference Steven aka Sulayman Schwartz, the director of the Council for Islamic Pluaralism, and a devotee of Islamo facist Alija Izetbekovic (see picture below) and former Soros Foundation associate, brought over Imam Mirza efendija Mesic, from Slovakia 'in order to ensure a Slovene presence'. The Imam read a 15 minute long Islamist manifesto written by Mustafa Ceric which called for the "institutionalisation of Islam" in Europe, a euphemism for the introduction of shari'a to Europe. When asked if he was advocating the Islamisation of Europe, Mesic cheerfully responded;
"Islam is Islam - the Haditha and the Koran cannot be changed- there is no such thing as a reformation in Islam". In reponse to the question if there was Al Qaeda in Bosnia,Mesic's face clouded before he quickly replied "there is no Al Qaeda in Bosnia", and with unintended irony recommended a book by Alia Izetbekovic, an ex Nazi SS member, who a funded Al Qaeda , and helped set up the Mujahideen network in Bosnia where the 'white Al Qaeda' are trained and recruited and whose operatives were part of the US Jihad network headed by 'The Blind Sheik' Omar Abdul Rahman.
Excerpt from the conference transcript. Guest Imam Mesic reading a screed by Mustafa Ceric,calling for the Islamisation of Europe.
Stephen Schwartz: One of the things that I think is a great landmark about this conference is that I think anybody who attends this conference will walk away and say that it was a conference that didn't just talk about Europe as Western Europe and we made a point of having the Slovene participation and Jim Lyon and now I'm going to hand over the platform to Mirza efendija Mesic who is an imam in the distinguished mosque in Zagreb, Croatia.
Mirza efendija Mesic, Imam: Peace be upon you. Dear sisters and brothers, ladies and gentlemen, my name is Mirza Mesic. I'm an imam and I work as a professor in the Islamic Center in Zagreb. In beginning, I want to thank Mr. Schwartz and Ms. Peros and the Woodrow Wilson institution – they invited me to attend this very important conference. I want also to apologize because my English is not so good, but I hope you will be able to understand me.
Mirza efendija Mesic: If you have any questions, Mr. Schwartz will answer instead of me. Because he invited me, I had a proposal that I be only a visitor, only to watch and to learn because it is my first visit to the United States of America. Really it's my first time that I have to speak English in front of an audience. I have a bit of the jitters but I hope that you will have an understanding of me.
I come from Croatia; Croatia is one typical Christian, or Catholic country, population is 4.5 million people. In Croatia Muslims are very well-integrated in the Croatian society. We have the same language and we Muslims are generally Muslims; we are not immigrants. What I have to note on this occasion is that Croatia – as a state – recognizes Islam as a religion. Only four states in Europe recognize Islam as a religion. In 1912, it was Austria, 1960 it was Croatia, and in 1992 Belgium and Spain. No more states recognize Islam as a religion.
Having said that Muslims are very well-integrated, we have a contract between the Croatian government and the Islamic community. We have a right to organize our schools. I as imam have the right to go to prisons to visit prisoners who are Muslim, or to go to the hospital freely. We have organized teaching our children in public schools. We fortunately have no problems in Croatia. During the war, I was born in Bosnia, unfortunately in Bosnia – Muslim. I want to say that Muslims can be an example for my brothers and sisters in Europe. How they love their Islam, their religion, but unfortunately in 1992 or 1995, only one day in (____), 10,000 men were killed for only one reason, because they were Muslims. I hope that will never happen again. Those people watch in the United States of America and come to the United States of America and expect to be protected because it was genocide against indigenous Muslims.
I have in front of me what we name the Coalition of European Muslims, which is authored by Professor Mustafa ef. Ceric – somebody mentioned him. The Declaration of European Muslims has three parts. I need fifteen minutes, please.
Mr. Schwartz: You have it. Starting now.
Mesic: I'm going to read now:
"Expressing the sense of the European Muslims regarding the attack in New York in September 2001, the massacre in Madrid in March 2004, and the bomb explosion in London in July 2005.
Whereas on September 11, 2001, thousands of men and women who worked at the World Trade Center in New York were killed by a terrorist attack, and on March 11, 2004, hundreds of people who had traveled by a train in Madrid were massacred, and on July 7, 2005, many innocent passengers were victims of bomb explosions in London, and whereas all these acts of violence against humanity have been attributed to "Islamic terrorism";
Whereas following the New York attack, the Madrid massacre, and the London bombing European Muslims live under the heavy pressure of a collective guilt for "Islamic terrorism," which is constantly being propagated by some politicians and media;
Whereas European Muslims believe there is no collective guilt, but an individual responsibility;
Whereas European Muslims suffer from Islamophobia due to irresponsible coverage of Muslim issues in Europe by some media;
Whereas European Muslims love freedom for others as they love it for themselves and appreciate citizenship and human rights in multicultural societies;
Whereas European Muslims would like to raise their children in peace and security with other religious communities in Europe on the basis of "the ethics of sharing";
Whereas Islam teaches Muslims that Jews and Christians are People of the Book and so all Jews, Christians, and Muslims should learn to share their common spiritual roots and their common future hopes without prejudice in order to avoid discrimination, low self-esteem, demoralization, religious and racial hatred,
Whereas Europe is a shared continent of many faiths, nations, languages, cultures, and customs;
Whereas Europe is proud of its road from slavery to freedom, from mythology to science, from might to right and from the theory of state to the legitimacy of state, as well as Europe's commitment to the basic values of human rights and democracy;
Whereas European Muslims want to be part of a European life and prosperity as well as of the social, political, cultural and moral development of European societies:
Now therefore be it declared to the European Union, it is the sense of European Muslims that:
Europe is the House of Peace and Security based on the principle of the Social Contract.
Europe is the House of the Social Contract because it is possible to live in accordance with one's faith in the context of "the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association." (John Rawls).
A Contract is a person's dictate of reason, whereas a Covenant is person's will of the heart/faith. Hence, the Muslim is a person with an allegiance to God as an act of the will of the heart/faith; and the citizen is a person with a duty to the state as an act of the dictate of reason. By the Covenant man gives his heart to God and receives Inner Security; by the Contract he gives his reason to the state and receives security as an inhabitant of a city or town. A citizen is entitled to the rights and privileges of a free person, a member of a state, a native or naturalized person who owes loyalty to a government and is entitled to protection from it of life, religion, freedom, property and dignity.
European Muslims are fully and unequivocally committed to the following European common values:
As they try to live a decent life in Europe, European Muslims have the following expectations: (a) an institutional [presence] of Islam in Europe; (b) the economic development of the Muslim community so that it may have a full spiritual and cultural freedom and independence; (c) the development of the Islamic schools capable of educating European-born Muslims for the new challenges in multicultural societies; (d) political freedom that will enable European Muslims to have legitimate representatives in the European state parliaments; (e) a reform of European immigration policy, which has tended to be very restrictive toward Muslims recently; (f) opening the way for Muslim law to be recognized in matters of personal status such as the Family Law; (g) the protection of European Muslims from Islamophobia, ethnic cleansing, genocide, and similar atrocities.
To Muslims who live in Europe, it is the sense of the European Muslims that:
Muslims who live in Europe should be more concerned now about their responsibilities than about their freedoms because by assuming their responsibility in European economic, political, and cultural life, Muslims who live in Europe will earn their right to freedom. Hence, the freedom of European Muslims will not be at somebody's mercy, but a possessed value that can neither be denied nor taken away.
It is in the West that many Muslims discover Islam in a totally different way from how it exists in their homeland, because here they meet their fellow Muslims from other parts of the Muslim world and thus begin to appreciate the diversity of Islamic experience and culture. Muslims who live in Europe have the right -- no, the duty -- to develop their own European culture of Islam as a proof of the third interaction between the East and the West and as a need for a new renaissance that will lead the humanity to a better and safer world.
Muslims who live in Europe should commit themselves to the following imperatives of their faith:
To the Muslim World, it is the sense of the European Muslims that:
The Muslim World is a Universal Community of Muslims who are brothers by their common faith in One God and in the prophethood of Muhammad, peace be upon him.
The idea of global awareness should not be a strange thing to Muslims. In its essence, Islam is a universal faith and a global phenomenon. It would have been fully appropriate if the Muslims had come forward with an agenda for globalization in terms of a global freedom and security, because Muslims are scattered almost everywhere on the globe and so their freedom and security are of a global importance.
Not only have Muslims failed to come with a genuine idea of globalization, but they are, generally speaking, failing now to live in a global world. Muslims have no global strategy; they have no global mind and head; they have no global calendar to save them form the embarrassment of the confusion about the date of Eid. Unfortunately, they have the image of threatening the freedom and security of the world; they have a stigma of global terrorism.
It is because of the stigma of Islamic terrorism from which Muslims are unjustly suffering today that a Declaration of the European Muslims to the Muslim World should be worked out in order to emphasize the importance of a change from a bad global image to a good global image of Muslims, especially in matters of their faith.
The center of Islam should take the lead in providing global guidance in practical matters of our universal faith, in global issues of our time, and in global dialogue with our neighbors.
Muslims, wherever they may be, should prove to the whole world that Islam is both a sincere faith and a righteous religion; that it is both attractive in its culture and peaceful in its politics; that it comprises both good people and rich lands; and that Islam includes both the wise man of the East and the rational man of the West.
It is wrong to blame Islam for the lack of democracy in the Muslim world. It is sin to violate human rights in the name of Islam; it is crime against Islam to tolerate a high rate of illiteracy in the Muslim world and to witness a huge gap between enormously rich and extremely poor people in the Muslim world.
European Muslims have the right and the duty to raise these and other issues that have an impact on the future of their children as they are trying to figure out who they are and what they are supposed to do as Muslims in a European environment.
European Muslims call for a global Muslim Community to take the lead in promoting peace and security in the world.
The Muslim World is a legitimate Ummah that should be capable of carrying out the duty of a morally good, rationally balanced, economically just and globally effective Community which is worthy of trust, partnership and friendship everywhere.
We all take different paths in life, but no matter where we go, we take a little of each other everywhere!
Friends are God's way of caring for us!"
Stephen Schwartz: I don't think there's anybody in the audience who didn't understand Mirza but if there's anybody who didn't they can question him afterwards. We're going to run until about 12:10 for questions, so I'm going to ask people to make questions brief and identify themselves when they ask their questions. I'm also going to ask the respondents to be brief because at 12:10 we're going to eat a terrific lunch. Sir –
"...it is safe to say that the birth of al-Qaeda as a force on the world stage can be traced directly back to 1992, when the Bosnian Muslim government of Alija Izetbegovic issued a passport in the Vienna embassy to Osama bin Laden..."
Evan Kohlman author "Al Qaeda's Jihad in Europe - the Afghan -Bosnia connection "
MIM: Schwartz perfidiously presents the Bosnian Muslims as the template for a moderate European Islam. According to counter terrorism expert Evan Kohlmann who has written a book '"The Afghan Bosnian connection -Al Qaeda's Jihad in Europe Bosnia was the 'birthplace of Al Qaeda" and Alia Izetbekovics whom Schwartz venerates (see picture above) presented Bin Laden with a Bosnian passport and enabled him to set up an international Al Qaeda network in Bosnia.The Bosnian Al Qaeda network was linked to almost all terrorist atrocities committed worldwide among them, The Van Gogh murder, the London transport and Madrid train bombings, and the attacks in the United States on 9/11.
Evan F. Kohlmann, author of Al-Qaeda's Jihad in Europe: The Afghan-Bosnian Network, argues that the "key to understanding Al Qaida's European cells lies in the Bosnian war of the 1990s. Using the Bosnian war as their cover, Afghan-trained Islamic militants loyal to Osama bin Laden convened in the Balkans in 1992 to establish a European domestic terrorist infrastructure in order to plot their violent strikes against the United States. As the West and the United Nations looked on with disapproval, the fanatic foreign 'mujahideen', or holy warriors, wreaked havoc across southern Europe, taking particular aim at UN peacekeepers and even openly fighting with Bosnian Muslims at times. Middle Eastern religious and charitable organizations, largely based in and funded from the Arabian Gulf, were responsible for bankrolling this effort, and providing travel documentation for would-be mujahideen recruits." Kohlmann adds that "many of the cell members – responsible for some of the most notorious terrorist attacks of the past decade – spent their formative years waging jihad in the unlikely Muslim land of Bosnia."
Therefore, it is safe to say that the birth of al-Qaeda as a force on the world stage can be traced directly back to 1992, when the Bosnian Muslim government of Alija Izetbegovic issued a passport in the Vienna embassy to Osama bin Laden.
The Wall Street Journal reported in 2001 that "for the past 10 years, the most senior leaders of al Qaeda have visited the Balkans, including bin Laden himself on three occasions between 1994 and 1996. The Egyptian surgeon turned terrorist leader Ayman Al-Zawahiri has operated terrorist training camps, weapons of mass destruction factories and money-laundering and drug-trading networks throughout Albania, Kosovo, Macedonia, Bulgaria, Turkey and Bosnia. This has gone on for a decade. Many recruits to the Balkan wars came originally from Chechnya, a jihad in which Al Qaeda has also played a part."
THE BOSNIA/911 CONNECTION
An AP article of 2002 entitled, "U.N.Lawyer Turns Over Hijacker Info," reported that "the chief U.N war crimes prosecutor has turned over information about one of the Sept. 11 hijackers to the United States, France and the Netherlands, the U.N. spokesman said Wednesday...The war crimes prosecutor, Carla Del Ponte, said last October that information concerning people with connections to terrorist groups, primarily in Bosnia, was provided to Pierre Prosper, the U.S. ambassador at large for war crimes.
"On Wednesday, [UN Spokesman] Eckhard confirmed for the first time that the information included material related to 'one of the named terrorists said to have been on one of the hijacked aircraft' on Sept. 11. Eckhard refused to name the hijacker but said the information was also shared with the French and Dutch governments."
MIM: An interview with Mohammed Sacirbey and his lawyer Cherif Bassiouni who is a legal professor at De Paul University and a frequent keynote speaker at CAIR events.
Current Events at the United Nations
Aired December 26, 2003 - 21:00:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
RICHARD ROTH, CNN ANCHOR: International intrigue. A search for the money. An ambassador on the spot. And we're not even at the United Nations. We're in lower Manhattan, at Federal Court, and DIPLOMATIC LICENSE is next.
Welcome to DIPLOMATIC LICENSE. I'm Richard Roth.
Muhamed Sacirbey was one of those ambassadors who proved to be a goldmine for the media, and more importantly, his countrymen back home in Bosnia. As one senior U.N. official told me this week, he was a very effective spokesman for his contry, saying things and using unconventional techniques which didn't always help him with other diplomats and ministers.
Now the ex-Bosnian envoy to the United Nations is fighting to stay in the United States, clear his name and maybe just stay alive.
ROTH (voice-over): Muhamed Sacirbey was a New York investment banker thrust into the world of diplomacy by a war raging in his native Bosnia.
MUHAMED SACIRBEY, FMR. BOSNIAN AMB. TO U.N.: The term aggression is too neutral a word for the crime being perpetrated against my country.
ROTH: Ethnic violence in Sarajevo left little time for establishing a presence at the United Nations while independence was fought for. With relentless passion and style and numerous appearances on behalf of his country, Sacirbey became famous.
SACIRBEY: If Bosnia-Herzegovina wanted to commit suicide, we do not need the assistance of the Dr. Jack Kevorkian of mediation and diplomacy.
ROTH: But a decade later, the war is over, Bosnia is a member of the U.N. and Sacirbey is a prisoner in a downtown New York jail for the last nine months.
SACIRBEY: Since I have to share my cell with another individual, we had to drink out of the same toilet bowl that we both, as one would put it, pissed in and otherwise.
ROTH: This week, Sacirbey appeared in a federal courtroom seeking to block extradition to Bosnia. He is wanted there for investigation of stealing nearly $2.5 million while serving as at the Bosnia United Nations mission he opened.
SUSAN SACIRBEY, WIFE: There is no evidence of self-enrichment. I can tell you I'd like to see where all this money is that they say has been embezzled.
ROTH: And famous friends are stunned.
BONO, ROCK STAR: He's a very nice man and he was very good to me and I've heard these reports. I find them very hard to believe. He just seemed a person who really cared about his country.
ROTH: Sacirbey was once Bosnia's foreign minister, attending the Dayton Peace Conference, even sitting next to the man who for years he demanded should be tried for war crimes, Serbian leader Slobodan Milosevic.
Now both sit behind bars, an ocean apart.
M. CHERIF BASSIOUNI, SACIRBEY'S DEF. ATTY.: This is more than an irony. This has to be a purposeful political vendetta.
ROTH: In court, Sacirbey testified he suspects political enemies in Bosnia and the United States want him silenced for what he knows about massacres and side deals made at Dayton. An agitated U.S. government attorney sought to avoid the politics, charging there is evidence of missing funds. Sacirbey, on the stand and in a DIPLOMATIC LICENSE telephone interview from prison, said he was told by then Bosnia President Izetbegovic (ph) to make due, to spend as he saw fit in a chaotic environment.
SACIRBEY: We never received adequate funding from Sarajevo. Even when we were promised money, frequently it didn't come in on time. There was a period at the end where actually we didn't receive any money for seven months.
On the other hand, in the beginning, the whole mission was really funded n the basis of my own personal funds.
ROTH: Sacirbey's arrest was requested under the complicated three- party system running the country post-war and Sacirbey's case is now in the hands of the Justice Ministry, though it began with the Ministry of Foreign Affairs several elections ago.
MLADEN IVAMIC, BOSNIAN FOREIGN MIN.: It's out of any kind of influence of the politicians. Anymore now, it's really now a legal affair.
PRES. DRAGAN COVIC, BOSNIA (CROAT) (through translator): I think that the best thing the judiciary should deal together with higher diplomacy.
PRIME MIN. ADNAN TERZIC, BOSNIA (BOSNIAN) (through translator): I can only say my own personal opinion, not as the prime minister. However I can say and share my personal opinion. I am convinced that Ambassador Sacirbey did not take any money.
ROTH: If he is sent to Bosnia, Sacirbey could face three years in jail and fears for his life since the prisons are filled with war criminals.
Sacirbey is spending the holiday season behind bars. The judge refused another request to free him on bail. Judge Frank Moss (ph) will decide shortly after the new year whether there are grounds for extradition.
Post-9-11, U.S. prison authorities do not permit television cameras into jails for interviews, thus we talked by phone. We requested a photo be taken of the man known as Mo to his friends at the same time as the interview conducted with us.
This is not a mug shot, but reflects that he has been in jail for nine months, and at the start of the incarceration was jumbled in in isolation with terror suspects and accused murderers.
SACIRBEY: The conditions are what you might expect. Not very pleasant. Certainly very difficult to communicate with people and not something that one would consider your normal surroundings when it comes to everyday life.
At the same time, you become accustomed to it. I've been through war and in that war I became accustomed to a lot of things that one might normally expect in their life not being there. What I think is worse about this is the psychological implications of being behind bars and being obviously accused of certain things that I certainly don't believe that I'm responsible for.
ROTH: According to the U.S. attorney filing, you are accused of withdrawing $610,000 from the mission, the consulate there, the Bosnian mission in New York, plus taking or somehow diluting an account, an investment account, Investment Fund Ministry (ph) of $1,800,000. What's your side of that story?
SACIRBEY: I was actually investigated in Bosnia for something called abuse of authority. Now setting aside the validity or propriety of that whole investigation, what I think was really improper here on the part of the U.S. government is that they admitted a new offense, called abuse of authority for embezzlement.
The Bosnians did not feel that I was in any way culpable to be investigated for embezzlement. What I found very strange is that this government, that is the U.S. State Department, on behalf of the Bosnians, chose to try to not only embellish the charge, but in fact to characterize it into something very unsavory.
ROTH: So you believe the charges are all politically motivated by who?
SACIRBEY: Well, I think in the beginning the charges certainly were motivated in Bosnia. Abuse of political office is something that has been frequently charged against past diplomatic and/or political officials. Even the current president of the presidency of Bosnia is under investigation for abuse of political office.
It could be anything from not doing one's job as one should, that is neglect, to potentially maybe abusing one's position to favor some party in some sort of privatization arrangement.
So clearly in the chaos that followed the war and of course during the war itself, there were a lot of opportunities for people to be investigated for such a thing. Bosnia has certainly had its share of continued, if you would, upheaval. I, as someone who was central to the investigations of the war crimes tribunal, who was Bosnia's agent before the International Court of Justice, who handed over evidence to these institutions that may implicate many others in Bosnia, would certainly be a potential target, and I believe obviously would be a real target in Bosnia at this time.
ROTH: I'm sure you've had time to reflect on this, but you're in jail. At the same time, a man you forcefully campaigned to be behind bars, Slobodan Milosevic, is also in prison, in the Hague, in his own trial.
SACIRBEY: Yes, and maybe the most unfortunate comparison there is that his conditions, I think, are much better, and the opportunity for his defense is much broader, and he has certainly every chance to present not only his defense, but to present all of his arguments before a court, that I think is much more just or if you would democratic in its essence than the proceedings which I seem to be facing right now.
ROTH: The experience of being taken away from your wife, your cats, they handcuffed you.
SACIRBEY: The first thing is that you believe that you'll be back on the streets and walking, since there really is no basis for the charges. I think worst of all you feel like you have very little control over your future. And to the extent that you start raising your expectations about going outside, about being released, about the judge ruling in your favor, that all in the end plays against you because the worst enemy that you have within these walls is your own expectations, of your own freedom, of your own rights.
What you do is you struggle for those rights, you struggle for that freedom, but you never take it for granted, and it's taught me a very valuable lesson that certainly I will take with me beyond these four walls.
ROTH: Summing up, what is it you want to happen now to you? What do you want?
SACIRBEY: Well, clearly, I just want to be out of this institution, and that's the immediate goal. On the other hand, I think it's also maybe as important or more important that these allegations against me be cleared up, and I've already initiated that process in Bosnia.
I'm very, very disturbed by what I've seen here and in terms of how the rights of a U.S. citizen can be so easily swept up and put aside at the discretion of our government. I'm not charged as a terrorist. I'm not charged as a foreign combatant. In effect, all that is said is that I am wanted by a foreign country, where this country has chosen at its own option, to send me there, without any obligation to do so.
And because of that choice, I'm not entitled to bail, I'm not entitled to the 4th, 5th and 6th amendments of the U.S. Constitution. I'm not entitled to discovery. I'm not entitled to the normal evidentiary procedures.
I would have never thought that it was possible in this country.
ROTH: If you got out, what's the first thing you would want to do?
SACIRBEY: I think I'd probably want to have a beer and have a hamburger and sit down and watch a football game in peace. We have some TV's here, and that's probably my greatest fun, in terms of pastime, watching television, besides, you know, maybe playing some chess.
On the other hand, I think after my experience, within 24 hours I'd be back trying to make sure this doesn't happen to someone else.
ROTH: Ambassador Sacirbey, thank you very much, and good luck in there.
SACIRBEY: Thank you very much, Richard.
ROTH: His wife Susan had to go through hoops just to get the ambassador a suit to wear in court last Tuesday. Even if the judge rules in favor of extradition, the final decision will be up to U.S. Secretary of State Colin Powell.
Sacirbey had some support in the courtroom. Jordan's ambassador to the United Nations was there.
Watching Sacirbey on the stand was quite different than seeing the ambassador in the hallways of the United Nations. Unlike many of the diplomats there, Sacirbey could handle any question and was willing to answer it on camera.
(BEGIN VIDEO CLIP)
ROTH: Are you actually coming back here to the United Nations? Is that what I read? Why do you want to come back?
SACIRBEY: No one wants to come back to the United Nations. No. I have many other tasks I have to fulfill before I consider what my future is all about. Thank you.
Roth: See you later.
MIM: The extradition order in the case of Muhamed Sacirbekovic aka Muhamed Sacirbey.
2005 WL 107094 (S.D.N.Y.)
United States District Court, S.D. New York.
In the Matter of the EXTRADITION OF Muhamed SACIRBEGOVIC, a/k/a "Muhamed Sacirbey"
No. 03 CR. MISC. 01PAGE1.
Jan. 19, 2005.
RELATED REFERENCES: In re Extradition of Sacirbegovic, 280 F.Supp.2d 81 (S.D.N.Y. Jul. 3, 2003) (No. 03CRIM.MISC.01PAGE19)
On Reconsideration: In re Extradition of Sacirbegovic, 2004 WL 1490219 (S.D.N.Y. Jul. 2, 2004) (No. 03 CRIM.MISC.01 P.19), as corrected (Jul 06, 2004)
OPINION AND ORDER
OPINION BY: MAAS, Magistrate J.
[*1] The United States Government ("Government"), acting on behalf of the Federation of Bosnia and Herzegovina ("BiH"), seeks the extradition of Relator Muhamed Sacirbegovic, a/k/a "Muhamed Sacirbey" ("Sacirbey") to BiH, on a criminal charge of Abuse of Office or Authority, pursuant to an extradition treaty between the United States and the Kingdom of Serbia that became effective on June 12, 1902 ("Treaty"). This extradition request is unusual in several respects. First, although the charges relate to a period during which Sacirbey served as a Bosnian government official, Sacirbey has at all relevant times been a citizen of the United States. Second, even though BiH is alleged to be the victim, the crime for which Sacirbey's extradition is sought is alleged to have occurred in New York City. Third, because Sacirbey is a graduate of a law school in the United States, he has actively participated in the defense of this case as co-counsel, in which capacity he has made several lengthy submissions to the Court.
In their papers, Sacirbey and his co-counsel contend that the extradition request should be denied because (a) there is no valid extradition treaty between the United States and BiH, (b) the offense of Abuse of Office or Authority for which extradition is sought fails to meet the Treaty requirements, (c) BiH has failed to establish probable cause to believe that he committed that crime, and (d) his conduct falls within a Treaty exception for crimes of a political character.
Notwithstanding these claims, for the reasons set forth below, I find that Sacirbey is extraditable. At Sacirbey's request, execution of the extradition order will be stayed for ten days to permit Sacirbey to file the habeas petition that his co-counsel has indicated will be forthcoming. [FN1]
FN1. A relator whose extradition is ordered cannot file a direct appeal from that decision. Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir.1990). Accordingly, the only avenue for relief is a habeas petition. Id. On habeas review, the court may only consider "whether the magistrate [judge] had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312 (1925); accord Spatola v. United States, 925 F.2d 615, 617 (2d Cir.1991).
A. Procedural History
On March 17, 2003, the Government filed a Complaint for Arrest with a View Towards Extradition ("Complaint" or "Compl.") in support of BiH's request for the extradition of Sacirbey ("Request"). The Request alleges that in or around 2000, while serving as an employee of the Ministry of Foreign Affairs of BiH ("Ministry") and as the BiH ambassador to the United Nations, Sacirbey improperly "withdrew funds in the approximate amount of $610,982.46 from the Permanent Mission to the United Nations [ ("Mission") ] and General Consulate of the Federation of Bosnia and Herzegovina in New York, New York …, by issuing checks and bank orders drawn on the … Mission's accounts and transferring the funds to his private bank account." (Compl.¶¶ 6(a), (b); see Ex. 5 (Claim for Conducting an Investigation, dated Apr. 11, 2001 ("Claim")), at 1). [FN2] The Request further alleges that, during the same time period, Sacirbey improperly withdrew approximately $1,800,000 from a second account belonging to the Republic of Bosnia and Herzegovina Investment Fund Ministry ("Investment Fund"). (Compl.¶ 6(b); see Ex. 6 (Decision on Conducting Investigation, dated Aug. 20, 2001), at 2). On the basis of this alleged misconduct, BiH seeks Sacirbey's extradition so that he may be tried on a charge of Abuse of Office or Authority in violation of Article 358 of the BiH Criminal Code. (Compl. ¶ 4; see Ex. 7 (Chapter XXXI of the BiH Criminal Code, Criminal Offenses Against Official Duty or Other Responsible Duty)).
FN2. "Ex." refers to the exhibits received in evidence at the extradition hearing held on December 23, 2003. "Tr." refers to the transcript of that hearing.
[*2] On December 5, 2001, the Investigating Judge of the Cantonal Court in Sarajevo ("Cantonal Court") issued a warrant for Sacirbey's arrest. (Compl. ¶ 4; see Ex. 6 (Orders for Issuing a Wanted Circular and an International Wanted Circular, dated Dec. 5, 2001)). BiH then requested the Government's assistance in securing Sacirbey's extradition in accordance with the Treaty.
On March 25, 2003, pursuant to the Complaint, and a warrant issued by Magistrate Judge James C. Francis IV, Sacirbey was arrested and presented in this District before Magistrate Judge Debra C. Freeman, who ordered that he be detained because he had failed to show special circumstances warranting his pre-extradition release. (See Docket No. 8).
This matter first came before me on June 4, 2003, in connection with Sacirbey's renewed application for bail. After hearing oral argument, I reserved decision and permitted counsel to make further submissions. Thereafter, on July 3, 2003, I denied Sacirbey's application for bail. See In re Extradition of Sacirbegovic ("Sacirbey I" ), 280 F.Supp.2d 81 (S.D.N.Y.2003). In doing so, I found that Sacirbey had failed to show "special circumstances" warranting his release. Id. at 86-88.
In June 2004, Sacirbey sought reconsideration of my bail decision on the basis of a letter sent to the United States by Adnan Terzic, the Chairman of the Council of Ministers of BiH, and thus the head of the BiH government. [FN3] In his letter, Terzic stated that he and Safet Halilovic, the BiH Minister for Civil Affairs, concurred that Sacirbey would not pose a flight risk if bail was granted. (See letter dated May 31, 2004, from Adnan Terzic to Anne Marie L. Corominas, Esq.). Although the Government attacked this letter as an end run around the cantonal prosecutor who had requested Sacirbey's extradition, I concluded that it tipped the special circumstances test in Sacirbey's favor, and I therefore set bail conditions which led to Sacirbey's release in July 2004. (See Docket Nos. 66-67).
FN3. As a result of the Dayton Accords, two multiethnic constituent entities were created within the independent state of BiH—the Federation of Bosnia and Herzegovina, with a Bosnian Muslim and Croat majority, and the Republic of Srpska, with a Bosnian Serb majority. (See Tr. 21; United States Department of State Background Note: Bosnia and Herzogovina (Feb.2004) ("Background Note"), available at www.state.gov/r/pa/ei/bgn/2868pf.htm (last visited Jan. 17, 2005)). The BiH constitution agreed to at Dayton provides for a three-member presidency, consisting of a Bosnian, a Serb, and a Croat, each of whom serves as Chair of the Council of Ministers for a four-year term. (See id.; Tr. 19).
Throughout the pendency of this case, Sacirbey has had a string of attorneys to assist him. At the outset, at the time of his initial presentment, Steven Statsinger, Esq., of the Federal Defender Division of the Legal Aid Society, was appointed to represent Sacirbey. (See Disposition Sheet, dated Mar. 25, 2003). Thereafter, in connection with his renewed bail application, Sacirbey was represented on a pro bono basis by John Carroll, Esq., the Regional Managing Partner of Clifford Chance U.S. LLP, and Mr. Statsinger was relieved. (Docket No. 9). On July 24, 2003, however, I granted Mr. Carroll's application to withdraw as counsel, as well as Sacirbey's application to represent himself. (Docket Nos. 13-14). I also appointed Mr. Statsinger to act as Sacirbey's attorney-advisor. (Id.). Then, on October 24, 2003, I granted the application of Professor M. Cherif Bassiouni of the DePaul University College of Law to appear in this matter pro hac vice on Sacirbey's behalf. (Docket No. 38). Following that appointment, on November 20, 2003, I granted Mr. Statsinger's application to be relieved as Sacirbey's attorney-advisor. (Docket No. 39). On two subsequent occasions, I denied Sacirbey's requests to have another local counsel appointed, noting that, in addition to Professor Bassiouni and Sacirbey himself, at least one other attorney who never entered an appearance in this matter (Scott T. Johnson, Esq.) was assisting Sacirbey. (See Docket Nos. 41, 42).
[*3] On December 23, 2003, after Professor Bassiouni had an opportunity to become familiar with the case, I held an evidentiary hearing to determine whether the evidence presented against Sacirbey was sufficient to warrant his extradition pursuant to the Treaty. The hearing date previously had been adjourned on several occasions so that Sacirbey and his counsel could submit a pre-hearing brief, as well as an expert report on BiH criminal law and procedure, and so that the Government could have adequate time to respond to those submissions. (See Docket Nos. 36, 37, 40).
After the hearing, Sacirbey retained Michael S. Kim, Esq. of Kobre & Kim LLP to represent him. (See Docket No. 51). Once he appeared in the proceeding, Mr. Kim also requested time to submit post-hearing papers to the Court. (Docket No. 57).
Finally, on April 23, 2004, Anne Marie L. Corominas, Esq., entered a notice of appearance, indicating that she would be assisting Professor Bassiouni in connection with his representation of Sacirbey.
In determining whether Sacirbey is extraditable, I have considered all of the prior papers and proceedings herein, including, in particular, the evidence adduced by the parties in connection with the December 2003 evidentiary hearing.
At the hearing, in support of its Request, the Government relied entirely on documentary proof. (See Tr. 2-5; Exs. 1-8). Sacirbey called two witnesses: Paul Robert Williams, a former employee of the United States Department of State, and himself. Both witnesses ostensibly were proffered for the limited purpose of establishing the applicability of the "political offense" exception to extradition. (See Tr. at 9-10). In addition to the testimony of these witnesses, Sacirbey has submitted several declarations by Michael E. Hartmann, an attorney in the United States, currently employed by the United Nations as a prosecutor in Kosovo, who has been proffered as an expert on Bosnian criminal law. (See Decl. of Michael E. Hartmann, dated Nov. 16, 2003 ("Hartmann I"); Expert Witness Decl. of Michael E. Hartmann, dated Dec. 9, 2003 ("Hartmann II"); Addt'l Decl. of Michael E. Hartmann, dated Dec. 23, 2003 ("Hartmann III").
Although I have considered all of the papers and evidence submitted by the Government and Sacirbey in reaching my decision, I am mindful that a relator's "right to introduce evidence is … limited to testimony which explains rather than contradicts the demanding country's proof." Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) (quoting United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir.1963)). "The extent of such explanatory evidence to be received is largely in the discretion of the judge ruling on the extradition request." Matter of Sindona, 450 F.Supp. 672, 685 (S.D.N.Y.1978)
1. Request and Supporting Documentation
It is undisputed that Sacirbey was born in Sarajevo in 1956 and became a United States citizen in 1973. (See Ex. 7; Sacirbey I at 82). He has undergraduate and law degrees from Tulane University and an M.B.A. from the Columbia Graduate School of Business. (See letter dated July 31, 2003, from Sacirbey to the Court, Ex. E).
[*4] From 1992 until late 2000, Sacirbey served as BiH's permanent representative and ambassador to the United Nations. (Tr. 41-43). Sacirbey also served as Bosnia and Herzegovina's agent before the International Court of Justice ("ICJ") from 1993 until 2001, and as BiH's foreign minister from early 1995 until early 1996. (Id. at 53-54). As U.N. ambassador, Sacirbey had signature authority over the Mission's financial accounts and primary responsibility for the proper disbursement of its funds. (Claim at 1; Tr. 81- 82).
In September 2000, Dragan Dragic, Chief of the Accounting Division of the Ministry, reported to Haris Lukovac, another Ministry official, that the Mission had failed to transmit consular taxes to the BiH Ministry for Treasury in Frankfurt, Germany, as BiH procedures required. (Ex. 7, (Lukovac Hr'g R. ("Lukovac")) at 2). Lukovac called Aisa Dervisevic, a part-time bookkeeper at the Mission, who advised him that the Mission's finances were "in [a] big crisis." (Id.). After confirming that there was a problem, Lukovac directed that Ministry Finance Officer Hazima Razanica travel to New York to investigate. (Id.). Razanica had no prior responsibility for oversight of the Mission. (Id.; Razanica Hr'g R. ("Razanica") at 2).
After her arrival in New York, Razanica discovered that the funds of the Mission and the BiH Consulate had been commingled, and that approximately $610,000 of Mission funds attributable to consular taxes was missing. (Lukovac at 2). At least some of the shortfall was attributable to the fact that Sacirbey had secured advances of Mission funds without properly accounting for them. (Razanica at 2). When Razanica asked Sacirbey about the missing funds, he stated that his expenditures were authorized by the BiH presidency, but that he could not show her the supporting documents. (Id. at 3). He nevertheless promised to make the documentation available to officials in Sarajevo during a trip there that he was scheduled to take in a matter of days. (Id.).
At the hearing, Sacirbey claimed that with the express approval of Alija Izetbegovic, the Bosnian member of the BiH presidency, some of the funds that the Ministry believed were missing had been used to press a case before the War Crimes Tribunal in the Hague, which eventually led to the indictment of Momcilo Krajisnik, a member of the Bosnian presidency. [FN4] (Tr. 3, 65; see also http://www.un.org/icty/indictment/english/kra-cai020307e.htm (last visited Jan. 17, 2005)) ("ICTY Indictment"). According to Sacirbey, because the targets of the War Crimes Tribunal investigation included members of the presidency, the funds necessary to pursue that investigation had to be shielded from their view. (Tr. 56). The BiH Rule Book, however, does not contain any provision which would have permitted Sacirbey to treat the financial operations of the Mission as confidential and decline to produce information about them to a Ministry finance officer. (See Lukovac at 5; Razanica at 5).
FN4. Krajisnik's name is misspelled in the hearing transcript.
[*5] When Ministry officials inquired about Sacirbey's claim that he was authorized to spend Mission funds in connection with the War Crimes Tribunal case, President Izetbegovic stated that he had not given Sacirbey either written or verbal authorization to do so. (Lukovac at 5). Nonetheless, Izetbegovic confirmed that he had received a letter from Sacirbey which contained some explanation of the questioned expenditures of Mission funds. (Id.).
After Razanica rendered her report, Lukovac also traveled to New York. (Lukovac at 3). There, he met with Sacirbey, who stated that he had all the documents necessary to substantiate his expenses and would provide them promptly. (Id.). At the same time, however, Sacirbey conceded that there were certain payments that he had made for which the payees had not provided receipts, such as payments to lobbyists. (Id.). Lukovac instructed Sacirbey to provide the missing documentation within thirty days. (Id.). During their conversation, Sacirbey also told Lukovac that he would be able to restore certain funds to the Mission. (Id.).
Upon his return to Sarajevo, Lukovac directed that 15,000 DM be transferred to the Mission account so that its bills could be paid as they came due. (Id.). The money was sent to the Mission, but was diverted by Sacirbey before Dervisevic could use it to pay the Mission's outstanding bills. (Id.).
Based on this action, Lukovac directed that Sacirbey's signature authority over Mission funds be terminated. (Id.). Additionally, the newly-appointed Foreign Minister, Zlatko Lagumdzija, approved Lukovac's recommendation that a commission be appointed to investigate the situation. (Id. at 3-4).
Thereafter, a three-member commission—consisting of Ivica Misic, Dragan Obrenovic, and Adnan Hadzikapetnovic—was sent to New York to study the financial situation of the Mission and the Consulate in greater detail. (Id. at 4; Ex. 7, (Misic Hr'g R. ("Misic")) at 2). During their one-week visit, the Commission members ascertained that in addition to the shortfall in consular taxes, approximately $1.8 million was missing from the Investment Fund account at the Mission. (Lukovac at 4; Misic at 2). Despite Sacirbey's prior promise to Lukovac, Sacirbey did not provide the Commission with any substantiation for his undocumented expenditures. (Misic at 2-3). Sacirbey also failed to make any payments to the Mission, explicitly rejecting a suggestion by Lukovac that he take out a loan. (Lukovac at 4).
Ultimately, Lukovac determined that the $1.8 million missing from the Investment Fund account should not be considered part of the Mission's deficit because the funds in that account were donated by Saudi Arabia and did not belong to the Ministry. (Id.). Nevertheless, Razanica's audit report concluded that $1.3 million was missing from the Mission account, $610,000 of which was attributable to consular taxes, "the rest to regular subsidies of [the] Ministry." (Id.). Lukovac tried to contact Sacirbey after January or February 2001 to discuss these findings, but Sacirbey was always unavailable, and Lukovac concluded that Sacirbey was avoiding him. (Id.).
2. Relator's Case
*6 Paul Williams, now an Assistant Professor of Law at American University, testified that he served as an Attorney Advisor in the Office of the Legal Advisor for European and Canadian Affairs at the United States Department of State from 1991 to 1993, during which time he became involved in the formation of the International Tribunal for the Former Yugoslavia ("ICTY"). (Tr. 10-11). He subsequently represented the Bosnian Delegation on a pro bono basis in connection with the discussions leading to the Dayton Accords, which established the ground rules for the cessation of hostilities and the formation of the BiH government. (Id. at 12). The Dayton Accords sought to bridge the differences among the three principal ethnic groups in Bosnia: the Bosnians, the Croats, and the Serbs. (Id.).
According to Professor Williams, from 1991 through 1993, and beyond, the Bosnian government "was in a near state of chaos." (Id. at 13). Williams explained that Sacirbey was Bosnia's voice in the United States and became very involved in the Dayton talks. (Id.). Williams described Sacirbey as the "go to guy," noting that Sacirbey was "very close" to President Izetbegovic. (Id. at 15-17).
Williams testified that the Bosnian government filed a case before the ICJ in 1993 which alleged that the Republic of Serbia was responsible for the mass murder of Bosnians by Serbian forces in Bosnia. (Id. at 18). That case eventually led to the indictment before the ICTY of Krajisnik and Biljana Plavsic, the President of the Republic of Srpska, one of the three entities comprising BiH. (Id. at 19-23; ICTY Indictment). [FN5] Sacirbey represented the Bosnian government in connection with the prosecution of these accuseds before the ICTY, in which capacity he oversaw the collection of evidence, the filing of briefs, and the general presentation of the case. (Id. at 23).
FN5. Plavsic's first name is misspelled in the hearing transcript.
During his testimony, Williams explained that Sacirbey's work with the ICJ was opposed by Krajisnik and others in the international community, including Slobodan Milosevic, the former President of the Federal Republic of Yugoslavia, who wanted the case dismissed. (Id. at 22). Williams further contended that there were officials of the United States who shared that goal because they feared that the ICJ might conclude, as Sacirbey alleged, that certain of the participants in the Dayton talks—including the United States—were willing to overlook past acts of genocide against Bosnians in order to secure an agreement concerning Bosnia's governance. (Id. at 24-25). Indeed, Sacirbey and others contended that certain United States allies had failed to prevent a massacre in the town of Sresvernizca in 1995 in furtherance of that goal. (Id. at 25- 26). Williams suggested through his testimony that the charges against Sacirbey may have been brought in an effort to discredit Sacirbey so that he could not testify before any international tribunal in an effort to establish the "historical record" before the ICJ or ICTY. (Id. at 30). As he explained, after Sacirbey left office, the party controlling the Bosnian government changed hands, and the new party, "which was the former communist party, essentially recloaked, had a very specific motive in going after members of the former regime to discredit them for political reasons." (Id. at 32).
b. Sacirbey's Testimony
[*7] Sacirbey testified that President Izetbegovic asked him to serve as Bosnia's representative to the United Nations in the spring of 1992. (Id. at 41). He stated that he contributed between $600,000 and $800,000 of his own funds to the Mission between 1992 and 1995 because financial support from Sarajevo for the Mission's work was haphazard at best. (Id. at 43-44). Sacirbey further testified that he was entitled to receive a salary as ambassador, but never collected it. (Id. at 47-48).
Sacirbey stated that following the signing of the Dayton Accords in 1995, money that was earmarked for the Mission often never arrived, and he often received "conflicting instructions" from the Bosnian government regarding expenditures. (See id. at 44). Sacirbey testified that the Mission submitted proposed budgets to the Bosnian government, but the budgets were "altered … unilaterally," and "the money … never came regardless of whatever budget was approved." (Id. at 45-46). Sacirbey stated that his authority to spend money for the Mission came "directly from President Izetbegovic, … [who] said basically in very broad terms, we authorize this." (Id. at 46). He later reiterated that his "directives" regarding expenditures "almost always came from President Izetbegovic from the presidency." (Id. at 50). Sacirbey agreed that Ministry officials asked him to document his expenditures of Mission funds, but believed that Ivica Misic had acknowledged that he had provided President Izetbegovic with the necessary documentation. (Id. at 82- 83).
Sacirbey testified that, in addition to his U.N. role, he also served as Bosnia's foreign minister from early 1995 to 1996, and as Bosnia's "agent" before the ICJ from 1993 until 2000. (Id. at 53-54). He stated further that he was Bosnia's "representative" to the ICTY, and President Izetbegovic's "representative for the implementation of the Dayton agreements," in which capacity he also oversaw programs to train and equip a new Bosnian army and configure a new Bosnian intelligence service. (Id. at 54-55). Sacirbey testified that all of these different activities were "generally" funded through the Mission account. (Id. at 57-58). Sacirbey noted that President Izetbegovic never questioned the way that he carried out his functions or expended Mission funds; indeed, he told Sacirbey to "make do," stating that his ability to do so was one of the reasons he was "so valuable." (Id. at 59). Sacirbey also specifically denied that Izetbegovic had failed to approve any funding for the ICJ case. (Id. at 103-04).
Sacirbey testified that the Bosnians prosecuted the ICJ case, in part, to put pressure on the Serbs—most notably Milosevic—to negotiate a peace agreement. (See id. at 62). He noted that his role as Bosnia's agent before the ICJ brought him into conflict with members of the BiH government, including two Serb members of the presidency. (See id. at 61-79). As Sacirbey explained, he "would receive unsolicited instructions from members of the foreign ministry or [the] presidency who were Serbs saying [that his] activities were unauthorized." (Id. at 64). In one instance, someone was sent to replace Sacirbey before the ICJ, but the request was rejected by the court. (Id.).
[*8] Sacirbey testified that Krajisnik was a good example of his "political opponents" within the BiH government. (Id. at 65). As he explained, he reported to Krajisnik for two years while Krajisnik was a member of the BiH presidency, at the very same time that he was seeking to bring Krajisnik to justice before the ICTY. (Id.). Sacirbey noted that his opponents labeled him as a "criminal," an "embezzler," and a "womanizer." (Id.). In his view, the extradition request was an outgrowth of his support of the war crimes case. (Id. at 70).
Sacirbey also testified that he had certain enemies as a result of his relationship with President Izetbegovic. (See id. at 67-68). He stated that he was told on a number of occasions that he "was too close to Izetbegovic for [his] own good." (Id. at 67). Indeed, he testified that Ivica Misic told him that he was being targeted in an effort to secure his cooperation in making a case against President Izetbegovic, which he declined to do. (Id. at 68). Based on this conversation, Sacirbey considered the present extradition proceeding part of the effort to "go after President Izetbegovic." (Id. at 68-69).
Sacirbey also testified, as did Williams, about the political implications of the U.N. investigation into the massacre of Bosnian Muslims at Srebrenica, which "met all sorts of opposition … from the Bosnian Serbs … [and also] from western capitals, including Washington." (See id. at 71). He stated that he held a conference at the U.N. in July 2000 to publicize the betrayal of Srebrenica, and that he also had been contacted by the ICTY in connection with Srebrenica. (Id. at 71-73). Sacirbey testified that he suspected that certain Bosnian Serbs from the Republic of Srpska who were made part of the BiH government were aware that he had supplied information about them to the ICTY prosecutors. (Id. at 73-74).
Sacirbey testified further that, while he was serving as United States Ambassador to the United Nations, Richard C. Holbrooke pressured Sacirbey and others to abandon the ICJ genocide case and "came down very hard" on Sacirbey at Dayton for "call[ing] for Milosevic's indictment." (Id. at 75-78). He theorized that Holbrooke and others close to Holbrooke might have played a role in the commencement of this proceeding against him. (Id. at 77-78).
Sacirbey further testified that his submissions to Izetbegovic "may" have included letters from vendors, cancelled checks, money orders, and documents regarding wire transfers. (Id. at 83). He conceded that he was unsure because most of the documents that he supplied were kept by the Mission bookkeeper. (Id.).
Sacirbey also noted that he provided President Izetbegovic with a yearly accounting of the expenses incurred in connection with the genocide case before the ICJ. (Id. at 86). He claimed that this reporting was proper because the BiH Ministry of Foreign Affairs had no authority over cases at The Hague. (See id. at 86, 89, 94-96, 98-99). Sacirbey nevertheless claimed that he had provided the documentation underlying most of the routine expenses of the Mission to the personnel that the Ministry sent to New York. On cross-examination, however, Sacirbey expressed uncertainty as to whether Izetbegovic had received complete documentation concerning the expenditures for the ICJ genocide case. (See id. at 118). He also testified that the Mission's back up set of documents was sent to Izetbegovic and that he had not kept any duplicates. (Id. at 118-19, 122-23).
[*9] Section 3184 of Title 18, United States Code, provides that a magistrate judge may issue a warrant for the arrest of someone whose extradition is sought, so that the person charged may be brought before the Court "to the end that the evidence of criminality may be heard and considered." Additionally,
[i]f, on such hearing, [a magistrate judge] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, … he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
18 U.S.C. § 3184.
An extradition hearing, conducted pursuant to 18 U.S.C. § 3184, is not a criminal proceeding. See Lo Duca v. United States, 93 F.3d 1100, 1104 (2d Cir.1996). Rather, it is a preliminary examination to determine "whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation." Id. (quoting Ward v. Rutherford, 921 F.2d 286, 287 (D.C.Cir.1990)). The function of the extradition court is to determine whether there is probable cause " ‘to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.Ơ Ƣ Id. (quoting Collins v. Loisel, 259 U.S. 309, 316 (1922)).
The "question of the wisdom of extradition remains for the executive branch to decide." Murphy v. United States, 199 F.3d 599, 602 (2d Cir.1999) (quoting Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir.1965)). If the extradition court issues a certificate of extraditability, the Secretary of State may order the accused to be delivered to the requesting nation, but is under no legal duty to do so. See Lo Duca, 93 F.3d at 1104. However, if the court chooses not to issue such a certificate, the complaint is dismissed and the Secretary of State has no authority to order the accused's surrender. Id. (citing In re Mackin, 668 F.2d 122, 125-28 (2d Cir.1981)).
Furthermore, the issues to be decided in an extradition proceeding are "exceedingly narrow." In re Extradition of Ernst, No. 97 Crim. Misc. 1 (HBP), 1998 WL 395267, at *4 (S.D.N.Y. July 14, 1998). Thus, the Court should only determine whether:
(1) there is a valid extradition treaty between the United States and the [requesting country];
(2) [the individual arrested] is the individual sought;
(3) the offenses charged are extraditable;
(4) the requirement of "double criminality" is satisfied;
(5) there is probable cause to believe [the extraditee] committed the offenses charged;
(6) the required documents have been presented, translated and duly authenticated by the United States Consul; and
[*10] (7) all other treaty procedures have been followed.
Id. (quoting In re Extradition of Rabelbauer, 638 F.Supp. 1085, 1087 (S.D.N.Y.1986)).
A. Validity of the Extradition Treaty
Sacirbey contends that the Treaty originally entered into between the United States and the Kingdom of Serbia is not in force between the United States and BiH. (Relator's Brief in Opposition to Extradition, dated Nov. 14, 2003 ("Relator's Br."), at 6). He argues that the Government has failed to meet its burden by "produc[ing] a legal document that clearly encompasses the express agreement of the United States and the government of Bosnia and Herzegovina to be bound by the 1902 Extradition Treaty." (Id. at 7) (emphasis added).
The "question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and … the courts ought not to interfere with the conclusions of the political department in that regard." Terlinden v. Ames, 184 U.S. 270, 288 (1902) (considering the validity of the 1852 extradition treaty between the United States and Prussia). Accordingly, circuit courts that have considered whether a treaty has lapsed have typically deferred to the executive branch's determination. See Kastnerova v. United States, 365 F.3d 980, 986-87 (11th Cir.) (holding that the conduct of the United States and the Czech Republic evinced their intent to adhere to a 1925 extradition treaty between the United States and Czechoslovakia), cert. denied, 124 S.Ct. 2826 (2004); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 171 (3d Cir.1997) (holding that Trinidad and Tobago succeeded to an extradition treaty between the United States and Great Britain based upon the conduct and intent of their governments despite the lack of an express confirmation treaty or exchange of diplomatic letters); Then v. Melendez, 92 F.3d 851, 854 (9th Cir.1996) ("The continuing validity of the [extradition treaty between the United States and Singapore] after Singapore's independence from the United Kingdom presents a political question, and we must defer to the intentions of the State Departments of the two countries."); New York Chinese T.V. Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847, 852 (2d Cir.1992) (observing, in a copyright action, that "the judiciary should refrain from determining whether a treaty has lapsed, and instead should defer to the wishes of the elected branches of government"); Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.1978) (noting that courts must give "great deference" to the conduct of the governments concerned in deciding a treaty's applicability).
The courts also have recognized a presumption that emerging nations inherit the treaty obligations of their predecessors. See Jhirad v. Ferrandina, 355 F.Supp. 1155, 1159 (S.D.N.Y.1973), rev'd on other grounds, 486 F.2d 442 (2d Cir.1973); United States ex rel. Saroop, 109 F.3d at 172 (citing Jhirad ); see also Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 682 (9th Cir.1983) (holding that the extradition treaty between the United States and Denmark applied to Iceland after it gained its independence); Ivancevic v. Artukovic, 211 F.2d 565, 573-74 (9th Cir.1954) (holding that the Treaty was valid and effective between the United States and the Federal Peoples' Republic of Yugoslavia).
[*11] Here, the evidence shows that the Treaty was signed at Belgrade on October 25, 1901, that it later was ratified by the United States and the Kingdom of Serbia, and that it entered into force on June 12, 1902, thirty days after the signatories exchanged instruments of ratification. (See Ex. 8 (Decl. of Robert E. Dalton, dated Dec. 19, 2003 ("Dalton Decl.")), ¶ 3). It also appears undisputed that the Treaty has continued in force through a series of successor nations, including the Federal People's Republic of Yugoslavia, later renamed the Socialist Federal Republic of Yugoslavia ("SFRY"), which consisted of six republics, including Bosnia, Herzegovina, and Serbia. (Id. ¶¶ 4-6 (citing Ivancevic )).
Although Sacirbey contends that BiH has not expressly ratified the Treaty, in April 1992, President Izetbegovic advised the United States Secretary of State that "Bosnia is ready to fulfill the treaty and other obligations of the former SFRY." (Id. ¶ 7). Since then, the United States has considered the Treaty to be in effect between the United States and BiH. (Id.; Ex. 1 (Decl. of Kenneth Propp, dated Apr. 2, 2002 ("Propp Decl.")), ¶ 2).
Additionally, in both this proceeding and other proceedings, BiH's request for extradition has expressly relied on the Treaty. (See Ex. 8 ¶ 10; Ex. 5 at 1 (noting that the Request is made "[i]n accordance with … Articles II and III of the Convention on Extradition of Offenders concluded between the former Kingdom of Serbia and the United States of America …, taken over by Bosnia and Herzegovina from the former Socialist Federal Republic of Yugoslavia[.]")).
Sacirbey's reliance on the Restatement (Third) of Foreign Relations, as support for his contention that the Treaty has not properly been ratified, is wholly misplaced. Indeed, the Restatement provides that "[w]hen a part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was a party unless, expressly or by implication, it accepts such agreements and the other party or parties thereto agree or acquiesce." (Relator's Br. at 8 (quoting Restatement (Third) of Foreign Relations § 210 (1987)) (emphasis added). Here, President Izetbegovic's 1992 letter to the State Department expressly bound Bosnia to the Treaty. In addition, by making formal requests for extradition under the Treaty in this and other cases, BiH has implicitly conceded that it is bound by the Treaty. By certifying those requests, the United States also has impliedly agreed that BiH is bound. See M. Cherif Bassiouni, International Extradition: United States Law and Practice 144 (4th ed. 2002) ("Bassiouni") ("The prevailing position of the United States is that a treaty is in force sua sponte and binds the successor state unless that state repudiates it.").
In sum, there is ample evidence that BiH has adopted the Treaty, if not expressly, then impliedly. Accordingly, the Government has made the first showing necessary to secure Sacirbey's extradition.
[*12] It is undisputed that Sacirbey, who is named in the extradition request as "Muhamed Sacirbegovic," is the individual whose extradition BiH seeks. (See Relator's Br. at 1 ("There is no issue as to the identity of the Relator.")).
C. Extraditability of the Charges
Sacirbey contends that Abuse of Office or Authority is not an offense for which he can be extradited under the terms of the Treaty. (See Relator's Br. at 14-17; Relator's Mem. of L. in Opp'n to the Gov't's Request for an Order of Extradition ("Relator's Mem."), at 13-30). There are two components of this claim. First, Sacirbey contends that Abuse of Office or Authority is not sufficiently equivalent to embezzlement, one of the Treaty's enumerated offenses, to constitute an extraditable offense. (See Relator's Br. at 14-15; Relator's Mem. at 13-30). Second, even if that crime satisfied the Treaty's definition of an extraditable offense, Sacirbey argues that he may not be extradited because he has not been formally "charged" within the meaning of the Treaty. (Relator's Br. at 16-17).
1. The Crime for Which Extradition is Sought is an Extraditable Offense
For a crime to be extraditable, " ‘it must be an offense that is either listed or defined as such by the applicable treaty.' " In re Extradition of Matus, 784 F.Supp. 1052, 1054 (S.D.N.Y.1992) (quoting Spatola v. United States, 741 F.Supp. 362, 371 (E.D.N.Y.1990)). Modern treaties sometimes do not enumerate the crimes for which extradition may be sought, opting instead for language which simply requires that the conduct charged be criminal in both nations. See, e.g., Extradition Treaty Between the United States and the United Kingdom, Mar. 31, 2003 ("An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty."). Here, however, the Treaty is enumerative, containing a lengthy list of extraditable offenses which fall into twelve broad categories, the sixth of which is embezzlement. [FN6]
FN6. See Treaty, Art II, ¶ 6. The remaining categories are murder, arson, robbery, forgery, counterfeiting, fraud or breach of trust, perjury, rape, abduction or kidnapping, destruction or obstruction of railroads, crimes committed at sea, and slave trading. Id. ¶¶ 1-5, 7-12.
The Request alleges that BiH wishes to prosecute Sacirbey for a violation of Article 358 of the BiH Criminal Code, which provides, insofar as relevant, that:
(1) An official or responsible person who, by taking advantage of his/her office or official authority, exceeds the limits of his/her official authority or fails to execute his/her official duty, and thereby acquires a benefit to himself or to another person, or causes damage to a third person or seriously violates the rights of another, shall be punished by imprisonment for a term of between six months and five years.
(3) If the property gain acquired through the commission of an act referred to in paragraph 1 of this Article exceeds 10,000 KM, [FN7] the perpetrator shall be punished by imprisonment for not less than three years.
FN7. "KM" refers to "Konvertible Marks," which were "adopted by BiH as its currency when the German Mark still existed." (See Hartmann I at 23 n. 52). The KM had the same value as one German Mark, or approximately one-half of a Euro. (Id.).
(Ex. 7 (Chapter XXXI, Criminal Code of Federation of Bosnia and Herzegovina, "Criminal Offenses Against Official Duty or Other Responsible Duty")). [FN8]
FN8. In 2003, the BiH Criminal Code was amended. (See Hartmann II at ¶¶ 13, 30). The crime of "Abuse of Office or Official Authority" is now contained in Article 379, which is "effectively identical [to the 1998 BiH Criminal Code] except that the monetary amounts required for enhancements have changed." (Id. ¶ 30). As amended, the BiH Criminal Code provides for a minimum three-year sentence if the gain resulting from the crime exceeds 50,000 KM. (Id.).
[*13] The Government contends that a violation of Section 358 constitutes the crime of embezzlement and therefore falls within Paragraph 6 of Article II of the Treaty, which defines the "crimes and offenses" for which extradition may be granted to include:
Embezzlement by public officers; embezzlement by persons hired or salaried, to the detriment of their employers; larceny; obtaining money, valuable securities or other property by false pretenses, or receiving money, valuable securities or other property, knowing the same to have been embezzled, stolen or fraudulently obtained, when such act is made criminal by the laws of both countries and the amount of money or the value of the property fraudulently obtained or received, is not less than two hundred dollars or one thousand francs in gold.
(Treaty, Art. II, ¶ 6).
Sacirbey counters that two other articles of the BiH Criminal Code—Articles 286 and 380—set forth the crime of embezzlement, which requires both a specific intent and a showing that the funds in question were entrusted to the defendant. (Relator's Mem. at 16-17, 25-30; Hartmann II at ¶¶ 32-37). Because Article 358 does not expressly require either of these two elements, Sacirbey maintains that the statute is not an enumerated offense for which extradition may be sought. (Id.).
Article 286 of the BiH Criminal Code provides in relevant part as follows:
(1) Whoever, with the intention of making an unlawful material gain for himself or for another person, unlawfully appropriates personal property of another which has been entrusted to him, shall be fined or punished by imprisonment for a term not exceeding one year.
(3) If the embezzled property is an object of special cultural, scientific, artistic, historical or technical significance or is of high value and the perpetrator has been acting with the purpose of appropriating property of such value, he shall be punished by imprisonment for a term of six months to five years.
(See Hartman Decl., dated Dec. 9, 2003, at 54-55) (emphasis added).
In addition, Article 380 of the BiH Criminal Code provides, in relevant part:
Embezzlement in Office
(1) Whoever, with an aim of acquiring unlawful property gain for himself or another, appropriates money, securities or other moveables entrusted to him by virtue of his office in the institutions of the Federation of Bosnia and Herzegovina, … shall be punished by imprisonment for a term between six months and five years.
(3) If a property gain acquired by the perpetration of the criminal offen[s]e referred to in Paragraph 1 of this Article exceeds the amount of 50,000 KM, the perpetrator shall be punished by imprisonment for a term [of] not less than three years.
(Id. at 55) (emphasis added).
The fact that conduct may be charged as a crime under one statute does not mean that the conduct cannot alternatively be charged under other statutes. For example, as the Government correctly observes, an official of the United States accused of the misappropriation of government funds in circumstances similar to those alleged in the Request could properly be charged under statutes proscribing the embezzlement of Government funds (18 U.S.C. § 641), the failure to account for public funds (id. § 643), the failure to keep deposited funds safely (id. § 650), and the conversion of Government funds (id. § 653). Interestingly, Section 643, which criminalizes a public official's failure to account for funds which he is not entitled to retain as salary, pay, or an emolument, specifically provides that anyone who engages in such conduct is "guilty of embezzlement." This appears to be precisely the type of conduct for which BiH seeks Sacirbey's extradition.
[*14] The first branch of Sacirbey's argument is that, unlike Article 358, the BiH embezzlement offenses (Articles 286 and 380) require specific intent. He reasons that the Request to extradite him for a violation of Article 358 therefore fails to meet the Treaty's definition of embezzlement as an extraditable offense. In support of this claim, Sacirbey has submitted the declaration of Michael Hartmann, which concludes that Article 358 is not the equivalent of embezzlement because it criminalizes "many different acts (even acts of omission), different forms of loss (including violating rights and non-financial harms), and different states of mens rea." (Hartmann Decl. II at 8 ¶ C).
To counter this evidence, the Government has submitted the declaration of Branko Sljivar, the Sarajevo Cantonal Chief Prosecutor, whose office investigated the Sacirbey case. (See Decl. of Branko Sljivar, dated Mar. 12, 2004 ("Sljivar Decl.")). Sljivar has been practicing law as part of the Bosnian judiciary for more than thirty years. (Id. ¶ 1). In his declaration, Sljivar states that the principal distinction between Articles 358 and 380 is that Article 380 requires a showing that the embezzled funds were entrusted to the defendant by virtue of his office. (Id. ¶ 2). [FN9] The prosecutor further explains that, contrary to Hartman's assertion, under either Article 358 or Article 380 the "prosecution would have to show that the defendant knowingly committed the act charged with the intention of benefitting himself." (Id. ¶ 4). Sljivar also notes that his office frequently charges one offense initially, but may alter that charge or add other charges once the defendant appears. (Id. ¶ 3). He further states that Article 358 often is the first offense charged because the funds that a government official embezzles may not have been entrusted to him. (Id. ¶ 2). The prosecutor further acknowledges that, in the extradition context, Sacirbey may only be prosecuted for a violation of Article 358—the offense charged—if the Request is granted. (Id. at 1 n. 1).
FN9. The Sljivar Declaration actually refers to Article 380 by its former designation. For ease of reference, I have used the citation under the 2001 BiH Criminal Code because that is the citation form used by Hartmann. Any difference between the old and new provisions is inconsequential.
Sacirbey objects to the Sljivar Declaration as untimely and irrelevant. (See letter dated Mar. 11, 2004, from Michael S. Kim & Justin V. Shur, Esqs., to the Court, at 1). He contends that the declaration is untimely because it injects "new factual issues into the proceedings at the eleventh hour." (Id.). He further suggests that the Court's acceptance of the Sljivar Declaration would require Sacirbey to obtain his own expert affidavit concerning these issues, after which a hearing would have to be held so that the experts could be cross-examined. (Id.).
Sacirbey has not cited any authority which suggests that the showing made by the Government on behalf of a requesting nation cannot be expanded after the extradition hearing is held. In any event, even though I believe that the declaration of a Bosnian prosecutor should be given more weight than that of an American lawyer who concedes that he has far less experience with the BiH legal system, there is no need to resolve the conflicts between Hartmann and Sljivar, much less reopen the hearing, in order to determine whether the violation of Article 358 alleged in the Request is an extraditable offense.
[*15] As Professor Bassiouni explains in his treatise, under the principle of specialty, unless the relator or the requested state agrees otherwise, a requesting state can prosecute an extraditee only for the offense for which he was surrendered. Bassiouni at 511, 515. The limitations that the surrendering state can impose are not limited simply to the offense or offenses charged. Id. at 517. Thus, "the extradition order can contain limitations … as to sentence or other questions of law. Id. (emphasis added).
The language of Article 358 plainly is broad enough to encompass the embezzlement of BiH funds by one of its officials for personal gain. The difficulty in this proceeding is that the statute also potentially encompasses crimes which are not akin to embezzlement, such as the diversion of funds from one government-sanctioned use to another without any personal benefit accruing to the individual charged. The solution to this problem is to apply the principle of specialty to limit the crime for which extradition is granted to a violation of Article 358 which involves the misappropriation of BiH funds by Sacirbey undertaken with the intent of acquiring a material financial gain for himself. In this manner, both Sacirbey and the Court will have the comfort of knowing that he will be prosecuted under Article 358 only for the embezzlement of BiH funds, and not for any of the other "crimes" that potentially could be charged under that statute.
Sacirbey also notes (and the Government evidently concedes) that, unlike Articles 286 and 380, Article 358 does not require a showing that the funds at issue were entrusted to the accused. However, 18 U .S.C. § 643, which expressly states that a violation of its terms constitutes the crime of embezzlement under United States law, similarly contains no such requirement. Instead, Section 643 requires only that the Government official have received public money which he is not authorized to keep and thereafter have failed to render a proper accounting. It follows that, notwithstanding the wording of Articles 286 and 380 of the BiH Criminal Code, the crime of embezzlement does not necessarily require proof that the missing funds were "entrusted" to the accused.
The Government consequently has made the showing necessary to establish that the offense for which extradition is sought meets the Treaty definition of an extraditable offense. Moreover, any conceivable doubt on this score will be obviated by the wording of the extradition order.
2. Sacirbey is Properly "Charged" for Purposes of the Treaty
Article I of the Treaty provides that the signatories agree to surrender persons who have been "charged with or convicted of" an enumerated crime in one signatory's jurisdiction and are found in the jurisdiction of the other signatory. (Treaty, Art. I). Seizing upon the "charged with" language, Sacirbey contends that the proceeding against him in BiH has not matured beyond the investigative stage, and that he consequently is not extraditable. (Relator's Br. at 16-17). The Government, on the other hand, maintains that the Treaty requires only an intention to prosecute Sacirbey, which has been abundantly evidenced throughout the protracted proceedings in this case. (See letter dated June 2, 2003, from Ms. Perry to the Court, at 4-5). I previously sided with the Government on this issue when it arose in the context of Sacirbey's original bail application. See Sacirbey I at 83-84.
[*16] While Sacirbey's argument may at first blush have some appeal, it is inconsistent with the case law interpreting such treaty language. For example, in In re Assarsson, 635 F.2d 1237 (7th Cir.1980), the extradition treaty involved language virtually identical to that of the Treaty. Rejecting the suggestion that the term "charged" meant that extradition could be granted only for those offenses for which formal charges have been filed, the court concluded that it was "used in contrast to ‘convicted,' " and ơin the generic sense only to indicate [an] accused." Id. at 1242; see also In re La Salvia, No. 84 Crim. Misc. 01(MHD), 1986 WL 1436, at *6 (S.D.N.Y. Jan 31, 1986) (holding, under an identically-worded treaty with Argentina, that "charged" is "a generic term referring to those persons whose extradition is sought so that they may be brought to trial," as distinguished from extraditees "who have already been convicted and whose return is sought for the purpose of imposing punishment"); Republic of France v. Moghadam, 617 F.Supp. 777, 781 (N.D.Cal.1985) (holding that identical language in a treaty with France did not preclude extradition despite the relator's contention that "the French magistrate serves an investigative function and the arrest warrant is more like a subpoena than a formal charge").
Because the Treaty does not require that an extraditee be formally charged by the requesting state, all that need be shown is that the requesting nation intends to prosecute. See Emami v. U.S. Dist. Ct. for the N. Dist. of Cal., 834 F.2d 1444, 1449 (9th Cir.1987) (declining to address compliance with German criminal procedure and holding that requestor's contention that habeas petitioner was sought for prosecution meets treaty requirements); Borodin v. Ashcroft, 136 F.Supp.2d 125, 130 (E.D.N.Y.2001) ("[T]he ƟchargeƠ requirement [of the extradition treaty between the United States and Switzerland was] satisfied by [the] requesting nation's intent to prosecute as evidenced by the record."); Kaiser v. Rutherford, 827 F.Supp. 832, 834 (D.D.C.1993) ("The [extradition treaty between the United States and the Federal Republic of Germany's] requirement that a party be charged with an offense simply requires that a party must be accused of a crime and does not require any particular stage of foreign criminal procedure."). Here, in the weeks leading up to the extradition hearing, BiH authorities confirmed that there was an ongoing criminal investigation of Sacirbey and, through diplomatic channels, that BiH continued to seek Sacirbey's extradition. (See e.g., letter dated Oct. 2, 2003, from Ms. Perry to the Court; letter dated Dec. 11, 2003, from Cantonal Prosecutor Mustafa Bisic to Laura Neubauer, Esq., Legal Advisor to the U.S. Dep't of Justice in Sarajevo).
In its submissions, the Government contends that Sacirbey cannot be formally charged until he appears in BiH. (See, e.g., Decl. of Ms. Neubauer, dated Jan. 14, 2004, ¶ 5 (an indictment cannot be brought until the suspect has been interviewed during the conduct of investigation)). Sacirbey apparently disagrees with this view. (See Hartmann III at 3-4 (under the 1998 BiH Criminal Code and judicial practice, "the Cantonal Prosecutor could have indicted (but not tried) … Sacirbey, should the prosecutor have so desired")).
[*17] The Second Circuit has noted that "[i]t is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation." Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir.1976) (citing Factor v. Laubenheimer, 290 U.S. 276 (1933)); see also Assarsson, 635 F.2d at 1244 ("We are … not expected to become experts in the laws of foreign nations."); Borodin, 136 F.Supp.2d at 130 ("American courts cannot become enmeshed in the technicalities of foreign criminal processes"). Accordingly, there is no need to resolve the dispute between the two sides as to whether Sacirbey could have been formally charged. As the cases make clear, all that is necessary is that the requesting nation evidence a present intention to prosecute the relator. Here, there is no doubt that this is so. The Government therefore has established BiH's compliance with the Article I requirement that a relator have been "charged" in the requesting country.
D. Dual Criminality
The Treaty contains "dual criminality" language which requires that the crime for which extradition is sought constitute an offense under the laws of both the requesting and surrendering nations. (See Treaty, Art. I (requiring that the relator be surrendered only "upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been committed there")). As Sacirbey correctly indicates, in modern treaties which require only that the conduct complained of be criminal in both jurisdictions, the analyses of whether a crime is extradictable and of dual criminality merge. (See Relator's Mem. at 14 & n. 9). In this case, however, the Treaty is enumerative. Accordingly, whether the offense for which extradition is sought meets the dual criminality requirement must be separately considered.
To determine whether dual criminality exists, an extradition court may look to federal law or the law of the state where the extradition proceeding is being held. See Hu Yau-Leung v. Soscia, 649 F.2d 914, 918 (2d Cir.1981). In Collins, the Supreme Court noted that dual criminality
does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.
259 U.S. 309, 312 (1922) (emphasis added). Sacirbey's own lawyer arguably has stated this requirement in even broader terms. As Professor Bassiouni explains in his treatise, dual criminality
does not require that the crime charged be the same exact crime contained in federal or state law; it is sufficient that it be the same type of crime. Thus, theft, larceny, embezzlement, and fraud are the same type of crimes and it is not important that the crime charged have the same label, or have the same legal elements as those contained in the crime contained in the criminal law of the requested state.
[*18] Bassiouni at 472 (emphasis added).
As noted earlier, under federal law, it is unlawful to "embezzle[ ], steal [ ] … or knowingly convert[ ]" any "voucher, money, or thing of value of the United States or of any department or agency thereof." 18 U.S.C. § 641. Federal law also describes numerous acts which constitute embezzlement. For example, it is embezzlement for an "officer, employee or agent of the United States" to "receive[ ] public money which he is not authorized to retain as salary, pay, or emolument" and "fail[ ] to render his accounts for the same as provided by law." Id. § 643. It further is embezzlement for "an officer or other person charged … with the safe-keeping of the public moneys" to "loan [ ], use[ ], or convert[ ] to his own use … any portion of the public moneys intrusted to him." Id. § 648. Additionally, anyone who fails to deposit public moneys into the federal Treasury when directed to do so is guilty of embezzlement. Id. § 649.
As this brief canvas of federal law confirms, there are many different crimes with which Sacirbey could have been charged in this country as a consequence of his alleged defalcations during his term of service as BiH's U.N. ambassador. Accordingly, to the extent that Sacirbey seeks to avoid extradition on the theory that dual criminality has not been established, his argument clearly is baseless.
E. Probable Cause
Sacirbey next contends that the documents underlying the Request are insufficient to establish "probable cause" that he committed the offense of Abuse of Office or Authority. (Relator's Br. at 19-22). In an extradition proceeding, my narrow function in this regard is to "determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." Collins, 259 U.S. at 316; see In re Extradition of Pineda Lara, No. 97 Crim. Misc. 01(THK), 1998 WL 67656, at *7 (S.D.N.Y. Feb. 18, 1998) (an extradition court's function is to "determine whether there is competent legal evidence to justify extradition according to the [t]reaty [at issue]"); 18 U.S.C. § 3184 (if the extradition court "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, … [it] shall certify the same … to the Secretary of State").
In an extradition proceeding, probable cause is "measured by the standards used in federal preliminary proceedings." In re Extradition of Glantz, No. 94 Crim. Misc. 01 Page 25(MHD), 1995 WL 495644, at *2 (S.D.N.Y. Aug. 21, 1995). To make its evaluation, an extradition court applies the "totality of the circumstances" analysis set out by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). Id. at *2. Thus, the court must make a " ‘practical, common-sense decision whether, given all the circumstances …, there is a fair probability that' the defendant committed the crime as defined." Id. (quoting Gates, 462 U.S. at 238). In Gates, the Court noted that the proof necessary to establish probable cause is "only the probability, and not a prima facie showing, of criminal activity." 462 U.S. at 235 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)); see also In re Extradition of Ernst, 1998 WL 395267, at *8 ("Probable cause is not an overly demanding standard."). Moreover, for purposes of the probable cause determination, the allegations set forth in the extradition request must be assumed to be true. See, e.g., Pineda Lara, 1998 WL 67656, at *8. The Government is also entitled to rely on hearsay. Collins, 259 U.S. at 317.
[*19] The evidence submitted by BiH in support of its Request establishes that an audit of the Mission's books determined that there was a shortfall in the commingled Mission and consular account in the amount of $610,982, and a $1.8 million shortfall in the Investment Fund account. The BiH evidence also shows—and Sacirbey does not dispute—that he had signature authority over that account. It further is undisputed that Sacirbey refused to provide the details of certain of his nonroutine expenditures to Ministry representatives, stating that he would instead provide the necessary justification to President Izetbegovic. However, according to the evidence adduced by BiH, when Izetbegovic was questioned about this, he expressly denied that Sacirbey had been authorized to spend BiH funds on the ICJ case, as Sacirbey now claims. The BiH evidence also shows that BiH procedures do not provide for Mission expenditures to be confidential.
The BiH evidence further suggests that Sacirbey impliedly conceded that some of his expenditures were improper by telling Lukovac that he would be able to restore some of the missing funds. Despite that representation, however, Sacirbey evidently never replenished the Mission account. Worse yet, when Lukovac arranged some emergency financial assistance for the Mission, Sacirbey diverted the funds before they could be used to pay overdue bills.
The BiH evidence also suggests that Sacirbey may have evaded the efforts of BiH authorities to contact him to seek some resolution of the problems that the BiH auditors found. Sacirbey also failed to account properly for personal advances that he had taken against the Mission account. In particular, although Sacirbey claimed to have paid large sums of money to lawyers in cash, he evidently was unable to document these expenditures.
From this evidence, a finder of fact reasonably could conclude that Sacirbey embezzled funds from the Mission account and used them for this own personal needs. Accordingly, the Government has shown that there is probable cause to believe that Sacirbey committed the crime for which his extradition is sought, even if that crime requires that he have acted with a specific intent to misappropriate funds for his own personal gain. [FN10]
FN10. Through his testimony and other submissions, Sacirbey has advanced at least three reasons why the conclusions urged by the BiH authorities allegedly are wrong. First, he alleges that he made a full accounting to President Izetbegovic who had authorized certain expenditures that could not be disclosed to the other members of the BiH presidency. Second, Sacirbey contends that he received no improper personal benefit from any of the monies in the Mission or Investment Fund accounts. Third, Sacirbey evidently also claims that any perceived shortfalls were largely, if not entirely overcome by the personal funds that he contributed to the Mission accounts over the years, as well as his decision not to accept any salary during the period that he served as BiH's U.N. Ambassador.
While one or more of these arguments may carry the day at trial, it is settled law that an extradition magistrate may not consider evidence which contradicts the evidentiary showing made by the requesting nation. See Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.1978) ("Participation by the [relator] at the extradition proceeding is limited; he is not permitted to introduce evidence on the issue of guilt or innocence but can only offer evidence that tends to explain the government's case of probable cause."); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) ("The extraditee's right to introduce evidence is thus limited to testimony which explains rather than contradicts the demanding country's proof.") (internal quotation marks omitted); In re Sindona, 450 F.Supp. 672, 685 (S.D.N.Y.1978) ("The rule is that the accused has no right to introduce evidence which merely contradicts the demanding country's proof."). Accordingly, even though the Court permitted Sacirbey to make a record regarding these defenses during the hearing, the evidence thus adduced cannot be used to undermine BiH's showing that there is probable cause to believe he committed the crime of Abuse of Office or Authority.
F. Political Offense Exception
Sacirbey also asserts that the Treaty bars the Request for his extradition, because it is of "a political character." (Relator's Br. at 22-24). In that regard, the Treaty provides:
A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.
(Treaty, Art. VI).
Courts interpreting such language in other treaties have recognized that there are two types of political offenses. "Pure" political offenses are "crimes directed at the state that lack the elements of ordinary crimes," including "such crimes as treason, sedition, and espionage." Marzook v. Christopher, No. 96 Civ. 4107(KMW), 1996 WL 583378, at *2 (S.D.N.Y. Oct. 10, 1996). While Sacirbey claims to have been acting in a clandestine fashion in pursuing some of his political goals, the offense with which he has been charged plainly does not fit into this colorful category.
[*20] The other category of political offenses, known as "relative" political offenses, relates to "otherwise ordinary crimes that are (1) incidental to (2) the occurrence of severe political disturbances, such as war, revolution and rebellion." Id. (quoting Sindona v. Grant, 619 F.2d 167, 173 (2d Cir.1980)). Here, although conditions in Bosnia may have been chaotic during Sacirbey's tenure as a BiH official, there has been no showing that the unrest rose to the level of war or armed rebellion, or that the crime of which Sacirbey has been accused was incidental thereto.
In an effort to place himself within the political offense exception, Sacirbey has alleged in his papers that the numerous roles he has played in Balkan affairs are "highly politicized and controversial." (Relator's Br. at 23). He notes that "he is the subject of animosity" as a result of his efforts as U.N. ambassador, foreign minister, agent before the ICJ pursuing the case of genocide against Serbia and Montenegro, and agent before the ICTY seeking the indictment of former members of the BiH presidency. (Id.). The testimony that Sacirbey and Professor Williams proffered also was intended to elaborate on the claim that Sacirbey has many political enemies in both the BiH and the United States governments who may have played a role in BiH's decision to seek his extradition.
Notwithstanding this showing, "[c]riminal conduct in the nature of financial fraud, even involving political corruption, traditionally has been considered outside the ‘political offense' exception." Koskotas v. Roche, 931 F.2d 169, 172 (1st Cir.1991); see Sindona, 619 F.2d at 173-74 (Italian charge of "fraudulent bankruptcy" is not of a political character even when the relator contends that it "resulted from political maneuverings and is [being] pursued for political reasons"); Jhirad, 536 F.2d at 485 ("[I]t is surely beyond dispute that the embezzlement of money from [a public fund] which [relator] as a public servant was responsible for administering, is not in any sense a political offense."); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971) (embezzlement by an official of the Peruvian government is not a political offense). Moreover, it is settled law that the political motivations of the requesting state may not be considered by an extradition court. See, e.g, Eain v. Wilkes, 641 F.2d 504, 516 (7th Cir.1981) ("[E]valuations of the motivation behind a request for extradition so clearly implicate the conduct of this country's foreign relations as to be a matter better left to the Executive's discretion."); Marzook, 1996 WL 583378, at *3 (noting that the political offense exception focuses "on the nature of the offense … rather than … the requesting state's motivation in bringing charges"); In re Locatelli, 468 F.Supp. 568, 575 (S.D.N.Y.1979) (holding that the court is without jurisdiction to "look behind the charges" as propounded by the requesting government; rather, the court "must … yield this inquiry to the Secretary of State").
[*21] There consequently is no basis for Sacirbey's claim that the Request must be denied in accordance with the Treaty's political offense language.
G. Remaining Showing Required
Finally, the Treaty provides that if the individual whose extradition is sought is "merely charged with [a] crime, a duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued, shall be produced." (Treaty, Art. III). Here, this Treaty requirement has been met. (See Exs. 1-6).
The request of the Federation of Bosnia and Herzegovina for the extradition of Muhamed Sacirbegovic, a/k/a "Muhamed Sacirbey," is granted and a certificate of extraditability shall be issued. The Government is therefore directed to submit an order consistent with this Memorandum Decision on three days' notice to Sacirbey and his counsel. As Sacirbey has requested, the order should provide that its effectiveness will be stayed for ten days so that Sacirbey's counsel may seek a writ of habeas corpus. In view of the unique circumstances of this case, the Court declines to revoke Sacirbey's bail pending the resolution of the habeas petition.