ICTY: Messy acquittal ends difficult Seselj trial

31 March 2016 by Stephanie van den Berg, The Hague (The Netherlands)

Serb ultra-nationalist politician Vojislav Seselj was acquitted Thursday of all nine charges of crimes against humanity and war crimes and is now a free man presiding judge Jean-Claude Antonetti of the International Criminal Tribunal for the former Yugoslavia (ICTY) ruled. Seselj, already provisionally released on health grounds, was not present in court.

Serb ultra-nationalist politician Vojislav Seselj (Photo: Twitter/@seselj_vojislav)
Image caption: 
Serbian ultra-nationalist politician Vojislav Seselj in a picture he posted on his Twitter feed ahead of Thursday's ruling (Photo: Twitter/@seselj_vojislav)

The acquittal was met with amazement and frustration by observers and legal scholars because the reasoning behind it seems to disregard many past decisions by the court.Marc Ellis, executive director of the International Bar Association told, Radio Free Europe the judgement contained “errors of fact and errors of law”.

In a reaction prosecutor Serge Brammertz said the verdict “departs from the normal jurisprudence of the tribunal” and added his office was studying the full judgement and dissenting opinions to see if they would file an appeal. 

Seselj was tried for war crimes and crimes against humanity he allegedly committed in Bosnia, Croatia and the Serbian province of Vojvodina between 1991 and 1993 as part of a joint criminal enterprise with Slobodan Milosevic and Radovan Karadzic [IJT-191] among others. Seselj recruited and funded volunteers who fought as paramilitaries in Bosnia and Croatia.

Unusual judgement

The trial chamber, led by presiding judge Antonetti, found by majority that “the prosecution failed to prove beyond all reasonable doubt that there was a widespread and systematic attack against the non-Serb civilian population in large areas of Croatia and Bosnia, notably in the municipalities of Vukovar, Zvornik, the region of Sarajevo, and the municipalities of Mostar and Nevesinje, during the period covered by the indictment”, according to a summary of the judgement.

After a public dressing down of the prosecution in which Antonetti lamented the prosecutions “maximalist approach” and said the case could have been presented much simpler the presiding judge went on to conclude prosecution had failed to prove there was a joint criminal enterprise to remove non-Serbs from areas in Bosnia, Croatia between 1991 and 1993. 

“This is a really unusual finding after a number of cases at the ICTY already dealt with the joint criminal enterprise and the removal of population (in Croatia and Bosnia),” Iva Vukusic, a scholar and longtime ICTY watcher-- currently researching Serb paramilitaries during the 1990s war in the former Yugoslavia, told IJT.

In a number of earlier verdicts other trial chambers ruled there was a widespread and systematic attack on non-Serbs in Croatia and in Bosnia and Herzegovina and that crimes against humanity were committed in this context.

Last week another trial chamber in the case against Bosnian Serb leader Karadzic ruled his troops targeted non-Serbs and forcibly expelled them from parts of Bosnia deemed to be Serb lands. It also specifically found that Seselj was part of this joint criminal enterprise. In 2007 there was another judgement against Croatian Serb leader Milan Martic [IJT-43] who was convicted of being part of a joint criminal enterprise with Seselj to expel non-Serbs from parts of Croatia.

According to Ellis the Seselj verdict “tends to ignore and even dismiss (…) past decisions by the court and general principles in international criminal law”.

Scathing dissent

Most of the chamber's decisions were made by majority with Italian judge Flavia Lattanzi attaching a scathing dissenting opinion to the relatively short judgement (140 pages). In a summary she insists the majority gives “insufficient reasoning or no reasoning at all” for most of its findings and concludes that that there was sufficient evidence to find Seselj aided and abetted the crimes mentioned in the indictment and was part of a joint criminal enterprise.

“Under the pretext that the prosecution did not do its job well (…) the majority sets aside all the rules of international humanitarian law that existed before the creation of the tribunal and all the applicable law established since the inception of the tribunal in order to acquit Vojislav Seselj,” she writes.

She added that upon reading the judgement she felt “thrown back in time” when the Romans used to “justify their bloody conquests and murders of their political opponents in civil wars (by saying) silent enim leges inter arma (in time of war the laws fall silent)”.

The acquittal is a rather messy end to a very messy case that has dragged through the ICTY for 13 years. After turning himself into the court in 2003 Seselj, acting as his own lawyer, used the trial as a platform for his ultra-nationalist rhetoric. He insulted judges, intimidated witnesses, went on a hunger strike and accused the court of trying to kill him and refused to present a defence case. He has been found guilty in three separate contempt of court cases.

A verdict was originally set for October 2013, but got postponed last minute when one of the three judges was disqualified for possible bias at Seselj's request. The magistrate was replaced, but his Senegalese successor needed two and a half years to read through all the court documents.

Perfect storm

“This was a complicated case where it was disputed what role Seselj had in relation to the paramilitaries. He had no official executive role and in these paramilitary units there is no clear hierarchy like you see in the military let alone documents (showing his role) and linking crimes to specific political speeches is objectively difficult,” Vukusic said.

The trial chamber, judge Lattanzi dissenting, found that a speech Seselj held after the Croatian town of Vukovar fell to Serb troops where he said “No single Ustasha (a derogatory term for Croats) should leave Vukovar alive” could be reasonably concluded to have been “meant to boost the morale of the troops” rather than a call to spare no one.

“It was never going to be a squeaky clean case but now it looks like it has created the perfect storm: difficult case, difficult defendant, possibly some incompetence by the prosecution and a presiding judge with a peculiar understanding of existing ICTY practice,” Vukusic said.

If the prosecutor chooses to appeal it is the question of the case would ever come before the court. Seselj is seriously ill, diagnosed with colon cancer. He is already in Serbia since November 2014, when he was provisionally released on health grounds [IJT-171]. Even if the court finds he is well enough to attend appeals procedures he has already vowed he would never return to The Hague willingly.


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