ICTY Trial Chamber Judgment in Šešelj Case: In Time of War, Laws Fall Silent
On March 31st, 2016, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) delivered its first instance judgment acquitting the President of the Serbian Radical Party (SRS), Vojislav Šešelj, of criminal responsibility on all counts of the indictment, with the dissenting opinion of one member of the Trial Chamber expressing criticism of the judgement in harsh tones. The Humanitarian Law Center (HLC) holds that the acquittal is based on findings which are in contradiction to the practice of the ICTY, as well as on an unsustainable reinterpretation of events which occurred during the wars, which is offensive to the victims.
Šešelj was charged on nine counts of the indictment with the commission of crimes against humanity and war crimes encompassing the crimes of persecution, deportation, murder, wanton destruction, destruction or wilful damage done to institutions dedicated to religion or education, and plunder of public or private property. According to the indictment, Šešelj participated in a Joint Criminal Enterprise (JCE), the aim of which was the permanent forcible removal of a majority of the Croat, Muslim, and other non-Serb civilian populations from parts of Croatia, B&H and the province of Vojvodina in the Republic of Serbia by the commission of crimes. It is alleged that Šešelj had propagated a policy of uniting “all Serbian lands” in a homogeneous Serbian state, which he referred to as “Greater Serbia”. His participation in the JCE comprised recruitment, formation, financing, supply, support and direction of Serbian volunteers connected to the SRS and/or Serbian Chetnik Movement, and public denigration through “hate speech” in the media, at public appearances and during his visits to volunteer units and other Serbian forces in Croatia and B&H, thus encouraging these forces to commit crimes. The indictment also alleges that Vojislav Šešelj, in his inflammatory speeches, actions and/or failure to act, contributed to the creation of the decision by the perpetrators to commit the alleged criminal offences.
Based on the Judgment summary (the full text of the Judgment is not yet available in BCS or English), the HLC finds that a number of conclusions reached by the Trial Chamber are legally or factually unfounded. When it comes to the legal conclusions, the Trial Chamber established that the speeches by Vojislav Šešelj, which had been subject to its analysis, do not constitute incitement to commit war crimes. According to the finding of the Chamber, his speech delivered in the Parliament against Croats in Serbia, in which he stated: “We are not going to start killing you, of course. We are simply going to pack you into trucks and trains, and let you get on with it in Zagreb” does not represent incitement to commit a crime due to “the lack of any measurable impact”. In other words, according to the Chamber, “the Prosecution has failed to show that this speech caused the departure of the Croats or the campaign of persecution alleged by the Prosecution”. However, the HLC holds that incitement to war crimes and crimes against humanity must be punishable even when the incited crime had not occurred, like in cases of incitement to genocide (see International Criminal Tribunal for Rwanda Cases of Akayesu (par. 562) and Nahimana et al. (par. 1013)). Besides, the expulsion of Croats from Vojvodina really did ensue shortly after the speeches delivered by Šešelj.
The Court also concluded that the “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 and Herzegovina, notably in the municipalities of Vukovar, Zvornik, the region of Sarajevo, and the municipalities of Mostar and Nevesinje,” during the period 1991-1993, and that there was “absence of any crucial legal elements to establish any form of criminal responsibility for crimes against humanity”. This conclusion is in contradiction with the findings of the ICTY in a number of earlier judgments, including Karadžić [par. 2444], Mrškić et al. [par. 472], Krajišnik [par. 710], Stanišić and Župljanin [par. 1673], and Brđanin [par. 161], in which the ICTY established that in the aforementioned municipalities and during the time relevant to the indictment in the Šešelj Case there was a widespread and/or systematic attack. Also, the conclusion of the Chamber that there was no widespread or systematic attack as a crucial element of a crime against humanity is paradoxical, since it simultaneously accepted the existence of several dozens of incidents and camps in the aforementioned municipalities in which many crimes were committed, which is also a fact not disputed even by the accused himself.
Some of the conclusions regarding facts made by the Trial Chamber „are not reasonable“, as Judge Lattanzi stressed in her dissenting opinion. She opposed, for instance, the part of the judgment in which the majority concluded that it was reasonably possible that buses, which had been previously brought to the municipalities under attack for the transportation of civilians, were „in fact provided on humanitarian grounds to assist the non-combatants fleeing combat zones in which they no longer felt safe“. The majority also found that Šešelj’s appeals for the expulsion of Croats from Serbia instead of killing them do not constitute a criminal offence but rather “an expression of an alternative political programme”. When it comes to Šešelj’s public appeals to “clean the area of Ustashas”, and “Chetnik brothers to take revenge on the Balijas”, the Trial Chamber could not refute the reasonable possibility that these speeches were “made in a context of conflict and were meant to boost the morale of the troops of his camp.” Finally, when reaching the conclusion that the “plan for a Greater Serbia, such as it was advocated by Vojislav Šešelj, was in principle a political plan, not a criminal one”, the Chamber has basically dealt with ius ad bellum considerations – the right to war, which exceeds the ICTY’s jurisdiction. Moreover, in this way it has provided legitimacy for such a “political programme”, which resulted in tens of thousands of victims of war crimes, crimes against humanity and genocide.
Pointing to the controversial conclusions in the Judgment, Judge Lattanzi emphasized that in this case the ICTY had set aside all the rules of international humanitarian law in order to acquit Vojislav Šešelj. She goes on to conclude: “On reading the majority’s Judgement, I felt I was thrown back in time to a period in human history, centuries ago, when it was said – and it was the Romans who used to say this, to justify their bloody conquests and the murders of their political opponents in civil wars -, “Silent enim leges inter arma” (In time of war, laws fall silent).”