JURIST Guest Columnist Gregory S. Gordon of the Chinese University of Hong Kong Faculty of Law discusses the ICTY’s acquittal of Vojislav Šešelj and the serious set-back it could represent for the development of international criminal law …

On March 31, 2016, in a resounding victory for the culture of impunity, two Trial Chamber judges of the International Criminal Tribunal for the former Yugoslavia (ICTY), over the strong dissent of a third, acquitted [PDF] ultra-nationalist Serb Vojislav Šešelj of all charges against him in a case that had dragged on for nearly nine years. Already the poster child for judicial procedural mismanagement [see my op-ed in these pages regarding delays in the case and Šešelj’s pre-trial release], Prosecutor v. Šešelj now stands out as a substantive law disaster too. This poorly reasoned and unsubstantiated decision not only adulterates much of the ICTY’s foundational work over the past two decades — it is in many ways entirely at odds with the international criminal justice enterprise since Nuremberg.

A prominent ultranationalist Serb during the early 1990s break-up of the former Yugoslavia, Šešelj founded the Serbian Radical Party (SRS) and recruited disaffected co-ethnic youths, criminals and outcasts to serve in his militias, including the “Chetniks” and the “White Eagles” (collectively known as the “Seselievicj” or “Seseli’s men”). Šešelj helped organize and train these hooligans to enter mixed-ethnicity enclaves in Croatia, Bosnia and parts of Serbia, so as to cleanse them of non-Serbs. In particular, he indoctrinated his charges and denigrated his victims, both in Belgrade and on the ground where the ethnic cleansing took place, in speeches that were preludes and accompaniments to commission of crimes against humanity and war crimes in these localities.

In connection with this activity, the ICTY charged Šešelj with individual (via direct commission, instigation and aiding and abetting) and joint criminal enterprise (JCE) liability for commission of war crimes (including torture and forcible transfer) and crimes against humanity (including murder and persecution). The JCE’s purpose, established in numerous other cases, including Prosecutor v. Radovan Karadžić [PDF] most recently, was to engage in criminal conduct to drive non-Serbs out of a giant swath of the former Yugoslavia to create a “Greater Serbia.”

The opening substantive paragraphs of the decision demonstrate immediately that the two majority judges take an unreasonably dim view of the prosecution’s theory and approach to the evidence, well-established in previous jurisprudence, in contrast with the oft-rejected account the accused proffered. Inexplicably, the judges seem to validate Šešelj’s stance that “the Serbs . . . were victims of aggression perpetrated by the Croats and Muslims” pursuant to an “unconstitutional secession” that triggered an armed conflict wherein the Serbs were both defending both themselves and the constitutional integrity of the former Yugoslavia. For the majority, Šešelj thus offered “a different context for his speeches which, he contends, galvanized the soldiers fighting on his side and expressed his own political vision . . . which the Prosecutor incorrectly characterizes as acts of persecution and incitement to hate and forcible transfer.” This interpretation foreshadows their disastrous conclusions regarding crimes against humanity.

The judicial reasoning then gets even worse. Three paragraphs later, Jean-Claude Antonetti and Mandiaye Niang, the two majority judges, refer to a “certain vagueness in the Prosecutor’s approach.” And in the following paragraphs, they complain that the Prosecutor adduces the same facts in support of both the JCE and individual liability, noting that the Prosecutor uses “a circular approach, where nearly every crime is characterized in different ways and every mode of criminal participation seems absorbed by or superimposed upon the others.” Unfortunately, this is just a convoluted way of complaining that the Prosecutor has charged in the alternative — a sensible and commonly used strategy. This expression of disapproval, even if not explicitly affecting the decision on the merits, is, at the very least, a disturbing augur of even worse to come.

And it does come. Flouting well-settled ICTY precedent, Antonetti and Niang then find that extremist Serbs did not carry out a widespread or systematic attack against non-Serb civilians. Instead, they supposedly operated in an ordinary armed conflict milieu, where civilians from all ethnic groups happened to participate in “street fighting” over contested territory, but no criminal actions were directed toward civilians. In a remarkable twist, the Chamber finds that, rather than engaging in ethnic cleansing, the Serb militias provided safe convoy for civilians “fleeing combat zones to seek refuge in localities where they could find members of the same ethnic or religious group . . . the buses chartered in this context were not for purposes of forced population transfers, but rather for humanitarian assistance for non-combatants . . .” Absurdly, the two judges therefore conclude that the armed Serb extremists were essentially operating a form of gratuitous Greyhound bus service for non-Serb residents of the areas they attacked! So their conduct could not have been part of a widespread or systematic attack against those civilians.

Absent such an attack, a required pre-condition of crimes against humanity (CAH), all CAH charges had to fail. Still, the Chamber reviews the speeches that were the object of the CAH-persecution charges. And in an otherwise lamentable document, this segment of the opinion is probably the nadir. The majority simply ignores the existing authority and creates a new, unjustified and unsupported rule out of thin air! The International Criminal Tribunal for Rwanda (ICTR), which has adjudicated, and issued more jurisprudence in relation to mass atrocity-context hate speech than any other judicial organ, has held that the gravamen of hate speech as persecution is the deprivation of fundamental human rights. In essence, hate speech denigrating victims in the context of crimes against humanity effectuates such a deprivation, regardless of whether the words explicitly urge violence. Granted, in contrast, the ICTY disagreed in Prosecutor v. Kordić (2001) [PDF], indicating that the words must call for action against the victims, regardless of whether that action is actually carried out.

Unfortunately, the majority opinion does not acknowledge this split in approaches or even reference the relevant ICTR/ICTY precedents. The decision does recognize in paragraph 335 that in certain speeches Šešelj called for expulsion of Croats from their homes and forcible transfers. Per Kordić, assuming the other CAH preconditions were met, this would have been a sufficient basis for a persecution count (and the ICTR would demand even less — mere denigrating words as part of a widespread or systematic attack would be enough). Nonetheless, the Šešelj Trial Chamber denies any persecution liability based on these speeches because it finds no evidence the speeches actually caused any forcible displacement! It is no surprise that the majority fails to cite any authority in support of this — causation has never explicitly been held to be an element of hate speech as CAH-persecution.

Nevertheless, it would have been helpful to at least acknowledge the ICTR line of authority because, as the dissent notes, Šešelj “denigrated and dehumanized the Croats comparing them to ‘primates’ and ‘vampires'” and calling the Bosnian Muslims “‘balija’ or ‘pogani’ which he himself translated as ‘excrements’.” In dissent, Judge Flavia Lattanzi also correctly points out that, the majority’s opinion to the contrary notwithstanding, such speeches could have satisfied the actus reus requirements for aiding and abetting and the JCE.

The rest of Antonetti and Niang’s decision is similarly horrible. War crimes liability can be dismissed, according to the majority, because the aim of sending armed forces to the areas in dispute was to establish a “Greater Serbia” — that was political, the judges note, not criminal. And Šešelj’s recruited militia were sent to fight in support of this supposedly legitimate war aim. Unfortunately, this analysis confuses jus ad bellum (the law regarding resort to force) with jus in bello (the law regulating conduct during armed conflict). Even if the former were complied with (and, contrary to the majority assertion, there is no evidence that is true), the latter can still be violated — and the record in Šešelj of murder, torture and forcible displacement of non-Serb civilians, among other acts, proves it was.

Nevertheless, the majority seems to say, even if war crimes could be proved, Šešelj could not be guilty of them because he was not in the direct chain of command of the Serb forces carrying out the ethnic cleansing operations. This is also misguided analysis — Šešelj need not have been in the direct chain of command to be liable pursuant to proof of instigation, aiding and abetting, or JCE. As the dissent notes, at the very least, complicity was established by ample evidence of Šešelj’s militia recruitment, which Judge Lattanzi states he “controlled with an iron fist.” He then indoctrinated his recruits with violent speeches and selected the localities to which they would be sent. Once there, his militia participated in ethnic cleansing operations directed by Serb forces, often with Šešelj present to encourage the militia and lend them moral support.

Judge Lattanzi also powerfully observes in dissent that the majority pays no heed to Šešelj’s obstructive and threatening behavior during the proceedings. The Trial Chamber’s majority opinion never even alludes to it — even indirectly. Nor does it take into account Šešelj’s conduct since his absurd pre-trial release on health grounds in 2014 (he was supposedly dying of cancer — see my op-ed here explaining how this decision was completely botched). Once released, Šešelj launched a steady stream of hateful Jeremiads against other ethnic groups and pugnaciously vowed never to return to the Tribunal, regardless of the case’s outcome. Judges are permitted to consider post-charge conduct in adjudicating a defendant’s culpability. Šešelj’s conduct during and after the close of the proceedings in his case should have been factored in as evidence of a guilty mind. Unfortunately, consistent with so many other holes in this ghastly decision, there is no meaningful consideration of the defendant’s mens rea.

The majority opinion in Šešelj is so bad and so off-base that it seems to be issued from an alternate universe, a universe where might makes right is a validly enshrined principle and international criminal law is viewed as an obscene affront to the prerogatives of sovereignty. Certainly, it would not be a universe where the Nuremberg Principles hold sway or two decades of ad hoc tribunal jurisprudence even exists. The Economist has noted that “the verdict will encourage nationalist Serbs to argue that their side did nothing wrong in the war.” And Judge Latazzi powerfully states in closing her dissent:

“On reading the majority’s Judgement, I felt I was thrown back in time to a period in human history, centuries ago, when one said—and it was the Romans who used to say this to justify their bloody conquests and murders of their political opponents in civil wars: ‘silent enim leges inter arma.’” [“Laws are silent in times of war”]

For the sake of the aggrieved citizens of the territories of the former Yugoslavia, and for the very health, if not survival, of the international criminal law project, we can only hope the ICTY Appeals Chamber looks favorably on the Prosecution’s inevitable appeal.

Professor Gregory S. Gordon is Associate Dean (Development and External Affairs) and Director of the PhD-MPhil Programme at the Chinese University of Hong Kong Faculty of Law. He worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark ‘media’ cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement to genocide. His book “Atrocity Speech Law: From Foundation to Fragmentation to Fruition” will be published by Oxford University Press in 2017.

Suggested citation: Gregory S. Gordon, Vojislav Šešelj’s Acquittal at the ICTY: Law in an Alternate Universe, JURIST – Academic Commentary, April 11, 2016, http://jurist.org/forum/2016/04/gregory-gordon-seselj-acquittal.php.