JURIST Guest Columnist Gregory S. Gordon of The Chinese University of Hong Kong Faculty of Law, discusses the decision of the International Tribunal for Former Yugoslavia to grant provisional release to Vojislav Seselj and its repercussions on international criminal law and transitional justice…

The ongoing seven-year debacle that is the trial of indicted [PDF] Serb nationalist leader Vojislav Seselj continues. In the latest twist, the International Criminal Tribunal (ICTY) for the Former Yugoslavia has denied [PDF] the prosecution’s request to revoke its recent order provisionally releasing Seselj on health grounds. Since he decamped to Serbia, Seselj has been publicly spewing the kind of hate rhetoric that is the object of some of the most serious criminal charges against him. Sadly the provisional release, as well as denial of the prosecutor’s request to revoke it, is of a piece with a pattern of case mismanagement that has plagued this proceeding from the start. And in this particular instance, it allows us to understand the pernicious effects of hate speech, not just in the usual context of substantive international criminal law, but in the procedural realm as well, where it can have an adverse impact on transitional justice.

With respect to case mismanagement, Seselj’s provisional release and denial of the prosecutor’s motion for revocation represent only the most recent chapter in what has been a circus-like inquest. From the beginning the ICTY has made poor procedural choices in relation to an openly defiant, truculent defendant. An indicted Seselj surrendered himself to the ICTY in 2003 vowing to “destroy” the ICTY. And he wasted little time launching a campaign of in-court sabotage—grandstanding and speechifying while representing himself in the case. Based on this behavior, the ICTY sensibly assigned him legal counsel. He then railed against that decision and went on a hunger strike. But the ICTY showed no backbone, acceding to Seselj’s demand, fully aware that he would likely undermine the judicial process as his own attorney. And so it could have come as no surprise that he went on to abuse his self-representation license, disclosing the identities of protected witnesses, taunting and insulting trial participants and earning contempt of court citations on three separate occasions. As a result his trial progressed at a snail’s pace.

Then another judicial blunder made the situation worse. After the close of evidence in Seselj’s case, as the judges were deliberating, one of them sent out inappropriate written comments about the merits of other ICTY cases. This necessitated a replacement, which further delayed the proceedings. In the meantime Seselj was diagnosed with liver cancer. He was operated on and underwent chemotherapy, but the cancer supposedly returned. In June 2014, the trial chamber scheduled a hearing [PDF], sua sponte, to consider whether Seselj should be provisionally released to Serbia. But Serbia refused to guarantee the chamber’s basic conditions assuring the security of witnesses and the integrity of the proceedings unless Seselj agreed to them first. He refused. And so provisional release was not granted.

By November Seselj had supposedly furnished the judges with new “confidential” information about a deterioration of his health condition. This time without sharing the information with the Prosecutor or securing any guarantees from Seselj, the trial chamber simply released [PDF] him (on the mere stated understanding, not agreed to by Seselj, that he would not try to contact or influence victims, nor obstruct justice and would appear before the chamber when ordered to do so). The haste of the decision and lack of process suggest the ICTY feared Seselj’s imminent demise and was looking to avoid a repeat of the Slobodan Milosevic scenario—when the defendant died in his Scheveningen detention cell after years of trial but before a verdict could be reached.

So Seslj was essentially whisked out of his cell to “provisional” freedom. He triumphantly returned to Serbia, insulting the ICTY, vowing he would never return to it and inciting crowds with the kind of invective used to persecute Croats and Muslims during the Balkan atrocities of the early 1990s. The European Parliament issued a resolution condemning this inflammatory rhetoric and the Croatian Parliament urged the ICTY to revoke the provisional release. The ICTY prosecutor then followed suit filing his motion to revoke that was denied with one judge dissenting. The two judges voting to dismiss justified their decision by describing the prosecution’s motion as “inadmissible” because not timely filed and “unfounded” because in their opinion, Seselj’s public statements did not “constitute an attempt to influence or threaten victims or witnesses.” The prosecutor has appealed the decision.

Given Seselj’s track record, it is mind-boggling that the ICTY would release him with these bare-bones, pro forma conditions, especially after he thumbed his nose at the trial chamber in June 2014 regarding witness safety and judicial integrity. And the decision looks even more ridiculous in light of Seselj’s active schedule and robust public presentations, which call into question any claims that his health was rapidly deteriorating—something the prosecutor could have rebutted had he been given access to the records and a chance to respond. This lack of transparency and due process are merely the most recent procedural defects consistent with other ones that litter the case file.

What is of most concern, however, are the hate speech issues inherent in this procedural mess. And those flow from the anemic set of conditions in the provisional release order. It is de rigeur for a criminal trial judge to include as a condition of provisional release that, on pain of re-incarceration, the defendant refrain from engaging in the type of conduct that is the object of the criminal charges. One of the key considerations animating a judge’s decision to provisionally release, as well as the conditions of release, is public safety. And yet a focal point of the case against Seselj is ethnic hate speech as a crime against humanity. But the provisional release order does not even allude to such conduct. Seselj indicated in June 2014 that he would flout the judicial process and suggested he would attack the objects of his ethnic hatred. It is simply unconscionable to unleash him on a vulnerable population, still in post-ethnic-cleansing transition, knowing that he would subject it to his verbal venom.

International criminal law experts, myself included [PDF], have written about the poisonous effects of hate speech in the lead up to and in the course of mass atrocity. But what about during the ensuing transitional justice process? More specifically what are the legal implications of a defendant’s post-atrocity hate speech tacitly sanctioned by a provisional release order void of hate speech restrictions?

Some might contend that provisional release conditions restrictive of speech impermissibly infringe on hallowed freedom of expression rights. But that argument rings hollow in the case of a defendant charged with the very kind of speech that is the object of the release conditions. Atrocity speech charges will typically be prosecuted in the context of fragile post-conflict societies still trying to overcome their psychic wounds. Hate speech not only re-opens those wounds, it tangibly risks dragging such societies back into the abyss of recurrent cycles of violence. It must be specifically enjoined in any provisional release order during the pendency of such cases. This is especially true given that provisionally-released defendants, who would otherwise be detained but for the indulgence of the bench, do not enjoy the same expansive rights as ordinary citizens.

Free speech advocates may also claim that it is difficult to define such speech, further exacerbating the problem. But provisional release orders can incorporate by reference the kinds of speech identified in the indictment. That should provide effective notice to the defendant of the sort of conduct prohibited while at the same time protecting the public safety. Giving Seselj carte blanche to re-offend simply cannot be justified on freedom of expression grounds.

Much of the recent criticism of the ICTY has been directed toward its decisions regarding the substantive law—the Gotovina and Perisic cases are prominent examples in that regard. But its procedural gaffes, especially in the high-profile cases, are equally deserving of censure. The cases of Milosevic, former Bosnian-Serb President Radovan Karadzic and General Ratko Mladic have all been characterized by procedural bungling and interminable delays. In Milosevic’s case it directly compromised justice. Time will tell whether that is true in the Karadzic and Mladic matters as well. But in the case of Vojislav Seselj, there is no question of its deleterious effects on transitional justice, even before the conclusion of trial.

Seselj’s contempt of process and his manufactured delays with the complicity of the ICTY are bad enough for the transitional justice process. But allowing the silver-tongued radical Serb nationalist to direct his rhetorical blowtorch toward Bosnia’s ethnic tinderbox not only smacks of procedural incompetence, it shows willful disregard for the victims of persecution and ethnic cleansing. Post-atrocity hate speech in this context deserves no protection. In fact, it should be proactively prohibited. The Seselj case has been the poster child for the ICTY’s procedural dysfunctionality. But with a reasoned ruling from the Appeals Chamber acknowledging the harm of the provisional release order, the Seselj case can break out of its procedural rut and perhaps serve as a kind of bellwether for more coherent case management practice going forward. For the sake of the victims of ethnic cleansing, the legacy of the ICTY and true reconciliation in the region, such a result is devoutly to be wished.

Gregory S. Gordon is Associate Professor and Director/ Assistant Dean for 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.

Suggested citation: Gregory Gordon Seselj’s Provisional Release: Hate Speech, International Criminal Procedure and Transitional Justice, JURIST – Academic Commentary, Feb. 7, 2015, http://jurist.org/academic/2015/01/gregory-gordon-seselj-release.php.