ICTY war crimes court acquits Serbian ultra-nationalist Šešelj
The International Criminal Tribunal for the former Yugoslavia (ICTY) on March 31 2016 acquitted Vojislav Šešelj, president of the Serbian Radical Party and a former member of the Assembly of the Republic of Serbia, on nine counts, including three of crimes against humanity.
Šešelj had faced counts of crimes against humanity (persecution, deportation and inhumane act of forcible transfer) six of war crimes (murder, torture and cruel treatment, wanton destruction, destruction or wilful damage done to institutions dedicated to religion or education, plunder of public or private property).
He had been accused of having directly committed, incited, aided and abetted those crimes committed by Serbian forces during the period from August 1991 until September 1993, and to have been part of their commission through his participation in a joint criminal enterprise.
A majority of the ICTY court, Judge Lattanzi dissenting, found that the prosecution had failed to prove the existence of a criminal purpose, a legal requirement in the case of a question of a joint criminal enterprise.
The court majority concluded that the objective of the creation of Greater Serbia was “more of a political venture than a criminal project”. The majority of the bench acknowledged that crimes had been committed by Serbian forces in the process, but that they were not inherently linked to the fulfilment of the purpose of Greater Serbia.
The majority, again with Judge Lattanzi dissenting, also found that the recruitment of volunteers through which Šešelj was deemed to have participated in the joint criminal enterprise or aided and abetted the crimes, was a legal activity regulated by the Yugoslav constitution and other relevant laws at the time.
With Judge Lattanzi dissenting, the majority concluded that the volunteers, once recruited and sent to the front, were not under the authority of Šešelj, but rather under military command, as per the principle of Unicity of Command embodied in the pertinent regulations.
The prosecution had also alleged that Šešelj directly committed a certain number of crimes, notably by public and direct denigration, in speeches inciting hatred of the non-Serbian population.
For some of those speeches, the majority, Judge Lattanzi dissenting, could not rule out the reasonable possibility that they were made in a context of conflict and were meant to boost the morale of the troops of his camp, rather than calling upon them to spare no one.
Another majority, Judge Antonetti dissenting, found that two other speeches constituted clear appeals for the expulsion and forcible transfer of Croats. This holding was not sufficient, however, to enter a conviction since the majority, with Lattanzi dissenting, did not find that there were widespread or systematic attacks against a civilian population during the relevant period, ruling out thereby the existence of crimes against humanity.
The majority also held that the prosecutor did not offer compelling evidence to establish or assess the impact of Šešelj’s speeches or the link to crimes committed at a later stage or in remote areas.
Šešelj was cleared of all charges of the indictment, with a majority decision on eight counts and a unanimous decision on one count.
Parties have the right to appeal against the judgment.
In the course of the trial, which started on November 7 2007, the ICTY chamber admitted close to 1400 exhibits. It heard 99 witnesses, of whom 90 testified for the prosecution and nine were called directly by the Chamber.
Responding to the judgment, the Prosecutor’s Office said that it took note of the verdict, adding, “We fully understand that many victims and communities will be disappointed by the Trial Chamber’s judgment.”
“We will carefully review the Trial Chamber’s reasoning that led to this outcome, including the dissenting opinion and the Trial Chamber’s findings that depart from the consistent jurisprudence of the Tribunal. We will then determine whether there are grounds to appeal the judgment.”
The Prosecutor’s Office said that should be recalled that an indictment and arrest warrants are currently pending against three of Šešelj’s associates, including two members of his defence team, for allegedly having threatened, intimidated, offered bribes to, or otherwise interfered with two Prosecution witnesses.
In addition, Šešelj has been convicted three times of contempt of court for revealing the identities of protected Prosecution witnesses and sentenced to a total of four years and nine months imprisonment for those crimes.
Since its establishment, the Tribunal has indicted 161 persons for serious violations of humanitarian law committed on the territory of the former Yugoslavia between 1991 and 2001. Proceedings against 149 have been concluded. Proceedings are currently ongoing for 11 accused.
