Vojislav Seselj, centre, at a press conference in Belgrade. April 24, 2016. PAimages/Marko Drobnjakovic. All rights reserved.

Dr. Armanda Hysa:

The International Criminal Tribunal for the Former Yugoslavia (ICTY) acquittal of the leader of the Serbian Radical Party, Vojislav Šešelj, provoked angry reactions in Croatia, Bosnia and Hercegovina, Kosovo, and beyond. Memories of Šešelj’s appearances in the Serbian media and his hate-mongering against non-Serbs during the 1990s are still vivid in the minds of many people from the region.

The acquittal of Vojislav Seselj was last in a series of problematic court decisions regarding other important political leaders and military officers accused of various offenses during the bloody breakup of the SFR Yugoslavia. The consequences of such decisions have been the weakening of trust in ICTY as an institution, and the rise of various conspiracy theories on geopolitical interests of ICTY.

With that in mind, I find it especially important to bring to readers the opinion and analyses of two scholars who are at the same time political experts on the former Yugoslavia, Dr. Eric Gordy, a sociologist from University College London whose expertise and research interests are focused in Serbia and issues related to transitional justice, and Dr. Srdja Pavlovic, a historian from the University of Alberta in Canada, who teaches modern European and Balkan history, and focuses on nationalism, conflict and identity construction in the former Yugoslavia.

I would like to start this conversation by asking how was this verdict produced, what is the background of Šešelj’s trial and verdict in Serbia?

Dr. Eric Gordy:

For one thing, it is impossible to consider the verdict separately from the activity and character of the defendant. Vojislav Šešelj was charged in 2003 because he asked to be charged (most likely because he knew he was likely to face domestic charges before less indulgent courts for a variety of things, including the murder of Zoran Đinđić). At that time the prosecution was probably feeling confident that it would get a conviction against Slobodan Milošević (who was still alive and on trial), and that a conviction against the other members of his enterprise would follow – so they obliged Šešelj with an indictment.  When the Milošević case collapsed, they were left with a freestanding case against Šešelj that was difficult to prove, principally because:

1. it was not clear (and likely also not true) that he exercised military command over the paramilitaries that were nominally under his control, and
2. on the charges of inciting violence, it is always difficult to show a direct causal connection between statements in a speech, however awful, and a concrete crime.

All of this points, also, to the nature of Šešelj’s activity in the 1990s: he was a performer sponsored by the Milošević regime, permitted to indulge in outrageous behaviour on television broadcasts and in the parliament, and encouraged to express the ideological views that the regime put into practice but were ashamed to admit holding. He had no independent political power, and did not have the knowledge or skill to command troops. His only talent was as a provocateur, and it was the judges’ confusion at his exercise of this talent that made the mismanagement of his trial so scandalously complete: a domestic court would have taken disciplinary measures, but this group of refined practitioners of law thought they could control him by giving him everything he wanted. In all these senses, it might be possible to look at the whole trial as an artefact of Šešelj’s objective insignificance in the face of the publicity he constantly received, and the persistent inability of civilised people to cope with the behaviour of a malicious sociopath.

Dr. Srdja Pavlovic:

It is very possible that Vojislav Seselj had flown to The Hague some years back in order to escape the legal proceeding by national courts related to the murder of the former Prime Minster, Zoran Djindjic. I am, however, not convinced of such outcome considering the fact that the political conspirators behind this murder are yet to be uncovered and charged. His hasty departure from Belgrade might have been prompted by different reasons. Many people had argued at the time that Seselj’s leaving for The Hague was his attempt at escaping the wrath of the powerful local mafia bosses of the Zemun Clan, with whom he came into conflict.

Regardless of the reasons behind this decision, the story of his departure had been “wrapped” in the Serbian national flag by both his party colleagues and the large segment of the population. Seselj himself, worked hard on promoting his own martyrdom and his iron resolve to conquer the international tribunal. This elevated his position within the ranks of the Serbian nationalist elite and presented the ICTY as nothing but a political tool created to intimidate and discredit the Serbs.

It also projected the image of him as an Eastern Orthodox white knight who embarked upon a dangerous journey into the belly of the beast in order to take it apart from within. The outcome of the trial is, therefore, taken by many, including his nationalist fellow-travelers such as the leader of the Republic of Srpska para-state, Milorad Dodik, as the victory of an innocent man against the Serb-hating international legal machine. 

Dr. Armanda Hysa:

In order to understand the verdict, it would be helpful to know something more about the background of such a trial in The Hague.

Dr. Eric Gordy:

Just like the outcome cannot be separated from the character of the defendant, it also cannot be separated from the character of the presiding judge. Most of the judges of the Tribunal are law professors and specialists in international law; Jean-Claude Antonetti is not. He spent his career as an administrative official in the French Ministry of Justice, and a spell as the chief of staff of Jacques Chirac when he was president. He spent a short period as an appeals judge in local courts in France, but not enough to add up to what any professional would call meaningful judicial experience.

Chirac rewarded Antonetti’s political loyalty with a nomination to the Tribunal, a highly paid job with few demands. He became the presiding judge in the Šešelj case after a previous panel’s failed management had brought the trial to a standstill, and adopted the strategy of permitting the defendant to control the proceedings. He gained an ally on the panel when one experienced judge, Frederik Harhoff, got himself recused following a well-intended but strikingly unprofessional media stunt.

As the presiding judge was experienced in politics but not in law, he was amenable to the political campaign that Šešelj conducted from the defendant’s dock. Hence the bizarre verdict, which is full of ideological constructions and justifications and remarkably uninformed on basic points of law, even where these have been established by multiple precedent. 

Finally, it is impossible to understand the verdict without reference to the shifting status of the Tribunal itself. One of the lines which the judges have appeared unwilling to cross is the recognition of the involvement of Serbia in cross-border conflicts (although interestingly it recognized Croatia’s role in the Blaškić and Kordić cases).

When Theodor Meron invented a new legal standard to acquit Momčilo Perišić of crimes in Bosnia, this standard was applied to the case of the Interior Ministry and State Security chiefs Jovica Stanišić and Franko Simatović – the net effect being that arms, money, training and logistics provided by Serbia to paramilitaries in Bosnia-Hercegovina and Croatia did not amount to criminal activity.

Once Stanišić and Simatović were acquitted it was predictable that Šešelj would be acquitted: if the people who actually exercised command are not guilty, then the person who pretended to exercise command is not likely to be found guilty. In addition, although Tribunal officials would strenuously deny that “balance” is an issue in the production of convictions and acquittals, it is not hard to observe that between the Orić case, the Haradinaj case and this one, they have handed acquittals to paramilitarists from every side. 

Dr. Srdja Pavlovic:

Professor Gordy’s expertise on the inner workings of the ICTY is significantly greater than mine, and I wish to limit my comments to a couple of general points in order to reinforce what has been already said. The issue of the balancing act performed by the ICTY is indeed significant both for the general framework of international law and also the effects court decisions have on the states involved in the legal proceedings, and on their respective populations.

Seselj’s case is but one of many examples of a curious sense of balance displaced by the ICTY over the past number of years. We should not forget that the ICTY had performed (was tasked with performing?) a political function as well as legal one. I think the issue of balance is inseparable from the political function of the court regardless of how we might feel about it. Fulfilling this political function is often, if not as a rule, at odds with the evidence presented in specific court cases and we have been witnessing the evidence interpreted and reinterpreted by appeal chambers in most astonishing and irrational ways, or simply ignored altogether. I would add the name of Ante Gotovina to the list of illustrations of this balance offered by my colleague Gordy.

Seselj’s verdict is also a reminder that we tend to idealize the concept of justice and expect outcomes that would satisfy our own understanding of guilt and innocence. We infuse the ICTY with meaning that is solely the product of our own hopes and expectations and was never a part of the structural makeup of such tribunals. 

Dr. Armanda Hysa:

Earlier, Dr. Gordy said: “…it was not clear (and likely also not true) that he exercised military command over the paramilitaries that were nominally under his control”. It seems clear, however, that the case against him was mismanaged. What is your opinion about legal basis upon which Seselj could be retried and was there enough evidence for the court to find him guilty?

Dr. Eric Gordy:

There will definitely be an appeal filed in this case. The prosecution has already made known its intention to appeal, and the dissenting opinion by Judge Flavia Lattanzi gives a clear outline of the very large number of major legal and factual errors that provide the ground for an appeal. 

It could be argued that an appeal is necessary in this case, because entirely aside from the question of Šešelj’s individual guilt or innocence, the majority opinion put forward a lot of theses that are simply in conflict with both law and history: that the action of Serb paramilitaries in Croatia and Bosnia-Hercegovina was entirely defensive in character, that sustained incitements to hatred and threats amount to morale-boosting exercises, that connections between armed forces which were proved in other trials did not exist.

Seselj’s verdict is also a reminder that we tend to idealize the concept of justice and expect outcomes that would satisfy our own understanding of guilt and innocence.

It is another question what will happen once appeals are filed. ICTY (as well as the institution that will manage the appeals, the Mechanism for International Criminal Tribunals, or MICT) is notoriously slow, and although his level of activity would suggest otherwise, Šešelj is very sick.

The appeal chamber can reject the appeal, rule to accept some or all of the appeal arguments, or order that a new trial be conducted. The last two outcomes are both more probable than the first, and probably the third is more probable than the second. Either outcome would bring about a new political conflict between the Tribunal and Serbia, particularly considering that delivering Šešelj to the Hague as a defendant or convict would lead to new problems since he is now a parliamentary deputy.

A retrial is especially difficult to imagine if we keep in mind that Šešelj’s main defence strategies have been obstructing the proceedings and intimidating witnesses. This suggests that there could be another marathon trial marked by irresolution. It might not be too surprising if in the meantime a domestic court charges him with one of the many offences for which he could be convicted in Serbia, and tries him under conditions that are less accommodating to defendants than the ones provided by ICTY. 

Dr. Srdja Pavlovic:

While he might not have exercised significant command control over various paramilitary units, Seselj was present at the front line (often bearing arms) and had to have an impact on the actions taken by them. I do not think that Seselj, or anyone for that matter, needed to possess a thorough knowledge of military tactics of irregular warfare to send paramilitaries into villages and towns to slaughter civilians, plunder their possessions and then claim victory for the “defenseless Serbian people.”

While it is difficult, if not impossible, to prove beyond a reasonable doubt Seselj’s guilt in this respect, we should be reminded that he was charged with individual responsibility and not the command one. Moreover, the article 7 of the ICTY Statute specifies that inciting violence that leads to the committing of crimes listed in the articles 2-5 (ranging from crimes against humanity to crimes of genocide) would be adequately sanctioned.

With that in mind, it seems that judges had sufficient legal basis to convict Vojislav Seselj of warmongering, inciting ethnic and religious hatred, and for inciting violence against non-Serbs. Furthermore, the ICTR (Tribunal for Rwanda) lists the cases of three journalists who incited violence and were found guilty. Even though they neither killed anyone, commanded over any group of armed men nor led any paramilitary units, two of them received life sentences, while one was sent to prison for 35 years. 

Dr. Armanda Hysa:

 Finally, in your opinion, what is the verdict likely to mean? 

Dr. Eric Gordy:

Nobody is going to draw the legal conclusion that the verdict offers, which is that the command that was not exercised by Šešelj was in fact exercised by official state institutions like the military and the Interior ministry. Instead there is likely to be a wave of euphoria in some political quarters in Serbia, that either the symbolic ethnic group or Šešelj has received a victory.

Some observers are predicting that this may revive Šešelj’s political career, and they are probably right – he may well get his party back into the parliament, although there is not much chance that he or his party will ever be anything other than marginal. Aside from that, the verdict is more likely to produce anger than anything else, and here it is very likely that the main victims of this anger will be the remaining Serb population in Croatia. These are people fighting an uphill struggle for recognition of political and cultural rights, and against the imposition of collective blame. It appears likely that the guilt that the Tribunal removed from Šešelj will be transferred onto them by demagogues in politics in media. 

The prosecution has the right to appeal the verdict, and is absolutely certain to make use of that right, not least because the poor legal quality of the majority’s opinion makes it easy to overturn. It is not clear how much this will mean, however, and it will amount to little if the defendant does not survive until an appeal ruling. If that happens, then we will be left with a classically tragic outcome, in which a series of events and personalities led to an unavoidable outcome that cannot be undone.

Dr. Srdja Pavlovic:

I agree with my esteemed colleague that the acquittal of Vojislav Seselj would have minor and short-lasting political effects in Serbia. It is doubtful that his party would end up holding the balance of power after the next elections. Such projections reflect the state of temporary confusion and fear following the decision by the ICTY more than anything else.

The long-lasting negative effects of the court’s decision have to do with the lack of legal sanctions for warmongering and inciting violence and, on a more general note, with the understanding of the character of the conflict. The court found that Seselj was just a motivational speaker whose hateful tirades were meant to “lift the spirit” of the innocent civilians under threat. Such assessment of his role is problematic on many levels and I will mention only two.

First, it misrepresents the complex nature of the Yugoslav wars and effectively excludes official Serbia from having any impact on the bloody breakup. Its contribution to the Yugoslav wars is marginalized, and I would argue unjustly so. By portraying Seselj as one of a number of nationalist orators who had assisted the Croatian and the Bosnian Serbs with organizing self-defense, the burden of responsibility shifts from Belgrade to Pale and to the leaders of a number of SAOs, most of whom, including Radovan Karadzic, have been convicted to prison terms of various length.

Second, and I think more important issue is the judges making an effort to disconnect words from actions that follow. While it would be a daunting task to argue that no crimes would have been committed if it weren’t for Seselj’s inflammatory rhetoric, the fact is that his “call for duty” was a major contributing factor. It is true that Seselj acted from a position of limited political power and performed a role of a “messenger.” His words, however, carried certain political weight and legitimacy because the audience he was addressing know that the structures of power in Serbia (both political and military) had approved of his message. The judges had failed to acknowledge this important and direct link.