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The Seselj Trial

Date de publication: 25.01.2012

Vojislav Seselj at the International Criminal Tribunal for the former Yugoslavia in The Hague

 Stefan Karganovic

Remarks at IDC, Paris, 24 January 2012.

THE ŠEŠELJ TRIAL: IS THERE HOPE FOR JUSTICE?

        

Or, perhaps, after a nine year extra-judicial agony we may now dispense with expectations of justice and rephrase the question more practically in the following way: is there hope that at least some of the procedural norms of civilized jurisprudence might finally be put into effect in the course of these proceedings?

As I expect to illustrate, that alone would constitute huge progress in this case and would lead to a just result – dismissal of the charges – even without a formal verdict of acquittal after due deliberation on the evidence. That is so for at least two reasons. First, the five year pre-trial delay and concomitant denial of provisional release, coupled with the inexpeditious pace of the trial since it finally started, constitute a grave violation of the right to a speedy trial and thus a valid reason for quashing further proceedings. Be it noted that the right to a “fair and expeditious trial” is guaranteed in Rule 65ter (B) of the Tribunal’s own Rules of Evidence and Procedure, which the nine-year and counting incarceration of Vojislav Šešelj by any reasonable standard appears to have violated. Secondly, the complete collapse of prosecution’s case by the time it drew to a close in March of 2011 and the consequent failure to demonstrate a single charge in the indictment. According to the Tribunal’s own rules, Rule 98bis to be exact, at that stage the chamber should have assessed the evidence in  the light most favorable to the accused and abrogated further proceedings if it appeared that the prosecution failed to present evidence that might reasonably lead to a conviction.

Despite the prosecution’s manifest failure to present such evidence, and the clearly expressed view of chamber president Antoneti that the concept of joint criminal enterprise, upon which much of the indictment hinges, was misapplied in the Šešelj case, the majority of the chamber voted for the trial to proceed. The political beneficiaries of this prolongation are the present rulers of Serbia. As a result of it, they will not have to face the unsavory prospect of a triumphant Šešelj returning any time soon to lead his resurgent Radical Party in the forthcoming Serbian elections. To make matters even more absurd, instead of moving forward since the 98bis hearing last Spring, the case-in-chief has been meandering around collateral issues, specifically contempt of court charges against the defendant for allegedly publicizing the identities of prosecution’s protected witnesses. It does not matter that all those witnesses have signed affidavits that they do not object to the lifting of protective measures. The trial is thus effectively prevented from advancing into the defence phase while these contrived issues are being considered, although the conclusion of the tedious proceedings as a whole is long overdue.

A word is in order about Judge Jean-Claude Antoneutti. After several judges in succession were replaced, he was appointed to head the chamber on the eve of the trial’s commencement. Judged by purely formal standards, his performance has been commendable. But note should be taken of the fact that, though he has, unlike his predecessors, been a generally fair umpire in the courtroom, Antonetti alone has no decisive influence on the outcome, flanked as he is by judges Harhoff and Latanzzi who make no attempt to conceal their animosity toward the defendant. There is no particular reason to question Antoneti’s personal honour and professional rectitude, but his practical role in the Šešelj proceedings is limited and may be likened to that of Dubček: he acts as the Tribunal’s “human face”. Whatever the ultimate reason for Antoneti’s assignment, it must be recognized that his generally reasonable conduct has had the paradoxical effect of improving the quality of Šešelj’s defence. No longer obliged to assume the posture of an enfant terrible in order to dramatise the unfairness and absurdity of the proceedings against him, Vojislav Šešelj, who may not be a man of great social refinement but who does happen to be a person of enormous erudition and legal competence, could at last focus on the effective conduct of his defence and demonstrate publicly his complete mastery of the lawyer’s craft.

The list of procedural violations in the Šešelj case is long and varied, but we may reduce it to the following principal issues.

Undoubtedly, a fundamental issue in this category is the apparent fact that the indictment itself was not motivated by legal but by crassly political reasons. As we learned by reading former chief prosecutor Carla del Ponte’s memoirs, the prosecution was virtually invited by the then prime minister of Serbia, Zoran Djindjić, to contrive a case against Šešelj. On that occasion he used the  infamous expression: “Please take Šešelj away from here, and do not ever bring him back.” Though scandalous, that attitude is somewhat understandable coming from the politician Djindjić, who sought to get rid of his foremost political rival. But that a supposedly reputable international judicial institution should act upon such a crudely political invitation, as The Hague Tribunal appears to have done, is an outrage of the first order.

Such an infelicitous inception of the Šešelj case could not but lead to a lengthy train of subsequent abuses. In spite of the fact that Šešelj turned himself in voluntarily within days of being informed of the indictment against him and that he satisfied all of the Tribunal’s own criteria for pre-trial release, he was denied that privilege. By contrast, Kosovo Albanian politician Ramush Haradinaj, who was accused not of verbal offences but of mayhem and torture, was granted not merely provisional release but also the right to engage in politics while free, pending the commencement of his trial.

While for almost five years Vojislav Šešelj was incarcerated in pre-trial   limbo, waiting for the prosecution to scrape together anything that remotely resembled inculpatory evidence that it could use in court against him, he had to simultaneously fight two momentous procedural battles.

The first was for the Tribunal to recognize Šešelj’s right to represent himself. One would think that should have been a simple matter because Article 21 of ICTY’s own Statute guarantees that option to each defendant, unconditionally and in plain language. For many years, however, that right was denied to Šešelj, a former law professor, on the spurious grounds that it would be disruptive of the proceedings! In the end, Šešelj had to go on a hunger strike before the appellate chamber reversed the position and finally recognized his elementary right to self-representation.

The second battle, in which he achieved only a partial victory that always remained precarious, was fought under the banner of “equality of arms.” Briefly, the concept mandates that there should be a rough equivalence of resources between the parties as they confront each other in court. The prosecution has dozens of assistants and investigators and considerable funds at its disposal. By comparison, even when everything is going smoothly by ICTY standards, the resources assigned to the defence are miniscule. In his characteristic “go for broke” fashion, Šešelj bombarded the chamber with a demand that was perfectly reasonable but got nowhere: for disclosure of the funds and personnel that were made available to the prosecution to mount its case against him and, under the “equality of arms” doctrine, that he be accorded comparable resources. The farthest he ever got after filing countless motions and engaging in interminable courtroom histrionics was the chamber’s agreement finally that he should be given some funds with which to finance his defence as opposed to none at all, which was the court’s original position. Like every bizarre ruling in The Hague, this one also was motivated by exquisite sophistical reasoning. When you choose to represent yourself, so their rationale went, you also assume the entire responsibility for financing your own defence.

Tainted from the outset, the case against Vojislav Šešelj began to really unravel once the trial started. It turned out that “expert” witnesses brought by the prosecution were a parade of half-wits and ignoramuses or, in Šešelj’s own memorable courtroom phrase, “If they know less than I do about the subject matter of their expertise, they have no business being here.” The alleged percipient witnesses to Šešelj’s crimes were an unmitigated disaster for the prosecution, whose performance was marked by wholesale perjury. The vast majority admitted in court, under Šešelj’s merciless cross-examination, that they were blackmailed, pressured, or suborned to give false evidence against him under the direction of the prosecutor. One even revealed in open court that prosecution investigators had promised him access to “girls” if he agreed to give incriminating evidence against the defendant. Many prosecution witnesses, apparently relieved that they could finally do so in the relative safety of open court, withdrew large portions or all of their previously given statements and one, to the apparent amazement of the judges, requested permission to walk over to the defendant and to embrace him.

The prosecution of Vojislav Šešelj, more than any other scandalous proceeding at ICTY, symbolises most clearly the its institutional  corruption and it illustrates the true nature of the Hague Tribunal which was best encapsulated by a distinguished authority in the title of one of his books: travesty.

Oh, yes, and haven’t we forgotten to mention the official charges against Vojislav Šešelj? Not at all, they just happen to be completely ludicrous and of negligible import in relation to the gross subversion of basic legal principles that the conduct of his trial in all its phases represents. The defendant stands accused of “inciting” to violence and ethnic persecution in his political statements, an offence that is not even listed as a crime in the Tribunal’s Statute, any more than is the elusive doctrine of Joint Criminal Enterprise, and that in any event would be regarded as legally protected free speech from any but a politically vindictive point of view.

Just a few days ago, Foreign Minister Lavrov in his annual press conference singled out the persecution of Vojislav Šešelj for particular criticism and cited it as one of the significant reasons for closing down the Hague Tribunal. The record of illegality and systematic professional misconduct that has characterised the Šešelj case makes Mr. Lavrov’s recommendation urgent and entirely appropriate. One should only like to add that after more than a decade and a half of serious damage to international law it would not be enough to merely shut it down. All its decisions and verdicts must also be reviewed, the pernicious precedents it set dismissed, and its willing servants disciplined  professionally. 



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