Seselj Verdict: Did Nationalist Speeches Cause War Crimes?

Judges handing down this week’s second-instance verdict in the trial of Vojislav Seselj have to decide whether the Serbian Radical Party leader’s nationalist speeches inspired Serb paramilitaries to commit crimes.

The prosecution in the case against Vojislav Seselj has asked the Mechanism for International Criminal Tribunals in its verdict on Wednesday to quash the first-instance ruling that acquitted the Serbian Radical Party leader, find him guilty, and sentence him to 28 years in prison.

As an alternative to a guilty verdict, the prosecutors have asked the UN court’s judges to order a retrial, claiming that justice was not done because of serious errors in the first-instance ruling in March 2016.

Following a long-running trial that began in 2007, the International Criminal Tribunal for the Former Yugoslavia acquitted Seselj of wartime crimes against Croats and Bosniaks in Croatia, Bosnia and Herzegovina and the northern Serbian province of Vojvodina.

Under the first-instance verdict, the ICTY ruled that it had not been proved in court that Seselj was guilty of crimes against humanity, the persecution of non-Serbs on political, racial and religious grounds, deportations and forcible resettlements.

Seselj was also acquitted of charges of the violation of the laws and customs of war, murders, torture, cruel treatment, wanton destruction of villages and towns, destruction of religious buildings and plunder.

The verdict attracted controversy and was condemned by war victims’ associations.

The ICTY’s chief prosecutor Serge Brammertz said that it was “not the best example of international justice”, while international law expert Iva Vukusic from Utrecht University described the court’s ruling as “one of the most bizarre decisions in its history”.

Seselj meanwhile expressed satisfaction, saying he had been vindicated. “However, with this acquittal, my stance towards the ICTY as an anti-Serb court hasn’t changed at all,” he added.

Was key evidence ignored?

In a written motion, Seselj has asked the court to reject the appeal and uphold his acquittal. He also said that he should have been released earlier because his trial was unfair and he had been unlawfully detained.

But the prosecutors argue that the acquittal judgment was unreasonable, badly argued, legally unfounded and based on incorrectly-interpreted facts.

They claim that the court failed to properly consider key evidence on war crimes committed by the ‘Seseljevci’ (‘Seselj’s Men’) paramilitary group of Serb volunteers, or the links between the perpetrators of crimes and the defendant and his nationalist speeches.

Their appeal also argues that the court did not properly address the charge that Seselj was one of the protagonists of a joint criminal enterprise aimed at forcing the non-Serb population out of areas of Croatia and Bosnia and Herzegovina in order to create a unified Serb state.

According to the prosecution, the verdict did not consider evidence about mass deportations and the forcible transfer of the non-Serb population from Croatia, Bosnia and Herzegovina and Vojvodina in Serbia, which was of key importance for determining the existence of the joint criminal enterprise.

The prosecutors allege that Seselj was personally involved in these crimes in the town of Vukovar in Croatia and in the village of Hrtkovci in Vojvodina.

They also insist that the verdict’s conclusion that there were no widespread and systematic attacks by Serb forces against the Croat and Bosniak population in Croatia and Bosnia and Herzegovina was fundamentally wrong.

The question of criminal intent

The key question to be answered by the appeals chamber is whether or not Seselj had the criminal intent to create a ‘Greater Serbia’ through the persecution of non-Serbs, which Serbian Radical Party paramilitary volunteers, inspired by his speeches, then carried out in Croatia and Bosnia and Herzegovina.

The first-instance verdict ruled that this was just Seselj’s political programme, which did not imply the commission of crimes.

But according to the prosecutors, Seselj’s criminal intent to deport non-Serbs was proved by the fact that deportations took place after his speeches called for them.

After Seselj said that “the best solution would be to load Croats onto buses and trucks and drive them to Zagreb”, this “actually happened”, the prosecution said: “The victims were put onto buses, which drove them outside Serb territories or to detention camps where they were subjected to brutal violence.”

However, in the first-instance verdict, the ICTY’s trial chamber accepted Seselj’s claim that “the buses represented a manifestation of humanitarian aid for non-Serbs who were not fighters and wanted to leave the war zone”.

The prosecutors responded that this was an “astounding” conclusion that represented “an offence to victims and witnesses”.

Various other statements by Seselj, such as his assertion that “rivers of blood will flow if Bosnia declares independence”, represented “barely disguised invitations to commit forcible transfer” of Bosniaks and Croats, prosecutors also argued.

These “invitations” were then acted upon by his supporters in the field, they claim.

The prosecutors further allege that the finding from the first-instance verdict that Seselj did not order or approve the commission of crimes in several places in Croatia and Bosnia and Herzegovina, and that he was not the perpetrators’ superior, either legally or in practice, contradicts the evidence.

The judgment said that Serbian Radical Party volunteers did commit mass murders, and were responsible for torture, cruel treatment, sexual violence and plunder in Vukovar, Zvornik, Sarajevo, Mostar and Nevesinje – but that they did not commit these crimes under Seselj’s control.

Did hate speech inspire crimes?

Another question to be answered by the appeals chamber is whether Seselj’s speeches in Vukovar in Croatia in autumn 1991 and in Hrtkovci in Vojvodina in spring 1992 caused the persecution of the Croat population in both places, as alleged by the prosecutors.

According to the prosecutors’ allegations, Seselj’s speech directly caused attacks by his supporters on local Croats, who were forced to leave Hrtkovci.

But the first-instance verdict said although Seselj called for the deportation of non-Serbs from Hrtkovci, “the prosecution has not proved that his speech led to the departure of Croats and the persecution campaign”, or that there was a causal connection between what he said and the crimes that followed.

The prosecution further appealed against the part of the verdict that determined that Seselj did not abet or assist crimes in other places in Croatia and Bosnia with his speeches.

It said that the acquittal meant that “justice has not been fulfilled” in the Seselj case.

If the acquittal is upheld, the prosecution insisted, “not only would it be offensive to victims, but it would also undermine the credibility of the court”.

The Radical Party leader, who is also a Serbian MP, will not be in court to hear Wednesday’s verdict.

He was temporarily released for medical treatment in November 2014, returned to Belgrade, and has refused to participate in his trial in The Hague since then.