First conviction by the Mechanism for the Former Yugoslavia in The Hague

When the first indictment for crimes against humanity and violations of the laws or customs of war was filed against Vojislav Šešelj, now convicted, at the beginning of 2003, around the same year, judges of the International Criminal Tribunal for the former Yugoslavia (ICTY) would initiate the design of a plan that would become known as the completion strategy of this temporary international judicial body. It was a time, it seems, when the ICTY had already gained full momentum in its judicial activities, and it was necessary to start thinking about how an international criminal tribunal, established by a United Nations Security Council resolution and operating as its subsidiary body, would conclude its mission of "dispensing justice," after the Nuremberg and Tokyo trials had long since ended. The UN Security Council would thus support this plan in its resolutions from 2003 and 2004. While all investigations were concluded by the end of 2004, the completion of first-instance proceedings, or the entire work of the Tribunal, could not be achieved by the end of 2008 or 2010, due to, among other things, the late arrest of the remaining Hague indictees. It was then more than clear that an international body should be established to complete all ongoing judicial proceedings at the ICTY and to maintain the Tribunal's vast legacy, at least until all trials were concluded. Therefore, by its decision in 2010, the UN Security Council established the International Residual Mechanism for Criminal Tribunals, one branch for Rwanda, or the African Great Lakes region, and the other for the former Yugoslavia. When the ICTY concluded its work at the end of 2017, the Mechanism continued the jurisdiction, rights, obligations, and core functions of its predecessor.

April 11, 2018, will be recorded in court files, and later in archives, as the date the Mechanism delivered its first conviction, in an appellate proceeding in the Šešelj case, a proceeding marked by a person who was his own defense counsel and against whom proceedings for contempt of court were held three times. Šešelj would be in detention from 2003 to 2014, when, before the Trial Chamber's verdict, he was released on temporary liberty, for humanitarian reasons due to the deterioration of his health, as stated at the time. However, it would later turn out that temporary liberty would become permanent, as the time Šešelj spent in detention (which is longer than the imposed sentence of 10 years) would be included in the legally determined prison sentence.

When the ICTY Trial Chamber delivered a verdict of acquittal on all counts of the indictment on March 31, 2016, I personally did not expect such a first-instance outcome at the then-Tribunal. The verdict, if considered rationally, contained a number of inconsistencies, erroneous factual findings, unreasonable, and above all, strange legal conclusions. If this verdict is viewed in isolation, separate from the Tribunal's previous jurisprudence, one gets the impression that some members of the Trial Chamber did not fully understand the factual substratum, nor what actually happened, especially in Croatia and Bosnia and Herzegovina during the critical period, considering the Trial Chamber's discussion of the level pertaining to jus ad bellum, the right to wage war, as well as the treatment of facts that, according to the Tribunal's case law, should have been considered established and commonly known. However, here are a few observations. The prosecutor did not base the indictment on command responsibility, which is relevant for superiors in military and civilian positions, but rather the accused was charged with directly committing, inciting the commission, or aiding and abetting criminal acts, or being involved as a member of a joint criminal enterprise. The question is whether anything more could have been proven in this case if the prosecution had alternatively charged him with de facto command responsibility, as someone who had effective control over his volunteers – and whether such a formulation of the indictment in this part could have pressured the ICTY prosecution to offer stronger and more consistent evidence at trial. On the other hand, it seems that the Tribunal's Trial Chamber at the time, despite not being charged by the prosecution with such a form of responsibility at all, analyzed the legal standards used in proving command responsibility – which creates the impression that Šešelj must have had hierarchical effective control over the volunteers.

It was strange to establish that the prosecution, according to the Chamber's findings, failed to prove that the attack on the civilian population was systematic and widespread, which are necessary elements to prove the quality and intensity of the attack for crimes against humanity. Such legal reasoning by the Tribunal, conditionally speaking, is disconcerting, considering the Tribunal's previous practice, according to which these elements of attack in a wider territory of Bosnia and Herzegovina have been proven for the purposes of crimes against humanity. Furthermore, it seems that the Tribunal's Trial Chamber did not follow the legal standards from relevant case law, primarily of the International Criminal Tribunal for Rwanda, and which the International Criminal Tribunal for the former Yugoslavia confirmed in one case, when it could have reached the legal conclusion that Šešelj's speeches were not incitement to war crimes and crimes against humanity. However, what confused me most of all was the legal reasoning of the Trial Chamber regarding the broader context of events during the critical period, in the sense that the Greater Serbia project was a priori political and had a political, not criminal, goal. In this regard, the question is whether the judges had the opportunity to reasonably perceive what methods or means such a project was to be realized with in Croatia and Bosnia and Herzegovina? Finally, if we conduct a legal analysis solely of this verdict, without using other substantive court decisions for comparison, we can ask what legal character the war in Bosnia and Herzegovina had, whether we perhaps had an internal armed conflict instead of an international one? And finally – what goals and intentions did Šešelj have, given that the first-instance verdict established that he did not share the criminal intent with other members of the joint criminal enterprise in the period from August 1991 to September 1993?

The Appeals Chamber's verdict of the Mechanism partially confirmed the first-instance Chamber's decision but also made a certain departure from the legal reasoning of the majority of judges in that Chamber from 2016. Thus, the Appeals Chamber established that crimes against humanity were committed in the territories of Croatia, Bosnia and Herzegovina, and Vojvodina because there was a discernible pattern of crimes, that the attacks against the non-Serb civilian population were indeed widespread and systematic, and that the Trial Chamber in that case either ignored a large part of the relevant evidence or made erroneous factual findings, concluding that the aforementioned punishable acts did not occur. Although the territory of Vojvodina was not affected by armed conflict, the crimes in Vojvodina were linked to the armed conflicts in neighboring Croatia and BiH – therefore, the existence of a separate attack with the aforementioned characteristics in Vojvodina itself is irrelevant – because it can be considered as a single, comprehensive, and connected attack against the non-Serb civilian population.

Although the prosecution failed to prove that the ICTY Trial Chamber erred in its 2016 verdict in concluding that there was no joint criminal enterprise that included the accused, or that Šešelj did not participate in it as a co-perpetrator, he was convicted as an accomplice because he publicly incited the commission of crimes against humanity in Vojvodina, and as a perpetrator of persecution, a form of crime against humanity that requires discriminatory intent on the part of the perpetrator. It was therefore concluded that only in relation to the Vojvodina village of Hrtkovci, his speech of May 6, 1992, constituted a clear call for the persecution of Croats, which would subsequently follow, and that only in this case could the congruence between words and punishable acts committed be observed beyond a reasonable doubt. Regarding his other speeches, it was determined that there was no clear evidence that they influenced perpetrators of crimes or incited crimes against humanity, but even if they did, due to the passage of time between the speeches and the crimes themselves, the Trial Chamber did not conclude that there was an unquestionable link.

Thus, in 2018, a marathon trial, one of the longest international trials, concluded against a person who, among other things, objected to the Tribunal that his right to a fair trial, which includes a trial without undue delay, had been violated. The Appeals Chamber in that regard would establish that there was no error regarding the right to a trial within a reasonable time, perhaps also due to the fact that the convicted person himself, through his behavior and actions, contributed to its frequent postponements.

It seems that the media, as well as the public here, were not as interested in the delivery of the Mechanism's second-instance decision in this case as they were during the period of a general hysteria surrounding the delivery of the Tribunal's final court decisions. Is this due to the impression that the Tribunal recently, and now the Mechanism, do not show a sufficient level of determination towards the country on whose territory the person against whom criminal proceedings are being conducted is located? On several occasions, the Hague Tribunal addressed the authorities in Belgrade for Šešelj to return to the detention unit before the delivery of the first-instance verdict, requests to which the Republic of Serbia did not respond. When it comes to the cooperation of states with the ICTY, elements of indolence are noticeable, on both sides, so the previous determination of the international community towards the countries of the region is no longer present – in the sense of holding states internationally responsible for violations of international law. Or are there new interests at play. And new generations.

Or is it partly because in international law we find influences from both the Anglo-Saxon (Anglo-American) and continental, especially European, legal systems and traditions. With the constant, and especially progressive, development of international law, different and constant entries of national legal concepts, institutions, doctrines, and standards into international law, its system, and order are noticeable. The statutes and rules of international courts and tribunals are a very good indicator of this. Ultimately, such a system is not without its difficulties, which are particularly reflected in the fact that judges and prosecutors, who apply the international system of rules of conduct in international courts and tribunals, come from different legal traditions and systems, and thus sometimes different reasoning, logic, understanding, and attitudes towards norms of international law are created. And it is quite another matter, which is also significant, the different perception of international law among the states of present civilization.

(The author of the text is a professor of international law at the Faculty of Law of the University of Zenica)