By Luka Misetic
Vojislav
Šešelj has this week returned to Serbia to a "victorious" welcome by his Serbian Radical Party supporters. From any perspective, Šešelj’s trial has been
an unmitigated disaster, lasting over eleven years with no trial judgment on
the horizon. Šešelj was allowed to turn
the trial into a circus by (1) regularly insulting prosecutors, judges,
witnesses and court staff, (2) needlessly delaying the proceedings with antics
like his hunger strike, and (3) intimidating protected witnesses by disclosing
their identities in violation of court orders.
Yet the court refused to ban him from the courtroom or to impose counsel
on him. The results of the attempts to
appease Šešelj are evident to all today.
Šešelj’s
judgment was delayed also by the (quite justified) expulsion of Judge Fredric
Harhoff from the ICTY after the trial had ended but before judgment could be
delivered. This left the Šešelj Trial
Chamber (now left with Judges Antonetti and Lattanzi) one judge short of the
required three judges. More than one
year has passed since the ICTY appointed Judge Mandiaye Niang of Senegal to
replace Judge Harhoff. Judge Niang
stated that he would review every piece of evidence in the record, watch video
of every witness’s testimony in order to assess his or her credibility, and
read every transcript. Not surprisingly,
he has not been able to accomplish his goal one year after his appointment.
When might Judge Niang be ready to start deliberating about the judgment? ICTY President Meron recently advised the UN
General Assembly:
Judge Niang has advised that he will require at least until
the end of June 2015 in order to familiarize himself with these proceedings.
Presiding Judge Antonetti has indicated that he will do his best to shorten the
period required to render the judgement once Judge Niang’s review has been
completed.
Because
Judge Niang has advised that he won’t be finished reviewing the evidence until
at
least June 2015, Prosecutor Serge Brammertz in an interview this week quite
correctly stated that a judgment in Šešelj’s case will not be delivered before
the end of 2015.
Šešelj’s Liver Cancer
What
the ICTY has not publicly stated is that, if a judgment cannot be delivered in Šešelj’s
case before the end of 2015, it is not likely to be delivered at all.
Šešelj was provisionally released because he
has been found to be suffering from liver cancer.
Survival rates for liver cancer are very low.
If Šešelj dies before the Trial Chamber
issues its Judgement, then the ICTY loses jurisdiction over the case and no
judgment can ever be rendered.
One
can presume that the ICTY has concluded that Šešelj’s liver cancer is at an
advanced stage and that his long-term prognosis is not good. I gather this from
two factors. First, the fact that the
Trial Chamber was eager to return Šešelj to Serbia at any cost, even without
asking him whether he wanted to go or whether he would abide by the ICTY’s
orders while released (Šešelj of course would have said that he would not obey
the Tribunal), suggests that the Trial Chamber was desperate to avoid the
scenario where yet another ICTY accused dies in the UN Detention Unit (as in
the cases of Slobodan Milošević, Slavko Dokmanović, Milan Kovačević, and Milan
Babić).
Second,
the fact that Prosecutor Serge Brammertz did not appeal the decision to release
Šešelj—even though Šešelj never promised to comply with the Tribunal’s orders or
to comply with witness protection measures—suggests that Mr. Brammertz also
did not want to be held responsible were Mr. Šešelj to die in the custody of
the United Nations. Based on the actions
of both the Trial Chamber and Mr. Brammerz, we can assume that doctors have
concluded Mr. Šešelj is not long for this Earth.
Justice Requires that Šešelj’s Judgment
Be Delivered Orally First
After
eleven years of trial, the ICTY owes a final judgment to the victims, to the
many witnesses who took the risk to testify against Šešelj, and to Šešelj
himself. The ICTY cannot simply sit back
and hope that Šešelj survives his liver cancer for another year and half, long
enough for Judge Niang to become familiar with the evidence and to deliver a
written Trial Judgment in 2016.
The
Trial Chamber can possibly avoid this doomsday scenario of Šešelj dying before
judgment can be delivered. It can
deliver the Judgment orally, without
a written judgment, almost as soon as a majority of the judges agree on
the ultimate issue of the guilt or innocence of Mr. Šešelj.
Rule 98(C) ter of the ICTY’s
Rules of Procedure and Evidence states:
The judgement shall be rendered by a
majority of the Judges. It shall be accompanied
or followed as soon as possible by a reasoned opinion in writing,
to which separate or dissenting opinions may be appended.
The
phrase “or followed as soon as possible” clearly implies that the Trial Chamber
has the power to deliver an oral Judgement first, if it is in the interests of
justice to do so, and provide a written Judgement as soon as practicable
thereafter.
Indeed, this procedure was
followed in
Aleksovski, where the
Judges of the Trial Chamber first delivered an oral Judgement after finding
that “at this stage of their deliberations it is important to convene a hearing
in the presence of the accused, the Prosecution and Defence counsel as quickly
as possible so that they may pronounce their Judgment.”
In
explaining the Trial Chamber’s decision to pronounce Judgement orally, the
Presiding Judge in Aleksovski stated
as follows:
Your
trial proper started before this Trial Chamber on January 6th, 1998, and ended
on March 23rd, 1999. Since that date, my colleagues and I have been
deliberating, assessing, and reviewing all the evidence, briefs, and written
documents of the trial. The conclusions which we have reached have seemed of
such a nature that they justify amply the fact that the hearing be organised in
the shortest of delays, without waiting for the final judgement to be put down
in writing. This judgement will be made public as early as possible, but the
urgency seems to be such that we have not waited for the return of the senior
trial attorney of this trial, Mr. Grant Niemann, to which I would like to pay
homage. May he be made aware that we are
very sorry that he is not present today for we have always been very pleased
with his work. I would like to say the same for Mr. Mikulicic: We are very
sorry not to see them here today.
The
Aleksovski Trial Chamber sentenced the
Accused to two years and six months imprisonment.
However, because the Accused had already been
in detention for a period of time longer than the imposed sentence, the Trial
Chamber ordered his immediate release on 7 May 1999.
The written Judgement was not delivered until
25 June 1999.
The Šešelj Trial Chamber should follow the
precedent of the Aleksovski Trial
Chamber and use its powers under Rule 98(C) ter
to deliver a judgment as soon as a majority has reached a decision. If Judges Antonetti and Lattanzi have already
reached a majority decision even without Judge Niang’s vote, then nothing
precludes them from rendering their oral decision right now, because
Rule 98(C) ter expressly states that
the Judgement shall be rendered “by a majority of the Judges,” not necessarily by
all of the Judges. They do not have to
wait for Judge Niang if they have already reached a majority Judgment. Indeed, even if Judges Antonetti and Lattanzi
have reached a majority Judgment on certain counts but not others, Rule
98 (C) ter does not prevent them from
issuing a partial oral judgment on those counts.
If
Judges Antonetti and Lattanzi are deadlocked and have differing judgments on Šešelj’s
guilt, then the proceedings indeed will have to wait for Judge Niang to
complete his review of the evidence, begin deliberations, and cast his tiebreaking
vote. Even under this scenario, however,
the Trial Chamber should not wait for a written Judgement to be prepared before
pronouncing on Šešelj’s guilt. As soon as Judge Niang has cast his vote, the Trial Chamber should
immediately schedule an oral Judgment (hopefully in the summer of 2015), and
render its decision on guilt or innocence orally. If Šešelj dies thereafter, the Trial Chamber
will nevertheless retain jurisdiction to deliver the written Judgement
explaining its already delivered oral Judgment.
The
ICTY will have to utilize some creative thinking and little known rules (like
Rule 98(C) ter) in order to avoid the
situation where Šešelj dies and no judgment is ever delivered. That result would render the Šešelj case a complete farce. Šešelj has already been allowed to turn the
ICTY proceedings against him into a circus during his lifetime. He should not be allowed to cement that legacy by escaping judgment through his death.
