HOW THE ICTY CAN STILL SALVAGE THE ŠEŠELJ TRIAL

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.[1]

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.[2]

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.[3]  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.[4]

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.[5]

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.”[6]

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.[7]

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.[8]  The written Judgement was not delivered until 25 June 1999.[9]

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.

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[1]http://www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2014_en.pdfhttp://www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2014_en.pdf , at paragraph 30.

[2]http://www.b92.net/eng/news/crimes.php?yyyy=2014&mm=11&dd=13&nav_id=92226

[3] http://www.cancer.org/cancer/livercancer/detailedguide/liver-cancer-survival-rates

[4] See, for example, Prosecutor v. Rasim Delic, Decision on the Outcome of the Proceedings, 29 June 2010, as found at: http://www.icty.org/x/cases/delic/acdec/en/100629_1.pdf.

[5] Emphasis added.

[6] Prosecutor v. Aleksovski, IT-95-14/1-T, Scheduling Order (5 May 1999); see also: ICTY Press Release, JL/PIU/399-E, “Aleksovski Judgment on 7 May 1999” (5 May 1999); Prosecutor v. Aleksovski, IT-95-14/1-T, Trial Judgement, para. 245 (25 June 1999).

[7] Prosecutor v. Aleksovski, IT-95-14/1-T, Transcript of Proceedings, T:4348:18 to T:4349:6 (7 May 1999).

[8] Prosecutor v. Aleksovski, IT-95-14/1-T, Order for the Immediate Release of Zlatko Aleksovski (7 May 1999).

[9] Prosecutor v. Aleksovski, IT-95-14/1-T, Judgement (25 June 1999).