The acquittal of Serbian warloard Vojislav Šešelj
has caused outrage in Croatia, Bosnia-Herzegovina and around the world. There is little doubt about Šešelj’s
role in Joint Criminal Enterprise to create Greater Serbia by means of
displacement of the non-Serb civilian population. This was already confirmed by the Trial
Chamber in the Martić Judgment, which at paragraph 446
found: “The Trial Chamber therefore
finds that at least Blagoje Adžić, Milan Babić,
Radmilo Bogdanović,Veljko Kadijević, Radovan Karadžić, Slobodan Milošević, Ratko Mladić, Vojislav
Šešelj, Franko “Frenki” Simatović, Jovica Stanišić, and
Captain Dragan Vasiljković participated in the furtherance of the
above-mentioned common criminal purpose.”
Can the Appeals Chamber do anything to remedy the gross injustice
that was perpetrated by Judge Jean-Claude Antonetti’s majority Trial Chamber
yesterday?
Fortunately, the answer to that question is “yes”. Judge Antonetti’s Trial Chamber made
numerous, egregious errors in reaching its decision to acquit Šešelj,
including:
1.
Finding that a JCE to create “Greater Serbia”
did not exist. This finding goes against
prior precedent of the ICTY, namely in the Martić case, where the Trial Chamber found
the existence of a “Greater Serbia” JCE, and the Appeals Chamber affirmed it. As recently as last week, the Trial Chamber
in the Karadžić
case concluded that “The Accused [Karadžić],Momčilo Krajišnik, Nikola Koljević, Biljana Plavšić, Ratko Mladić, Mićo Stanišić, Momčilo Mandić, Željko Raţnatović (Arkan), and Vojislav Šešelj formed a plurality of persons who acted pursuant to this common plan and shared the intent for the crimes which formed part of the plan.”
2.
Finding that civilians in Croatia and
Bosnia-Herzegovina were not subject to a “widespread and systematic
attack”. This conclusion is contrary to
the conclusions of many prior Chambers of the ICTY, including Martić, Karadžić. The Trial
Chamber in the Mrkšić case concluded:
472.
It is in this setting that the Chamber finds that, at the time relevant to the
Indictment, there was in fact, not only a military operation against the Croat
forces in and around Vukovar, but also a widespread and systematic attack by
the JNA and other Serb forces directed against the Croat and other non-Serb
civilian population in the wider Vukovar area. The extensive damage to civilian
property and civilian infrastructure, the number of civilians killed or wounded
during the military operations and the high number of civilians displaced or
forced to flee clearly indicate that the attack was carried out in an
indiscriminate way, contrary to international law.
It
was an unlawful attack. Indeed it was also directed in part deliberately against
the civilian population.” (Mrkšić Trial
Judgment, paras. 470 and 472; references omitted.)
3.
The International Court of Justice, in the
genocide case of Croatia v. Serbia, found the existence of a widespread attack:
416. The findings of the Court and
those of the ICTY are mutually consistent, and establish the existence of a
pattern of conduct that consisted, from August 1991, in widespread attacks
by the JNA and Serb forces on localities with Croat populations in various
regions of Croatia, according to a generally similar modus operandi.
Notable is the ICJ’s statement at
paragraph 412 that “Serbia does not
contest the systematic and widespread nature of certain attacks.” Judge
Antonetti thus denies the existence of a widespread and systematic attack despite the fact that Serbia itself did not
deny it when Serbia was brought before the International Court of Justice.
For these reasons and more, I expect the Appeals Chamber of
the Residual Mechanism to overturn the Šešelj Trial Judgment on the basis of
the Prosecution’s appeal. But an appeal
is likely to take at least three years to complete, and Šešelj is allegedly ill with cancer
and may not survive that long. If Šešelj
were to die before the Appeals Chamber pronounces judgment, the Trial Chamber
Judgment becomes a final judgment, and the historical record is tainted
forever.
So what can the Appeals Chamber do to undo the damage that
was done by the Trial Chamber’s unjust acquittal of Šešelj? Once the Prosecution files its Notice of
Appeal, the Appeals Chamber may order Šešelj’s immediate re-arrest and
return to the Detention Unit of the ICTY.
Rule 123 of the MICT Rules of Procedure and Evidence states:
****
Rule 123
Status of Acquitted Person
(A) Subject to paragraph (B), in the case of an acquittal or
the upholding of a
challenge to jurisdiction, the accused shall be released
immediately.
(B) If, at the time the judgement is pronounced, the
Prosecutor advises the Trial
Chamber in open court of the Prosecutor’s intention to file
notice of appeal
pursuant to Rule 133, the
Trial Chamber may, on application by the Prosecutor
and upon hearing the
Parties, in its discretion, issue an order for the continued detention of the
accused, pending the determination of the appeal.
****
Rule 131 provides that Rule 123 applies mutatis mutandis to proceedings before the Appeals Chamber. Accordingly, Rule 123 allows the Appeals
Chamber to order Šešelj’s immediate return to the ICTY and his continued
detention, despite his status as an acquitted person.
Let’s hope the Appeals Chamber acts, sooner rather than
later. The gross errors committed by the Antonetti Majority, combined with the widespread outrage throughout the world that the acquittal has caused, demand swift action on the part of the Appeals Chamber.
