Despite Aquittal, the Tribunal Can Order Šešelj’s Continued Detention. Here's How.

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:

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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.

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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.