Seselj Verdict: A Compromised Court Compromises

In 2003, Vojislav Seselj had a plan: he would request that the International Criminal Tribunal for the Former Yugoslavia indict him, and get himself out of Serbia, where he knew that he would be a suspect in the upcoming murder of Prime Minister Zoran Djindjic.

With his multiple encounters with domestic courts, it seemed certain that he would be able to obstruct the proceedings with his now-refined combination of bluster, witness intimidation, and delaying tactics.

If not, he could take a few despised former allies down with him. And given his longstanding appalling physical condition, he could always hope not to survive until the delivery of the verdict, and to go into public memory as the nation’s crassest and most bloated martyr.

The prosecutors, in this brief period when the ICTY was self-confident, also had a plan.

They already had in custody Slobodan Milosevic, who as head of state represented the highest level of Serbia’s 1990s political leadership. Soon they would also have in custody the military commander Momcilo Perisic and the state security chiefs Jovica Stanisic and Franko Simatovic.

Their trials together would show that in recruiting, arming, training, and financing forces that committed major crimes in Croatia, Bosnia and Herzegovina and Kosovo, they constructed a joint criminal enterprise to establish political control over territory by forcibly changing the population, through a strategy of murder, forced expulsion, rape, and intimidation.

Seselj himself made up a very small part of the joint criminal enterprise. As prominent as he was in the media with his bombast and theatrics, he was principally a mouthpiece rather than a puppet-master.

But as an ideologue who articulated the idea of a ‘Greater Serbia’ in obscurantist explanations of where the borders ought to be, and as the nominal commander of brutal paramilitary groups, his conviction could serve both as illustration of what the political, military, and security officials did not say openly, and as a kind of icing on the cake.

The prosecution’s plans went badly awry.

Milosevic, their main indictee, died in custody mid-trial with no verdict being reached. Perisic was convicted by the trial chamber but acquitted on appeal, a strange beneficiary of judge Theodor Meron’s experimentation with legal standards that limit the liability of indirect perpetrators.

Stanisic and Simatovic were similarly acquitted by a renegade trial chamber, but the case has been remanded for retrial and is certain to drag on. This leaves the joint criminal enterprise represented by a person whose principal contribution to it was waving guns around and shouting on television.

The prosecution’s strongest argument for the existence of a joint criminal enterprise was also, ironically, Seselj’s strongest line of defence.

His basic defence argument was always that he did not command the paramilitary groups that operated under his name, but that he was rather a clownish front for the political and security institutions that gave him arms, logistics, and publicity. Leaving aside the multiple sideshows in his botched trial, this is fundamentally what he argued in his closing statement.

An odd set of circumstances led to the trial chamber accepting most of his argument.

First, Seselj successfully requested that the original presiding judge of the trial chamber, Alphonse Orie, be removed as his attempts to assure an efficient trial amounted to partiality.

Orie was replaced by Jean-Claude Antonetti, the former chief of staff for French president Jacques Chirac, who stood out from the ranks of the ICTY judiciary for his lack of judicial experience and expertise.

Another trial judge, Frederik Harhoff, was removed from the panel after an intemperate circular responding to the strange development of the ICTY’s jurisprudence. He was replaced by Mandiaye Niang, who had not been present for the presentation of any of the evidence in the trial.

Vojislav Seselj at the Hague Tribunal in March 2003. Photo: Beta/Toussaint Kluiters.

As a result, the trial verdict was delivered by a panel made up of one incompetent judge and one unprepared judge. The remaining judge, Flavia Lattanzi, wrote in her dissenting opinion that the majority’s reasoning was “cursory” (point 1), “perfunctory” (point 43), “extremely perfunctory” (point 8), “confused” (point 24), “flawed” (point 24), and that it “showed total disregard, if not contempt, for many aspects of the application and the interpretation of that law” (point 48).

The judgment of acquittal by the trial chamber determined that crimes committed were isolated acts that did not form a part of an overall goal, and that no link could be shown between Seselj’s public advocacy of violence and the occurrence of violence.

In a subsequent interview, judge Lattanzi described the verdict as “done so poorly, both in fact and law, that it is a nullity.”

Prosecutors immediately filed an appeal to the acquittal, while Seselj, who publicly declared disinterest now that he had been released and was allowed to resume his career as a maudlin television personality, had his associates prepare a series of lengthy and varyingly coherent responses.

And then on Wednesday, the ‘Mechanism for International Criminal Tribunals’, successor to the now-closed ICTY, delivered its decision on the prosecution’s appeal.

The result is probably already known to readers of this site: it rejects the appeals related to crimes in Bosnia and Herzegovina and Croatia, and reverses the acquittals related to the forced expulsion of ethnic Croats from Hrtkovci in Serbia. The appeals chamber imposed a sentence of ten years, roughly equivalent to the time that Seselj had already served in custody.

Probably it would be most accurate to regard the appeals chamber’s decision as a convenient compromise.

It puts an end to the case, imposing no further demands on the court, the defendant, or the states involved. It provides a determination of guilt, but with no consequences for the guilty party. It maintains the strange narrative that has developed in ICTY jurisprudence, according to which no state but Croatia committed cross-border crimes.

It will satisfy neither the criminal nor his victims, but rather looks like an attempt to cut the losses from a misbegotten and catastrophically mismanaged trial.

In the meantime, global political circumstances have caught up with the perverse circus of hatred that Seselj pioneered in the 1990s.

The current occupant of the office of the US presidency, Donald Trump, has forged a wide-ranging franchise out of Seselj’s bovine bluster, and a new generation of European politicians harvests the fruits of his foundational ethnocentrism.

In Serbia, every powerful office-holder traces their political origins to Seselj’s stable. None of them would have found the patricidal courage to extradite him for any eventual sentence or retrial.

In that sense, the appeals chamber’s barely consequential compromise verdict puts an end to what could have been an extended period of conflict.

Now that the madness he promoted has become the political mainstream, who is still laughing at the evil clown?

Eric Gordy is Professor of Political and Cultural Sociology at University College London.

The opinions expressed in the Comment section are those of the authors only and do not necessarily reflect the views of BIRN.