Saturday, November 15, 2014

The Šešelj Case: Justice At Last?

by Stephen Karganovic

After almost twelve years of extra-judicial agony at the Detention Unit of the International Criminal Tribunal for the Former Yugoslavia at the Hague, on November 12 Serbian political leader Vojislav Šešelj returned home to Belgrade. True, the circumstances of his release (regarded as “provisional” in the terminology of the Tribunal which incarcerated him) leave quite a few more questions than they provide answers. To state just a simple one that immediately comes to mind, why isn’t there a verdict after the seemingly interminable trial? (Chief Prosecutor Serge Brammertz forecasts there might be one at the end of 2015.)

Sordid background of the Šešelj case. All who have followed attentively these lengthy proceedings will attest to their uniqueness, even by unconventional the standards of the ad hoc political court in the Hague. Politics has undisguisedly directed these proceedings from the start. A nationalist political gadfly, Vojislav Šešelj and his Serbian Radical Party were a most inconvenient presence for the slavishly pro-Western regime installed in Belgrade after the October 2000 “color revolution,” which saw the rise of the infamous “Otpor” outfit of professional subversives backed by Western money and logistics who were the operational precursors of a succession of similarly orchestrated coups elsewhere. In a memorable exchange with the then Hague Prosecutor Carla del Ponte, Serbian Prime Minister Zoran Djindjić pleaded with her to “take Šešelj to the Hague and never bring him back.” Del Ponte obliged in 2003 and issued an arrest warrant for Šešelj soon thereafter, never mind the fact that neither the indictment was ready nor was there evidence to support it. That was leisurely compiled over the following several years, while the defendant Šešelj was rotting away in his prison cell in the Netherlands and waiting for the procedural niceties which usually precede detention to be completed.

But all the while he was under guard a safe political distance away from Western-installed minions in Belgrade who were busily tearing Serbia apart and following subserviently the cues of Western ambassadors who assumed proconsular authority in the devastated country.

Procedural travesty. One would think that the five-year pre-trial delay in the commencement of the Šešelj trial was enough of an egregious violation of the accused’s human and procedural rights to cause the matter to be dismissed. But not at ICTY. It would seem self-evident that the outrageous delay and concomitant denial of provisional release throughout that period, coupled with the inexpeditious pace of the trial after it finally started, constituted a sufficiently grave violation of the right to speedy trial and thus a valid reason for quashing further proceedings. Be it noted that the right to a “fair and expeditious trial” is guaranteed in Rule 65ter (B) of the Tribunal’s own Rules of Evidence and Procedure, which the ultimately twelve year incarceration of Vojislav Šešelj appears by any reasonable standard to have violated. Add to that the complete collapse of prosecution’s case by the time it ended in March of 2011 and its consequent failure to demonstrate a single charge in the indictment. According to the Tribunal’s own rules, Rule 98bis to be exact, at that stage the Chamber should have assessed the evidence in the light most favorable to the accused and abrogated further proceedings if it appeared that the prosecution failed to present proof that might reasonably lead to a conviction.

Despite Prosecution’s manifest failure to present such proof, and the clearly expressed view of Chamber president Antoneti that the concept of joint criminal enterprise, upon which much of the indictment hinged, was misapplied in the Šešelj case, the majority of the Chamber voted for the trial to proceed. The political beneficiaries of this prolongation were the then and present rulers of Serbia. As a result of it, they were shielded until a few days ago from the unsavory prospect of a triumphant Šešelj returning to lead his resurgent Radical Party in the next Serbian elections. To make matters even more absurd, instead of moving forward to some sort of conclusion after the 98bis hearing in the Spring of 2011, the case-in-chief since then has been meandering around collateral issues, specifically contempt of court charges against the defendant for allegedly publicizing the identities of prosecution’s protected witnesses. It did not matter that all those witnesses had signed affidavits that they do not object to the lifting of protective measures. The trial was thus effectively prevented from advancing into the defence phase or the issuance of a verdict while these contrived issues were being considered, although the conclusion of the tedious proceedings as a whole was long overdue.

A word is in order about the presiding judge Jean-Claude Antonetti. After several judges in succession were replaced, he was appointed to head Šešelj’s Chamber on the eve of the trial’s commencement. Judged by purely formal standards, his performance has been commendable. But note should be taken of the fact that, though unlike his predecessors he has been a generally fair umpire in the courtroom, Antonetti alone had no decisive influence, flanked as he was by judges Harhoff (replaced recently by judge Mandiaye Niang) and Latanzzi who made no attempt to conceal their animosity toward the defendant. There is no particular reason to question Antoneti’s personal honour and professional rectitude, but his practical role in the Šešelj proceedings was limited and may be likened to that of Dubček: his role is to act as the Tribunal’s “human face”. Whatever the ultimate reason for Antoneti’s assignment, it must be recognized that his generally reasonable conduct has had the paradoxical effect of improving the quality of Šešelj’s performance. No longer obliged to assume the posture of an enfant terrible in order to dramatise the unfairness and absurdity of the proceedings against him, Vojislav Šešelj, who may not be a man of great social refinement but happens to be a person of enormous erudition and legal competence, could at last focus on the effective conduct of his defence and demonstrate publicly his complete mastery of the lawyer’s craft.

The list of procedural violations in the Šešelj case is long and varied, but we may reduce it to the following principal issues.

Undoubtedly, a fundamental issue in this category is the apparent fact that the indictment itself was not motivated by legal but crassly political motives. Though scandalous, Prime Minister Djindjić’s invitation to prosecutor Del Ponte to make Šešelj disappear from Belgrade was somewhat understandable coming from politician Djindjić seeking to get rid of his foremost political rival. But that a supposedly reputable international judicial institution should act upon such a crudely political invitation, as The Hague Tribunal has done, is an outrage of the first order.

The “Trial”. Such an infelicitous inception of the Šešelj case could not but lead to a lengthy train of subsequent abuses. In spite of the fact that Šešelj turned himself in voluntarily within days of being informed of the warrant for his arrest and that at various junctures during his incarceration he satisfied all of the Tribunal’s own criteria for pre-trial release, he was consistently denied that privilege afforded to others. That remained the position until the Chamber finally faced the insoluble dilemma of having to legally rationalize a guilty verdict and at the same time justify a politically correct lengthy prison sentence exceeding the accused’s already unreasonably lengthy pre-verdict incarceration. The priority became getting rid of the pesky defendant. When a few months ago Vojislav Šešelj was diagnosed with a metastasis of liver cancer, a Solomonic solution for a virtually unconditional “conditional release” emerged. The Tribunal practically threw him out of his UN Detention Unit cell and packed him off to Belgrade. They undoubtedly did it in the fond expectation that the unpleasant prisoner will be called to meet his Maker and spare his jailers another in-house death before it became simply untenable to further delay the preordained and politically mandated (but given the overall judicial fiasco, enormously embarrassing) guilty verdict.

Tainted from the outset, the case against Vojislav Šešelj began to really unravel once the trial started. It turned out that “expert” witnesses brought by the prosecution were a parade of half-wits and ignoramuses or, in Šešelj’s own memorable courtroom phrase referring to prosecution experts, “If they know less than I do about the subject matter of their expertise, they have no business being here.” The alleged percipient witnesses to Šešelj’s crimes were an unmitigated disaster for the prosecution, and their performance was marked by wholesale perjury. The vast majority admitted in court, under Šešelj’s merciless cross-examination, that they were blackmailed, pressured, or suborned to give false evidence against him under the direction of the prosecutor. One even revealed in open court that prosecution investigators had promised him access to “girls” if he agreed to give incriminating evidence against the defendant. Many prosecution witnesses, apparently relieved that they could finally do so in the relative safety of open court, withdrew large portions or all of their previously given statements and one, to the apparent amazement of the judges, requested permission to walk over to the defendant and to embrace him.

The prosecution of Vojislav Šešelj, more than any other scandalous proceeding at ICTY, illustrates the true nature of the Hague Tribunal and symbolises most clearly its institutional corruption which was best encapsulated by the distinguished authority John Laughland in the title of one of his books: travesty.

Oh, yes, and haven’t we forgotten to mention the official charges against Vojislav Šešelj? Not at all, they just happen to be completely ludicrous and of negligible import in relation to the gross subversion of basic legal principles that the conduct of his trial in all its phases represents. The defendant stands accused of “inciting” to violence and ethnic persecution in his political statements, an offence that is not even listed as a crime in the Tribunal’s Statute, any more than is the elusive doctrine of Joint Criminal Enterprise, which in any event would be regarded as legally protected free speech from any but a politically vindictive point of view.

The known “political unknowns” of the Šešelj case. Heading this list is uncertainty about the impact that Šešelj’s abrupt return from the Hague might have on the foremost political issue of the day in Serbia: how to get rid (hopefully by peaceful means) of the unsavoury tandem of President Tomislav Nikolić and Prime Minister Alexander Vučić, until 2008 Šešelj’s close associates and his designated Radical Party caretakers while the leader was incarcerated, who are currently running the country into the ground. In a stunning about face, five years ago these former lieutenants completely renounced their long held views to become leading exponents of joining the EU, signing off on the takeover of Kosovo, and embracing just about every other notion that previously they vigorously opposed and claimed to abhor. It is rumoured that their sudden conversion may have been encouraged by some irresistible monetary inducements combined with promises of Western backing to gain power in Serbia after several previous unsuccessful attempts. The renegade tandem’s palpable nervousness mounted as the day of Šešelj’s triumphant return to Belgrade on Wednesday, November 12, approached.

Though perhaps dying of cancer, Vojislav Šešelj is entitled to regard this, perhaps final, stage of his political career and physical life with considerable satisfaction. Singlehandedly (because he chose to use his knowledge as a former law professor to represent himself at the Hague) he not only slew but also utterly humiliated the ICTY dragon. Under Šešelj’s relentless pounding the prosecution case simply fell apart. It is thus that in the end what began as a standard Hague litany of “crimes against humanity” (including murder, torture, cruel treatment, persecution, wanton destruction of villages, and even pillage of public and private property, to name just a few) essentially shrank to politically incorrect rhetoric, hardly unusual for exuberant politicians in many parts of the world and scarcely an offence warranting long-term incarceration.

A few years ago, in his annual press conference Russian Foreign Minister Lavrov singled out the persecution of Vojislav Šešelj for particular criticism and cited it as one of the significant reasons for closing down the Hague Tribunal. The record of illegality and systematic professional misconduct that has characterised the Šešelj case makes Mr. Lavrov’s recommendation urgent and entirely appropriate. One should only like to add that after almost two decades of serious damage to international law it would not be enough to merely shut it down. Particularly in light of the paradigmatic nature of the abuses inflicted on Vojislav Šešelj, but no less for a long train of similar misconduct in a host of other cases, all the decisions and verdicts of the Hague Tribunal must be reviewed, the pernicious precedents it set dismissed, and its willing servants professionally disciplined.