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War and Incitement: The Acquittal of Vojislav Šešelj

“[H]istory is past politics, and politics is present history.” – Edward A. Freeman (Nov 18, 1880)

When the tormented history of the International Criminal Tribunal for the Former Yugoslavia is written, the eyebrows of legal authorities will be raised in assortments of confusion. Soon after the Radovan Karadžić verdict, the harshest dished out by the ICTY, the firebrand and frequent patriotic buffoon Vojislav Šešelj of the Serbian Radical Party found himself acquitted. It had taken some 13 years for the Chamber to reach that conclusion, a lengthy circus of delay, obstruction and challenge.

Šešelj, labouring with the effects of cancer, neither cared, nor seemingly worried about the verdict, innocent or otherwise. “It was the only possible verdict,” he trumpeted at a news conference in Belgrade. “When I went to The Hague, I knew they could not prove any crime. There, I broke all the false accusations.”

His nasty, bully boy nationalism was made nastier by the circumstances of tribal dissolution as Yugoslavia fractured. As the tribes went their ways, the vicious scrapping for the spoils took place with ferocious intent. This free-for-all unleashing in the early 1990s saw Šešelj and his inspired “volunteers” attempt to push notions of a Greater Serbia in Croatia, Bosnia and Vojvodina. Attempts at purity and strategic fulfilments of such objectives were bound to end in bloody catastrophe.

The question preoccupying the judges was how far his rhetoric had amounted to incitement. Šešelj felt such language was merely the nutritional ballast needed to “boost the morale” of his men. The prosecutors disagreed, alleging three counts of crimes against humanity and six of war crimes.

The familiar, and ever problematic concept of the “Joint Criminal Enterprise,” made another appearance.

The conclusion here, one similarly applied to others acquitted, including Croatia’s own General Ante Gotovina, was that no such criminal enterprise could be identified. The two judge majority was not convinced that Šešelj had quite passed muster as a true criminal. (In that sense, he could hardly hope for a martyr’s cause, something he had not doubt been entertaining with some relish.)

Judge Jean-Claude Antonetti found that “the propaganda of nationalist ideologies is not criminal. The prosecution failed to show a concrete link between Šešelj’s nationalist speeches and the crimes committed.” Yes, the Serbian leader did have “a certain amount of moral authority over his party’s volunteers” but “they were not his subordinates when they were engaged in military operations.”

The majority judgment, however, should not be taken as a conclusive one on the issue of the nexus between speech and a criminal enterprise. The judges were simply not won over by a prosecution argument characterised by “confusion.”

There was also much evidence suggesting “a reasonable possibility that the sending of volunteers was aimed at protecting Serbs.” When deployed, the volunteers, rather than having a coherent idea of committing crimes, were keen “to support the war effort.”

The point is worth reiterating, since it takes the rather unfashionable position in much ICTY jurisprudence that acts of war perpetrated by Serbian forces, even if vicious, were designed to preserve the fraught, and dying union of Yugoslav peoples, along with Serbian lives.

A dissenting Judge Flavia Lattanzi reached diametrically opposed conclusions, chiding her judicial colleagues for ignoring the climate of intimidation the defendant has subjected witnesses to. Her brother judges had also offered “irrelevant considerations” in ignoring criminal responsibility. After the words, she seemed to suggest, the inspired killings, tortures and deportations. Of particular interest to the judge was Šešelj’s speech in Hrtkovci on May 6, 1992 which featured “public and direct denigration of non-Serbian civilians.”

Other legal eagles, swooping in on the verdict’s merit, similarly disagreed with the majority finding. Mark Ellis, executive director of the International Bar Association, found the decision “hard to defend,” and argued that, “Inflammatory speech can incite individuals to commit crimes – and that’s exactly what happened here.”

Šešelj’s contempt for the ICTY has been suggestive of broader problems with such tribunals. Delays have been common. Initially enthusiastic witnesses, some intimidated in continuing to live in affected areas, have recanted their testimony. Linking alleged perpetrator with firm, thought out plans has also proven difficult, and at times unconvincing.

Forged in conflict and disaster, such legal processes only ever reassure victims that revenge, rather than justice, can be exacted in some judicially administered forum. The only disagreement here, as it was in the case of the Nuremberg International Military Tribunal, was how that revenge would be exacted.

For the Croatian foreign minister, Miro Kovač, that missing retribution was evident in an acquittal “offensive and shocking,” something that would hinder “the process of reconciliation among people and neighbouring countries.” This was always a fairly naïve point, if indeed Kovač himself believes it.

Croatia’s Prime Minister, Tihomir Orešković, wanted law to punish a political project. The tribunal, in not doing so, left “the fascist politics of Greater Serbia… unpunished.”

On the ledger of war crimes, the notion of military necessity also hangs heavily for various figures who prosecuted such national agendas. What mattered was how sympathetic the judge could be. Some political projects realised as war aims receive judicial blessings; others do not.

Historical fault lines are as erasable as tectonic plates. They tend to be papered over by treaty, convention and court; the noisiest tend to come with guns and mortars. The Croatian nationalist forces knew that truth when they sought independence, and made good of it, expelling both Serbs and Muslims from various territories.

But ultimately, the ICTY did not quite find it appropriate to make Šešelj a credentialed martyr. His bluff was called. That may be one of the better lessons to extract from the unhappily sordid affair: History’s Clio and Law’s blind Lady Justice, are incapable of seeing eye-to-eye.