On March 24th Radovan Karadžić, the former leader of the Bosnian Serbs and one of the most notorious war criminals in recent history, was sentenced to 40 years of imprisonment on the basis of his crimes during the Yugoslav War of 1992 – 1995. One week later the International Criminal Tribunal for the Former Yugoslavia (ICTY) came to a verdict on Vojislav Šešelj, a Serbian politician who was also active during the war. Both verdicts are in some way reminiscent of the verdict on Ante Gotovina in 2011-2012, a general in the Croatian army during the war. These three verdicts can serve as examples of the political implications and importance of the ICTY. (Featured Image © ICTY)
Karadžić, a War Criminal
Karadžić was found guilty on ten out of eleven charges put forward against him, including genocide in Srebrenica, persecution, murder, deportation, and other war crimes and crimes against humanity.1 The reactions to the verdict were mixed. Among those angered by the decision two reasons stood out: first of all, he was acquitted on the count of genocide in several other municipalities at the beginning of the war;2 secondly, he only received forty years of imprisonment and no life sentence.3
Those satisfied by the verdict believe that the criticism is mostly symbolic, because the other crimes Karadžić committed are as horrific as genocide, and the forty-years sentence does not necessarily mean less prison time than a life sentence.4 Whatever the different opinions may be, the ICTY does seem one step closer to finally concluding the long process of bringing former Yugoslavia’s suspected war criminals to justice.
Šešelj, A Free Man
One week later, a final judgement was made on another accused: Vojislav Šešelj. Šešelj might be less notorious than Karadžić, but he too played an important role in the wars in the nineties. Šešelj (°1954) is a lawyer by profession, and is the founder of the Serbian Radical Party (SRS, °1991). The SRS is a Serbian right-wing nationalist party,5 which still exists today. During the war Šešelj participated in the recruitment, formation, and organisation of Serbian volunteers in paramilitary groups connected to the SRS, commonly known as Četniks or Šešeljevci (“Šešelj’s men”).6 Through inflammatory speeches Šešelj instigated these forces to commit crimes (both crimes against humanity and violations of the laws and customs of war). He also encouraged the creation of an ethnically homogenous Greater Serbia, approving the expulsion of the non-Serb population for this purpose.7
In 2003, Šešelj voluntarily surrendered to the ICTY. He was indicted committing several crimes in the period of 1991 – 1993, which included violations of the laws and customs of warfare, and crimes against humanity. Šešelj was accused of instigating these crimes through his position as the leader of the paramilitary groups executing them.8 The indictment reads that he did not commit them physically, but that he was responsible because of his position. He was charged with, among others, persecution, extermination, deportation, and murder.9
Šešelj’s trial has been marked by many difficulties, not in the least because of his controversial behaviour throughout the trial.
Šešelj’s trial has been marked by many difficulties, not in the least because of his controversial behaviour throughout the trial. The lawsuit lasted for more than thirteen years, during which only 175 actual trial days were held. Among the main causes for the prolonged trial duration were Šešelj’s regular hunger strikes. In 2014 Šešelj was temporarily released to undergo medical treatment in Serbia. Upon arrival in Belgrade, Šešelj almost immediately picked up his political activities as leader of the SRS. The ICTY called on Serbia to send him back after he had made a number of speeches containing nationalist rhetoric reminiscent of the nineties. Serbia did not comply and Šešelj refused to return, even when his verdict was delivered on March 31st of 2016.10
Despite the severity of the crimes Šešelj was accused of, he was acquitted of all of them on March 31st. The majority of the judges concluded that the objective of the creation of a Greater Serbia was a political rather than a criminal goal, that the recruitment of volunteers was a legal act under the Yugoslav constitution, and that the speeches containing alleged hate messages should be seen in the context of boosting the morale of the soldiers rather than calling upon them to spare no one.11 Following this decision, Šešelj is now a free man.
The verdict triggered a lot of reactions. First of all, one of the judges, Flavia Lattanzi, held to dissenting opinion on the Trial Chamber’s verdict on Šešelj and with it disagreed with most of the Chamber’s findings and conclusions.12 The NGO Humanitarian Law Centre in Belgrade states that a number of conclusions by the Trial Chamber are both legally or factually ungrounded, partly referring to the dissenting opinion of Judge Lattanzi.13 Professor Jelena Subotic completely disagrees with the verdict, saying that it contradicts the conclusions the ICTY made in previous cases.14 Balkan expert Eric Gordy even said that the Šešelj verdict is “a great victory for bloated, violent lunatics everywhere.”15
Gotovina, A Previous Example
The Šešelj case and verdict are in some ways reminiscent of the Gotovina case and final verdict. Ante Gotovina (°1955) was a general in the Croatian Army and acted as commanding officer in Operation Storm.16 This military operation led to the recapture of Croatian territory previously occupied by Serbs, but also resulted in the expulsion of approximately 200,000 Serbs. Gotovina was indicted for alleged crimes against humanity (among others persecution, deportation, and forced displacement) and for violations of the laws and customs of war (for example plunder of property and wanton destruction of cities, towns, or villages).17 In 2011 the Trial Chamber found Gotovina guilty on eight out of nine counts filed against him, and sentenced him to 24 years of prison.18 However, one year later, the Appeals Chamber of the ICTY reversed the decision of the Trial Chamber and Gotovina was set free.19
The similarities with the Šešelj trial are clear: in both cases alleged war criminals were found not guilty; both verdicts were heavily criticised; and neither was there any consensus amongst the judges. In the Gotovina case, two judges, Carmel Agius and Fausto Pocar, disagreed with the opinion of the majority (formed by three other judges), and extensively elaborated on this in their dissenting opinions.20 According to judge Agius, one of the mistakes of the majority was that they took an overly compartmentalised and narrow view, rather than looking at the totality of the evidence.21
Balkan expert Eric Gordy asserted that the verdict will be encouraging to criminals and military commanders who target civilians in military conflicts.
Balkan expert Eric Gordy asserted that the verdict will be encouraging to criminals and military commanders who target civilians in military conflicts. He further stated that the verdict implies that it is “good to be a criminal”.22 Another criticism was that “By erasing the unanimous decision of the Trial Chamber’s findings […] one of the biggest ethnic cleansings since the Second World War was legitimised as a defensive military action, tainted by only a few isolated criminal incidences”, and that this judgement meant a humiliation for the Serbs as no one was prosecuted for the crimes committed during Operation Storm.23
The Implications of the Verdicts
This last criticism brings us to a very important issue: the political implications of the ICTY verdicts. By bringing war criminals to justice the ICTY plays a significant role in the post-war reconciliation process between the states of the former Yugoslavia, most notably Serbia, Croatia, and Bosnia-Herzegovina. The verdicts the Tribunal reaches, inevitably have an impact on the political relations between these countries.
By bringing war criminals to justice the ICTY plays a significant role in the post-war reconciliation process between the states of the former Yugoslavia, most notably Serbia, Croatia, and Bosnia-Herzegovina.
The verdict on Karadžić is of great importance in Bosnia-Herzegovina, once again revealing the split between the two entities of the country: the Federation of Bosnia-Herzegovina and the Republika Srpska (RS).24 Media in the RS strongly focused on President Milorad Dodik, who stated that the verdict was a consequence of international lobbies.25 Media in the Federation on the other hand, strongly favored the reactions of (associations of) victims, which predominantly stated that the sentence was not severe enough.26
The verdicts on Gotovina and Šešelj in turn have significant implications for the relations between Croatia and Serbia. The verdict on Gotovina was met with applause in Croatia, while sparking an outcry in Serbia, with Serbian politicians accusing the ICTY of selective justice.27
The Karadžić, Šešelj, and Gotovina cases clearly show that verdicts made by the ICTY have an actual impact on the countries of the former Yugoslavia.
Reversely, the verdict on Šešelj was met with strong reactions from Croatian top politicians. Croatia’s Prime Minister Tihomir Orešković described it as a setback for justice,28 while Croatian President Kolinda Grabar-Kitarović said that her country could not accept such a shameful verdict.29 Belgrade on the other hand neither applauded nor condemned the verdict. Prime Minister Aleksandar Vučić remained on the surface in his reaction, stating that he was proud that the government had protected the laws and dignity of Serbia as well as the dignity of its citizen Šešelj. At the same time, Vučić explicitly stated that he distanced himself from Šešelj’s party’s politics.30
These three cases clearly show that verdicts made by the ICTY have an actual impact on the countries of the former Yugoslavia. The more controversial the person, the stronger the public and political reactions to the verdict become. If the verdict in itself is controversial as well, the consequences are even greater. Acquitting alleged war criminals on all sides creates tensions, and disquiets the political relations between the countries in the region, as is shown by the reactions of different politicians. The verdicts made by the ICTY are thus of crucial importance for the Balkans.
Conflicting visions exist as to the role the ICTY should play to begin with. On the one hand, there are supporters of the so-called “internal” or “forensic” vision, which focuses on each crime and case specifically and solely in the context of the courtroom itself.31 On the other hand, a more “external” or “strategic” vision of how justice is perceived in the region is advocated. Supporters of this vision believe political consequences of verdicts should be taken into account when judges attempt to reach a decision.32 As defined in the UN Resolution creating the ICTY, one of the main tasks of the Tribunal is to contribute to the restoration and maintenance of peace.33 This seems to support the “external” vision, and in this idea, the verdicts on Gotovina and Šešelj indeed seem to be misplaced and wrong, as they do not contribute to stability.
This is not a call to let politics preside over law. Verdicts are in the first place a legal matter, not a political one, and should remain so. However, perhaps the ICTY should be more aware of the implications of its verdicts. The Karadžić, Šešelj, and Gotovina cases have shown how sensitive these matters still are, and how strong the political reaction in the concerned states is. At the beginning of May 2016 the Prosecution announced an appeal against Šešelj’s acquittal.34 This appeal and the trial against another war criminal, Ratko Mladić, which is still ongoing, would be good opportunities for the ICTY, and its successor, the Mechanism for International Criminal Tribunals (MICT),35 to demonstrate their awareness of the political implications of their verdicts.