In Releasing Seselj, ICTY Solves One Problem -- But Creates Many Others
November 20, 2014
by Daisy Sindelar
Accused war criminal Vojislav Seselj had barely made it out of The Hague before the rabble-rousing began.
The nationalist Serbian general, who has spent more than a decade awaiting verdict behind bars at the International Criminal Tribunal for the former Yugoslavia (ICTY), was granted temporary release last week to receive cancer treatment.
But boarding a November 12 plane to Serbia, the 60-year-old Radical Party leader looked buoyant and fit, prompting one accompanying journalist to tweet, 'Seselj joking on plane. Said he will 1st deal with politics and afterwards with health issues.'
Seselj has since made good on his pledge, vowing 'revenge' on former government allies, taunting neighboring Croatia on a wartime anniversary, and brazenly announcing that he would ignore any summons back to The Hague once his verdict is due.
'I won the battle against The Hague tribunal,' Seselj told supporters upon his return. 'And that was my goal.'
At a time when the Balkans are still struggling to come to terms with its wartime history, the homecoming of one of the region's angriest, most unrepentant nationalists has provoked the relatively moderate Serbian government and set surrounding countries on edge. It has also unleashed a hailstorm of criticism on the ICTY, with detractors saying Seselj's release deals a serious setback to the court's mandate to promote postwar reconciliation.
So why is he out?
Seselj surrendered voluntarily to The Hague tribunal in 2003 to face charges of orchestrating brutal paramilitary campaigns in Bosnia-Herzegovina and Croatia during the Balkan wars of the 1990s.
But his trial was beset with obstacles from the start, with Seselj going on hunger strike to protest the appointment of a lawyer and being held in contempt for revealing the names of protected witnesses.
The biggest upset, however, was caused not by Seselj, but The Hague tribunal itself. Last year, as the court was preparing to finally deliver a verdict, the Danish press published a letter by Frederik Harhoff, part of the three-judge trial chamber hearing Seselj's case, criticizing ICTY President Theodor Meron.
Seselj used the opportunity to have Harhoff thrown off the panel, forcing the appointment of a new judge needing to familiarize himself with the unwieldy case. The verdict, originally expected in October 2013, is now expected no earlier than June 2015.
'The trial is essentially a series of unfolding disasters,' says Marko Milanovic, an associate professor at England's University of Nottingham law school. When Seselj, who had already undergone cancer surgery, indicated that his condition had gotten worse, the trial chamber was eager to seek his provisional release.
'They're afraid that Seselj might die because of his ill-health,' Milanovic says. 'Having him die on the premises of the ICTY' -- as Yugoslav leader Slobodan Milosevic did, of a heart attack, in 2006 -- 'would be a very bad thing, especially bearing in mind just for how long he's been there. So they essentially decided to dump him back into Serbia.'
Seselj, enraged by the rise of former Radical Party allies Aleksandar Vucic and Tomislav Nikolic -- now prime minister and president, respectively -- was also anxious to return to Belgrade.
But he did not want any limitations placed on his public activities, and refused to accept when the trial chamber in June offered him provisional release on the stipulation he would steer clear of politics.
Meanwhile, fears about Seselj's health began to mount. He had already begun to quibble with the medical care he was receiving in the Netherlands; a team of Serbian doctors, brought in at Seselj's request, indicated that his cancer had spread to his liver. (Seselj says he has two metastases on his liver, which he calls 'Vucic' and 'Nikolic.')
Faced with the prospect of Seselj languishing ill in jail for a year or more as the new judge read in on the case, the trial chamber then took the unprecedented step of granting Seselj provisional release 'proprio motu,' or at the initiative of the court.
Normally, the court will only grant provisional release at the request of the defendant and on the basis of pressing humanitarian grounds, like a serious illness. Such rulings normally involve prosecutors' input, medical documentation, and stringent limitations on public appearances by the defendant if and when he is released.
Numerous exceptions were made for Seselj's case, however. The Office of the Prosecutor, run by Serge Brammertz, did not participate in the deliberations. And the final order, published on November 6, stipulates only that Seselj should refrain from witness and victim intimidation and return promptly to The Hague when summoned. No restraints were put on Seselj in terms of political activity.
The trial chamber also took the unusual step of circumventing a final consultation with Seselj that would allow him to accept or deny the terms of his release.
ICTY spokeswoman Magdalena Spalinska explained the omission, saying the tribunal had 'not found it necessary to consult the accused on whether he will accept these conditions as the judges deemed there was no reason to believe he would not respect such conditions.'
The move was 'obviously strange,' Milanovic says. 'What they did was a maneuver that would spare them the bother of asking him and just allow them to release him while pretending that he will return voluntarily -- which he has said he won't do.'
Alex Fielding, a Canadian lawyer who spent two years at the ICTY as part of the defense team for Serbian General Momcilo Perisic, says the 'proprio motu' ruling is 'new territory' for the tribunal. 'In a way, this is a way for the ICTY to try and save face in a very messy and potentially very embarrassing case, simply because Seselj has now been in custody for 11 years and won't have a verdict on his case until at least June 2015,' he says. 'The court is in a difficult situation because they know that Seselj's health situation and the length of his detention are just unpalatable.'
Nor is it clear the trial chamber received detailed information about the state of Seselj's health.
The November 6 court order approving Seselj's release notes only that the judges had 'received additional confidential information that points to a deterioration in the accused's health.' The dissenting opinion describes Seselj as 'gravely ill,' adding, 'We know this despite his refusal to allow his medical file to be disclosed officially.'
Fielding says the apparent lack of information is unusual in a provisional release case, where the court usually requires evidence in cases of ill-health claims. 'I have never heard of a case like this before at the ICTY, where the accused has refused to disclose health records,' he says. 'Because typically, the health records are the basis for the provisional release. So the accused is normally very cooperative in showing his health records, saying that he needs to be sent home for health reasons.'
Damage Already Done?
So far, Seselj has yet to show overt signs of serious health setbacks. 'For someone in poor health, he obviously displays exceptional political dynamism,' says former Croatian European Parliament member Tonino Picula, who has joined the ranks of Balkan politicians calling for Seselj's swift return to The Hague.
It is unlikely, however, The Hague will act. Brammertz, who on November 19 ended a working trip to Belgrade, said that without access to Seselj's medical records, his office was unable to appeal the decision.
He betrayed a hint of frustration with the terms of Seselj's relatively untethered release, saying 'it's really up to the trial chamber that imposed those conditions to decide if yes or no those conditions are met. And if they consider there are violations, they can order him back to The Hague.'
Such an order, if Seselj resists, could put the Serbian government in the politically undesirable position of having to arrest and extradite a charismatic figure with considerable street support. Many Serbia-watchers have expressed confidence that Belgrade, with its eye on the European Union, will continue to cooperate with the court.
But some fear that the damage has already been done, even if Seselj returns to the court. 'It's not that I think that Seselj has some influence himself,' Croatian Foreign Minister Vesna Pusic says. 'But he's bringing back into the public sphere the kind of rhetoric that caused the crimes of the 1990s and which is not acceptable anywhere. It's obvious that The Hague institutions should react and get him back to his detention cell.'
Goran Jungvirth and Enis Zebic of RFE/RL's Balkan Service contributed to this report from Zagreb
Copyright (c) 2014. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036.
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