Stalin’s judges couldn’t have done a better job. On March 31, 2016, a trial chamber of the ICTY acquitted paramilitary leader Vojislav Seselj of all charges. In doing so, they ignored and thereby undermined the entire jurisprudence of the ICTY over the last two decades. They also ignored the facts long established in other cases. As Judge Flavia Lattanzi stated in her scathing dissent: “[T]he majority sets aside all the rules of international humanitarian law that existed before the creation of the Tribunal and all the applicable law established since the inception of the Tribunal in order to acquit Vojislav Šešelj.” And, as Jelena Subotic wrote for Balkan Insight: “The embarrassment is in the rewriting of the history of the Yugoslav breakup in a manner that is not only outside all major scholarly consensus, but also in direct contradiction with what the ICTY itself has concluded in its previous cases.”
The Vojvoda (duke), so annointed by his Serbian Chetnik movement, led the Serbian Radical Party and was a chief propagandists for ethnic cleansing of Bosnian Muslims and Croats from territories in the former Yugoslavia in pursuit of a Greater Serbia. He formed his own paramilitary group early in the wars. Called Chetniks, the White Eagles, or Seseljevci (Seselj’s men) they were recruited from the dregs of society. Urged on by Seselj’s dehumanization of Croats (comparing them to “primates” and “vampires”) and Bosniaks (“balija” or “pogani” which he translated as excrement), they were implicated in a number of massacres, including at Ovcara following the siege of Vukovar, where hospital patients as well as prisoners of war were rounded up and executed.
Judges Antonetti and Niang concluded that the prosecution did not establish the existence of “a widespread and systematic attack against the non-Serb civilian population in large areas of Croatia and BiH [Bosnia and Herzegovina] . . . .” Instead, the judges held “that there was an armed conflict between enemy military forces with civilian components.” In other words, it was a legitimate war caused by the unlawful secession of Croatia and BiH. Under this interpretation, the displacement and deaths of thousands of civilians were collateral consequences, certainly not the main focus of forces seeking to establish a Greater Serbia. That Serb forces provided buses to take non-Serb civilians away from territories intended for Serbs alone was a humanitarian gesture to help them “voluntarily” leave combat zones. No matter that only non-Serbs were accommodated. It could not be considered ethnic cleansing, according to the two judges in the majority.
Astonishingly, the court felt comfortable in reaching this conclusion despite the fact that every other relevant decision since the ICTY’s inception, including the Karadzic judgment last week, recognized the existence of widespread and systematic attacks against non-Serb civilians in Croatia and Bosnia-Herzegovina. The Karadzic trial chamber, as others have before, found that planned attacks against this civilian population were part of a joint criminal enterprise that included Seselj. For judges Antonetti and Niang, it might just as well have been a poker party.
I weep for the (invisible to the court) victims of the Greater Serbian project who have found little justice from the first international criminal tribunal since WWII. I weep for the ICTY, established with such hope – to end the 20th Century Balkan wars and reconcile the peoples who once lived in a country admired for its multi-ethnicity. I weep for international justice. With this decision and the turn taken by the Appeals Chamber in 2009 away from superior and command responsibility, lady justice (whose statue adorns the grand staircase of the International Court of Justice in The Hague) lies bleeding from her wounds. Can the permanent International Criminal Court bind them up to keep hope alive? Is there any chance at all that an appeal of the Seselj judgment would be successful and not do further damage to the Tribunal, international justice, and, most of all, the victims and survivors of these terrible wars?