Српски националисти

A 21st century book burning

A few days ago, on the 24th of July, Trial Chamber II at the International Criminal Tribunal for the former Yugoslavia (ICTY) issued a Judgment in the case Prosecutor vs. Vojislav Seselj (IT-03-67-R77.2) concerning an alleged contempt of court violation. Finding the accused guilty, the Chamber handed down the longest prison sentence for a contemnor since the ad-hoc creation of that so-called court. Along with the prison term, an order was issued which effectively bans a book published by the accused and mandates its withdrawal from public circulation.

The fifteen month prison sentence handed down for a single count of contempt pursuant to Rule 77(A)(ii) will mean little to Vojislav Seselj, who has spent almost 7 years in prison while on trial for alleged incitement of war crimes.

For those who know of the Seselj saga – his 5 years awaiting trial, 28 days on hunger strike, and almost 2 years on trial, all the while incarcerated – this latest decision by the Trial Chamber won’t be a surprise or bring anything new to the already broad spectrum of legal travesty conjured up by the Tribunal, perhaps now most visible in this, the most protracted, case at the ICTY.

Convicted to 456 days of prison for disobeying an order of a Trial Chamber might not seem to harsh for a – innocent until proven otherwise – man suffering his 2348th day in the UN Detention Unit in Scheveningen while on trial for war crimes, if it wasn’t blatantly obvious that the main trial has long since become a farce and that the Tribunal is incapable of dealing with Seselj, a prominent and popular opposition politician back in his home country of Serbia.

Punishment fitting the „crime“

For the casual observer, hearing that the maximum sentence proposed by the rules constitutes 7 years, the punishment may appear light. That is until one looks at other contempt cases and the sentences handed down to people like Bajrus Morina, an Albanian found guilty of physically intimidating witnesses in a case where 9 people disappeared without a trace during trial, or Domagoj Marketic, a croat who published the entire secret testimony of a „protected“ witness including their identity. They both received 90 days, no doubt released early for good behavior. Of course Vojislav Seselj, being a clear and present danger to witnesses even while imprisoned, deserves 5 times the sentence, „to discourage this type of behavior“ as the Judgment puts it. Another victory for 21st century justice, „ICTY style“.

While this sentence exceeds even the harshest so far by a whopping 5 months, the reasoning behind it is even more staggering.

Background

To understand the twisted logic behind the court’s decision, a short history of the case is required. Back in 2003, when Seselj voluntarily arrived in the Hague following his indictment, the Trial chamber issued an order for the protection of witnesses, a common practice at the ICTY.

Years later, while preparing his defense, Seselj and his associates collated several studies debunking the indictment, specifically in this case the part dealing with alleged war crimes on the territory of the region of Serbia called Vojvodina during the early 90’s. While it may be enough for most people to know that no war or conflict ever took place in Vojvodina until the NATO aggression in ’99, and hence no „war crime“, several witnesses claimed to be privy to information which would support the ludicrous indictment.

In investigating the case, the Defense team took statements from many potential witnesses and brought the information together into an amalgamation of interviews, texts and media reports. This was published as a book long before the Trial began, meticulously revealing the false nature of the indictment as an attempt to present an inaccurate picture of the situation in Vojvodina during the dissolution of Yugoslavia.

During the Trial in which the embarassingly inept Prosecution was struggling to make a case, a way out of the fiasco was needed. The Prosecution began asking for a stay of the proceedings, and pushing for a denial of the right to self-representation to Seselj, a right he already fought for and won during his hunger strike. They produced allegations that protected witnesses were being exposed in Seselj’s publications.

Submitting a request for an order in lieu of an indictment against Seselj, the Prosecution got it’s way in October last year. Their filling was ex parte and confidential, or secret in lay terms, and to this day isn’t fully public, much like everything else at the Tribunal.

In short, from what can be discerned from the public version, they claimed that someone reading a book authored by Seselj and his team could piece together the identities of 3 protected witnesses. In this case, a 1200-page collection of witness statements regarding a specific location with a population of just several thousand would be, by its nature, bound to include mentions of people who were involved in events at the time, like the protected witnesses were. The crucial point would surely be, does the book openly and intentionally reveal the identities along with their ICTY pseudonyms of the protected witnesses? Looking forward to the Judgment, the answer to that question would be: it’s of no consequence.

The Trial

The contempt Trial took place in one day, on the 29th May 2009. During this sitting, the Prosecution, who repeatedly refused requests by the defense to translate the whole book (something which would be costly to an accused who is yet to receive any financial aid despite numerous court decisions in his favor, due to a refusal to comply by the Registrar tantamount to contempt), presented 32 exhibits, 25 of which were filed in secret.

The Prosecutor’s claim that „it was the Accused’s intention to ensure the respective pseudonym and name of the Protected witnesses would not appear together in the same area of the book“ would seem to prove that – even after and investigation – it was impossible to find any article in the book which would reveal the identity of a protected witness. This, however, did not prevent the Trial Chamber from coming to a conclusion that Seselj „beyond a reasonable doubt“ revealed the identity of protected witnesses.

The indictment charged the Accused with a willful and knowing interference with the administration of justice. The Judgment acknowledged Seselj giving „strict instructions to his associates not to mention in this study [book] the names of the protected witnesses“, perversely, however, the Chamber uses this statement of fact to conclude awareness of the existence of a protection order, ignoring the fact that by accepting this statement the charge of „willful“ interference in the administration of justice becomes impossible since it proves the concept of the book was, from its conception, in compliance with court orders.

When the two statements are considered together, since the Judgment acknowledges and uses both as a basis of conviction, we clearly see that the Prosecution admits that witness identities and protected pseudonyms were never revealed as such, but rather a plan of „camouflage and subterfuge“ existed on the part of the Accused which led to the disclosure, if the book was „taken as a whole“. But knowing that an instruction existed not to reveal the identities of protected witnesses destroys this allegation, therefore leaving the only possible conclusion: witness identities were not directly revealed, hence willful or even knowing obstruction of justice doesn’t apply.

Outcome

Of course, expecting this supposedly professional Trial Chamber to come to a coherent and logical Judgment was probably too optimistic. We are talking about the ICTY after all. Even so, the conclusion of guilt based on a charge of „willful and knowing interference“ should be too much, even for them.

Maybe the small rays of hope which emerged during the pretrial conferences were simply the tired consciences of brutally biased judges jerking at this step too far even for „ICTY justice“. Such as when a frustrated Judge Iain Bonomy attacked the unprepared Prosecutor (who admitted that even though an indictment had already been issued the investigation was yet to take place): „Either there are clear statements of the identity of these protected witnesses in a book published under the name of the accused or there are not“, replying to the timid attempts of the Prosecutor to justify how the identification of witnesses was only possible when the whole book was taken into account (or all 1200 pages of it).

It’s a shame that in the Judgment this simple logical question wasn’t even considered, yet the baffling conclusion that reading the book „as a whole“ (a book that has never been translated into english, so which book are the english-speaking judges referring to?) would lead to the identification of witnesses, was reached with absolute certainty.

This rather esoteric argument could be applied to the transcripts published by the Tribunal. It could be argued that someone reading the hundreds of thousands of pages published on their website could identify some protected witnesses by cross-referencing their testimony with the testimony of others in other proceedings thereby bringing the Tribunal to contempt of itself. It’s not for nothing that hypocrisy has become synonymous with the ICTY.

As a result of this Judgment, a book detailing and debunking the organised revision of recent history is banned, and a man who has spent the best part of 7 years in prison awaiting justice is punished for the alleged contempt of a court which is denying him the very justice which he is accused of interfering with.

What gives this banning a sinister twist is the secrecy of the order, not only has the book been banned but the order has been redacted: in addition to withdrawl the general public must never know which book was in question, the memory of the action itself must be erased. Truly a 21st century take on the book burnings of old. All that’s left is to let the burnings begin (in secrecy, of course)!

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P.S. As an afterthought, those of you who have friends or contacts in Serbia, ask them if they know who these protected witnesses are (on the slim chance that they work for the office of the Prosecutor or an associated NGO this doesn’t apply). If you find a single person in Serbia, or anywhere for that matter, who „pieced together“ the puzzle that is Seselj’s book and discovered the identities of these witnesses, I’ll print out this text and eat it.

I mention this only as an illustration of the complete senselessness of this conviction for contempt, knowing that not only did many other cases where identities of witnesses were directly and unmistakenly revealed receive punishments trivial in comparison to the Seselj case, but rather that no breach of court order ever occurred, neither by plan or circumstance (since it is obvious that the witness identities in fact have not been revealed, and that the „willful“ element of any crime does not exist here, while the court has tried to bury this by completely devaluing the mens rea element, read the Judgment to see for yoursevles).

P.P.S. Ironically, the name of the book in question has been kept secret, yet, without any explicit attempt to reveal which book is in question, the Judgment and Trial transcripts themselves reveal enough information for „any informed person“ to come to a conclusion about which book it is (publication date, subject matter). Sounds familiar.

In effect, the same Trial Chamber which has produced this Judgment is guilty of the very thing that it has sentenced Seselj to a prison term for. As the Judgment puts it, „reckless indifference“ is tantamount to contempt, have the chamber been reckless in their attempts to hide the book’s name?

Even more depressing is the fact that noone actually knows who these witnesses are, but everyone knows which book is in question. In this case, 15 months would be a lenient sentance for the Judges of this Trial Chamber. I dread to think what they would actually be sentenced to if ever they were to face trial for the willful and grave miscarriages of justice they have been responsible for.

31. јула 2009. | Ненад Вукићевић @ 02.23 | Leave a comment | English

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