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.

Is the ICTY a lawful institution?

To put it simply, courts and tribunals are set up by laws. Since the ICTY was set up by the Security Council, an executive body, it has no foundation to operate as it does today. For those interested in a studious examination of the nature and practices of the ICTY, I recommend John Laughlands book „Travesty“.

Has the ICTY helped reconcile, to an extent, the conflicting parties?

The Tribunal has only prolonged and entrenched the feelings of injustice with relation to the Balkan wars of the nineties, and has done seldom, if anything, to encourage reconciliation.

This is because of the very biased nature of the Office of the Prosecutor which has gone out of it’s way to pursue a very one sided agenda, the pinnacle of which are the indictments against President Radovan Karadzic while the war in Bosnia & Herzegovina was still raging, and the indictment of President Slobodan Milosevic during the NATO aggression (a war crime in itself) of 1999. In both cases the indictments were used as a tool of international pressure on the Serbian leadership to bring about compromise or in the case of 1999, capitulation.

Secondly, the Prosecutors work has by now (the process has finished) indicted 93 Serbs, 31 Croats, 14 Muslims, 8 Albanians and 3 Macedonians. A disproportion owing to the fact that all sides committed atrocities. The numbers are even more drastic when taking into account the number of convictions by the Tribunal and also by national courts in coordination with the ICTY: they are, respectively, 699, 36, 8, 3, 0 (as of 14/4/08).

Another screaming injustice is the fact that on the Serb side the entire political, police and military command structure has been indicted, including all of the presidents of the Serbian territories, all of the heads of police and military leadership as well as many lower ranking politicians. No other heads of state have been indicted, Alija Izetbegovic died in 2003. yet the Prosecution claims it was looking to indict him, absurd given that Karadzic was indicted a whole 8 years earlier for the same conflict region. A similar situation occurred with Franjo Tudjman, the Croatian president who oversaw the ethnic cleansing of more than 200,000 Serbs during operation „Storm“. Tudjman was in fact recorded on tape at one of his defence cabinet meetings as saying the Serbs should be thrown out of Croatia, in contrast the prosecution could find no such horrific statements by Milosevic yet they indicted him in 1999.

Even when it comes to the sentences imposed on Serbs by the Tribunal a massive disproportion can be observed compared to those handed out to the other factions. For example General Krstic of the VRS (army of Republic of Srpska), has been sentenced to more than 40 years in jail because „he should have known about the massacre in Srebrenica“ which soldiers under his area of command were committing,
yet the same Tribunal just a few months ago released as innocent Naser Oric, the Muslim commander in the region who was also by command responsible for his troups, which killed 3000 Serbs in the outlying villages around Srebrenica from 1992-95. He was released with the conclusion that „he was too young to have influence over the troops he was commanding“.

Many examples exist, these are just an illustration of the causes of underlying feelings of injustice which are perceived by the majority in Serbia and Serbs in all parts of the Balkans. Of course, similar arguments are made by the Croatian side as well, although looking at the statistics this is more likely to be a tactic of „offence as the best defence“ to get the best possible outcomes for those that have been indicted. Croats have been disproportionately accued in some cases where the Muslim faction was involved.

One might argue that these numbers represent simply the consequences of war crimes committed, and that going by this number it is obvious that the Serbs are more at fault than the others. But the mere fact is that Serbia proper didn’t „cleanse“ all, or any, of its Muslim or Croat populations, the Croats did do that (more than 200,000 Serbs forced out of Croatia during operation „Storm“ and „Flash“) . To those interested in the real story behing the war I recommend Diana Johnstone’s book: „Fool’s Crusade“.

With relation to the Kosovo conflict and the problems in that area today, the fact that the Tribunal recently released Ramus Haradinaj, a man who was suspected of killing civilians with his own hands, who was the responsible party in the chain of command for the crimes that did occur without doubt, someone so dangerous that 11 witnesses died before they could testify, only enforces the view that the ICTY is nothing more than a political tool.

What is the real role of the ICTY?

The ICTY is a tool of revisionism. It is a political tool which has been set in motion to rewrite the chain of events which led to the wars in the Balkans, and to justify the crimes of the West and their allies in the region. This makes it not only incapable of promoting reconciliation, but rather creates a source of fresh conflict, with one side in particular reeling from the battering of justice which has occurred, while the others carry on yearly celebrations of crimes feeling that they have been exonerated. This can never be a healthy way to resolve bloody conflicts.

What about Prof. Vojislav Seselj?

Vojislav Seselj was a Serbian opposition politician during the early and middle nineties, not in power for a single moment of the time of his indictment (1992-95). He has, as of this day, spent 2008 days in detention without conviction. The indictment against him is based on hate speech and incitement, a very shaky category at best (since incitement has a requirement of it being to commit genocide in international law).

When the indictment was raised, Seselj went voluntarily to the Tribunal straight away. Since then (2003) he has spent 4 years awaiting trial, was then refused the basic right to defend himself and went on hunger strike for 28 days at which point the trial was reset to the beginning with a new Trial Chamber chosen and his right to self-counsel restored.

His case is also a blatant example of the political aspect of the whole Tribunal, Carla del Ponte in her book wrote how the new „democratic“ regime in Serbia asked for Seselj, a strong opposition figure at that time (2002) to be „taken to the Hague“.

And now, 5 years on and with half the prosecution witnesses gone, the Prosecution are again trying to force an attorney that will represent prof. Seselj, fearing that the job he has done with the witnesses so far has not only exonerated him but also demolished many of the precedents set by the Tribunal, showing them to be farcical. This fresh attempt is just another example of the injustices being perpetrated by an institution created to serve justice.

What conclusions can we draw?

The fact that a selective justice at best, and blatant injustice at worst, is the result of the efforts of the ICTY there can be no good from any of the convictions there, be they to for one side or the other. The biased, revisionist and political nature of the Tribunal taints all of the convictions made by this institution, whether they be just or not. This is the real tragedy of this failed experiment.