Today, the International Criminal Tribunal (ICTY) for the former Yugoslavia acquitted Vojislav Šešelj of all charges of war crimes and crimes against humanity. The Prosecution could not prove he was in any way responsible or actively involved in the slaughter, mass rapes and deportation of Bosnjaks and Croats. The verdict has stirred up a lot of rage.

„If ever I meet him I’m gonna cut off his balls.“ My friend Jugoslav isn’t one of Vojislav Šešelj’s greatest fans. Today’s acquittal of the Serb nationalist isn’t gonna change that. „But“, Jugoslav adds, „if the prosecution couldn’t make the case he had to be acquitted. That’s what a legal system is about.“

„Plus, we have to talk about the fact that the trial took twelve years, eight of which Šešelj was imprisoned. As much as I dislike him, this is something you can’t do to a person.“

Jugoslav’s statement pretty much sums up what’s wrong with the case.

Vojislav Šešelj is a war and hate mongerer if there ever was one. No sane person can doubt that his speeches greatly contributed to inciting many Serbs and members of Serb militia or the then Yugoslav army JNA to commit countless war crimes.

They massacred, raped and deported tens of thousands of Bosnjaks and Croats in mixed population areas in Bosnia and Croatia.

Merely having given them the idea to do that isn’t punishable under ICTY’s statute and under international law. Šešelj apparently managed to just keep that inch away from „yelling fire in a crowded theater“ that would have made him liable for the consequences of his rhethorics.

The Prosecution Could Not Meet Its Burden of Proof

That is regrettable and in essence certainly unjust but for the time being something one has to live with.

What it would have taken to send Šešelj to prison would have been irrefutable evidence that he himself directly contributed to the war crimes and crimes against humanity committed during the period he had some influence in Serbian politics, which would be up until September 1993.

Carla del Ponte, Head of Prosecution until 2007, thought she could when she signed off on Šešelj’s indictment.

In the eyes of the Tribunal she could not and neither could her successors.

Šešelj simply wasn’t in any position to directly influence anyone who committed these war crimes and crimes against humanity, the Court found.

Šešelj never was a commanding officer in any militia or army nor did he ever hold any government post.

There are few people as detestable as he but if ICTY’s statute does not provide for the illegality of war and hate mongering he simply had to be acquitted.

The Prosecution screwed up. It’s a simple as that.

Not ICTY’s First Disputed Ruling

One should keep in mind that even a commanding officer of army units that did commit war crimes was acquitted after his appeal: Ante Gotovina, General of the Croatian army and in charge of „Operation Storm“ in 1995 during which the Serb occupied ethnically mixed areas in Krajina were reconquered from Serb militia which resulted in tens of thousands of Serb civilians fleeing the area and at least 150 people being murdered – another verdict, by the way, ICTY has been heavily critized for.

If one thinks Gotovina who was in a position of command to stop his troops from committing war crimes was to be acquitted unfortunately one has to agree that the same would go for Šešelj who was in no such position.

Even Someone As Detestable As Šešelj Has Rights

With a person like Šešelj it is of course a noble thing for any prosecutor to try and find a loophole that would allow for his conviction.

It is in the interest of justice per se, however, to quit trying after it becomes evident that there is no such loophole. Which it should have been very early into the trial and possibly even before Šešelj’s indictment.

By stubbornly refusing to aknowledge this and pursuing a case that it had no chance of winning, the Prosecution may have greatly hurt the chances of any prosecutor in any international criminal tribunal such as the ICC to hold war mongerers responsible for their words turning into bloodshed.

And, in any case, there is also Šešelj’s human rights to consider. Even a war and hate mongerer is entitled to due process and to be presumed innocent until proven guilty and, last but not least, to be spared from any form of preemptive punishment.

Keeping a man in jail for eight years certainly is to be considered a form of preemptive punishment.

The duration of the trial and Šešelj’s incarceration exceeded anything that would be deemed even remotely acceptible in any national court of law in any democratic country.

The Political Fallout Is Enormous

Never mind the unbearable political fallout today’s verdict has. It does strengthen Šešelj and his nationalist Radical Party in the ongoing electoral campaign in Serbia.

And to the more gullible it does lend credibility to the old narrative that Serbs are the perennial victims of international persecution and injustice which will make it even easier to deny the crimes committed by Serb militia and the JNA during the civil war. (The victim narrative is one you’ll find in all Balkan societies, though.)

ICTY’s role is not to influence Serbian politics but to be a court of law. Its other role, to be an institution initiating or at least contributing to public aknowledgement of the crimes committed and thus to reconciliation it unfortunately could never fulfill anyways.

The fallout would have been considerably smaller had the Prosecution not undertaken its futile attempt to lock up Šešelj. An Acquittal just is a much stronger message than not being indicted in the first place.

War Mongering Should Be Outlawed Internationally

What this verdict teaches us is that it would be sensible to put pressure on national governments and the international community to outlaw outright war and hate mongering on an international level as well.

This is of course a very thin line to tread upon. Any such international statute must be precise enough in order not to violate the right to free speech even if it is offensive as hell. Most democratic countries however do have such laws and even in the US calling for violence against minoritie such as ethnic groups is illegal.

Why is Šešelj Untouched In Serbia?

And then there is one open question. To me it is inconceivable how Šešelj’s speeches could have been legal in both Yugoslavia and Serbia as its successor state. So, how come Šešelj has never been held accountable for his actions in Serbia?

This is a question Serbian society must answer.

Title photo: ICTY at The Hague (c) ICTY, obtained under CC license CC BY 2.0