The Šešelj Appeal Judgement: making sense of instigation 

The crux of the Prosecution’s argument on appeal is the temporal link between Šešelj’s statements [statements threatening with “rivers of blood” and using inflammatory and derogatory epithets] and the contemporaneous or subsequent commission of crimes in various locations. The Appeals Chamber considers that a reasonable trier of fact could find such a link to be tenuous in circumstances where there was a significant lapse of time between the statement and the offences, allowing for the reasonable possibility that Šešelj’s statement did not substantially contribute to the commission of the specific crimes and other factors may have influenced the conduct of the perpetrators.


Prosecutor v. Šešelj, MICT-16-99, 11 April 2018, para. 132.

Vojislav Šešelj

On 11 April 2018, the Mechanism for International Criminal Tribunals (MICT) issued the much-anticipated judgement in Šešelj. The outright acquittal by the Trial Chamber on three counts of crimes against humanity (persecution, deportation, and the other inhumane act of forcible transfer) and six of war crimes (murder, torture and cruel treatment, wanton destruction, destruction or willful damage done to institutions dedicated to religion or education, plunder of public or private property), was greeted with disbelief and disdain – a shocker. How could this demagogue – whom many looked up to as a god-like figure (para. 147) and acted on his inflammatory refrains against non-Serbs – be acquitted?

Assuredly the Appeals Chamber would completely reverse – so the thinking was.

Representing himself (though he had lots of help behind the scenes), Vojislav Šešelj ran a beyond-the-pale contentious defense, often resorting to vulgarity and personal insults unfit for any court of law, let alone an international one. His defense theory may have resembled the famed “rupture defense” conceived by the late Jacques Vergès (a pioneer and formidable advocate for his time), but it was not – not even close. Crude and contemptuous, Šešelj was indiscriminate in his attacks on the International Criminal Tribunal for the former Yugoslavia (ICTY), the judges, the prosecutors, the Registry, the lawyers, and, of course, the witnesses. Through his behavior (tolerated by Presiding Judge Jean-Claude Antonetti) he mocked and stained the ICTY – in no small measure. How could one accused be so obstreperous as to confound not just the Trial Chamber but the institution itself? One need only read the intellectually-questionable decision by then-President Judge Fausto Pocar reversing an earlier decision of taking away Šešelj’s right to defend himself due to Šešelj’s vulgar remarks and abhorrent antics, which, by his own admission, were part of his strategy and arsenal in denigrating and disrupting the ICTY (see Alexander Zahar’s Legal Aid, Self-Representation, And The Crisis At The Hague Tribunal at p. 254-62) to see how the ICTY nearly buckled under the weight of Šešelj’s shrewd, severe, and sustained efforts to bring down the ICTY. By many accounts, Presiding Judge Antonetti bent over backwards in accommodating, and resultingly, enabling Šešelj to carry on unabated, unrestrained, and unfiltered – much to the chagrin of Judge Antonetti’s colleagues and others.

When Šešelj was acquitted on all counts some scratched their heads, some were in disbelief, and some assumed the acquittal was the product of a biased, result-driven Trial Chamber that had lost one of its members, Judge Frederik Harhoff, who – if his email that got him canned from the ICTY is of any indication – would have voted to convict. Rumor has it that the Trial Chamber had already deliberated and that Judge Antonetti, finding himself in the minority, had even drafted his dissenting opinion when Judge Harhoff was compelled to resign. Apocryphal. But if true, how serendipitous for Šešelj.

Then came the Appeals Chamber’s judgement.

Much hope was pinned on the Appeals Chamber to get things right – to overturn the convictions and to sentence Šešelj accordingly. While it may have left some unsatisfied, the judgement is measured, nuanced, restrained. Worthy of a careful read, with lots of golden nuggets for practitioners.

In a recent post, I reviewed Professor Richard Ashby Wilson’s excellent book, Incitement on Trial: Prosecuting International Speech Crimes (Cambridge 2017), wherein Prof. Wilson devoted a chapter to the Šešelj case. I was mildly critical of his attempt to make sense of Šešelj, though, as I noted, the insight he shared from his interviews, particularly from his interview with Judge Harhoff, was illuminating – especially for those of us toiling in the trial pits. Overall, Professor Wilson provides a fair bit of practical advice in addition to his excellent analysis on incitement and instigation. The Šešelj Appeal Judgement compliments Incitement on Trial. It not only provides further context and legal analysis to the chapter on Šešelj, it also lends clarity as to what a trial chamber will (should) consider in discerning speech designed to instigate or incite others to commit crimes, and more importantly, in affixing linkage between speech and any purportedly subsequent attendant conduct.

In a sense, this post picks up where I left off in my review of Professor Wilson’s book. Dealing only in passing with Joint Criminal Enterprise (JCE), I will focus primarily on the Appeals Chamber’s treatment of the mode of liability of instigation. Other international(ized) criminal tribunals and courts are well advised to reflect upon and draw from this judgement. Also, parties involved in cases where accused are charged through the mode of liability of instigation will find this judgement highly instructive in preparing and trying their cases.

Recap: the Šešelj case in a nutshell

Šešelj was charged with three counts of crimes against humanity and six counts of violations of the laws or customs of war committed between August 1991 and September 1993. The Prosecution alleged that Šešelj planned, ordered, instigated, committed, including through his participation in a JCE, or otherwise aided and abetted in the planning, preparation or execution of these crimes. The purpose of the alleged JCE was the forcible and permanent removal of a majority of the Croat, Muslim, and other non-Serb civilian populations from parts of Croatia, Bosnia and Herzegovina, and the province of Vojvodina in the Republic of Serbia.

On 31 March 2016, the Trial Chamber acquitted Šešelj of all charges, including charges of crimes against humanity and violations of the laws or customs of war. The Prosecution filed an appeal before the MICT challenging the acquittals. Šešelj declined to respond to the Prosecution’s appeal, alleging instead that the ICTY was politically biased against him – bogus allegations according to the Appeals Chamber.

Predicate: Trial Chamber’s erroneous findings of no widespread or systematic attack

Perversely, the Trial Chamber found that there was no widespread or systematic attack against the non-Serb population in Croatia and Bosnia and Herzegovina, even though the evidence it relied on according the Appeals Chamber showed that:

Serbian forces committed acts of violence against a large number of non-Serbian civilians on a regular basis at various locations over a period of approximately one year, first in Croatia and then in Bosnia and Herzegovina. The numerous incidents of murder, torture, and cruel treatment of civilians, including in detention camps, the overall atmosphere of violence, fear, and intimidation created by Serbian forces as well as the methods used in the course and aftermath of attacks on towns and villages inhabited by non-Serbians clearly show the existence of a widespread and systematic attack directed against the non-Serbian population in large areas of Croatia and Bosnia and Herzegovina (para. 70).

Having erroneously found that the chapeau elements of Article 5 of the ICTY Statute were not met, the Trial Chamber made no findings on the crimes of persecution, deportation, and other inhumane acts (forcible transfer) that were charged as crimes against humanity under various counts in the Indictment. Thus, it was incumbent upon the Appeals Chamber to conduct its own analysis of the Trial Chamber’s acquittals of Šešelj for “instigating, aiding and abetting, physically committing, and committing, through participation in a joint criminal enterprise, the alleged crimes.” (para. 72)

Reversal: errors and convictions

Having found that the Trial Chamber erred in concluding that the Prosecution failed to prove the existence of a widespread or systematic attack in Croatia and Bosnia and Herzegovina, the Appeals Chamber found that the crimes committed in Hrtkovci (a village in Vojvodina, Serbia) were linked to the conflict in Croatia and Bosnia and Herzegovina, that there was a pattern of crimes committed by cooperating Serbian Forces (including “Šešelj’s men”), and that there was a JCE.

Regarding the charges of physical perpetration and instigation through Šešelj’s speeches, the Appeals Chamber found that the Trial Chamber erred in finding that Šešelj did not commit crimes in Hrtkovci through his speech at his campaign rally there on 6 May 1992. According to the Appeals Chamber, Šešelj’s influence over the crowd proved that he contributed to the conduct of the perpetrators of crimes in Hrtkovci and therefore was criminally responsible for instigating the crimes of humanity of deportation, persecution (through forcible displacement), and other inhumane acts, as well as for committing the crime of humanity of persecution based on violations of the right to security.

The Appeals Chamber, however, found that the Prosecution failed to prove Šešelj’s involvement in this JCE, or that some of his other speeches – though clearly inflammatory and likely made to instigate the commission of crimes against humanity – could not be sufficiently linked to the underlying crimes.

JCE: convergence or coincidence   

How could Šešelj not have been in a JCE?

How could Šešelj not have been in a JCE considering what he was saying, considering that he was encouraging his followers to act on his words, which seemed to have been aligned with the words and deeds of others carrying out an agreed JCE to permanently remove the majority of non-Serbs. So what if Šešelj may have been marching to his own beat? So what if there may have been other intervening events that potentially contributed to their criminal actions? Šešelj ignited the fire in the bellies of his supporters with incendiary entreats to take matters into their own hands, and in so doing, commit crimes against innocent civilians on a widespread or systematic scale – all in the name of nationalism and supposed self-preservation.

There is nothing novel in this judgement about JCE, or about how the Appeals Chamber reached its findings. The Appeals Chamber gave wide berth to the Trial Chamber’s assessment of the facts – so much so, that to some it may appear as if it went out of its way to avoid finding Šešelj to be a member of the JCE it found to have existed. This is despite evidence that some of Šešelj’s followers may have been engaged in crimes associated with the JCE. If only other Appeals Chambers could be so circumscribed – at least in finding the existence of and membership in JCEs. But this may be misperceiving the Appeals Chamber’s approach.

Once the Trial Chamber found that there was no JCE, the Appeals Chamber could not substitute its factual findings for those of the Trial Chamber’s – not without first meeting the very high threshold that “no other reasonable chamber could have reached the same conclusion.” Indeed, even if the Appeals Chamber thinks that the Trial Chamber got it wrong, so long as the Trial Chamber’s findings are reasonably supported by the evidence, the Appeals Chamber will refrain from intervening – even if the Trial Chamber’s findings are manifestly debatable. Lucky for Šešelj.

Had the Trial Chamber found to the contrary and convicted Šešelj – as most Trial Chambers at the ICTY were prone to do – the Appeals Chamber would have been equally unmoved to substitute its factual findings for those of the Trial Chamber. Realistically, very rare is the day when the Appeals Chamber will take the time to look at the relevant trial record and other documentary evidence when assessing errors of facts. The least taxing approach is to punt: look for any cited material, names, places, etc. – anything, that may give the judges a hook to claim (actually, speculate) that the Trial Chamber properly reviewed and duly assessed the evidence. Infuriating as this cosmetic approach to assessing a Trial Chamber’s assessment of the evidence is, such is the nature of the beast at the international(ized) criminal tribunals and courts. So, a lesson for those doing appeals: if you are challenging factual findings on appeal, look not to the Appeals Chambers to get into the weeds.

But this was not the only reason why the Appeals Chamber did not overturn the Trial Chamber’s decision that Šešelj was not a member of a JCE.

The Trial Chamber found that crimes were committed. It found that Šešelj made incendiary remarks that left little room for concluding anything other than his desire to motivate and inspire his followers to engage in activities that would result in crimes against humanity. However, the Trial Chamber was not convinced that the Prosecution proved beyond a reasonable doubt that Šešelj was a member of the JCE. In other words, the Trial Chamber found that Šešelj was a lone wolf, acting on his own. The fact that members of the JCE may have been saying and doing the same things that Šešelj was entreating his followers to do, and irrespective of the fact that some of Šešelj’s followers seemingly acted in concert with or similarly to members of the JCE, did not mean that Šešelj was a member of the JCE – or that he necessarily knew of and approved his followers’ criminal actions. A bit of a stretch all things considered, but the Appeals Chamber was simply not convinced that the Prosecution had met its burden in proving otherwise.

From the trial and appeal judgements, one does not get the full flavor of the evidence relied on by the Prosecution in asserting error by the Trial Chamber in finding Šešelj not to be a member of the JCE. Another Trial Chamber might have found to the contrary. This may seem unfair. Perhaps it is. But would it not be even more unfair, indeed inappropriate, were the Appeals Chamber to malleably apply the standard of review willy-nilly to affect its preferred outcome? Of course.

Interestingly, the Prosecution in Šešelj found itself on the side which defense counsel regularly find themselves when reviewing a trial judgement: where the Trial Chamber cherry-picks through the evidence to support a desired result, effectively ignoring critical evidence presented, which, if considered, would affect the findings and outcome. Welcome to the club, prosecutors. Impressively, the Appeals Chamber did not take the low road and did not stick it to Šešelj for his outrageously contemptuous behavior throughout the trial. With a bit of rhetorical jujitsu and dexterous reasoning, it could have concluded that the Prosecution, contrary to the Trial Chamber’s findings, had proved Šešelj to have been a member of the JCE. Instead, it took the high road, scrupulously applying the standards of review. Hats off.

Instigation: the proof is in the pudding

Most interesting in the Šešelj appeal is the Appeals Chamber’s treatment of the mode of liability of instigation. As I noted in my review of Incitement on Trial: prosecuting international speech crimes by Professor Richard Ashby, incitement (an inchoate crime) is often conflated or considered interchangeably with the mode of liability of instigation – or confusingly, considered to require a direct link between the speech and the proved crimes. In Šešelj, the Appeals Chamber considered Šešelj’s conduct under the mode of liability of instigation, holding (based on ICTY/ICTR jurisprudence) that:

[T]he actus reus of “instigating” implies prompting another person to commit an offence. It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.1   Šešelj Appeal Judgement, para. 124 citing Nyiramasuhuko Appeal Judgement, para. 3227; Ngirabatware Appeal Judgement, para. 162; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27. 

Yet, it also required a causal link between the speech and the acts committed by the physical perpetrators. For some of Šešelj’s speeches, the Appeals Chamber found the link between Šešelj’s speeches and the underlying crimes to be too tenuous and the time lapse between the speeches and the events too lengthy to assign him responsibility under the mode of liability of instigation (para. 122). For another speech, the link was met – and we’ll get to this below.

Šešelj’s speeches: more than meets the ear

At trial, the Trial Chamber examined a number of Šešelj’s speeches during the conflict in Croatia and Bosnia and Herzegovina and concluded that they did not amount to commission or instigation of the crimes charged in the Indictment. The Prosecution appealed – drawing attention to Šešelj’s inflammatory rhetoric – that “rivers of blood” would follow a Bosnian declaration of independence, that the Republika Srpska needed to be defended from “Ustasha and pan-Islamist hordes”, etc. – and requested the Appeals Chamber to find Šešelj responsible for instigating crimes against humanity through his speeches. The Appeals Chamber dismissed the Prosecution’s appeal regarding Šešelj’s speeches in the towns of Mali Zvornik and Vukovar, his statements before the Serbian Parliament, and other statements encouraging the creation of a Great Serbia – but convicted him for instigating crimes against humanity and committing the crime against humanity of persecution in Hrtkovci through his speech there.

Speeches lacking the link for instigation

The Trial Chamber found that in March 1992, Šešelj delivered a speech in Mali Zvornik in which he called “on the Serbs to ‘clear up’ Bosnia for the ‘pogani’ (filthy) and the ‘balijas’ (a derogatory term for Muslims). He also delivered a speech before the Serbian Parliament in April 1992, which the Trial Chamber found “clearly constituted calls for expulsion and forcible transfer of Croats.” (paras. 335-38) The Trial Chamber also considered other speeches calling for the creation of a Greater Serbia through violence and indoctrinating his party members. Yet the Trial Chamber found that these speeches did not amount to instigation. Why? Because the speeches had too little impact and alternative conclusions – i.e., that Šešelj’s speeches could have been aimed at the war effort or to support his political campaign rather than to instigate crimes, could not be ignored (para. 127).

The Appeals Chamber found that Šešelj’s statements were undoubtedly inflammatory; Šešelj confirmed as such in his testimony during the Milošević Trial (para. 130). The Appeals Chamber also found that the inflammatory language could have prompted others to commit crimes against non-Serb civilians. But – and this is a big “but,” – the Appeals Chamber was not convinced that Šešelj’s statements during the relevant period “had an impact on, or ‘causal link’” to the commission of crimes against non-Serbs (para. 131).

Unpeeling the onion, the Appeals Chamber:

  • Considered the link to between his speeches and the conduct committed by the physical perpetrators to be too “tenuous in circumstances where there was a significant lapse of time between the statement of the offences….” (para. 132).
  • Found that alternative plausible explanations existed: that Šešelj’s statements did not substantially contribute to the crimes because other intervening factors or causes may have influenced the perpetrators (para. 132).
  • Noted the “highly circumstantial nature of the evidence related to the specific impact, if any, that Šešelj’s statements had on the conduct of the perpetrators” (para. 133).

Considering its analysis, the Appeals Chamber (rightly, though no doubt disapprovingly to some) concluded that it was not unreasonable for the Trial Chamber to find that the evidence presented by the Prosecution on Šešelj’s speeches in Mali Zvornik, before the Serbian Parliament, and other statements was insufficient to discern any impact on the commission of crimes (para. 134). An expected rigorous analysis devoid of passion or prejudice.

Speeches meeting the link for instigation

Šešelj’s speeches in Hrtkovci (Vojvodina Serbia) are a different story.

On 6 May 1992, Šešelj gave an inflammatory speech at a campaign rally in Hrtkovci village in Vojvodina, Serbia in which he called for the expulsion of the Croatian population. The Prosecutor charged Šešelj with persecution as a crime against humanity through deportation or forcible transfer and “[d]irect and public denigration through “hate speech” of the Croat, Muslim and other non-Serb populations … in Hrtkovci” (see Indictment, paras. 33, 17(i) and 17(k)). The Trial Chamber found that Šešelj clearly called for the forcible transfer of Croats from the village, but found that he could not be held responsible because, among other reasons, it found that the speech wasn’t the reason for the departure of Croats from Hrtkovci. The Appeals Chamber disagreed, finding the requisite link between the speech and the underlying crimes committed by the physical perpetrators.

The Appeals Chamber found that soon after Šešelj’s speech, many Croatians and other non-Serbs left for Croatia either out of fear, or “by way of fraudulent housing exchanges with Serbian refugees in a context of coercion, harassment, and intimidation, which was met with inaction by the local authorities” (para. 154). Serbians, including the mayor of Hrtkovci, also attended Šešelj’s rally and persistently harassed non-Serbs who remained in the village. The Appeals Chamber considered that in light of Šešelj’s influence over the crowd and the parallels between his inflammatory words and the subsequent acts of the direct perpetrators (members of the audience), no reasonable Trial Chamber could have found that his speech did not substantially contribute to the conduct of the perpetrators (para. 154).

Thus, unsurprisingly, the Appeals Chamber reversed Šešelj’s acquittals for instigating crimes against humanity (persecution, deportation, and other inhumane acts).

Speeches amounting to the crime of persecution

The Appeals Chamber went on to consider whether Šešelj’s 6 May 1992 speech in Hrtkovci constituted the crime against humanity of persecution in itself. Spoiler alert – it did.

The Appeals Chamber, relying on the Nahimana et al. Appeals Judgement, held speech may constitute an underlying act of persecution if the “speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security of the members of the targeted group and therefore constitutes ‘actual discrimination.’”2   Šešelj Appeal Judgement, para. 159, citing Nahimana et al. Appeal Judgement, para. 985.

Based on the facts in the record and Trial Chamber’s conclusion that Šešelj’s speech constituted a prompt to expel Croatians from Hrtkovici, the Appeals Chamber found that no reasonable Chamber could have found that “Šešelj’s speech did not incite violence that denigrated and violated the right to security of members of the Croatia population” (para. 163). By instigating the forcible expulsion of Croatians from Hrtkovci, Šešelj had incited violence against them, and in the Appeals Chamber’s view, the speech was of such gravity as to amount to the actus reus of the crime of persecution (discrimination in fact which denies or infringes upon a fundamental right). Unsurprising the Appeals Chamber reversed Šešelj’s acquittals for committing persecution (a violation of the right to security).

Parting thoughts: linkage = action + immediacy

The Šešelj Appeal Judgement lends clarity as to what a Trial Chamber should consider in discerning speech design to instigate others to commit crimes. More importantly, it elaborates on the requisite link between the impugned speech and the subsequent actions taken by the physical perpetrators. Again, hats off to the Appeals Chamber for scrupulously applying the appellate standard of review in assessing the Prosecution’s appeal.

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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