{"id":3040,"date":"2018-05-03T18:43:38","date_gmt":"2018-05-03T16:43:38","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=3040"},"modified":"2018-05-03T18:44:08","modified_gmt":"2018-05-03T16:44:08","slug":"seselj-appeal-judgement","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2018\/05\/03\/seselj-appeal-judgement\/","title":{"rendered":"The \u0160e\u0161elj Appeal Judgement: making sense of instigation\u00a0"},"content":{"rendered":"

<\/div><\/p>\n

The crux of the Prosecution\u2019s argument on appeal is the temporal link between \u0160e\u0161elj\u2019s statements [statements threatening with \u201crivers of blood\u201d 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 \u0160e\u0161elj\u2019s statement did not substantially contribute to the commission of the specific crimes and other factors may have influenced the conduct of the perpetrators.<\/p>
\n

Prosecutor v. \u0160e\u0161elj<\/a>, MICT-16-99, 11 April 2018, para. 132.<\/em><\/span><\/p><\/blockquote><\/p>\n

\"\"<\/a>
Vojislav \u0160e\u0161elj<\/figcaption><\/figure>\n

On 11 April 2018, the Mechanism for International Criminal Tribunals (MICT) issued the much-anticipated judgement<\/a> in \u0160e\u0161elj<\/em>. 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 \u2013 a shocker. How could this demagogue \u2013 whom many looked up to as a god-like figure (para. 147) and acted on his inflammatory refrains against non-Serbs \u2013 be acquitted?<\/p>\n

Assuredly the Appeals Chamber would completely reverse \u2013 so the thinking was.<\/p>\n

Representing himself (though he had lots of help behind the scenes), Vojislav \u0160e\u0161elj 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 \u201crupture defense<\/a>\u201d conceived by the late Jacques Verg\u00e8s<\/a> (a pioneer and formidable advocate for his time), but it was not \u2013 not even close. Crude and contemptuous, \u0160e\u0161elj 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 \u2013 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 \u0160e\u0161elj\u2019s right to defend himself<\/a> due to \u0160e\u0161elj\u2019s vulgar remarks and abhorrent antics, which, by his own admission, were part of his strategy and arsenal in denigrating and disrupting the ICTY (see<\/em> Alexander Zahar\u2019s\u00a0Legal Aid, Self-Representation, And The Crisis At The Hague Tribunal<\/a>\u00a0<\/em>at p. 254-62) to see how the ICTY nearly buckled under the weight of \u0160e\u0161elj\u2019s shrewd, severe, and sustained efforts to bring down the ICTY. By many accounts, Presiding Judge Antonetti bent over backwards in accommodating, and resultingly, enabling \u0160e\u0161elj to carry on unabated, unrestrained, and unfiltered \u2013 much to the chagrin of Judge Antonetti\u2019s colleagues and others.<\/p>\n

When \u0160e\u0161elj 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 \u2013 if his email<\/a> that got him canned from the ICTY is of any indication \u2013 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 \u0160e\u0161elj.<\/p>\n

Then came the Appeals Chamber\u2019s judgement.<\/p>\n

Much hope was pinned on the Appeals Chamber to get things right \u2013 to overturn the convictions and to sentence \u0160e\u0161elj 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.<\/p>\n

In a recent post<\/a>, I reviewed Professor Richard Ashby Wilson\u2019s excellent book, Incitement on Trial: Prosecuting International Speech Crimes<\/em><\/a> (Cambridge 2017), wherein Prof. Wilson devoted a chapter to the \u0160e\u0161elj<\/em> case. I was mildly critical of his attempt to make sense of \u0160e\u0161elj<\/em>, though, as I noted, the insight he shared from his interviews, particularly from his interview with Judge Harhoff, was illuminating \u2013 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 \u0160e\u0161elj<\/em> Appeal Judgement compliments Incitement on Trial. <\/em>It not only provides further context and legal analysis to the chapter on \u0160e\u0161elj<\/em>, 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.<\/p>\n

In a sense, this post picks up where I left off in my review<\/a> of Professor Wilson\u2019s book. Dealing only in passing with Joint Criminal Enterprise (JCE), I will focus primarily on the Appeals Chamber\u2019s 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.<\/p>\n

Recap: the <\/em>\u0160e\u0161elj case in a nutshell<\/em><\/strong><\/p>\n

\u0160e\u0161elj 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 \u0160e\u0161elj 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.<\/p>\n

On 31 March 2016, the Trial Chamber acquitted \u0160e\u0161elj 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. \u0160e\u0161elj declined to respond to the Prosecution\u2019s appeal, alleging instead that the ICTY was politically biased against him \u2013 bogus allegations according to the Appeals Chamber.<\/p>\n

Predicate: Trial Chamber\u2019s erroneous findings of no widespread or systematic attack <\/em><\/strong><\/p>\n

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<\/em> relied on according the Appeals Chamber showed that:<\/p>\n

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).<\/p>\n

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<\/a>. Thus, it was incumbent upon the Appeals Chamber to conduct its own analysis of the Trial Chamber\u2019s acquittals of \u0160e\u0161elj for \u201cinstigating, aiding and abetting, physically committing, and committing, through participation in a joint criminal enterprise, the alleged crimes.\u201d (para. 72)<\/p>\n

Reversal: errors and convictions<\/em> <\/strong><\/p>\n

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 \u201c\u0160e\u0161elj\u2019s men\u201d), and that there was a JCE.<\/p>\n

Regarding the charges of physical perpetration and instigation through \u0160e\u0161elj\u2019s speeches, the Appeals Chamber found that the Trial Chamber erred in finding that \u0160e\u0161elj did not commit crimes in Hrtkovci through his speech at his campaign rally there on 6 May 1992. According to the Appeals Chamber, \u0160e\u0161elj\u2019s 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.<\/p>\n

The Appeals Chamber, however, found that the Prosecution failed to prove \u0160e\u0161elj\u2019s involvement in this JCE, or that some of his other speeches \u2013 though clearly inflammatory and likely made to instigate the commission of crimes against humanity \u2013 could not be sufficiently linked to the underlying crimes.<\/p>\n

JCE: convergence or coincidence\u00a0 <\/em>\u00a0<\/strong><\/p>\n

How could \u0160e\u0161elj not have been in a JCE?<\/p><\/blockquote><\/div>How could \u0160e\u0161elj 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 \u0160e\u0161elj may<\/em> have been marching to his own beat? So what if there may have been other intervening events that potentially contributed to their criminal actions? \u0160e\u0161elj 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 \u2013 all in the name of nationalism and supposed self-preservation.<\/p>\n

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\u2019s assessment of the facts \u2013 so much so, that to some it may appear as if it went out of its way to avoid finding \u0160e\u0161elj to be a member of the<\/em> JCE it<\/em> found to have existed. This is despite evidence that some of \u0160e\u0161elj\u2019s followers may have been engaged in crimes associated with the JCE. If only other Appeals Chambers could be so circumscribed \u2013 at least in finding the existence of and membership in JCEs. But this may be misperceiving the Appeals Chamber\u2019s approach.<\/p>\n

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\u2019s \u2013 not without first meeting the very high threshold that \u201cno other reasonable chamber could have reached the same conclusion.\u201d Indeed, even if the Appeals Chamber thinks that the Trial Chamber got it wrong, so long as the Trial Chamber\u2019s findings are reasonably supported by the evidence, the Appeals Chamber will refrain from intervening \u2013 even if the Trial Chamber\u2019s findings are manifestly debatable. Lucky for \u0160e\u0161elj.<\/p>\n

Had the Trial Chamber found to the contrary and convicted \u0160e\u0161elj \u2013 as most Trial Chambers at the ICTY were prone to do \u2013 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. \u2013 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\u2019s 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.<\/p>\n

But this was not the only reason why the Appeals Chamber did not overturn the Trial Chamber\u2019s decision that \u0160e\u0161elj was not a member of a JCE.<\/p>\n

The Trial Chamber found that crimes were committed. It found that \u0160e\u0161elj 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 \u0160e\u0161elj was a member of the <\/em>JCE. In other words, the Trial Chamber found that \u0160e\u0161elj was a lone wolf<\/em>, acting on his own. The fact that members of the JCE may have been saying and doing the same things that \u0160e\u0161elj was entreating his followers to do, and irrespective of the fact that some of \u0160e\u0161elj\u2019s followers seemingly acted in concert with or similarly to members of the<\/em> JCE, did not mean that \u0160e\u0161elj was a member of the JCE \u2013 or that he necessarily knew of and approved his followers\u2019 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.<\/p>\n

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 \u0160e\u0161elj 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<\/em> preferred outcome? Of course.<\/p>\n

Interestingly, the Prosecution in \u0160e\u0161elj<\/em> 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 \u0160e\u0161elj 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\u2019s findings, had proved \u0160e\u0161elj to have been a member of the<\/em> JCE. Instead, it took the high road, scrupulously applying the standards of review. Hats off.<\/p>\n

Instigation: the proof is in the pudding<\/em><\/strong><\/p>\n

Most interesting in the \u0160e\u0161elj <\/em>appeal is the Appeals Chamber\u2019s treatment of the mode of liability of instigation. As I noted in my review<\/a> of Incitement on Trial: prosecuting international speech crimes<\/em><\/a> by Professor Richard Ashby, incitement (an inchoate crime) is often conflated or considered interchangeably with the mode of liability of instigation \u2013 or confusingly, considered to require a direct link between the speech and the proved crimes. In \u0160e\u0161elj<\/em>, the Appeals Chamber considered \u0160e\u0161elj\u2019s conduct under the mode of liability of instigation, holding (based on ICTY\/ICTR jurisprudence) that:<\/p>\n

[T]he actus reus<\/em> of \u201cinstigating\u201d 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.((\u00a0\u00a0 \u0160e\u0161elj Appeal Judgement, para. 124 citing Nyiramasuhuko <\/em>Appeal Judgement, para. 3227; Ngirabatware <\/em>Appeal Judgement, para. 162; Karera<\/em> Appeal Judgement, para. 317; Nahimana et al.<\/em> Appeal Judgement, para. 480; Kordi\u0107 and \u010cerkez <\/em>Appeal Judgement, para. 27.\u00a0 ))<\/p>\n

Yet, it also required a causal link between the speech and the acts committed by the physical perpetrators. For some of \u0160e\u0161elj\u2019s speeches, the Appeals Chamber found the link between \u0160e\u0161elj\u2019s 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 \u2013 and we\u2019ll get to this below.<\/p>\n

\u0160e\u0161elj\u2019s speeches: more than meets the ear<\/em> <\/strong><\/p>\n

At trial, the Trial Chamber examined a number of \u0160e\u0161elj\u2019s 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 \u2013 drawing attention to \u0160e\u0161elj\u2019s inflammatory rhetoric \u2013 that \u201crivers of blood\u201d would follow a Bosnian declaration of independence, that the Republika Srpska needed to be defended from \u201cUstasha and pan-Islamist hordes\u201d, etc. \u2013 and requested the Appeals Chamber to find \u0160e\u0161elj responsible for instigating crimes against humanity through his speeches. The Appeals Chamber dismissed the Prosecution\u2019s appeal regarding \u0160e\u0161elj\u2019s 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 \u2013 but convicted him for instigating crimes against humanity and committing the crime against humanity of persecution in Hrtkovci through his speech there.<\/p>\n

Speeches lacking the link for instigation <\/u><\/em><\/p>\n

The Trial Chamber found that in March 1992, \u0160e\u0161elj delivered a speech in Mali Zvornik in which he called \u201con the Serbs to \u2018clear up\u2019 Bosnia for the \u2018pogani\u2019<\/em> (filthy) and the \u2018balijas\u2019<\/em> (a derogatory term for Muslims). He also delivered a speech before the Serbian Parliament in April 1992, which the Trial Chamber found \u201cclearly constituted calls for expulsion and forcible transfer of Croats.\u201d (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 \u2013 i.e., that \u0160e\u0161elj\u2019s 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).<\/p>\n

The Appeals Chamber found that \u0160e\u0161elj\u2019s statements were undoubtedly inflammatory; \u0160e\u0161elj confirmed as such in his testimony during the Milo\u0161evi\u0107 <\/em>Trial (para. 130). The Appeals Chamber also found that the inflammatory language could have prompted others to commit crimes against non-Serb civilians. But \u2013 and this is a big \u201cbut,\u201d \u2013 the Appeals Chamber was not convinced that \u0160e\u0161elj\u2019s statements during the relevant period \u201chad an impact on, or \u2018causal link\u2019\u201d to the commission of crimes against non-Serbs (para. 131).<\/p>\n

Unpeeling the onion, the Appeals Chamber:<\/p>\n