By Iva Vukusic
Recent developments at the International Criminal Tribunal for the former Yugoslavia (ICTY) relating to the provisional release on humanitarian grounds of Vojislav Seselj and Goran Hadzic highlight a number of issues that remain largely unresolved in international criminal trials.
The more controversial of the two (because of the history of the case and the defendant’s behavior), the Seselj release, is causing observers to speculate on the outcome of the recent Appeals Chamber decision to have him brought back to The Hague. Others are wondering why this case is proving to be one of the hardest ever at the tribunal.
In the last couple of months, two defendants have been released from detention in The Hague and have returned to Serbia due to ill health. One is Vojislav Seselj, a loud, rude, attention-loving Serbian radical politician who has been nothing but trouble for the ICTY since his surrender back in 2003. After endless problems ranging from hunger strikes against appointment of counsel, to three contempt cases and a disqualification of a judge, the trial chamber judges are due to give their judgment sometime before the end of the year. At least, so we hope.
The other is Goran Hadzic, a politician and former president of the political entity proclaimed by the Serbs in Croatia. His case is currently stuck in the defence phase, and it’s uncertain what will happen to it. Hadzic hasn’t given consent for the proceedings to go on without him, even though the prosecutors asked for it, arguing the interest of justice and suggesting all kinds of measures to ensure fair proceedings. Hadzic’s release is, for now, less worrisome as at least he hasn’t threatened not to return. Seselj has done precisely that.
Seselj seems to be suffering from cancer but nothing has yet been officially publicly disclosed, while Hadzic has a terminal brain tumor. The problem is that Seselj’s detailed medical records seem to be unavailable, even to the judges. If so, then what was the basis for the Trial Chamber’s proprio motu decision?
Both individuals are charged, among others, with crimes against humanity: Seselj for crimes in Croatia, Bosnia and Herzegovina and Vojvodina, and Hadzic for Eastern Slavonia. While Seselj came to The Hague voluntarily, Hadzic was on the run for years, but he was finally transferred, thus ending the ICTY’s struggle to get the suspects to trial. Since the beginning of proceedings, Hadzic has, unlike Seselj, been largely cooperative.
Seselj has been one of the longest running cases and, arguably, one of the most problematic ones. The tribunal has been, understandably, criticised for the length of the proceedings, but it should be remembered that it has taken so long partially because of Seselj himself. Had he cooperated, it would have been over by now. Many say he would have been convicted probably to something close to what he had already served. He could have spent a lot of that time at home, as many defendants who surrender and cooperate go home during the breaks in trial. That, however, would not be Seselj as we know him. He enjoys attention and plays the martyr for the anti-tribunal, anti-western Serbian cause. As such, he remains a source of pride and inspiration for Serbian radical nationalists. Hadzic’s doesn’t enjoy anything close to that level of interest and support.
Reading both decisions regarding the release, they seem to differ when it comes to conditions and duration. Hadzic’s is much more restrictive and sets out a number of limitations. For example, he cannot speak to the media. It is also for a shorter period of time, until May. The proprio motu decision of the Trial Chamber in Seselj is more unusual. It’s surprisingly lenient and sets forth only two conditions: not to intimidate witnesses and return when asked. The prosecution appealed, but only later, and human rights organisations in the region protested.
Seselj went to Belgrade and spoke at rallies, saying how he defeated the tribunal (what he had always promised he would do), appeared on TV shows and burned a Croatian flag while proclaiming that he is not going back. His political past and links with current Serbian President Tomislav Nikolic and Prime Minister Aleksandar Vucic further complicate issues. They had a political fall-out years ago, but Vucic now claims he won’t arrest Seselj. The Appeals Chamber decided he should return a month ago. So far it hasn’t worked, but the latest news suggests we can expect progress.
What the tribunal wants to avoid is another high profile death in detention, like that of Slobodan Milosevic in 2006. It was an inglorious end to one of the most relevant cases the ICTY ever had, and it informs all decisions relating to sick defendants.
What these two cases show is that courts have difficulties managing defiant, stubborn defendants. The standards for release should be defined clearly and include a ban on public speaking and political engagement. If a person is ill (and that is the basis of their release), then they should focus on getting better, not waste energy on burning flags. The Seselj release and his subsequent actions exacerbated the already tense relations between Croatia and Serbia and upset victims who had to listen to his speeches. Furthermore, no one should be released into the custody of a state that, for whatever reason, seems to have trouble living up to its international obligations.
Iva Vukusic is a PhD candidate at the History Department of Utrecht University. Previously, she was at the War Crimes Department of the Prosecutor’s office in Sarajevo and at Sense News Agency covering the ICTY in The Hague. You can follow her @VukusicIva.
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Lead image: Vojislav Seselj holds a burning American flag during anti-government protest rally in Belgrade.