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‘Error Of Law' -- Top International Lawyer Disagrees With Seselj Ruling

The ICTY in The Hague ruled on March 31 that Vojislav Seselj was not guilty of war crimes and crimes against humanity relating to the Balkan wars of the 1990s. (file photo)
The ICTY in The Hague ruled on March 31 that Vojislav Seselj was not guilty of war crimes and crimes against humanity relating to the Balkan wars of the 1990s. (file photo)

Mark Ellis, the executive director of the International Bar Association, has been closely following the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) for years.

He said he thinks the judges got it wrong on March 31 when they acquitted Serbian Radical party leader Vojislav Seselj on all charges of war crimes and crimes against humanity -- including murder, persecution, and expulsions in Bosnia-Herzegovina, Croatia, and Serbia.

Ellis told RFE/RL's Ron Synovitz that the chief prosecutor in the case should appeal the ICTY decision for what he believes were both "errors of fact and errors of law."

RFE/RL: How did this case differ from previous high-profile cases heard by the ICTY and what is your overall assessment of Seselj's acquittal on all the charges against him?

Mark Ellis: It's a case that doesn't involve a military leader such as Mladic or even [Radovan] Karadzic. But this is more from the perspective of a political leader. The focus is what is the nexus and the responsibility between this political leader and the crimes that were being committed. I think the judgment is exceedingly harsh and, I think, off base.

It tends to ignore or even dismiss, and certainly disregard, past decisions by the court and general principles in international criminal law -- and certainly since the inception of the ICTY. It's a decision that is, I think, hard to defend, actually. I think the decision also lacks some coherence in regard to what the existing law is in some of these important areas.

Mark Ellis
Mark Ellis

RFE/RL: Judge Jean-Claude Antonetti concluded in the Seselj verdict that "the propaganda of nationalist ideologies is not criminal. The prosecution failed to show a concrete link between Seselj's nationalist speeches and the crimes committed." What is your reaction to that ruling?

Ellis: I simply disagree with that position. Jurisprudence in international tribunals, not just at the ICTY but at others, are clear in this. Inflammatory speech can incite individuals to commit crimes -- and that's exactly what happened here, in this case. Volunteers were being sent to the front. These volunteers went on to commit murder. They went on to displace families because of their ethnicity.

An individual may not be directly responsible for that murder or displacement, but certainly was involved with inciting or aiding and abetting. This is absolutely what the prosecutor had argued for. And I think that there was, in my opinion, evidence to support that. The majority of the court felt no. But to suggest that political incitement through inflammatory speech would not be relevant in these types of trials, I don't think is true.

RFE/RL: Considering Seselj's inflammatory calls during the early 1990s for the creation of a "Greater Serbia" at the expense of other ethnicities in the Balkans, are you surprised that the ICTY has acquitted Seselj?

Ellis: I was surprised that the court limited itself to this type of analysis and didn't follow the jurisprudence of the tribunal that, I think, would have been able to connect this political goal of a Greater Serbia as part of a joint criminal enterprise that existed -- and that existed in order to conduct these criminal acts. It was all part of this kind of joint enterprise that had -- at its heart, at its core -- this goal of creating a Greater Serbia.

To suggest that that really is not relevant to criminal acts that occurred, I simply think is wrong. I think the appeals court -- I'm hoping the appeals court -- would see it that way and reverse that decision.

WATCH: Seselj Acquittal: Mixed Reaction From Village In Serbia

Seselj Acquittal: Mixed Reaction From Village In Serbia
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RFE/RL: What were some of the problems faced by the ICTY prosecutors that led the judges to conclude they failed to present enough evidence to prove a direct link between Seselj's nationalist speeches and the crimes committed by paramilitary volunteers?

Ellis: The prosecutor relied on a number of witnesses and reliance on those witnesses simply fell apart later on. Witnesses started to recant their testimony and their willingness to participate in this proceeding. This has been one of the major problems in these trials.

When witnesses are intimidated, witnesses begin to feel that they can simply not continue to be part of the process because they are living in the exact territory where the crimes were committed and the pressure is quite significant on them.

RFE/RL: What about the appeals process? Would that be a lengthy process? Or is the judicial process finally nearing its end after more than 13 years?

Ellis: It will stretch out now because, as we know, the tribunal has in essence ended its mandate. But there is this mechanism that has been created to allow this process to continue -- including the appeals process. There should absolutely be an appeals process on this. The prosecutor would have 30 days to make note of whether or not he will appeal. Then he will have an additional 90 days to make his case. And then the appeals process will start.

So it's not going to be a 10-year period, because that involves the trial process with all the witnesses. Everything. The appeals process is whether there was an error in fact or an error in law. That's what the appeals court will review. And I think there is evidence here to suggest that there was error on both -- that the trial chamber erred on both the interpretation of the law and the interpretation of the facts.

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