Page 16926
1 Thursday, 5 May 2011
2 [Rule 98 bis Judgement]
3 [Open session]
4 --- Upon commencing at 2.18 p.m.
5 [The accused entered court]
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, kindly call the
7 case.
8 THE REGISTRAR: Thank you, and good afternoon, Your Honours.
9 This is case number IT-03-67-T, the Prosecutor versus Vojislav Seselj.
10 JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.
11 Today is Thursday, 5th of May, 2011. Good afternoon to all the
12 people present in and out of the courtroom, Mr. Marcussen, Ms. Biersay,
13 and the other OTP representative. Good afternoon to you, Mr. Seselj and
14 all the people assisting us.
15 I'm going to resume with reading out my dissenting opinion. I
16 had reached paragraph (C) ordering under Article 7(1) of the Statute.
17 In paragraphs 144 and 145 of the Prosecution pre-trial brief, the
18 Prosecution argues, and I quote, that the -- that the accused "ordered,
19 himself, the crimes of persecution, murder, torture, cruel treatment, and
20 forcible transfer in Vukovar," Counts 1, 4, 8, 9, then 11. Paragraphs 15
21 to 18, 20 and 28 to 32 of the indictment.
22 In ordering, I quote, "Not one Ustasha is to leave Vukovar
23 alive." Testimony of Witness VS-027. He also, I quote, "Order the
24 crimes of persecution, deportation, and forcible transfer in Hrtkovci,"
25 Counts 1, 10 and 11, paragraph 15 to 17, and 31 and 33 of the indictment.
Page 16927
1 During meetings with associates and supporters in Vojvodina in
2 1991 and 1992, and implicitly in his speech in Hrtkovci on the 6th May of
3 1992. And finally, that the intent of the accused to order the crimes in
4 Vukovar and Hrtkovci can be inferred from the contents of his speeches
5 and interviews and from the fact that the crimes were indeed carried out
6 later.
7 The Prosecution relied on the testimony of Witnesses VS-015,
8 VS-026 and VS-1033. With regard to the sentence in Vukovar, the above
9 mentioned sentence, he spoke -- it is challenged by the accused and the
10 only witness speaking about it does not appear in my eyes to be
11 sufficiently reliable. As a result, it cannot be inferred that the
12 accused is to be held responsible under this mode of responsibility under
13 Article 7(1) of the Statute.
14 Regarding his speech in Hrtkovci, the question is whether what he
15 said during the speech as characterised by the following sentence, I
16 quote:
17 "I am firmly convinced that you the Serbs in Hrtkovci and the
18 surrounding villages, you know how to remain united and live in harmony.
19 I know that you will swiftly get rid of the Croats remaining in your
20 village."
21 Is this an order? That is the question. All the more so since
22 the case law quoted by the Prosecution in footnotes 488, 489 and 490 in
23 the following cases, Kordic, Blaskic, Krstic, and Akayesu, predicates
24 that the individual issuing the order is in a position of authority and
25 that the status of the accused gave him the power to issue orders.
Page 16928
1 At the time, the accused had no political or military authority
2 whatsoever. He did not have the requisite authority to issue any orders.
3 A close scrutiny of the Hrtkovci speech on the 6th May 1992 amply
4 confirms this inasmuch as it recalls that there is a regime in power and
5 that there is an opposition, including the Serbian Radical Party, and
6 it -- he says in the speech, I quote:
7 "We condemn the current regime both in Serbia and in this Rump
8 Yugoslavia."
9 Furthermore, there is a blatant contradiction arising from the
10 modes of liability. He cannot on the one hand be charged with issuing
11 orders and on the other hand with instigating to commit, let alone
12 committing. It can only be one or the other mode of liability.
13 Therefore, the accused, in my view, should be acquitted of this mode of
14 responsibility based on issuing orders or ordering.
15 Very well. Let me move to chapter (D), Committing. I believe
16 this is the most important part in my dissenting opinion.
17 Before I move on to this chapter, let me say this by way of
18 introduction: On page 43791 of Exhibit P00031, the accused, when he
19 testified in the Milosevic case, said the following answering a question
20 by Mr. Nice with regard to the solemn declaration with regard to the
21 Tribunal -- I am going to quote everything he said:
22 "I am of the view that it cannot be objective and that this
23 Tribunal is intensely, utterly biased."
24 As far as I'm concerned, I could sweep aside this type of
25 discourse when it comes to evidence, and I could say that all this is
Page 16929
1 just part of folklore. It's just something picturesque, and I could
2 calmly wait until our final deliberations to address the key issue of the
3 joint criminal enterprise.
4 As a Judge of this Tribunal, I am part of it, and I can be of the
5 view that the accused believes that I am biased on principle and that I
6 am not going to go into the issue and the merits of the issue which is
7 joint criminal enterprise as addressed in paragraph 6 of the indictment.
8 Well, I'm going to do it. And I am, by putting in the balance, the point
9 of view of the Prosecution and that of the Defence in order to reach a
10 provisional conclusion at this stage of the proceedings. This is an
11 utterly complex legal matter, and much to my regret, I cannot address all
12 the facets of it, because it is an oral type of proceeding. However and
13 nevertheless, I'm going to devote 20 pages to the issue. In other words,
14 a little under one-third of my dissenting opinion.
15 Very well. Let us speak to the issue of the accused's alleged
16 responsibility as part of a -- as a participant in the joint criminal
17 enterprise.
18 Paragraph 6 of the indictment states as follows:
19 "Vojislav Seselj participated in a joint criminal enterprise.
20 The purpose of this joint criminal enterprise was the permanent forcible
21 removal through the commission of crimes in violation of Articles 3 and 5
22 of the Statute of the Tribunal of a majority of the Croat, Muslim, and
23 other non-Serb populations from approximately one-third of the territory
24 of the Republic of Croatia and large parts of Bosnia and Herzegovina and
25 from parts of Vojvodina in the Republic of Serbia in order to make these
Page 16930
1 areas part of a new Serb-dominated state."
2 As to paragraph 8, it lists the participants in this joint
3 criminal enterprise. They have to be named. This is important.
4 Slobodan Milosevic, General Veljko Kadijevic, General Blagoje Adzic,
5 Colonel Ratko Mladic, Radmilo Bogdanovic, Jovica Stanisic,
6 Franko Simatovic aka Frenki, Radovan Stojicic aka Badza, Milan Martic,
7 Goran Hadzic, Milan Babic, Radovan Karadzic, Momcilo Krajisnik,
8 Biljana Plavsic, Zeljko Raznjatovic aka Arkan, and other political
9 figures of the former Yugoslavia from the Republic of Montenegro and of
10 the Bosnia and Croatian Serb leaders -- or leadership.
11 Equally, there were other participants. They included Serb
12 forces collectively defined as members of the Yugoslav People's Army,
13 JNA, later the Yugoslav Army, VJ; the newly formed Serb
14 Territorial Defence of Croatia and of BiH; the Army of the Republika
15 Srpska Krajina, SVK; and the Army of the Republika Srpska, VRS; and the
16 TOs of Serbia and of Montenegro; local Serb Republic of Serbia and
17 Republika Srpska police forces; the police forces in Krajina and RSK
18 commonly referred to as Martic's police, Marticevci; SAO Krajina Police
19 or SAO Krajina milicija; and members of Serbian, Montenegrin, Bosnian and
20 Croatian Serb paramilitary forces and volunteer units, including Chetniks
21 or Seseljevci, translated as Seselj's men.
22 In support of the JCE, apart from the evidence they quoted in
23 their oral submission, the Prosecution refers in paragraph 4 of the
24 indictment to the participation of the accused in the JCE by breaking it
25 down into three categories. I am going to list them.
Page 16931
1 Firstly, the accused allegedly used his power as a politician to
2 promote in the media or through the media his plan of creating
3 Greater Serbia by violent means.
4 Secondly, as the SRS president and as the chief of the SCP, he
5 allegedly supervised the recruitment, indoctrination, funding, formation,
6 co-ordination, supply, and assignment of volunteer units which often gave
7 rise to forcible displacement of non-Serbs living in the targeted
8 territories.
9 Thirdly, the accused allegedly largely contributed to the
10 implementation of the JCE by crimes of persecution through hate speeches
11 in Vukovar, Zvornik, Hrtkovci, and to crimes of deportation and inhumane
12 acts, forcible transfer in Hrtkovci.
13 In support of the alleged JCE, the following documents were
14 mentioned in the Prosecution final -- pre-trial brief: The Tomic report,
15 Exhibits P255, P1200, P32, P1176, P34, P35, P1196, P1197, P40, P1185,
16 P1176, P1196, P1220, P1186, P163, P34, P35, P644, P1003, P59, P513, P221,
17 and P915.
18 Sorry for reading out all these exhibit numbers, but I told you
19 that I was ready to look in a detailed fashion into the Prosecution case.
20 I had to do so.
21 Equally, the Prosecution mainly refers to the testimony of the
22 following witnesses: VS-14, VS-26, VS-1104, VS-1133, VS-007, VS-010,
23 VS-011, VS-017, VS-027, VS-038, VS-1008, and VS-1136.
24 Very well. So this is the entire Prosecution case as stated
25 above based on testimony and documents.
Page 16932
1 At this stage of the proceedings, at the 98 bis stage of the
2 proceedings, there's no need to dwell at length as to the applicable law
3 in this case, because during the Prosecution case there are no witnesses,
4 no expert witnesses, or even less amicus curiae dealing with legal
5 matters that have to be dealt with only at the time of the final
6 deliberation. However, I have to briefly address the notion of joint
7 criminal enterprise as introduced by the appeals judgement in the Tadic
8 case.
9 In this regard, the Tadic Appeals Chamber, in paragraph 227,
10 regarding the actus reus, said the following -- let me read this to
11 inform everybody:
12 "(i) Plurality of accused," but they don't have to be part of a
13 military or administrative structure as clearly shown of the Kurt Goebell
14 and the Essen cases.
15 Secondly, the existence of a common design or objective which is
16 to commit one of the crimes in the Statute or to imply its commission.
17 This plan, design or objective does not need to have been prepared or
18 expressed in a prior fashion. It can be manifested in -- by chance and
19 can be inferred from the fact that several individuals act together in
20 order to carry out a joint criminal enterprise.
21 Thirdly, participation of the accused in the common design
22 involving the perpetration of one of the crimes provided for in this
23 Statute. This participation need not involve commission of a specific
24 crime under one of those provisions - murder, extermination, torture,
25 rape, et cetera - but may take the form of assistance in or contribution
Page 16933
1 to the execution of the common plan or purpose.
2 With regard to the mens rea, the Appeals Chamber stated that it
3 may defer -- differ according to the category of common design under
4 consideration. Well, there are three categories. Let me name them all:
5 The first category of cases requires the intent to perpetrate a
6 specific crime, this intent being shared by all the co-perpetrators.
7 The second category. The accused must have personal knowledge of
8 the system of ill-treatment whether proven by express testimony or
9 inferred from the accused's position of authority as well as the intent
10 to further this concerted system of ill-treatment.
11 The third category, which is the extended category, requires the
12 intent to participate and to further the criminal activity or the
13 criminal purpose of a group and to contribute to the joint criminal
14 enterprise or in any event to the commission of a crime by the group. In
15 addition, responsibility for a crime other than the one agreed upon in
16 the common plan arises only if in the circumstances of the case (i) it
17 was foreseeable that such crime might be perpetrated by one or other
18 members of the group and (ii) the accused willingly took that risk.
19 This case law is far from being accepted unanimously. It is
20 indeed challenged within the very Tribunal by various Judges. For
21 instance, by Judge Schomburg in his individual opinion regarding the
22 criminal liability of Milan Martic.
23 To make it short, I must remind you that there is no reference
24 whatsoever to joint criminal enterprise in the Statute of this Tribunal.
25 Furthermore, the UN General-Secretary in his report of 3rd of May, 1993,
Page 16934
1 to the Security Council said the following -- I am going to quote the
2 entire intervention:
3 "The question, however, arises whether a legal entity, an
4 association or an organisation may be regarded as such as perpetrator of
5 a crime, the members of which would be for that very and only ground
6 submitted to the jurisdiction of an International Tribunal. The
7 General-Secretary is of the view that this concept should not be adopted
8 by the International Tribunal. Criminal acts listed in the Statute were
9 carried out by physical individuals, and they would come under the
10 jurisdiction of the International Tribunal irrespective of whether they
11 belonged to a group or not."
12 This is part of paragraph 51 of the General-Secretary's report.
13 Let me add that there cannot be any collective responsibility as
14 was stated by the Nuremberg Tribunal. I quote:
15 "These are human beings. They are not abstract concepts. They
16 are men who commit crimes that must be punished in criminal -- in
17 international law."
18 I also note that the mention of collective responsibility is not
19 in keeping with the mission of this Tribunal, which is to encourage peace
20 and reconciliation in the territory of the former Yugoslavia. In order
21 to complete this provisional survey, I have to refer to a recent decision
22 of the preliminary Chamber of the Extraordinary Chambers of the Cambodian
23 Tribunals, who whilst accepting the use of JCE I and II dismissed JCE III
24 holding that this mode had no foundation in customary international law
25 at the times of the indictment.
Page 16935
1 I just have to read paragraph 83 of this decision. At -- at the
2 stage where we are now in the 98 bis procedure without finalising my
3 position as to the JCE theory, I will integrate it, however, in order to
4 examine whether the evidence adduced so far would make it possible to
5 conclude that this alleged JCE did exist.
6 To try and characterise this JCE, the Judge must, since it has no
7 formal documents at hand to establish the existence of this common
8 purpose, must go and fish for clues, and among these clues are indicia.
9 I must mention for your information those who were mentioned in one of
10 the latest judgements of this Tribunal in the Djordjevic case, and this
11 is the list of these indicia: Demographics; secondly, abusive use of
12 force by Serbian forces in violation to the October -- to the October
13 1998 agreements; motivations for the crimes; any co-ordinated management
14 of MUP and VJ units; a disproportionate use of force in an anti-terrorist
15 actions; the systematic control of IDs and registration plates for the
16 vehicles of Kosovo Albanians; and all efforts deployed to hide the crimes
17 committed against the Albanian civilians in Kosovo.
18 As you can see, fishing for clues can prove to be very
19 unsuccessful in this case, for example, because at first sight the only
20 clues that could be taken on board so far are the demographics and the
21 motivation of crimes. A reasonable Judge could not conclude, therefore,
22 to the existence of a project bringing together all the people mentioned
23 even though, according to the Prosecution, the only inference is that a
24 common purpose connected and brought together all these people. The
25 evidence adduced by the Prosecution do not formally go in this direction.
Page 16936
1 It is obvious that the members of a JCE must have some kind of
2 connection among themselves, either coming from professional meetings,
3 from gatherings, from papers written jointly, from joint stances at one
4 point in time, from belonging to the same party or from belonging to the
5 same government. It would be paradoxical to state that they are members
6 of this JCE automatically just because of their beliefs, of their
7 ethnicity, of their religion, of what they think, and how -- if -- if a
8 Judge can analyse the most intimate thoughts of an individual.
9 Therefore, as far as I'm concerned, I believe what is important is to
10 have intangible elements that could establish this connection between all
11 these members. And the OTP didn't miss this, because they said that the
12 time-frame of this joint criminal enterprise would run from
13 August 1st, 1991, to September 1993. It's quite interesting, actually,
14 to look into why this month of September was determined.
15 Prosecution, in paragraph 8 of the indictment, says and I quote:
16 "The aforesaid joint criminal enterprise came into existence
17 before 1st August 1991 and continued at least until December 1995.
18 Vojislav Seselj participated in the joint criminal enterprise until
19 September 1993, when he had a conflict with Slobodan Milosevic."
20 So the Prosecution recognises that there is a need to establish
21 this connection. Obviously, after the conflict with Slobodan Milosevic,
22 there was no longer any common purpose, and in a very inconsistent way in
23 Radovan Karadzic's indictment, which is in the public domain, the
24 time-frame runs till December 1995 and mentions Vojislav Seselj as
25 belonging continuously to this JCE.
Page 16937
1 The Prosecution explained it's position in its motion of
2 May 17, 2010, in view of tendering bar-tabled evidence. For the
3 Prosecution, the -- these -- this evidence was relevant because they deal
4 with the JCE, the accused's mens rea and his contribution to the joint
5 criminal enterprise. However, the Prosecution developed its point of
6 view at length, saying that with the rise of Serbian nationalism during
7 the carving out of former Yugoslavia, the accused became the ally of
8 Slobodan Milosevic and of other Serbian leaders, and that together they
9 pursued this objective which was to unite all Serbians within a single
10 state, which the accused called Greater Serbia. The creation of this
11 Greater Serbia resulting in a forcible transfer of non-Serb population
12 and the commission of other crimes against this non-Serb population.
13 In this motion, these are the exhibits mentioned by the
14 Prosecution: P1321, P1167, P1169, P1170, P1263, P1264, P1175, P1301,
15 P1206, P1388, and P1364.
16 For the Prosecution, the accused adopted the ideology advocated
17 by the Serbian cultural club and the Serbian Chetniks movement, P1170 and
18 P1172. The Accused Seselj was appointed Vojvoda, P1170, P1322, P1180.
19 According to the Prosecution, the JCE was created in
20 February 1991. In 1990, the accused had created SCP and tried to
21 register this SCP, but this was unsuccessful. P1264. He then founded
22 the SRS in February 1991, which at the time was recognised as a political
23 party. P1265.
24 According to the Prosecution, the accused admitted that his party
25 understood the struggle for the defence of Serbian national interests as
Page 16938
1 an opening door to have co-operation with the SPS of Slobodan Milosevic
2 and the SDS. Even though Prosecution does quote the following sentence,
3 and I quote:
4 "We disagree on everything else, but we must co-operate to defend
5 Serbian identity. We are waging a common struggle and nothing should
6 come to divide us on this issue." P1204.
7 To support this, Prosecution mainly refers to documents P1282,
8 P1187, P1233, P1312, P1243, P1251, P1252, and P1327.
9 Out of all this evidence, the Prosecutor had tendered the
10 testimony of the accused in the Milosevic case. This is document P00031.
11 According to the Prosecution, this qualifies the JCE. It's a very long
12 document, more than 1,600 pages. I scrutinised it word by word. And the
13 review of this transcript, which goes from pages 42678 to 44370, shows
14 that the Accused Seselj did not know a number of members of this joint
15 criminal enterprise; Simatovic, for example. I come back to this. Or
16 only had very infrequent contact with others; for example, Babic. And
17 regarding Milosevic, he only met him in April 1992, which as -- which is
18 long after this alleged JCE would have come into being.
19 It is true that Seselj's statements made under oath could, after
20 all, be false, could only provide us with part of the truth. However,
21 during its cross-examination, the Prosecution did not rebut the
22 statements, so as things said, what Seselj -- the Witness Seselj said
23 under oath in the Milosevic case could be taken on board by a reasonable
24 Judge as being quite relevant and probative.
25 A few examples. Page 43932. The accused said when he was in the
Page 16939
1 witness stand as a witness, and I quote:
2 "I insist on the fact that Franko Simatovic is somebody that I
3 have never met in my entire life."
4 Now, regarding Slobodan Milosevic and his connections with him,
5 he said on page 43943:
6 "In May 1992, I started having meetings with Milosevic in a more
7 regular fashion."
8 On page 44333, this is what he says:
9 "It was impossible to design any connection between us, because
10 up until April 1992, we didn't know each other at all.
11 Page 44100. I'm quoting the witness again:
12 "You want me to tell you what the relationship was between
13 Mr. Milosevic and Mr. Hadzic, Hadzic being the famous accused at large.
14 Well, I've been in conflict with Mr. Hadzic since 1991, and I've only
15 made very negative statements as far as he's concerned."
16 And Judge Bonomy intervenes and puts the following question to
17 the witness:
18 "Didn't you say that it is totally out of the question that
19 Mr. Hadzic may be involved in a JCE with the accused?" The accused being
20 Slobodan Milosevic here.
21 Answer of Vojislav Seselj:
22 "I said that it was impossible that he would participate with me
23 in anything, because there's always been a conflict between the both of
24 us."
25 The Prosecution, failing to adduce any relevant evidence
Page 16940
1 regarding the members of this JCE does not prove that these people had a
2 connection in the meaning of the case law given by the Appeals Chamber
3 and mentioned earlier, or that they shared the same intent. Therefore,
4 what would be needed is evidence to establish that the members of this
5 JCE had the same intent as the accused to deport non-Serbs, notably to
6 make sure that Muslim and Croats leave forever about one-third of the
7 territory of the Republic of Croatia, as well as large areas of the
8 territory of Bosnia-Herzegovina and some areas of Vojvodina in order to
9 integrate these regions in a new state that would be dominated by Serbs.
10 I will now go into further detail. Therefore, the final goal of
11 the JCE, according to the Prosecution, would be to integrate these
12 regions in a new state dominated by Serbs. This being the case, the
13 question any reasonable Judge should have is to know what exactly are the
14 boundaries of this Greater Serbia, as mentioned in paragraph 9 of the
15 indictment.
16 This says that the accused, and I quote "propagated a policy of
17 united all Serbian lands in a homogenous Serbian state. He defined the
18 so-called Karlovac-Ogulin, Karlovac-Virovitica line as the western border
19 of this new Serbian state which he called Greater Serbia and which
20 included Serbia, Montenegro, Macedonia, and considerable parts of Croatia
21 and Bosnia-Herzegovina.
22 In the pre-trial brief, in the Prosecution's pre-trial brief, it
23 is also said that Vojislav Seselj greatly contributed to the joint
24 criminal enterprise by playing the role of leading propagandist of
25 creation through violence of a Greater Serbia, a unified state dominated
Page 16941
1 by Serbs. In the middle of the late 1990s, Vojislav Seselj relentlessly
2 called for the creation of a Serbian state corresponding to the present
3 borders of the Republics of Serbia and Montenegro, and to a major part of
4 Croatia, Macedonia and Bosnia-Herzegovina.
5 To support this, the Prosecution mainly refers to the following
6 exhibits: P1321, P1170, P1169, P150, P171, P1172, P1173, and P39.
7 It's important to note that the speeches be -- the speech, the
8 articles and the interviews of the accused were spread over time, and the
9 Prosecution, itself, made a difference in its pre-trial brief between
10 several types of speech. The speeches held in the middle of the 1990s,
11 P1321, P1170, P1169, P150, P1171, P1172, P1173, and P39.
12 It's important to note that these speeches call for the
13 unification of all Serbian territories into a single Serb state.
14 Then we have the speeches held at the end of 1990 which became
15 more extremist, P1174, P1175, and P37. Please note that here there is a
16 claim for Serbian territories and Serbian people not to be separated from
17 their homeland. And similarly, and I believe it is also important, it is
18 said that within this Serbian state Orthodox, Muslim, Catholic, and
19 Protestant Serbs, would all live united. Obviously, there is no trace of
20 any ethnical consideration.
21 The extremist -- the alleged extremist nature does not seem
22 significant to have any direct or indirect consequences of the crimes
23 committed, as far as I'm concerned.
24 During the time period relevant to the indictment, the accused
25 took advantage of the situation and heightened it in order to achieve the
Page 16942
1 creation of a Serbian state through force. P1264, P1338, P56, P255,
2 P256, P644, P179, P34, P62, and P56.
3 The very concept of a joint criminal enterprise with its
4 different members was, I believe, challenged by the decision issued on
5 November 10, 2005, by Chamber III after the Prosecution motion for
6 joinder of cases Milan Martic, Jovica Stanisic and Franko Simatovic and
7 Vojislav Seselj. At the time, the Prosecution wanted all three cases to
8 be joined. And it's quite interesting to look into why they wanted to do
9 this.
10 In its motion of June 1, 2005, the Prosecution, on paragraph 23
11 of it's submission, alleged that there was a common purpose in this JCE
12 in the three indictments.
13 Chamber III, presided by Judge Robinson with Judge Agius and
14 Judge Liu denied this motion for joinder, saying on paragraphs 20 and 21
15 of their decision, and I will quote:
16 "The alleged joint criminal enterprise was not identical in all
17 indictments, while noting that there is a partial overlap among the
18 counts, the modes of responsibility, the time-frame and the location of
19 the crimes."
20 In passing, I note that the alleged JCE in the Mrksic, Radic, and
21 Sljvancanin case had been mentioned as follows in paragraph 569 of the
22 judgement, which is now -- which is now public knowledge and which you
23 can read. I quote:
24 "The indictment alleges that the three accused, together with
25 other individuals including Miroljub Vujovic and Stanko Vujanovic,
Page 16943
1 participated in a joint criminal enterprise, the purpose of which was the
2 persecution of Croats and other non-Serbs who were present in the Vukovar
3 Hospital. It is also alleged that the crimes in the indictment were
4 within the object of the joint criminal enterprise and that each of the
5 accused held the state of mind necessary for the commission of each of
6 these crimes."
7 And at paragraph 608, the Trial Chamber says as follows:
8 "The facts as the Chamber has found them to be established by
9 evidence do not support the Prosecution case that there was a joint
10 criminal enterprise involving any of the three accused together with
11 others." It adds "together with others."
12 This judgement is res judicata, and as far as I'm concerned, it's
13 not subject to judicial notice, but then if this is the case, if there
14 was no joint criminal enterprise in Vukovar with the members of the SRS,
15 that in this case, in our case, how could there be such a JCE?
16 This being said, I believe that we still have to go further into
17 detail, and before analysing the conditions we find in the Tadic
18 judgement, appeals judgement, we must check and examine whether there was
19 a joint purpose between the accused and the other members of JCE. In
20 short, the JCE design as defined in paragraph 6 of the indictment, which
21 I shall quote again because it is important:
22 "Aimed at forcing the majority of non-Serbs to permanently leave
23 approximately one-third of the territory of the Republic of Croatia, vast
24 areas of the territory of the Republic of Bosnia-Herzegovina, and
25 certain -- some areas of Vojvodina in the Republic of Serbia in order to
Page 16944
1 make these areas part of a new Serb-dominated state."
2 We therefore understand that the ultimate objective is this new
3 state dominated by the Serbs.
4 Is that indeed the design in which all participants were
5 involved, or were there not indeed two designs: The creation of a
6 Greater Serbia claimed by the Accused Seselj, and a second design which
7 would be the maintaining of a Rump Yugoslavia within the former borders
8 of the Federal Yugoslavia, and that would be Milosevic's design? This
9 question, of course, calls for greater analysis.
10 Was the way to achieve this ultimate purpose, the departure of
11 non-Serbs from Croatia, parts of the Republic of Bosnia-Herzegovina or
12 Vojvodina, or, this departure, was it prompted by other reasons which had
13 nothing to do with the creation of a state?
14 It is therefore through the prism of these essential issues that
15 the evidence of the Prosecution must be examined.
16 First of all, it is clear that there are two concepts underlying
17 Milosevic's and Seselj's political action. The obvious conclusion is to
18 say that the design is not identical, and therefore the form of
19 responsibility resulting from the JCE cannot be applied.
20 As regards the second question relating to the permanent
21 departure of the non-Serbs, it is important to admit that even if the
22 Croats in the Krajina area left the areas in question, we must
23 acknowledge that since the 15th of January, 1992, the Republic of Croatia
24 had been internationally recognised within its borders as part of the
25 federal Yugoslavia.
Page 16945
1 Likewise, as regards the Republic of Bosnia-Herzegovina, a new
2 state could not be created from April 1992 onwards, all the more so since
3 the Geneva conference and the Vance-Owen Plan recognised the existence of
4 predominantly Serb territories in the Republic of Bosnia-Herzegovina,
5 which form the Republika Srpska of today.
6 Lastly, as far as Vojvodina is concerned, it is important to
7 remember that it belongs to Serbia. There was, therefore, no need to
8 drive out anyone to include this state into the new Serb state since it
9 already existed and was part of it.
10 If we look into the speeches of the accused against the Croats,
11 essentially, and to a lesser degree against the Muslims, if viewed
12 together, it seems at first hand that the departure of the Croats could
13 be seen as a measure of repression or reprisal following the expulsion of
14 the Serbs from Croatia. And the departure of the Muslims seems to be
15 challenged even by the accused who believes that these are Bosnian Serbs.
16 This question was addressed at great length by the Prosecution,
17 by Mr. Nice, when the accused was -- testified in the Milosevic trial.
18 On the concept of Greater Serbia, the Accused Seselj responded to one of
19 Milosevic's question in the following matter -- manner. Let me quote:
20 "This is an ideological concept which goes way back. This was
21 mentioned in the public arena in 1993 -- in 1963 at the time the Turks
22 were defeated, before Vienna. This is a concept that goes back to the
23 19th century."
24 I have read just about all the judgments that were rendered. A
25 great number of witnesses talked about Greater Serbia. They have no idea
Page 16946
1 of what this means, and I must say that this is taken as a fact.
2 "In my capacity as living nationalists and ideologist, I can
3 provide with you an original explanation for this concept, and this would
4 be useful for this particular trial and for other trials as well," he
5 probably was thinking of his trial, "because as far as all the people
6 mentioned as part or as members of the JCE, no one, save myself, ever
7 talked about Greater Serbia, and no one every strived after this. My
8 commitment to Greater Serbia is a commitment that has lasted 30 years and
9 that is now being used to accused other people, and that has got nothing
10 to do with it. I am prepared to die for this concept."
11 Transcript page 43214, and he will add on page 43216, let me
12 quote:
13 "The concept of Greater Serbia implies a unified Serbian state
14 that would include all Serbian lands where Serbs are a majority
15 population. However, this runs counter to the endeavours of the Vatican
16 and Austria and other countries who aim at reducing the Serbian people to
17 members of the Orthodox Christian religion, because the Serbian people in
18 its ethnic being include Orthodox, Catholic and Muslim Serbs equally."
19 This does differ from persecutions for religious reasons, since
20 on page 43122 the accused says that:
21 "The concept of Greater Serbia cannot be identified with any of
22 practice or persecution against the Muslim or Catholic population,
23 because in all the documents that relate to the Serb Chetnik Movement and
24 the free -- the free Serb movement and the SRS, we Orthodox, Catholics,
25 Muslims, Protestants, and atheist Serbs, we all agree to get on -- to get
Page 16947
1 along together and to unite. There -- the concept between -- the concept
2 of a Greater Serbia and the concept of ethnic cleansing, there can be no
3 connection established between these two. This is what I wish to say,
4 but you keep on interrupting me, and this is why we stress the
5 necessity -- the following necessity that our party includes Catholics
6 and members of different religious communities, and we give them
7 high-ranking positions."
8 His action describes Serb rebels fighting against Croats, and
9 seemingly the action undertaken was not a priori based on ethnic
10 cleansing but merely on the takeover of an autonomous region which seemed
11 to be the objective in mind.
12 I shall look into this now in greater detail.
13 According to the indictment, there had been a cease-fire between
14 the JNA and Croatia. The JNA withdrew, leaving military equipment
15 behind, and that is how the Republic of Serb Krajina was created, RSK.
16 Arkan's group established his base in a former military camp of the JNA
17 in Erdut in Croatia. It is important to read the indictment, therefore,
18 because the indictment says as follows, and this stems from the OTP:
19 "He speaks with one voice. This deteriorated -- the situation
20 deteriorated into an open conflict, and Arkan's Tigers were deployed in
21 various communities in which a great majority of the population was
22 non-Serb. Bijeljina and Zvornik were among these towns."
23 It is important to note that it is the situation that
24 deteriorated and turned into open conflict, and no reference is made to
25 any specific design on the part of one or other belligerent to launch
Page 16948
1 some form of ethnic cleansing.
2 In that same indictment, it is specified for one municipality,
3 which is not included in our indictment, i.e., Sanski Most, that between
4 1992 and September 1995 a large part of the Muslim and Croat population
5 had fled when the population that had remained behind had been subjected
6 to a Draconian regime.
7 This reference was provided by the Prosecution and related to the
8 fleeing Muslim and Croat population and does not make it possible, for
9 lack of evidence, to know whether the population had fled out of fear of
10 the fighting or for some other reason, which enables me to establish a
11 link with the footnote on page 429 of the Prosecution's pre-trial brief.
12 Footnotes are always important and it is important to review these. This
13 is what this footnote says -- let me quote:
14 "During this period, a unit of the Special Police of
15 Sremska Mitrovica was seconded to Hrtkovci to prevent the non-Serbs from
16 being driven out, attacked or harassed."
17 This sentence, which describes a particular incident, the fact
18 that the police was sent there amply testifies for the fact that at the
19 time there was no collusion between Vojislav Seselj and members of a JCE
20 since the authority in power, far from collaborating with a view to
21 achieving the common design, was opposing it by sending the police there.
22 This may tend to prove that the discriminatory campaign of the accused,
23 and I shall have an opportunity to revisit this, was only conducted by
24 him. Assisted in that by some of his volunteers, as some witnesses have
25 indicated, does not mean that the persecution were part of the common
Page 16949
1 design of the JCE aimed at forcing the non-Serbs to leave this
2 municipality. This will be examined in greater detail in the chapter
3 entitled "Crimes Physically Committed by the Accused: Persecution,
4 Deportation, and Forcible Transfer."
5 Lastly, to fully understand the JCE, the crucial piece of
6 evidence, in my view, is Exhibit P31, which are the transcripts of the
7 Accused Seselj's testimony in the case of the
8 Prosecutor versus Slobodan Milosevic. If we look at the 1692 pages, a
9 careful review of the transcript pages show that there was a
10 contradictory debate on the alleged JCE between the Prosecutor, Mr. Nice,
11 the witness under oath, Vojislav Seselj, the Accused, Slobodan Milosevic,
12 and the Judges.
13 This piece of evidence, Exhibit P31, is all the more important
14 that the statement of some of the -- of the witnesses who were either
15 victims or figures very far removed from power or expert witnesses
16 employed by the Prosecution.
17 According to the Prosecution, through the words uttered by
18 Mr. Nice, transcript page 43248, Seselj and Milosevic purportedly shared
19 the common design to create a Greater Serbia and to drive out the
20 majority of non-Serb -- of the non-Serb population.
21 The case of the Prosecution rests on the following predicate:
22 The Greater Serbian movement created during World War II would be what
23 lay behind this movement and which the SRS and Seselj strived after, as
24 well as the SPS and Milosevic. 44240.
25 The Prosecution alleges that this is predicated by the concepts
Page 16950
1 put forward by both parties and the designs are close in the way they
2 were fulfilled. 43255, 43260, 43262, 43263.
3 The accused alleges that the Milosevic regime had provided the
4 accused with privileged access to the media to enable him to disseminate
5 his message of hate and, therefore, to instrumentalise him in his own
6 interest. Pages 44052 and 44053.
7 The idea of Greater Serbia is something which goes back in
8 time -- was created after the successive invasions of the Balkan during
9 the Ottoman Empire and were innovated by the Austrians and the Russians.
10 It would seem that the word itself "Greater Serbia" first appeared in a
11 memo to the Russian emperor in 1803, after which this term was used again
12 by various intellectuals in Serbia and political organisation and was
13 picked up again by Vasa Cubrilovic and Dragan Vasic before being banned
14 by the Communist regime.
15 The idea of Greater Serbia seems to contradict the federation of
16 Yugoslavia, because it first and foremost relies on the idea of a united
17 Serb state. Greater Serbia should be a centralised state and unitary
18 state which, whilst admitting that ethnic minorities have their rights
19 protected, would nonetheless do away with the autonomous provinces.
20 43322.
21 The Greater Serbia would encompass all Serbian land, i.e., land
22 where the Serbs are in the majority. According to the accused, the
23 Serbian people have not defined through its religion but through its
24 language, the language the Serb people speak, Stokavian, 43113. I'm
25 using the conditional tense. It seems that three dialects are used in
Page 16951
1 former -- the former Yugoslavia, Stokavian, Cakavian, and Kajkavian.
2 As regards this question of the various dialects, there are ten
3 or so articles that refer to this. I shall not quote them now because
4 this would be too time-consuming.
5 According to the Prosecution, all people that speak Stokavian are
6 Serb, irrespective of their religion. Page 43217. According to the
7 accused [as interpreted], all the Serbs speak the same language, Serbian,
8 which is -- stems from Stokavian page 43219. Therefore, according to the
9 accused, the Croats and the Bosnians would, in fact, be Catholic and
10 Muslim Serbs and the creation of Greater Serbia would imply convincing
11 the Croats and the Muslims that they belong to the Serbian people. Page
12 43220.
13 THE INTERPRETER: Interpreter's correction, very important
14 replace "Prosecution" with "the accused."
15 JUDGE ANTONETTI: [Interpretation] Serb lands do not quite match
16 up with Yugoslavia, 43219. Stokavian is essentially spoken in Serbia,
17 Bosnia-Herzegovina, Montenegro, and a large part of Croatia. This
18 territory forms the territorial base of Greater Serbia as imagined by
19 Vojislav Seselj. Therefore, Greater Serbia is what is called
20 Serbo-Slavia, i.e., Yugoslavia from which Slovenia and the Kajkavian part
21 of Croatia would be taken off. Page 43837.
22 Karlobag-Virovitica-Ogulin-Karlovac line coincides with the western
23 frontier of Greater Serbia as viewed by the accused. This line forms the
24 limit of Serb lands to the west where the three provinces of Zagreb,
25 Krizevci, Varazdin line. These forms the Kajkavian Croatia, cradle of
Page 16952
1 the Croat ethnicity. This line is not a border, as such. This line
2 seems to coincide with the historic and linguistic view of the region.
3 Page 43437.
4 The underlying question in the accused's testimony in the
5 Milosevic's case consequently rests on the meaning of the common design
6 in the alleged JCE. To prove the existence of a common purpose, is it
7 enough for the Prosecution to prove that the JCE members shared the will
8 to have a Serb state encompassing all the Serbs? Or is it the opposite,
9 namely that the common purpose must be specific, for instance, must mean
10 that there are converging views as to the model of statehood as they
11 advocate and its underlying ideology? The Prosecution acknowledges that
12 the purpose of having all Serbs living in one and the same state is
13 different from the historic and philosophical concept of Greater Serbia.
14 So this is what the Prosecution said in the Milosevic case.
15 It added that the Accused Milosevic never resorted to the words
16 of Greater Serbia as such and was never even associated with those terms.
17 Allegedly, Milosevic, because of his position, only merely made it
18 possible for people championing the concept, such as Seselj, to speak in
19 favour of it to work towards it. Transcript pages 43224 to 43226.
20 However, in the Prosecution's view, the fact that the Accused Milosevic
21 aimed at having all the Serbs living in one and the same state makes it
22 possible to say that the accused's objective can, de facto, be
23 characterised as Greater Serbia. I mean, now we're talk about Accused
24 Milosevic.
25 In this respect, Mr. Nice, as Prosecutor, but it could equally
Page 16953
1 been Mr. Marcussen, it's one and the same thing, so the Prosecutor added:
2 "The practical facts, the specific effect of what the accused
3 sought to achieve are the same as to its geographic scope to the effect
4 of the implementation of a plan of Greater Serbia of the type advocated
5 by the witness." Page 43426.
6 Because the decisive factor is:
7 "The affirmation, the wish expressed to have all Serbs living in
8 one state, that's de facto, and that tallies with the geographical scope
9 of what would be obtained and reached by those advocating the course of
10 Greater Serbia." Page 43249.
11 The Prosecution further argues that once it was no longer
12 possible to maintain Yugoslavia as a federal state, it became necessary
13 to have another plan which did indeed -- which indeed was implemented.
14 And in the Prosecution's view, it is then that the idea of a
15 Greater Serbia became a reality in his mind. Page 43259. And this view,
16 this way of seeing things, was challenged both by Milosevic and Seselj.
17 In their approach, the Prosecution, as represented by Mr. Nice,
18 identified the fact that all the Serbs lived in one and the same state,
19 Yugoslavia. It is then made identical to Greater Serbia. This is a
20 stating a fact that exists ever since Yugoslavia has existed. This is a
21 fact from comes from where it is, I quote "a concrete tangible material
22 fact." Page 43240.
23 As Slobodan Milosevic would have it, such a concept of the common
24 purpose is in contradiction with the fact that Yugoslavia encompassed the
25 entire Serb population within one and the same state and that the said
Page 16954
1 state enjoyed full legal capacity in the international arena. He
2 observes in this respect that, quote/unquote:
3 "All the Serbs in one and the same state is not a slogan. It has
4 been a reality for over 70 years, from the very inception of Yugoslavia
5 until 1991. If Mr. Nice accused somebody of wanting to save and maintain
6 a state that has been an internationally recognised sovereign state, one
7 of the UN founding states after World War II, I suppose there would be an
8 endless list of individuals to be indicted by this Tribunal." Page
9 43264.
10 In support of this, it is worth pointing out that Seselj, as
11 witness, then added this:
12 "The SRS has drawn up a geographical map of Greater Serbia. This
13 map we -- has been published by us. I don't know how many times,
14 numberless times, on the front and back covers of our journal
15 Greater Serbia, and it can be seen that the western border is on the
16 Karlobag-Ogulin-Virovitica line. This map of Greater Serbia encompasses
17 not only the territories where there is a majority of the population that
18 is Serb Orthodox." Page 43274.
19 He added this:
20 "Nobody ever said anything linked with territorial claims by
21 Serbia. The Serbs within the Croatian federal unit at the time made it
22 clear to the Croats: If you want to secede from Yugoslavia, we don't
23 want to, we want to stay within Yugoslavia. It was very clear before
24 every war began we did not want to leave Yugoslavia. You did."
25 Transcript page 43275.
Page 16955
1 "What the Orthodox Serbs wanted was to save, to rescue
2 Yugoslavia, and they did not want a Greater Serbia. Most of the Serbs
3 did not want a Greater Serbia. Only the SRS wanted it."
4 Therefore, based on this, the former Yugoslavia, as Milosevic
5 would see it, was a state encompassing all the Serbs. And when it
6 dissolved, when it exploded, it raised the issue of how to reconstruct,
7 politically speaking, the Serbian people. Therefore, with regard to the
8 Prosecution position in the Milosevic case, on account of the positions
9 by the Accused Milosevic and Seselj, the question whether there is or not
10 a common purpose or a common criminal purpose could be put in the
11 following terms: Is the criminal purpose to be defined by its final
12 objective, the gathering of all Serbs within a common state, or is it to
13 be defined by a plan to implement a specific model of statehood based on
14 a specific type of political ideology?
15 In the former case, it may be said that there were discrepancies,
16 ideological discrepancies between Seselj and Milosevic, but that at first
17 sight there may have been a common purpose, uniting them with others and
18 the ensuing results would have been the creation of a Serbian state or
19 keeping a model of statehood encompassing all the Serbs. However, such a
20 concept runs up against major obstacles.
21 I have to end because this is absolutely capital and I only have
22 a few minutes left.
23 However, such a concept runs up against major obstacles, namely
24 that it doesn't take into account the fact that Yugoslavia pre-existed,
25 and therefore it is in contradiction with the fact that all the Serbs
Page 16956
1 were de facto included in the Yugoslav state, the existence of which
2 Milosevic was endeavouring to keep. And another consequence of this
3 concept would be that you would put in the same JCE individuals who only
4 had rather sporadic intermittent contacts because they had maybe pursued
5 a final objective with arising conflicts of interest among them.
6 In the latter case, it appears that the objectives pursued by
7 Seselj and Milosevic are different. Milosevic wanted to keep a form of
8 statehood that existed before, the federal state, which would have made
9 it possible for Serbs to remain in one and the same state. However,
10 Seselj wanted a unitary and centralised state putting together
11 historically Serb lands in which the inhabitants would speak all the same
12 language, Stokavian.
13 Based on all these parameters, a reasonable trier of fact could
14 not conclude beyond any reasonable doubt that the Accused Seselj shared
15 the same objective as the other JCE members, because their final purpose
16 was totally different. I can, therefore, not find the accused
17 participated in a joint criminal enterprise aimed at forcing, by crimes
18 against non-Serbs, those non-Serbs to leave a third of Croatia, large
19 parts of the Republic of BiH, and some parts of Vojvodina in order to
20 integrate these areas into a new Serb-dominated state.
21 After the break, I shall move on to the issue of persecution. We
22 shall break for 20 minutes.
23 --- Recess taken at 3.49 p.m.
24 --- On resuming at 4.22 p.m.
25 JUDGE ANTONETTI: [Interpretation] The court is back in session.
Page 16957
1 I shall resume with the chapter on persecution. I'll say straight away
2 that there's no diverging view in this respect with the rest of the
3 Bench, because we are in full agreement on this matter.
4 Article 5 of the Statute, crimes against humanity, specifies the
5 jurisdiction of the Tribunal in cases of armed conflict, whether
6 international or internal in character and directed against any civilian
7 population: Murder; extermination; enslavement; deportation;
8 imprisonment; torture; rape; persecutions on political, racial, and
9 religious grounds; and lastly, other inhumane acts.
10 In my view, the authors of Article 5 have, in matters of crimes
11 against humanity, established a grading scale in the gravity of crimes,
12 ranging from the more serious, the most serious, murder, down to inhumane
13 acts, and with -- just before the last rung of the ladder, persecution.
14 Why is there such a grading scale? Undoubtedly, cases (a) and (b) refer
15 to the physical elimination of a civilian population. The other cases
16 from (c) to (i) refer to acts against a civilian population without them
17 leading to death.
18 In any event, each of these offences can be punished by a maximum
19 penalty. Therefore, there is within this grading scale no distinction to
20 be made because of a lesser or greater gravity. Therefore, I am of the
21 view that persecutions on political, racial, and religious grounds are as
22 serious as murder, extermination, or enslavement.
23 Whilst this is a hotly debated issue among the ICTY Judges or in
24 the legal academic community as to whether persecutions are as serious as
25 murder, for indeed a civilian population may be persecuted for acts such
Page 16958
1 as discrimination in hiring without any individual running any physical
2 risk. However, persecutions through speeches, utterances and writings
3 can be the trigger or even the fuel for murder.
4 (A) Persecution. What is the applicable law? This has already
5 been developed in the majority decision read out yesterday, but I want to
6 deal at length with specific issues.
7 The issue of hate speech, with regard to the crime of persecution
8 as a crime against humanity, was raised in the ICTY in the Kordic and
9 Cerkez case and in the ICTR in the Nahimana et al. case. In the Kordic
10 and Cerkez case, the Trial Chamber found in paragraph 209 that:
11 "The indictment against Dario Kordic is the first in the history
12 of the International Tribunal to allege incitement to hate or encouraging
13 and promoting hatred against a crime against humanity."
14 But the Trial Chamber had found that:
15 "The act, as alleged in the indictment, did not constitute by
16 itself persecution as a crime against humanity, because it was of the
17 view that it is not enumerated as a crime elsewhere in the Statute but
18 most importantly it does not rise to the same level of gravity as the
19 other acts enumerated in Article 5."
20 The Trial Chamber added that:
21 "International customary law does not view this act as a crime,
22 and it would be a violation of the principle of legality to convict the
23 accused for an act under the count of persecution."
24 The legal analysis carried out by the Trial Chamber referred to
25 footnote 272 to the Streicher case and said that the IMT had convicted
Page 16959
1 two accused for persecution because it had "incited the German people to
2 active persecution." The IMT found that the acts of the accused, the
3 publication of a virulently anti-Semitic journal had amounted to
4 "incitement to murder and extermination." Streicher case, IMT judgement,
5 pages 321 to 324.
6 Equally, in the Akayesu judgement, paragraphs 672 to 675, the
7 ICTR found the accused guilty for direct and public incitement to
8 genocide under Article 23(C) of the ICTR Statute.
9 In the Nahimana case, the Appeals Chamber noted in paragraph 979
10 of the appeals judgement of November 28, 2007, that the submissions of
11 the parties, notably the submission of the amicus curiae, showed that the
12 interpretation of the Streicher case provided by the Trial Chamber was
13 wrong, because, and I quote:
14 "Streicher was for the found guilty of persecution for
15 anti-Semitic writings that significantly pre-dated the extermination of
16 Jews in the 1940s but for prompting to murder and extermination at the
17 time when Jews in the east were being killed under the most horrible
18 conditions."
19 And it further said, and I quote again:
20 "That this interpretation of the Streicher case is confirmed by
21 the fact that the IMT acquitted Hans Fritzsche on the grounds that his
22 hate speeches did not seek incite the Germans to commit atrocities
23 against the conquered people."
24 The Appeals Chamber, for its part, considered that:
25 "The crime of persecution consists of an act or an omission which
Page 16960
1 discriminates in fact and which denies or infringes upon the fundamental
2 right laid down in international customary or treaty law the actus reus
3 of the crime, and was carried out deliberately with the intention to
4 discriminate on one of the listed grounds, specifically race, religion,
5 or politics, the mens rea or -- of the crime."
6 This is in paragraph 985 of the Nahimana appeals judgement.
7 It adds:
8 "However, not every act of discrimination will constitute the
9 crime of persecution. The underlying acts of persecution, whether
10 considered in isolation or in conjunction with other acts must be of a
11 gravity equal to the crimes listed under Article 3 of the Statute."
12 Furthermore, it says that:
13 "It is not necessary that these underlying acts of persecution
14 amount to crimes in international law."
15 On paragraph 986 and 987, the Appeals Chamber goes even further
16 in its analysis, setting there in a very clear fashion once and for all
17 the case law, saying that it considers -- and I quote, and I will read
18 slowly, because this is jurisprudence:
19 "A hate speech targeting a population on the basis of ethnicity
20 or any other discriminatory ground violates the right to respect for
21 human dignity," see the Universal Declaration of the Human Rights, "of
22 the members of the targeted groups, harassment, and is thus a de facto
23 discrimination. In addition, the Appeals Chamber is of the view that
24 speech inciting to violence against the population on the basis of
25 ethnicity or any other discriminatory grounds violates the right to
Page 16961
1 security of the members of the targeted group and therefore constitutes
2 actual discrimination," see Article 3 of the Universal Declaration on
3 Human Rights, "however, the Appeals Chamber is not satisfied that hate
4 speech alone can amount to a violation of the rights to life, freedom,
5 and physical integrity. Thus other peoples need to intervene before such
6 violations can occur. A speech cannot in itself directly kill members of
7 a group, imprison, or physically injure them."
8 Finally regarding the question -- the following question:
9 "Whether the violation of fundamental rights, right to respect
10 for human dignity, right to security is as serious as in the case of the
11 other crimes against humanity enumerated in Article 3 of the Statute.
12 The trial -- the Appeals Chamber is of the view that it is not necessary
13 to decide here whether in themselves mere hate speeches not inciting
14 violence against the members of a group are of a level of gravity
15 equivalent to that for other crimes against humanity, according to which
16 it is not necessary that every individual act underlying the crime of
17 persecution to be of a gravity corresponding to other crimes against
18 humanity. Underlying acts of persecution can be -- can be considered
19 together. It is the cumulative effect of all the underlying acts of the
20 crime of persecution which must reach a level of gravity equivalent to
21 that for other crimes against humanity. Furthermore, the context in
22 which these underlying acts take place is particularly important for the
23 purpose of assessing their gravity."
24 What can I conclude? As far as I'm concerned, I agree with the
25 analysis of the Appeals Chamber, which invites Judges, when they have to
Page 16962
1 make a ruling on the existence of a persecution to review the case in a
2 holistic fashion, drawing their attention to the underlying acts. This
3 cumulative effect could lead to a certain gravity that would make it
4 possible for any reasonable Judge to conclude that there was indeed
5 persecution. But, as far as I'm concerned, this can only be done during
6 final deliberations. Therefore, at this stage of the proceedings, I will
7 not review each underlying act, nor will I assess the entire act in a
8 cumulative fashion as indicated by the Appeals Chamber. At this stage of
9 the proceedings, I will just keep, as underlined by the Appeals Chamber,
10 that discriminatory -- I will only -- I will only keep discriminatory
11 intent as an unlawful ground.
12 This being said, I will now scrutinise and review all the
13 evidence provided by the Prosecution to determine whether there has been
14 discriminatory intent. To do so, I will use a year-to-year approach,
15 year-by-year approach. I will take into account all interviews and
16 statements made by Mr. Seselj in 1990, 1991, 1992, 1993, and I will also
17 mention two of these that are not dated. Thanks to this technique, I
18 will be able to come up with a very clear picture.
19 A number of these elements have already been mentioned in the
20 majority decision, but what's interesting here is to set them in their --
21 back in their time-frame. I was able to backtrack to June 25, 1990.
22 During an interview at that -- on that day, during an interview with a
23 journalist from "Vecernji List," Mr. Seselj says that the Croats hate the
24 Serbs and that they have megalomaniac ambitions. He adds that hatred is
25 only born to newly created nations. That's Exhibit P1169.
Page 16963
1 A few months later, during an interview to TV Studio B,
2 November 1st, 1990, the accused declares that he is genetically and
3 ethnically Serb. Exhibit P1172.
4 One month later during an interview with a journalist called
5 Miroslav Peranovic, in a Bosnian weekly on December 1st, 1990, the
6 accused declared that the Ustashi movement, so he's now talking about the
7 Ustashi, is a typically fascist movement responsible for having committed
8 a genocide against the Serbian people. Furthermore, according to him,
9 Croatia is a totalitarian state. P1173. And he also advocates the
10 banning of all universities using Siptar language.
11 A few days later during an interview with TV Belgrade on
12 December 6th, 1990, he says except for a very few, Croats are all
13 criminals and should be punished through the loss of hundreds of their
14 territories. P32. Furthermore, he uses the word "Ustashi" several
15 times.
16 Let's now move on to 1991 at the national -- in the parliament on
17 February 23, 1991. He takes the floor, P1255, and says: "We're prepared
18 for a bloodbath."
19 During a speech on television on the network TV "Politika" on
20 April 5th, 1991, Mr. Seselj says that Croats are trying to use the
21 Muslims to pitch them against the Serbs. He says that the creation of a
22 unified Serbian state will make it possible for the Serbian people to
23 have 1.5 million enemies less. And he also says that the Serbs are
24 making one of their biggest mistakes when thinking that Croats are their
25 equals.
Page 16964
1 On May 1st, 1991, in an interview with TV Novi Sad, the accused
2 explains that the revenge of the Serbs against the Croats will result --
3 revolves the murder of Croatian civilians and that he cannot prevent it.
4 And similarly, according to him, the Serbs cannot be held responsible for
5 this, since, according to him, this revenge is fully justified. P1177.
6 Then we have a video sequence, P1003. I would have -- I almost
7 wanted to show this video, but I think we're running out of time. It's
8 dated May 6th, 1991, and this is what he says:
9 "To our enemies which once again are placing the Ustashi knife
10 under the Serbian throat, we say that we are going to avenge today's
11 victims, but that we are also going to settle old scores."
12 And during a TV interview with TV Novi Sad five days later on
13 May 11th, the accused is ironic in saying that whenever a Chetnik is
14 aiming for a Croat in the head, the Thompson rifles are so effective that
15 their eyes pop out of their orbits. P1254.
16 And on May 24 1991, this is what he says in the news magazine
17 "ON." He says:
18 How can you negotiate with Ustasha? Can't you see that the
19 entire Croatian people is Ustashas except for a very few?" P34.
20 "You know, retaliation results in blind revenge. There will be
21 innocent victims. But what else can be done? The Croats better think
22 twice before doing anything. If they become loyal citizens of Serbia,
23 they will benefit all rights and freedom of -- citizens enjoy, but on the
24 contrary, they'll have to pack and leave."
25 Then on June 1st, 1991, TV Novi Sad, this is what he says -- he
Page 16965
1 seems to boast "for having shed Ustashi blood" in Slavonia. P1180.
2 Then during an electoral speech on June 4th, 1991, this was
3 published in magazine "Horvats Ustasha Phantasmagorias," this is what he
4 says:
5 "If the Croats use you again, the revenge of the Serbs will be
6 terrible, and you will end up way beyond Anatolia." P35. "The Croats
7 are arming themselves. The new Ustasha leader Tudjman today has 80.000
8 Ustasha commandos armed to the teeth. We told the Croats, 'If you ever
9 engage into a new genocide again, the Serbian people, we will not just
10 avenge each victim, we will use this opportunity to settle old scores in
11 the name of all victims of the two world wars.'" As we see, he's been
12 talking twice about settling scores.
13 Then during a TV interview with Novi Sad on July 25, 1991, the
14 accused says that by nature, Croats are cowards and sent mercenaries
15 rather their armed forces in order to defend their interests. He adds
16 that, according to him, Croats are genetically scared and accuses them of
17 being a criminal people. This is Exhibit P1181.
18 During an interview with a reporter from "Duga," a Serbian
19 bi-monthly on September 13, 1991, the accused suggests that there should
20 be borders, P1182, and he also says, and I quote: "Genetically, Croats
21 are cowards," as he said earlier in Exhibit P34.
22 I would ask our usher to please place on the ELMO P34 and P1182,
23 or -- well, let me ask the Court Registrar to do this. It's done.
24 We have P34 and P1182 in English and also in Mr. Seselj's
25 language. I continue.
Page 16966
1 Speech made before the parliament of the Republic of Serbia on
2 September 26, 1991, and there he calls for the setting up of a temporary
3 Yugoslav government capable, if need be, of setting up a military junta
4 so as to frighten the entire world with these changes.
5 Same session on September 27, 1991, he urges the national -- the
6 parliament to oppose any measure that would result in Serbs living with
7 Croats and Slovenes. P1258.
8 Here I believe that we need to have another document on the ELMO.
9 Very relevant. It's an interview with a journalist of "Ratne Novine,"
10 dated November 24, 1991. Here the accused declares the Slovenes as
11 thieves, always deceived the Serbs when the two people -- when these two
12 people cohabited, but you have it here in English. You have it in
13 English and in the language spoken by the accused.
14 Now let's move to 1992. This is an interview with TV "Studio B,"
15 April 8, 1992. Here the accused states that he's never in his entire
16 life met a good Croat, and he says that Croats are the Serbs worst
17 enemies. P1195.
18 April 21st, 1992, interview with the "Serbian Daily Unity." Here
19 the accused is calling on their state radios to dismiss all Macedonian,
20 Bulgarian and Croat workers because allegedly they run against the
21 interest of the Serbian people. P1197.
22 A few months later on June 12, 1992, interview with TV
23 "Politika," and there he says that there is no good Croat, neither in
24 Imotski nor in the entire western Herzegovina. P1201.
25 Now let's move to 1993, and here I'm using a press conference
Page 16967
1 which is mentioned in one of Mr. Seselj's books called "The Chief of the
2 General Staff on his knees." Here on -- he says that the SRS has 16
3 CC-22 rockets, and he threatens to launch them on the Italian civil
4 population should Italy decide to intervene on Serbian land. P1219. I
5 don't know what Italy had to do here, but this is something he said.
6 Then during an interview with a reporter of the weekly "NIN" just
7 one week later, May 21, 1993, the accused says that the worst enemies of
8 the Muslims are the Croats, and here it sounds like fuelling hatred. So
9 after -- I checked all this, but I found two that have no date, but I
10 will still quote them, P1264, P1338, P255, and P256 --
11 THE ACCUSED: [Interpretation] Mr. President, you said -- you
12 quoted a statement of mine, and you said that the Croats are the greatest
13 enemies of Muslims. This is how it was translated to me in the Serbian,
14 and this could very well correspond to my words. However, in the
15 translation into English, it says he says that the Muslims are the worst
16 enemies of the Croats. So it's vice versa. The Muslims are the worst
17 enemies of the Croats. But this keeps happening all the time. I took
18 all of the transcripts to check them in French and in English, and there
19 are about 4.000 mistakes of this nature.
20 JUDGE LATTANZI: [Interpretation] Very well. I'm very happy,
21 because you seem to understand French and English very well, and on the
22 other hand you never want to read any documents in French and English, so
23 I'm very happy to hear this.
24 JUDGE ANTONETTI: [Interpretation] Thank you from having
25 checked -- having noted this. I hadn't seen this. I was just reading my
Page 16968
1 document and not looking at you sometimes.
2 THE ACCUSED: [Interpretation] Mrs. Lattanzi, I can find my way
3 around in Italian as well, because I used to study Latin and this is how
4 I freshen up my Italian.
5 JUDGE ANTONETTI: [Interpretation] The transcript has been
6 corrected. This has to be accurate. I know that Mr. Seselj checks
7 everything, and I must not make a mistake, and I endeavour not to make
8 one. This may come from the fact that I read too fast, I don't know.
9 Purportedly said in those unnumbered documents that no crime will
10 remain unpunished, and a sentence which is noteworthy, let me quote:
11 "Hordes of Ustashas have swept over our villages are pouncing on
12 our women and our children and are trying to put an end to the genocide
13 undertaken against the Serbian people." P62.
14 In the Oberschall report, everyone remembers that the Prosecution
15 called Mr. Oberschall as a Prosecution witness for him to testify on the
16 nationalist propaganda of the accused in the 1990s from the -- from 1990
17 to 1994. The expert, on pages 1822 and 1824 of his report, namely
18 mentions the persecutions, and on pages 9 and following, analyses the
19 speeches on the deportation of the population.
20 Now, to be fair, it is important to remember that on a decision
21 handed down on the 30th of November, 2007, the Trial Chamber dismissed
22 the expert capacity of this witness, but nonetheless admitted for
23 practical reasons his report in it's decision of the 24th of January,
24 2008.
25 The Chamber will consider the fact that this expert was rejected
Page 16969
1 as an expert to assess the probative value of this piece of evidence, P5.
2 During the testimony of this expert, videos were shown and a
3 number of these videos proved to be particularly relevant as far as
4 persecution is concerned. In video P14, for instance, if we had time we
5 would show it, but we don't have time. This is a speech given by the
6 accused in Jagodnjak in April 1991. The accused mentioned
7 General Tudjman and the new Ustasha authorities, who, according to him,
8 once again held a gun to the head of the Serbian people, and they were
9 once again trying to provoke another genocide. He then declares "each
10 Serbian life will be avenged."
11 In a speech delivered on the 13th of May, 1993, as part of a
12 visit by the SRS leaders in Banja Luka, P18, stated:
13 "The next time they strike, they, the Muslims and the Croat, must
14 be killed so that they never stand up again and that they never strike us
15 again."
16 I shall now more specifically look into the speeches delivered at
17 Hrtkovci. Paragraph 125 of the pre-trial brief considers the statements
18 made by Witnesses VS-26 and VS-1133. According to the Prosecution, these
19 witnesses were telling the truth. However, I must remark that VS-26
20 ascertains, and he is in total contradiction with the speech delivered by
21 the accused in which he said that "he would gouge out the eyes of the
22 non-Serbs of the Croats and the Hungarians in Subotica with rusty spoons
23 and forks." This does not figure in the speech in question.
24 This same witness said that the accused "met leaders of the SRS
25 and the SUP," and that on that occasion he purportedly called for the
Page 16970
1 deportation and murder of non-Serbs.
2 Witness VS-26, who did not testify for medical reasons, as
3 everybody knows, did, however, testify in the Milosevic case but changed
4 his statement afterwards and wished, despite his poor state of health, to
5 be a Defence witness and stated this on several occasions. Accordingly,
6 as things stand, a reasonable trier of fact cannot accord any credit
7 whatsoever if the statements of this witness are not corroborated by
8 another witness who would then not be challenged.
9 The allegations of Witness VS-1033 [as interpreted], according to
10 which the Accused Seselj purportedly said, let me quote:
11 "Mixed marriages between Serbs and Croats must be purged and the
12 children born of this union must be killed," and he purportedly quoted
13 the personalities of figure-heads that were non-Serbs that should
14 "quitte" Hrtkovci. This has absolutely not been confirmed by the speech
15 which the Chamber has received.
16 In paragraph 127 of the pre-trial brief, the Prosecution holds
17 that the accused delivered a speech on the 6th of May, 1992, in Hrtkovci.
18 And before the speech was given, music was broadcast, and two hours
19 before his arrival, "volunteers of the SRS and the SCP arrived by bus
20 wearing black uniforms and armed with guns." During -- when this speech
21 was given, and I have read this speech over and over again ten times
22 perhaps in order in the to make a mistake, one of the speakers quoted the
23 names of non-Serbs who had left Hrtkovci, and contrary to the
24 Prosecution's allegations, it was not the accused who had quoted the
25 names of these people. All you need to do is look at the documents which
Page 16971
1 the Prosecution has.
2 According to the Prosecution, following this speech, some Croats
3 decided to leave Hrtkovci, relying on VS-1136 [as interpreted] and
4 according to Witness VS-1134, an overall harassment and intimidation
5 campaign had been directed against non-Serbs, and, more specifically,
6 against the Croats in Hrtkovci. These were constantly subjected to
7 threats over the telephone or direct threats. Admittedly the accused did
8 say that no crime would remain unpunished and that the responsible would
9 be taken -- people responsible would be taken to task. These words were
10 uttered in a situation of heightened tension and are mirror words uttered
11 by democratic states nowadays in the event of terrorist attacks, for
12 instance.
13 As the evidence stands and on reviewing the indictment and the
14 trial brief, the exhibits and the witness statements, I can qualify these
15 utterances, interviews, and statements of the accused along the lines of
16 speeches that are likely to be qualified as hate speech and containing a
17 discriminatory ground.
18 Persecution, deportation and forcible transfer. Applicable law.
19 Deportation and forcible transfer of non-Serb civilians,
20 including Croats and Muslims, form the basis of three of the counts
21 mentioned in the indictment. On the one hand, the Prosecution include
22 these crimes under Count 1, persecution. On the other hand, the
23 Prosecution also qualifies deportation as a constituting a crime against
24 humanity, Count 10; an inhumane act constituting a crime against
25 humanity, forcible transfer, Count 11.
Page 16972
1 The Prosecution alleges in paragraph 31 to 33 of the indictment
2 that the accused planned, instigated, committed, or otherwise aided and
3 abetted the planning, preparation, and commission of the crimes of
4 deportation, forcible transfer of non-civilian Serbs, namely Croats and
5 Muslims, between the 1st of August 1991 and the months of May 1992 in the
6 autonomous region of Croatia and the RSK between the 1st of March, 1992,
7 and the end of September 1993 in Bosnia-Herzegovina and between May and
8 August 1992 in certain areas of Vojvodina.
9 The jurisprudence of this Tribunal makes a distinction between
10 deportation punishable under Article 5(D) of the Statute and forcible
11 transfer punishable under Article 5(i) of the Statute under the
12 qualification "other inhumane acts."
13 For those people interested in this question, this distinction
14 was made in the Krstic judgement of the 2nd of August, 2001, in which the
15 Trial Chamber stated in paragraph 521 that:
16 "Both deportation and forcible transfer relate to the involuntary
17 and unlawful evacuation of individuals from the territory in which they
18 reside; yet, the two are not synonymous in customary international law.
19 Deportation presumes transfer beyond state borders, whereas forcible
20 transfer relates to displacements within a state."
21 This distinction, however, does not mean that this should not be
22 unanimously condemned as a practice under international humanitarian law.
23 In addition, jurisprudence has evolved in this respect, and the
24 trans-border nature of transfer has been more closely addressed. The
25 Trial Chamber in the Stakic case held that deportation required the
Page 16973
1 crossing of borders, but this could take on different forms. The
2 Appeals Chamber in its appeal judgement of the 22nd of March, 2006,
3 recalled that international customary law implicitly admits that the
4 victims must be driven out into another country beyond the officially
5 recognised borders and that displacement outside an occupied territory is
6 enough to qualify for deportation. It therefore inferred that "under
7 certain circumstances, displacements beyond the borders could de facto
8 constitute deportation."
9 According to the constant case law of the Tribunal, the material
10 element of deportation is constituted by the facts that people are
11 displaced by force or by some other means of coercion from the area in
12 which they legally reside beyond the official front of a state, or, in
13 certain cases, beyond a de facto frontier in the absence of grounds
14 admitted under international law. However, as far as the mens rea is
15 concerned, the need to prove the intention of the accused to drive out
16 the victims permanently, the jurisprudence of the Tribunal remains
17 unclear.
18 As regards the forced nature of transfer or deportation, it is
19 important to recall the jurisprudence of the Tribunal that this is not
20 restricted to the use of physical forces; that can also involve threat
21 resorting to force or coercion; that it may be in the form of violence
22 duress, detention, psychological pressure, misuse of power; or that it
23 can merely be the consequence of the climate of coercion.
24 And it is only to determine whether the person transferred really
25 had the choice or not. It is important to view this in the light of the
Page 16974
1 circumstances of each case.
2 As far as the lawfulness of transfer of deportation is concerned,
3 the Geneva Convention allow for forced displacement in very specific
4 cases. Article 19 of the third Geneva Convention relating to the
5 treatment of prisoners of war authorise the evacuation of prisoners of
6 war from combat zone in the direction of camps where they will be out of
7 danger. Article 49 of the fourth Geneva Convention on the protection of
8 civilians in wartime authorises a total or partial evacuation of an
9 occupied area, let me quote, "if the security of the population or
10 compelling military reasons so require." That said, the population will
11 have to be brought back home as soon as the hostilities seize in the
12 area. And lastly Article 17 of the second additional protocol admits
13 that the displacement of the civilian population may be ordered for
14 conflict related -- on conflict related grounds. Furthermore, the
15 consent of the displaced people can justify the displacement and make it
16 legal. That said, the consent must be given voluntary and the person
17 must give it of his own free will.
18 In paragraph 17(i) of the indictment, the Accused Seselj is
19 charged with persecution, punishable under Article 5(h) of the Statute
20 for the deportation or trance -- or forcible transfer of tens of
21 thousands of non-Serb civilians including Croats and Muslims, more
22 specifically in Zvornik, in the area of Sarajevo, Mostar, Nevesinje, and
23 in certain areas of Vojvodina.
24 On several occasions, the Trial Chamber admitted that forced
25 displacement of the population constituted persecution. The forced
Page 16975
1 nature of the displacement incur the responsibility of the person
2 committing that act and not the destination or place where these people
3 are sent. This element can be assessed along the same standards as those
4 applied to the crimes of forcible transfer and deportation punishable
5 under Articles 5(d) and 5(i) of the Statute.
6 For the acts of deportation and forcible transfer to be
7 considered as underlying acts to the crime of persecution, they must have
8 been committed separately or accumulatively and have been committed with
9 a discriminatory intent and constitute the crime of prosecution of the
10 same gravity of the other crimes mentioned in Article 5 of the Statute.
11 At this stage, I shall not rule on the question of whether I should
12 expand on the question of deportation or forcible transfer as an
13 underlying act of persecution under Count 1 since I concluded above in
14 light of the evidence received on the existence of Count 1.
15 The essential question which remains is to know whether a public
16 authority may or not call for the displacement of its population. The
17 additional protocol 2 of the Geneva Convention of 1949 relating to the
18 protection of victims during armed -- non-international --
19 non-international armed conflicts, on 8th of June, 1977, quotes in
20 Article 17:
21 "The displacement of the civilian population cannot be ordered
22 for reasons relating to a conflict otherwise -- unless the security of
23 the civilians or compelling military reasons so require. Should such
24 displacements have to be carried out, all possible measures shall be
25 taken so that the civilian population may be received under satisfactory
Page 16976
1 conditions of shelter, hygiene, health, safety and nutrition.
2 Civilians shall not be compelled to leave their own territory for
3 reasons connected with the conflict."
4 The ICRC commentary in this case says that displacements of the
5 civilian population shall not be ordered unless the security of the
6 civilians so demand or imperative military reasons so demand. Therefore,
7 two exceptional circumstances. I believe that these reasons have to be
8 appraised on a case-by-case basis and that in any event they must be
9 imperative reasons. Therefore, by looking into the speeches as we are
10 going to do in a moment, I did not find in the utterances by the accused
11 either of these two circumstances.
12 Let me now review the evidence on record with regard to transfer
13 and deportation. And as I did before, I'm going to examine the evidence
14 year by year in order to see this inner time-line.
15 1990. The accused gave an interview to a weekly, the Serb weekly
16 "Pogledi" on the 15th of April, 1990. He calls further displacement of
17 the entire Albanian population living within a 50 kilometre area from the
18 Albanian border to other places in Yugoslavia and recalls that the
19 Albanian ethnic minority, supported by the west, threatens the majority
20 Serb ethnic population.
21 1991. On the 11th of May, 1991, he gave an interview to TV
22 Novi Sad and said that all the Albanians had to be deported from Serbia.
23 Exhibit P1254.
24 Several months later, in an interview to a "Ratne Novine"
25 journalist on the 24th of November, 1991, he speaks in favour of a
Page 16977
1 population in change, suggesting that the Serbs from Zagreb should go to
2 Zupanja and that the Croats from Zupanja should go to settle in Zagreb,
3 because, in his view, Croats and Serbs cannot cohabit, live together,
4 within one and the same state. I insist, he said, that the Serbs and
5 Croats could not live together within one and the same state.
6 Exhibit P1186.
7 The following year, in 1992, he gave an interview to a Radio
8 Novi Sad reporter on the 6th of January, 1992, and he called for a
9 population exchange between Serbs and Croats which should be done as soon
10 as possible in his view. Exhibit P1190.
11 On the 5th of April, 1992, he gave an interview to a "Politika"
12 journalist and spoke in favour of a population exchange between Serbs and
13 Croats. Exhibit P1298.
14 In an interview to a journalist of the "Unity" Serb daily, I
15 spoke about it already, but this was on the 21st of April, 1992, he urged
16 the 500.000 Albanian migrants to go back to Albania. Exhibit P1197.
17 In questions during a press conference held by the SRS on the
18 28th of May, 1992, the accused stated that the disloyal Croats should be
19 ousted from Croatia, deported from Croatia and that the Serb refugees
20 should actually take their place in the dwellings that they should have
21 left. Exhibit P1199.
22 On the 12th of June, 1992, he stated to TV "Politika" that there
23 was going to be an exchange population between Serbs and Croats. Exhibit
24 P1201.
25 In an interview to a "Globus" journalist on the 7th of August,
Page 16978
1 1992, he explained that when the SRS was in power, he -- it would carry
2 out a population exchange between Serbs and Croats. Exhibit P1203.
3 In a debate organised by the "Tanjug" news agency on the 7th of
4 December, 1992, he called for the deportation of the 360.000 Albanian
5 migrants and their offsprings who had entered Kosovo-Metohija, or, more
6 widely, Yugoslavia, since the 6th of April 1941. Exhibit P1208.
7 Let's move to 1993. Sorry for speeding up. My apologies to the
8 interpreters, but since they are excellent, they're able to keep pace
9 with me.
10 In a radio interview to Radio Banja Luka, 20th of March, 1993, he
11 said that the SRS had worked to accommodate Serb refugees in abandoned
12 flats. He said that there should be a campaign for a population exchange
13 between Serbs, Muslims and Croats who no longer can, according to him,
14 live together in the same territory. Exhibit P1215.
15 In a radio interview to Radio Belgrade on the 22nd of March,
16 1993, he explained that Dobrica Cosic, president of the FRI, called for a
17 population exchange between Serbs and Croats and that the SRS was fully
18 committed to make it happen. Exhibit P1216.
19 In an interview, the source of which is not specified but it is
20 mentioned in one of his books, the accused -- this is Exhibit P1218. So
21 on the 7th of May, 1993, he said that there was a spontaneous population
22 exchange in Zvornik whereby the Serbs took the place of the former Muslim
23 inhabitants.
24 On the 4th of November, 1993, speaking to radio "Ponos," he
25 called for a population exchange. Exhibit P1231.
Page 16979
1 On the 6th of December, 1993, speaking to a "Tanjug" journalist,
2 he admitted that he had held propaganda speeches for the population to
3 leave Serbia.
4 Document of P574 of 20th of September from the Republic of Serbia
5 noted that during the 2002 census, there were 56.546 civilians living in
6 the autonomous province of Vojvoda; whilst, according to the 1991 census,
7 there were 74.808 of them. And, therefore, there were 18.262 less
8 civilians. That is a reduction of 24.41 per cent, and this document
9 shows that this reduction results from the policy of persecution against
10 a civilian population which can amount to a war crime.
11 This document might be such as to support the Prosecution's
12 allegation as to a policy of persecution that led to the transfer and
13 deportation of non-Serbs.
14 In paragraph 11 of their pre-trial brief, the Prosecution said
15 that the speeches by the accused became more and more virulent towards
16 the Serbian Croats. Exhibits P35, P892, P43. It said that the accused
17 said that once there would have been thousands of federal officials
18 deported, thousands of dwellings would have become available in Belgrade.
19 This refers explicitly to the departure of officials from the federal
20 structures of the former Yugoslavia. There's also an allusion to the
21 population exchange speaking about Serbs deported from Zagreb and these
22 are classic retaliation measures in international law. Basically saying:
23 We're not going to kill you, of course, but we're going to make sure that
24 you get on board trucks and on trains wound bound for Zagreb. P892.
25 In document P43 admitted that he would depart Croats for several
Page 16980
1 reasons: Because they're not faithful to Serbia, they destabilise the
2 domestic situation, they turned out to be direct Ustasha
3 collaborationists, and, finally, because they must be the target of
4 retaliation measures after the deportation of 160.000 Serbs by Tudjman.
5 As to the issue which is at the very core of the problem. This
6 was the question you were criticised because you said that all the Croats
7 had to be deported from Serbia, and therefore -- it's not in the SRS
8 tradition to -- to say so. And so that question is put but he doesn't
9 really answer it. He just says that the SRS will tackle the problem at
10 the root of the cause and the person asking the questions realise that
11 they don't get the answer they wish for, and he says: "Now are you going
12 to withdraw what you said about the Croats?" And then the accused said"
13 "Never, ever."
14 Is such an answer directly connected to deportation or to the
15 arguments by Croats who deported Serbs? In this respect, I do not have
16 an absolute certainty. Do I have a doubt.
17 When Ms. Tabeau testified in support of her report on the
18 immigrations of Croats and other non-Serb population from the Hrtkovci
19 village in 1992, there was a list of Croats who left that place in 1992,
20 P565, the destination being Croatia or unknown destination I mentioned
21 that last time. The migration of the Hrtkovci population in her view was
22 confirmed by information gathered by the Office for Displaced Persons and
23 Refugees established by the Croatian authorities. The latter was to
24 count the arrivals and assess their situation to see that they were
25 entitled to the status of displaced persons and possibly to be given a
Page 16981
1 registration number each. This is transcript page 10842.
2 Witness VS-061 said that baptism certificates were given to
3 Croats leaving Hrtkovci so that they could move and cross over to
4 Croatia. Transcript pages 9930, 9931, 9937, 9954.
5 A reasonable trier of fact could therefore find that among the
6 722 names listed, there are, in fact, 233 of them with unknown
7 destination and they have to be taken out of that list.
8 Finally, a reasonable trier of fact whom I decide to find the
9 accused guilty for the crime of deportation and forcible transfer in
10 Hrtkovci between 1992 and 1993 can only find him guilty on the basis of
11 the deportation or transfer of 489 individuals in Annex 11 of the
12 indictment.
13 Based on the evidence, a reasonable trier of fact might find that
14 the accused has committed crimes of deportation and forcible transfer as
15 defined in Counts 10 and 11 of the indictment.
16 I'm just about done as far as the D chapter. Now let's move to
17 aiding and abetting.
18 Regarding the mode of responsibility connected to aiding and
19 abetting, the Prosecution in paragraphs 149, 150, 151, 152 and 153 of its
20 preliminary -- of its preliminary brief uses a large amount of
21 jurisprudence in it's foot notes 507 to 513, Aleksovski, Krnojelac,
22 Kunarac, Blaskic, Furundzija, Tadic, Celebici, and Vasiljevic, to state
23 that aiding and abetting means providing help, encouragement, or moral
24 support to the person committing the crime. The case law says that the
25 act of an accused must have an important or significant effect on the
Page 16982
1 perpetration of the crime. Aiding and abetting can be done before,
2 during or after the crime. The presence of the accused may constitute a
3 form of aiding and abetting if it had the effect of the physical
4 perpetrator. The mens rea must have two aspects. First, the accused
5 must be aware that the commission of the crime is foreseeable, and the
6 accused must know that his acts will contribute to the commission of the
7 crime by the physical perpetrator. According to the Prosecution in
8 paragraph 153, the mens rea is proved by his own statements, P644, the
9 inflammatory nature of his speeches, his repeated visits to the battle
10 field, and the fact that he relentlessly sent volunteers on the front.
11 Witness VS-017 by his orders sent to the volunteers and other
12 Serbian forces, Witnesses VS-007, VS-026, and VS-027, and the omission of
13 taking any sanctions against volunteers whenever crimes were committed.
14 VS-007, VS-026 and VS-034.
15 Therefore, it seems that adding and abetting results from the
16 words uttered by the accused but the fact that he was present before on
17 the battle-field before the combat and sending volunteers. In the
18 indictment, there are three regions Bosnia-Herzegovina, Croatia and
19 Serbia. Now you have to relocate the crimes in these regions, put them
20 back in perspective in these two regions with two main dates in mind:
21 The declaration of independence of Croatia and the declaration of
22 independence of Bosnia-Herzegovina. These two dates are extremely
23 important because their effect was the JNA was withdrawn and was replaced
24 by local forces or armed groups which came from regional entities so the
25 question now is whether Serbia actually controlled the troops on the
Page 16983
1 ground. The control by Serbia of -- on Serbian forces, as the case law
2 of the Tribunal is concerned, must be a global control with the control
3 of military operations and not just a financial support.
4 In paragraph 137, of the Tadic appeals judgement this is what
5 the -- what was said:
6 "The control required by international law may be deemed to exist
7 when a state has a role in organising, co-ordinating or planning the
8 military actions of the military group. In addition, to financing
9 training and equipping or providing operational support to that group."
10 We still have ten minutes before the break.
11 JUDGE LATTANZI: [Interpretation] Even more, actually, because we
12 resumed at 4.25.
13 JUDGE ANTONETTI: [Interpretation] Judge Lattanzi says we still
14 have 20 minutes and I thank her for that.
15 Regarding overall control, the International Court of Justice, in
16 the appeals judgement application of the convention for the prevention
17 and repression of crimes of genocide Bosnia-Herzegovina versus Serbia and
18 Montenegro, a world-known appeals judgement dated February 26th, 2007,
19 concluded that Serbia did not have an overall control over the soldiers
20 of the VRS because the VRS was not a de jure organ of the Federal
21 Republic of Yugoslavia in the sense that did not have under its domestic
22 law the status of organ of this one. In paragraph 392, and following of
23 this appeals judgement, this is what is said by the International Court
24 of Justice. I will read slowly because this is important:
25 "According to the Court's jurisprudence, persons, groups of
Page 16984
1 persons or entities may, for purpose of the international responsibility,
2 be acquainted with state organs even if that status does not follow from
3 internal law provided that, in fact, the persons, groups or entities act
4 in complete dependence," I quote, "complete dependence on the state of
5 which they are ultimately merely the instrument."
6 Next paragraph, it's also absolutely essential:
7 "At the relevant time, July 1995, neither the Republika Srpska
8 nor the VRS could be regarded as mere instruments through which the FRY
9 was acting and is lacking any real autonomy, while the political,
10 military and logistical relation between the federal authorities of
11 Belgrade and the authorities in Pale between the Yugoslav army and the
12 VRS had been strong and close in the previous years and these ties
13 undoubtedly remained powerful. They were at least at the relevant time
14 not such that the Bosnian Serbs political and military organisation
15 should be equated with organs of the FRY."
16 The Judges of the ICJ in order to reach this conclusion, this
17 essential conclusion, were provided with the judgements and the documents
18 of this Tribunal. Therefore, this is the question now. If Serbia does
19 not have overall control over the soldiers of VRS, how could a political
20 opponent such as Mr. Seselj have such a control? Therefore, the accused
21 is charged for having aided and abetted all crimes on Counts 1 to 14 by
22 contributing individually and in full awareness. But this mode of
23 liability is extremely broad and must be examined and reviewed for each
24 count. It is important to establish at least that between the crimes
25 committed and the accused, there's some kind of nexus out of his
Page 16985
1 behaviour and his speeches. Firstly, there is no evidence as far as
2 Count 4, murder; Counts 8 and 9, torture and cruel treatment; and
3 Counts 12 to 14, wanton discretion and plunder. Through his behaviour
4 and his speech, the Prosecution does not establish beyond any reasonable
5 doubt that he aided and abetted those who actually committed the murders,
6 tortures, plunders or looting. Contrary to this in Exhibit P644, and I
7 think Mr. Marcussen should read it, it is a key Prosecution evidence.
8 Well, it shows that all these counts are condemned by the accused himself
9 in March 1995. This is what he said:
10 "There were incidents and we were extremely strict on the front
11 line. We immediately dismissed these people.
12 "These policemen and Arkan's men started to ransack the town. It
13 was a large -cale plunder.
14 "When half of the operation was over, in Zvornik they started to
15 plunder. They even looted the Serbs.
16 "It's Commander Arkan who organised this cleansing of Muslims."
17 And he is using the word "cleansing":
18 "These Muslims were killed and the regime does not want to
19 disclose anything about this. Those who killed them came from Belgrade."
20 Regarding Bijeljina, he says:
21 "Arkan was under the control of Karadzic or under the control of
22 the Serbian Army, and later under the orders of Blagojevic. He was
23 prevented from playing any role because he had committed the plunder in
24 Bijeljina. He had 15 men over there.
25 "The situation there was difficult because there were many
Page 16986
1 crimes."
2 And then I quote one last sentence which is also essential. This
3 is what he says:
4 "Ethnic cleansing was --
5 THE ACCUSED: [Interpretation] I have to intervene once again,
6 even though I don't do it gladly. Could you please be more precise when
7 it comes to Arkan. I think that the interpretation into Serbian and
8 interpretation into English were the opposite of what I said. I said
9 that Arkan could not be under the control, either Karadzic or the
10 Serbian Army or Blagojevic, and it was interpreted as though Arkan was
11 under their control. I didn't hear the French original very well, but I
12 would like you to repeat that sentence, if possible, and then we should
13 check the original. Arkan was beyond anyone's control. This is what I
14 meant. This is what I said, as far as I can remember.
15 JUDGE ANTONETTI: [Interpretation] Very well. We will look at
16 document P644 in detail. Unless there was a mistake in translation, this
17 is what was said. But in French it's alleged you would have said, "Arkan
18 was -- was under the control of Karadzic or under the control of the
19 Serbian Army and later under the orders of Blagojevic -- Blagovic."
20 There might be a mistaken but this is on the paper I'm reading. The last
21 sentence which is the most important -- this is what you allegedly would
22 have said, unless there was an error, of course, and giving the reference
23 of the document, it's a video 02.45.59. This is what you would have
24 said:
25 "Ethnic cleansing was not organised, but of course there's --
Page 16987
1 there have been, here and there, certain events where some form of ethnic
2 cleansing occurred." This is what you said.
3 However, Counts 1, 10, and 11 can fall under the liability of the
4 accused regarding aiding and abetting through the inflammatory nature of
5 his speech. Consequently, the accused should be acquitted of aiding and
6 abetting for Counts 4, 8, 9, 12 to 14, and could - I'm now saying could
7 and not should -- could be found guilty as evidence stands now for
8 Counts 1, 10, and 11, subject to no evidence to the contrary being
9 adduced by the accused during the presentation of his case.
10 I have one last chapter on the counts, counts 1, 4, 8, 9, 10, 11,
11 12, 13, and 14, and I intended to detail them. I wanted to run through
12 them, one after the other. Count 1, for example, persecution, I would
13 say, non-Serb civilian population from territories of the SAO SBS --
14 SBWS, et cetera, et cetera. I based myself on the preliminary brief to
15 make a list of all this, but I believe that this is not fundamental. But
16 what is absolutely fundamental, and I will ask Mr. Usher to help us,
17 could he please place on the ELMO my conclusion to know exactly where I
18 would enter an acquittal and where, if possibly given the evidence
19 adduced, and so on, as a reasonable Judge and beyond any other -- any --
20 beyond any reasonable doubt I could find you guilty according to -- under
21 Rule 98 bis. This is Appendix 13. I've given all the elements adduced
22 so far. You would be acquitted regarding planning on Counts 1, 4, 8, 9,
23 10, 11, 12, 13 and 14. Regarding instigating, acquitted on Counts 4 8,
24 9, 12, 13 and 14. Regarding ordering, acquitted on Counts 1, 4, 8, 9,
25 10, 11, 12, 13 and 14.
Page 16988
1 Regarding committing, I would enter a judgement of acquittal.
2 Since I did not retain the JCE, I would acquit you for 1, 2, and 3 of the
3 JCE, and for aiding and abetting, you would be acquitted on Counts 4, 8,
4 9, 12, 13 and 14.
5 I shall now show you Annex 14, which is a summary table of what I
6 admit based on the evidence provided by the Prosecution. Notwithstanding
7 what you will say during your defence case, based on all the evidence
8 adduced, I would like to say as far as instigation is concerned, I could
9 enter a conviction of guilty for persecution Counts 10 and 11,
10 deportation and forcible transfer. For the material commission, I could
11 enter a conviction of guilt under Counts 1, 10, and 11. For deportation
12 and forced -- forcible transfer, and as regards aiding and abetting, I
13 could also admit Counts 1, persecution; 10 and 11, deportation, and
14 forcible transfer.
15 I must -- or I lastly have the duty to say, as you can see on the
16 screen, that, for the time being, I have admitted the following forms:
17 Instigation -- these are forms of responsibility: Instigating, aiding
18 and abetting, committing. Based on the evidence adduced but at the time
19 of the judgement, it will be important to admit only one form of
20 responsibility, for either the accused committed, either he instigated,
21 or he aided and abetted. In my view, it can only be an either/or
22 situation. You can't be an instigator, accomplice and perpetrator all at
23 once.
24 This concludes my opinion. All of this is very complicated in
25 technical terms. I fully agree with the Trial Chamber as regards
Page 16989
1 persecution through instigation instigating committing and aiding and
2 abetting. However, I totally disagree about the fact and I also agree on
3 the count relating to forcible transfer and deportation. I fully agree
4 with the majority of the Chamber as regards Counts 1, 10, and 11, and the
5 Chamber in its majority held that all the other counts needed to be
6 addressed. There is a diverging view on this matter. Like my
7 colleagues, I'm in favour of the continuance of the trial and I dismiss
8 your motion for grounds that differ from the grounds put forward by my
9 colleagues.
10 We now have a make a break, which is a 60-minute break. These
11 are for technical reasons. Thirty minutes, 30 minutes. I'm sorry. We
12 shall resume in 30 minutes' time, and in 30 minutes' time, I will tell
13 Mr. Seselj how we proceed further.
14 --- Recess taken at 5.52 p.m.
15 --- On resuming at 6.25 p.m.
16 JUDGE ANTONETTI: [Interpretation] The court is back in session.
17 I have three corrections of a technical nature to make since all
18 this was very quick. I would like on page 43, line 23, a correction to
19 be made. Instead of a 1033, it was Witness VS-1133.
20 Second correction of a technical nature: On page 44, line 16,
21 instead of VS-1136, it should read 1036.
22 Third correction: Judge Harhoff drew my attention on a quotation
23 I made of a footnote, which was 429. I had said that during that period
24 a unit of the Special of Sremska Mitrovica was seconded to Hrtkovci
25 prevented the Serbs -- or the non-Serb population from being attacked.
Page 16990
1 This established the fact that there could be no collusion, because the
2 authorities had sent police forces. Judge Harhoff remarked that it was
3 also stated in this paragraph, and I quoted, so that we have it in full,
4 that this unit did not protect the village and sometimes even helped the
5 SCP leaders to drive out some of the Croats. I did not deliberately read
6 out the second part, because what I was interested in was to establish
7 that the authorities had sent a unit and that if this unit had formed a
8 pact with the people living in that locality, I was interested in the
9 fact that the authorities had sent some men there, and what I had in mind
10 was what is happening in Libya today, or in Syria, for instance, where
11 units are sent there by the authorities, and once they're on the ground
12 they form a pact with the people on the ground.
13 What is important is to know that the authorities did send a unit
14 there. That is what I wanted to highlight, the fact that they did
15 collude or that they did the contrary of what the assignment was all
16 about. That is a different issue.
17 That said, Mr. Seselj, the Chamber has decided to proceed with
18 the trial, and pursuant to Rule 65 ter (G), I shall read to you what you
19 need to do. The ball is now in your camp.
20 After the presentation the Prosecution and the Defence case, the
21 Pre-Trial Judge ordered the Defence to file the following. Therefore,
22 you need to give us a list of witnesses that you intend to call. You
23 must specify the name or pseudonym of each witness, a summary of the
24 facts on which each witness will testify, the points in the indictment on
25 which each witness will testify, the total number of witnesses and number
Page 16991
1 of witnesses who will testify on each count. If the witness testifies
2 pursuant to 92 bis or 92 quater, this could also be part of Rule 92 ter.
3 The statement of -- given by the testimony and the length of -- the
4 length of the testimony and list of exhibits is important.
5 The Trial Chamber met on a number of occasions and decided, as of
6 today onwards, to grant you six weeks, which means that we should have
7 this list by the 17th of June.
8 As you know, the Prosecutor will certainly make observations
9 following that in the event that you do give this list, and the
10 Trial Chamber will hand down a decision, and bear in mind the various
11 deadlines in the event that this happens this way. It is quite possible
12 that we can start hearing your witnesses after the recess. The 15th of
13 June decision rendered by the Chamber, we will then be in July already,
14 and that will probably be after the summer recess only at the bare
15 minimum.
16 Mr. Seselj.
17 THE ACCUSED: [Interpretation] Mr. President, I cannot file any of
18 the lists you mentioned within that deadline or any of the requested
19 information unless certain preconditions are met based on my fundamental
20 rights. First of all, you have to regulate the status of Zoran Krasic as
21 my legal advisor. From the first day of my stay here, the Trial Chamber
22 denied certain status rights to Zoran Rankic, because you decided that he
23 was not allowed to be present in the courtroom when confidential evidence
24 is being heard. If my legal advisor Zoran Krasic does not have the equal
25 status with all other legal advisors, I will not be presenting my Defence
Page 16992
1 case.
2 Secondly, the Registry has started disciplinary proceedings
3 against my legal advisor Boris Aleksic. He sent a request to the
4 Association of Defence Counsel here in The Hague, even though he's not a
5 Defence counsel nor a member of that counsel association, but a
6 commission has been established headed by Edina Residovic, a lawyer, a
7 well-known lawyer from the proceedings against Izetbegovic who also
8 appeared in Sarajevo back in 1984 at my initial appearance in a court in
9 Sarajevo. She represented the Prosecution at the time, and now she was
10 appointed as president of this disciplinary commission.
11 Unless there harassment of Boris Aleksic, my legal advisor, does
12 not stop immediately, I will not be presenting my Defence case.
13 Next, the financing of my Defence has not been resolved yet. You
14 made a decision concerning the Registry, decision prior to that. I will
15 not be appealing it, because in your decision you ruled that my legal
16 advisors are to be remunerated at the rate of 50 -- at the rate of 50 per
17 cent for the accused. However, you have not ruled anything concerning
18 the retroactive payments for the past eight years. These people worked
19 hard with me. They wrote thousands and thousands of pages of
20 submissions, so there is evidence of their hard work and dedication.
21 Unless they're paid for their services, I will not be presenting my
22 Defence case.
23 How can they be remunerated for that? From the first day when I
24 filed a request that my Defence case be refunded, I wanted to receive
25 information about the costs of the Prosecution case against me. I never
Page 16993
1 received that information. Then I sought information about how much of
2 the UN funds is provided to finance all the cases of all other accused
3 here and I was not given that information either. I was told that that
4 information can be found on internet; however, I have no access to
5 internet. Just like all other detainees at the Detention Unit, we are
6 not entitled to internet access.
7 Next, some ten years ago, the Registry drew up categories of the
8 accused, first, second, and third. I was always assigned to the third
9 category, and then once you made the decision that they need to start
10 paying for my Defence case, they decided to review that, and I even sent
11 a letter as to what category I should belong to. I guess they thought
12 that they wanted -- that they thought that I wanted to be in the easiest
13 category so that I could be relaxed while waiting for your Draconian
14 judgement. I was been relaxed from day one because I am not interested
15 in your judgement. I participate in these proceedings because I want to
16 protect not only my own reputation and my honour but also many volunteers
17 of the Serbian Radical Party and also in order to prove that all
18 accusations against me are false, and I'm quite satisfied with the way
19 things are going so far and have been going so far.
20 Not all of the Trial Chambers seem to be alike. You have some
21 major differences, but essentially all think alike. For the 18 months of
22 preparation of the Defence case, other accused have received a sum of
23 380.000 euros. This is what indigent accused received. Eighteen months
24 could turn into 24 months at the most. However, my pre-trial stage
25 lasted for four years and eight months. This is why this amount needs to
Page 16994
1 be doubled, that is to say 160.000 euros. For accused in third category,
2 their defence costs 40.000 euros per month. Out of those 40.000 euros,
3 20.000 is allocated to lead counsel, and the rest to the other remaining
4 members of the team. You can calculate how many months.
5 So from the pre-trial phase, I'm entitled to 160.000 euros. You
6 can deduct half for the fact that I represent myself, and then 380.000
7 euros need to be paid to the other members of my team. For every month
8 of the trial, in November it will be four years, if you're going pay the
9 monthly sum, that would come to 960.000 euros. Am I right? Yes, I'm
10 right. I'm always right.
11 So if you deduct half of that amount for the fact that I
12 represent myself in the pre-trial stage and if we calculate only half of
13 the amount for each month of the trial, that means that members of my
14 team need to be paid about 1.300.000 euros. Unless that amount is paid,
15 I will not be presenting my Defence case. I will not allow that members
16 of my Defence team be humiliated in any way or as is popularly phrased
17 here, that they be discriminated against. Since it is said that I like
18 to discriminate against a lot of people, even English doctors, I do not
19 like when my people are being discriminated against. It is believed that
20 I oppose other forms of discrimination but endorse discrimination against
21 my people.
22 In addition to that, there are two other prerequisites that need
23 to be met, and they are conditio sine qua non. I have been informed that
24 in 2005, the OTP filed a motion for a contempt of court against me and
25 that the Trial Chamber, and if I remember well, Mr. Antonetti, you were a
Page 16995
1 member of that Chamber, and they denied that request. And later on,
2 Judge Agius, or perhaps one of his legal officers, informed me that such
3 a request had been filed and that it was denied. I insisted that this
4 request or motion be provided to me and that I also receive the decision
5 or the ruling denying that request. It is very important that I be
6 provided this, and unless you provide this to me, I will not be
7 presenting my Defence case.
8 Recently, the OTP provided a number of binders with some
9 documents, and then several days later they sent in their cavalry so that
10 they could take those documents back from me. I was taken to the
11 warden's office, and then they, escorted by the guards, went into my cell
12 to requisition that material. There was an official of the Registry
13 present there. She identified the documents. The documents were seized
14 from the binders that were in my cell and then taken to the Registry and
15 placed under seal there.
16 I have to be given those documents again, and unless I receive
17 them, I will not be presenting my Defence case.
18 Your Honour, you remember that there have been a number of
19 problems here concerning translation of Defence documents. I insisted
20 that two of my most important books be translated into French and
21 English, those are "Ideology of Serbian Nationalism" and "Roman Catholic
22 Criminal Enterprise of the Artificial Croatian Nation." You first
23 provided one deadline for that to be translated. You asked that that be
24 translated into French, and then you asked me to find translators. I
25 found a translation agency and then the Registry refused the services of
Page 16996
1 that translation agency. Then they extended the deadline, and the last
2 deadline that you set as the Trial Chamber was until the end of the
3 Prosecution case.
4 To this day I have not received the translation of those two
5 books into English. I cannot draw up the concept of my defence without
6 those two books, and was can see, most members of the Trial Chamber
7 insist right now only on instigation, ignoring the other modes of
8 perpetration, even though, in my opinion, that represents the violation
9 of the spirit of Rule 98 bis, because they were supposed to give their
10 opinion on all modes of commission and that if there is consensus, that
11 at least some of the modes of commission be dropped. It would serve the
12 judicial economy purposes. Since this has not been done, I have to
13 defend myself against the entire indictment. The indictment remained
14 intact including JCE commission, perpetration, aiding and abetting,
15 instigation, and everything else.
16 So without these two books, I cannot challenge the essence of the
17 charges against me, which is hate speech, the so-called hate speech that
18 all of you are prepared to accept as a crime even though there are no
19 grounds for that in the international jurisprudence so far. You are
20 invoking Streicher case, you are ignoring some other cases, but it will
21 not be difficult for me to deal with all of you, especially since you
22 have a tendency to invoke the jurisprudence of the ICTR while ignoring
23 the fact that the crimes that that court is dealing with were committed
24 one year after the indictment period in my case. All of the charges
25 against me stop in 1993, whereas the genocide and persecutions in Rwanda
Page 16997
1 were committed in 1994. Therefore, there's no use for you to invoke the
2 jurisprudence of that Tribunal.
3 However, it's your business what you're going to do. I have now
4 just enumerated all of the obstacles for the Defence case. Unless you're
5 prepared to remove all of these obstacles, then we'll simplify matters.
6 Why don't you schedule the presentation of my opening arguments? I am
7 entitled to four hours for that, and you cannot deny me that, whether
8 there are witnesses, whether there is funding or anything else, you
9 cannot deny me that. After presenting my opening speech, unless you meet
10 all the requirements that I have just mentioned, we will move immediately
11 to closing arguments unless you want this trial never to end, so that the
12 residual mechanism has to deal with my case. And this is one of the
13 funniest creations of the Security Council, this residual mechanism. It
14 is even more ridiculous than the ad hoc tribunals.
15 Unless these conditions of mine which are properly grounded in
16 law are met -- they're also grounded on the Statute. The Statute
17 guarantees that my Defence needs to be funded. In that case, I will need
18 at least two years to prepare my Defence case. Why? Because the
19 Prosecution needed four years and eight months. All right. Let us agree
20 in advance that I'm more than twice smarter and capable than the entire
21 Prosecution put together. Therefore, I don't need four years, but I need
22 two years.
23 In addition to that, I need 120 hours for examination-in-chief,
24 which is what was accorded to the Prosecution without counting all of the
25 abuse concerning additional tonnes of documents admitted into evidence
Page 16998
1 without the presence of witnesses and without even reading the titles of
2 those documents. I also intend to call 100 witnesses.
3 JUDGE LATTANZI: [Interpretation] Mr. Seselj, I didn't really
4 understand. Could you make something clear, please. If by chance all
5 these conditions you've mentioned are not met, you are asking us to
6 directly go to the final judgement, closing arguments from the
7 Prosecution and yourself? Is that what you want, or are you asking for
8 two years to prepare for your -- to prepare your Defence case? I didn't
9 understand this. I believe all of this is a bit contradictory. So could
10 you make it clear, please. What exactly are you asking for if these
11 conditions are not met? Do you want to directly go to the procedure for
12 the final judgement, or do you want us to give you two years? Please
13 make it clear.
14 THE ACCUSED: [Interpretation] Madam Lattanzi, the interpretation
15 most likely was either incomplete or inaccurate. I said to you if you
16 meet all of these conditions that are properly grounded in law, then I
17 need the following, this is what I am seeking. Now, what you will
18 approve out of that, two years, 100 witnesses and 120 hours, that is to
19 be seen. So I stay within the provisions of the Statute. I ask these
20 things and then you rule on them, and later on I can appeal if I'm not
21 satisfied with this. However, these five matters that I mentioned
22 earlier directly endanger my status here and my ability to present my
23 Defence case. I have to know why six years ago the Prosecution wanted
24 proceedings to be instituted against me. I am so curious I can't sleep.
25 I have to know what were the documents that the UN cavalry seized from me
Page 16999
1 six years ago. I have to know what those documents are.
2 And also, the status of all of my legal advisors and case
3 managers needs to be normalised. Two of them visited me recently,
4 Nemanja Sarovic and others. They paid travel expenses for two legal
5 advisors but not for two case managers. I have my Case Manager. My
6 Case Manager is in charge of my legal advisors. So what am I to do? I
7 will not allow anyone to humiliate me. And even though I may have
8 humiliated Registry enough so far, I will not allow them to do the same
9 to me.
10 So these are my requirements without which I will not be
11 presenting my Defence case. Unless you meet these requirements of mine
12 which are completely justified, then I want you to set the date for my
13 opening statement. I will not deny myself the pleasure of those four
14 hours in the courtroom. You can do that even before the end of May. I'm
15 prepared, just don't do it next week. Don't schedule it next week
16 because my wife is coming to visit me and I will be caught in crossfire.
17 So after the following week you can schedule a day for my opening
18 statements and then after that we can proceed immediately to closing
19 arguments. Unless I present my Defence case, I will not be filing my
20 Defence final brief either, so that will additionally shorten the time.
21 And if that suits you, then very well. Perhaps whether you will be able
22 to convince the public that this was a fair trial is another matter.
23 That's your problem. I know that the entire public will consider these
24 requirements of mine to be fully justified and no lawyer can challenge
25 what I have just told you and then it's up to you to see what you're
Page 17000
1 going to do.
2 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you have made a
3 number of requests. The Trial Chamber will meet and deliberate on this.
4 As of now, I cannot give you any answer. But there are simple things,
5 however, where you can have clear indication right away. Obviously, you
6 challenged this Chamber's decision on legal grounds. You're, of course,
7 entitled to this, and you can appeal this decision made by the
8 Trial Chamber. This is a right you're entitled to, and maybe the
9 Appeals Chamber will disallow this Trial Chamber. Then --
10 THE ACCUSED: [Interpretation] Let me tell you right away. I will
11 not be filing an appeal, because you know that those Judges from the
12 Appeals Chamber were always much worse than you. So there's no point in
13 filing an appeal. I will be appealing the trial judgement, but as for
14 your interlocutory decision, I will not be appealing that.
15 JUDGE ANTONETTI: [Interpretation] Very well. Then a few years
16 ago I was a Pre-Trial Judge for your case, which is absolutely right. I
17 remember that the Chamber made a decision because by error the
18 Prosecution had sent documents that you were not supposed to obtain.
19 Now, I don't know how the Prosecution works. It's quite surprising, and
20 the OTP wanted to get these documents back because you weren't supposed
21 to have them, and the Pre-Trial Chamber had decided to retrieve them. It
22 went with a representative of the OTP as well as a representative of the
23 Registrar -- Registry to retrieve the documents, and now you're saying,
24 Some documents were taken from me and I want them back. But I don't know
25 what documents you're talking about. We'll look into this.
Page 17001
1 Then you also said that there was a procedure for contempt of
2 court. I have no recollection of this. It -- it seems that you're
3 saying that there was -- there was no decision or a decision was handed
4 down and it wasn't disclosed to you. I don't know. I'm going to look
5 into this too, because I don't see why anything should be hidden from
6 you.
7 Now, regarding financing --
8 THE ACCUSED: [Interpretation] [Overlapping speakers] I explain.
9 The decision was made, but both the motion and the decision were
10 ex parte, and I was informed in only one sentence that there had been a
11 motion and that a decision was made rejecting the motion without ever
12 explaining to me what it was all about.
13 JUDGE ANTONETTI: [Interpretation] Very well. Now we understand.
14 It was an ex parte request made by the Prosecution and it was dismissed.
15 You weren't told about it. So you are seizing this Trial Chamber with
16 this issue. Very well, I will look into this with my fellow Judges. I
17 really don't see why anything should be hidden from you now.
18 Let's go back to finances. You know that the Trial Chamber has
19 worked greatly in this direction. I undertook myself, against the will
20 of my fellow Judges, to do things. I called upon my administration of
21 your own country to know exactly what was your tax situation. The
22 Serbian admin -- the administration of your country said it had disclosed
23 all this information to the Registry. Then the Trial Chamber started a
24 procedure. We rendered a decision. The Registrar was very unhappy with
25 this decision and appealed, and then the Appeals Chamber in its majority
Page 17002
1 with two dissenting Judges decided in our favour, which is why it was
2 been decided you would be financed at 50 per cent, and now you're asking
3 us for hundreds of thousands of euros. You gave us the exact number, the
4 exact figure, but we'll deliberate among ourselves to see exactly what we
5 will do. We'll take a look into this. But I must say that personally, I
6 never tried to play hide and seek with you. I've always been fully
7 transparent with you. This is what I believe. I believe, Mr. Seselj,
8 that this problem of financing is not a problem, because intellectually
9 you're far able to defend yourself, and you're the best person to know
10 exactly the ins and outs of this case. You have a -- you're like an
11 encyclopedia. You know everything about all this. On a transcript, you
12 find that there's been a mistake in the translation. You can pick it
13 right like that. So of course you can get help, but, you know, trust me,
14 trust my experience, you're fully able to defend yourself, so it's not --
15 this question of financing is not a real problem. But it's true that
16 legally you are entitled to it through the Statute.
17 To tell you the truth, you know, when I was on Trial Chamber II,
18 you filed a motion and I had started drafting an opinion saying that you
19 were entitled to financing and that your associates could be paid back as
20 long as they gave us the justification for your -- the receipts for
21 your -- for the expenses incurred. And I still believe -- I still have
22 the same opinion, but right when the opinion was about to be issued, the
23 Trial Chamber changed and I could not voice my opinion.
24 That's how things stand. This is how things were done. So I've
25 always been very sensitive to this issue of financing, but I really
Page 17003
1 believe, you know, that it's not a real problem for you, but we will
2 render a decision. Since we've been seized of your request, we will
3 render a decision. Because now the case is in your hands. You know
4 that. Just like Judge Lattanzi said, she wanted to know exactly what you
5 are intending to do. Are you going to present your case? Are you going
6 to prepare your case? We need to know how long it is going to take, two
7 years or what. If you want the trial to be expeditious, you can say, Ok,
8 I will make a statement for four hours, the OTP does its closing
9 arguments, I do my closing arguments. End of Story. We render the
10 judgement. This is one possibility, just like also you could ask for
11 extra time to prepare, which is what Mr. Karadzic is doing, for example,
12 and then it's going to drag on for years. But, you know, you're saying
13 you want a hundred witnesses, 120 hours. This gives rise to a series of
14 problems.
15 So, please, if I understood you correctly, as long as all the
16 problems solved -- are not -- the problems you raised are not solved, you
17 will not give us your 65 ter list; right? 65 ter (G)list.
18 THE ACCUSED: [Interpretation] Yes, because of those reasons. Not
19 because that I'm clever. I'm fully aware of that. But that is not going
20 to be the reason for me not to present my case. The reasons for not
21 presenting my case would be those five that I have enumerated regulating
22 the status of legal advisors, funding the Defence case, the document for
23 contempt of court from 2005, the documents that had been seized in 2005,
24 and the translation of those two books, "Ideology of Serbian Nationalism"
25 and "Roman Catholic Project of Artificial Croatian Nation," in English,
Page 17004
1 because that was the last position of the Registry. So those are my five
2 conditions without which I will not be presenting my Defence case. And
3 it's all based on law.
4 My position is supported by the Statutes of the Tribunal, by
5 general legal principles. I have to be aware of everything that concerns
6 me, what documents had been seized from me and why. I don't care that
7 the Prosecution made a mistake. I have to know what it was all about.
8 Perhaps it could be of use to me. And I have to know why the Prosecution
9 filed this motion for contempt of court and you rejected it. I have to
10 know the reasons for that as well.
11 Therefore, I will not be presenting my Defence case unless these
12 Statutes -- issues of mine are resolved, because it makes my Defence case
13 pointless.
14 And regardless of how smart one is, one needs to have advisors
15 outside. They need to go look for witnesses. They have to draw up
16 witness statements. So there are a number of things that need to be
17 done. They need to assist with proofing witnesses. Do you know how long
18 it took the OTP to proof witnesses? They bring witnesses to The Hague a
19 couple of days before their testimony and they make them learn by heart,
20 like a poem to be recited, what they need to say during their testimony
21 and then they check it. My witnesses will be reciting by heart
22 everything they learn in advance they need to say. However, the
23 Prosecution will not catch them lying as I was able to do with almost
24 every Prosecution witness.
25 JUDGE ANTONETTI: [Interpretation] I have a small correction to
Page 17005
1 make to the transcript. Yesterday, you said that there was -- that
2 Milorad Vojnovic was a protected witness. I have the transcript here.
3 Well, the day he testified, he testified without any protection measures.
4 He was never granted any protective measures. So maybe there's been a
5 mistake, but he has never been a protected witness. I have the
6 transcript page to prove this.
7 Mr. Marcussen, do you have anything to say? The interpreters
8 worked wonderfully. They could even translate as fast as I was speaking,
9 right in sync with myself, and I thank them from the very bottom of my
10 heart. Thanks to them, we were able to finish on time, because they
11 interpret extremely fast.
12 So, Mr. Marcussen, please be extremely fast also.
13 MR. MARCUSSEN: Well, one minute past time, I guess there isn't
14 time for me to say much.
15 Your Honours, the Prosecution may submit some material to you on
16 some of the issues that the accused has raised, but the accused, it
17 sounds to me, is essentially seeking that you reconsider a number of
18 decision you have rendered; yet, he has not done anything to meet the
19 standard for reconsideration. I would suggest that if the accused wants
20 to pursue any of the claims he has made just now, he should file a
21 written submission setting out the law that he is relying on so that
22 becomes clear and we can respond to it.
23 And as for the 65 ter (G) ruling that you rendered, he can seek
24 certification to appeal that. I think he has said it's relevant to -- to
25 challenge your order. He's basically just threatening that he's not
Page 17006
1 going to put on a Defence case. It's up to him whether he wants to do it
2 or not.
3 Lastly, I just want to say that Rule 65 ter (G) also require the
4 accused to disclose to the Prosecution his Defence exhibits. So we would
5 also, from the Prosecution side, be expecting to receive the exhibits
6 that he will be using.
7 Thank you, Your Honours.
8 JUDGE ANTONETTI: [Interpretation] Indeed. Your absolutely right.
9 Very well. Mr. Seselj, do you want to speak again and then it
10 will be done?
11 THE ACCUSED: [Interpretation] Yes. Mr. President, I'm not
12 threatening with anything. I'm just fighting for my rights and the five
13 requirements that I made concern my fundamental rights. I'm not coming
14 out with any threats. However, unless these five requirements of mine
15 are not met, I will be mentioning them in the closing arguments. I will
16 not be speaking about the merits of case. I will be addressing all of
17 the violations of my rights since my arrival in The Hague. And in the
18 Defence opening, I can tell you right away, that I will be mostly
19 addressing this decision of yours and your dissenting -- partially
20 dissenting opinion. This will be part of my opening. I will need about
21 four hours, and I will be speaking a bit faster than you. I admire you
22 for speaking that slowly. I could never speak slowly myself, just so you
23 know.
24 Once I'm done with four hours of Defence opening, unless you
25 enable me to present my Defence case, you can schedule closing arguments
Page 17007
1 right away, and I guess that the Prosecution's final brief is ready. I
2 guess they've been working all of this time, and we will not need to wait
3 for a long time for their final brief, or if we do need to wait for a
4 long time, then this assumption that is being floated in the public very
5 frequently will be confirmed, namely that The Hague Tribunal was tasked
6 with keeping me here at any cost for as long as -- for -- until the --
7 another round of elections in Serbia is over.
8 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I can tell you that
9 nobody told me to hold you here, to detain you here. I mean, I cannot
10 speak on behalf of my fellow Judges, but nobody would dare to say such a
11 thing to me. I'm a totally independent Judge, as you know. I know that
12 there's going to be elections in your country soon. It's a cause for a
13 major national debate, but I cannot factor that in. I mean, if you're
14 here, you can -- you heard our decision to dismiss your motion for
15 acquittal. Nobody told us to hold you here. You know that perfectly
16 well, at least from me.
17 Yes, Mr. Marcussen.
18 MR. MARCUSSEN: Just very briefly, Your Honour. I think the
19 accused should maybe be advised he might be under the misapprehension
20 that he can present an opening statement without presenting evidence.
21 There would only obviously be a need for an opening statement if there is
22 actually a Defence case. The opening statement is to lay out what the
23 Defence evidence is going to be. So if the accused does not want to file
24 65 ter materials, then we move straight to closing briefings and closing
25 arguments. Thank you, Your Honour.
Page 17008
1 THE ACCUSED: [Interpretation] This is simply not true. I am
2 entitled to an opening statement. Nothing binds me to present any
3 evidence. That's not an obligation I have. Maybe I have no evidence,
4 but I am entitled to an opening statement. And look at another thing,
5 Judges, if you have patience. I have, in theory, the right to make an
6 opening statement of a defence and to inform you that I'm my own only
7 witness and to submit myself to cross-examination.
8 The Prosecution is making things up. It's nonsense. Nobody can
9 challenge or deny me the right to an opening statement and in my opening
10 statement, I will also be speaking about what kind of evidence I was
11 about to present and why I was unable to, and that's what I will do to
12 please the Prosecutor.
13 JUDGE ANTONETTI: [Interpretation] You've raised points of law
14 and, of course, it is our duty to answer to them, but I want to thank
15 everybody, interpreters first and foremost, but also the security
16 officers, all the legal officers, ushers, and Registrar, and we shall
17 reconvene as soon as possible. The hearing stands adjourned.
18 --- Whereupon the Rule 98 bis Judgement adjourned
19 at 7.08 p.m. sine die
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