Den Haag | 31.03.2016.

PARTIALLY DISSENTING OPINION OF JUDGE LATTANZI

Summary

For several reasons, I disagree with most of the majority’s findings.

First of all, I find that the climate of intimidation to which Vojislav Šešelj subjected the

witnesses, by his conduct inside the courtroom and by that of his associates outside the

courtroom, which also resulted in contempt proceedings, has not been taken into account

by the majority. Yet, this factor should have been included in the Chamber’s analysis of the

evidence, and more specifically of the prior statements of various witnesses who later,

partially or completely, withdrew their statements when they came to testify before the

Chamber. These statements, which incriminate Vojislav Šešelj, often corroborate one

another, but the majority does not take this element into consideration.

Furthermore, I find that insufficient reasoning, or no reasoning at all, is provided in

support of most of the majority’s findings, in contravention of a Trial Chamber’s obligation

to provide a reasoned judgment for the benefit of the Accused and of the Prosecution.

According to this principle, questions of law and fact, that form the basis of the Chamber’s

reasoning, are always provided.

I note, for instance, that the majority refers to witnesses’ written statements and to

their testimonies, without providing any explanation, even though these various pieces of

evidence are often contradictory. I also note that the majority’s reasoning does not include

the totality of the Prosecution evidence and knowingly focuses on the sparse Defence

evidence on the record. This prompts the majority, for instance, to consider the forced

displacement in buses of non-Serbs from their villages as a “humanitarian aid” operation,

which is not a reasonable conclusion in light of the evidence on the record.

In addition, the majority very seldom mentions the applicable law, which is often

contradicted by the reasoning followed by the Chamber; in the event that it does follow the

applicable law, the Chamber adds standards that are not provided for in the Tribunal caselaw.

I also find that the majority relies on irrelevant considerations to exclude Vojislav

Šešelj’s responsibility. For instance, an element that is relevant when reconstructing the

overall historical background, such as the war situation in the former Yugoslavia, which,

according to the majority, simply originated from an unlawful secession, is deemed relevant

by the majority when drawing its conclusions on the crimes committed on the ground or on

the question of responsibility. Another example: the war, which the majority seems to

consider as legitimate, for it was aimed at defending Serb interests, or the fact that the

non-Serbs armed themselves, are considered relevant to support the exclusion of the

existence of a widespread or systematic attack in Croatia and in BiH, and to discard the

crimes of destruction of villages or religious sites. One last example: the legality of

recruitment and deployment of the volunteers is considered relevant by the majority when

excluding Vojislav Šešelj’s responsibility for aiding and abetting, without taking into

account the applicable case-law on this issue. The judgment of the majority is replete with

considerations that refer to ius ad bellum and constitutional law of the former Yugoslavia

rather than ius in bello, the sole relevant consideration before this Tribunal.

Indeed, the Tribunal’s competence must be limited to determining whether war crimes

or crimes against humanity have been committed and, thereafter, whether such crimes may

have involved the responsibility of the Accused.

I am, furthermore, satisfied that we have all the requisite evidence on the record to

conclude beyond all reasonable doubt that a widespread and systematic attack existed in

Croatia and in BiH and that crimes against humanity were committed in this context,

including in Vojvodina (Serbia).

Likewise, we received ample evidence that established the existence of a joint criminal

enterprise between Vojislav Šešelj and the other members of the Serb forces cited in

paragraph 8 (a) of the Indictment. The purpose of this JCE, as the Prosecution clearly

alleges - as opposed to what the majority contends - was to force the non-Serbs, through

the perpetration of crimes, to leave parts of the territory of the former Yugoslavia.

In my view, all the conditions have also been met to convict Vojislav Šešelj for the

physical commission of the crime of persecution in the form of public and direct

denigration of the non-Serbian civilians through his speech in Hrtkovci on 6 May 1992.

We also have the requisite evidence to conclude that he incited the crimes charged in

the Indictment (with the exception of plunder) through all of his inflammatory speeches,

calling clearly and directly for the expulsion and forcible transfer of the non-Serbs, in

addition to his speeches in which he denigrated and dehumanized the Croats comparing

them to “primates” and “vampires” and qualifying them as cowards. In the same way, he

called the Bosnian Muslims “balija” or “pogani” which he himself translated as

“excrements”. I hold that the use of these terms, together with his constant references to

“genocide” committed by the Croats during World War Two and the saying “an eye for an

eye, a tooth for a tooth” and “revenge is blind”, Vojislav Šešelj also took the risk that

murder, torture, cruel treatment and destruction would be committed in furtherance of the

common criminal purpose he shared with the other leaders in the former Yugoslavia who

participated in the JCE, the purpose of which was to force through the perpetration of

crimes, the non-Serbs to leave the territories claimed by the Serb forces.

Also, in my view, no reasonable trier of fact could have dismissed Vojislav Šešelj’s

responsibility for aiding and abetting. Indeed, all the conditions required by case–law have

been met to establish, on the one hand, his acts of material and moral assistance to his

volunteers, called “Šešeljevci”, and, on the other, his substantial contribution to the crimes

committed by these volunteers. This assistance comprised not only the recruitment of

volunteers but also the organisation of the recruitment that involved all levels of the

Serbian Chetnik Movement (or S^P) and of the Serbian Radical Party (or SRS), which he

controlled with an iron fist. In addition, before going to the front, these volunteers were

indoctrinated with his violent speeches that, instead of reminding them of the need to

abide by the Geneva and the Hague Conventions, fostered violence against the non-Serbs by

brandishing the chivalric traditions of the Chetniks, who are not known for exercising

restraint on violence in war time. The Šešeljevci were deployed on the ground in localities

more often than not decided by Vojislav Šešelj. Besides, these volunteers knew full well

what their mission was: to participate in the ethnic cleansing operations conducted by the

Serb forces, by forcibly removing the non-Serbs from territories claimed by the Serbs.

Furthermore, based on the evidence on the record, it appears that Vojislav Šešelj’s

numerous visits to the field, and the speeches he delivered during these visits, boosted the

morale of these volunteers and encouraged them in their mission. The evidence has shown

that these volunteers and their families were financially, medically and psychologically

supported by Vojislav Šešelj, his Chetnik movement and his party during the entire time of

their military service and even after that time, which constituted another reason to enrol,

in addition to the nationalist and extremist ideology they shared with the man whom they

considered as their “God” or “Supreme Commander” – I am quoting the evidence.

There is no need for me to expand further on Vojislav Šešelj’s physical acts of assistance

(or actus reus) in connection with the crimes committed by the Serb forces on the ground

and the evidence that demonstrates beyond all reasonable doubt that such acts of

assistance existed. Furthermore, as regards Vojislav Šešelj’s state of mind (or mens rea) at

the relevant time, we also admitted ample direct and circumstantial evidence that, in my

view, serves to establish it. Thus, the majority does not even consider it, which is not

reasonable for a trier of fact.

I wish to point to one last aspect of the majority’s unreasonable approach towards the

Prosecution’s allegations of Vojislav Šešelj’s responsibility for complicity with his

volunteers: in the majority’s view, the fact that these volunteers were officially placed

under the command of the armed forces militates in favour of excluding Vojislav Šešelj’s

responsibility. This consideration is irrelevant when analysing forms of responsibility, such

as incitement or aiding and abetting. However, as regards Vojislav Šešelj’s responsibility for

participating in a JCE with the Serbian forces and their leaders, the incorporation of the

volunteers into the official armed forces is an additional element that supports a finding of

conspiracy and cooperation among the members of the JCE in furtherance of the criminal

purpose of ethnic cleansing.

Under the pretext that the Prosecution did not do its job well – one can always do

better, and the Trial Chamber could have also done better from the outset of this case,

notwithstanding the difficulties it encountered during the trial – the majority sets aside all

the rules of international humanitarian law that existed before the creation of the Tribunal

and all the applicable law established since the inception of the Tribunal in order to acquit

Vojislav Šešelj.

On reading the majority’s Judgement, I felt I was thrown back in time to a period in

human history, centuries ago, when one said – and it was the Romans who used to say this

to justify their bloody conquests and murders of their political opponents in civil wars:

“silent enim leges inter arma” - “In time of war the laws fall silent” (Cicero Oratio pro Milone, 52 B.C.).