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Mark Ellis, the executive director of
the International Bar Association, has been closely following the
work of the International Criminal Tribunal for the former
Yugoslavia (ICTY) for years.
He said he thinks the judges got it
wrong on March 31 when they acquitted Serbian Radical party leader
Vojislav Seselj on all charges of war crimes and crimes against
humanity -- including murder, persecution, and expulsions in
Bosnia-Herzegovina, Croatia, and Serbia.
Ellis told RFE/RL's Ron Synovitz that
the chief prosecutor in the case should appeal the ICTY decision for
what he believes were both "errors of fact and errors of law."
RFE/RL: How did this case differ from
previous high-profile cases heard by the ICTY and what is your
overall assessment of Seselj's acquittal on all the charges against
him?
Mark Ellis: It's a case that doesn't
involve a military leader such as Mladic or even [Radovan] Karadzic.
But this is more from the perspective of a political leader. The
focus is what is the nexus and the responsibility between this
political leader and the crimes that were being committed. I think
the judgment is exceedingly harsh and, I think, off base.
It tends to ignore or even dismiss, and
certainly disregard, past decisions by the court and general
principles in international criminal law -- and certainly since the
inception of the ICTY. It's a decision that is, I think, hard to
defend, actually. I think the decision also lacks some coherence in
regard to what the existing law is in some of these important areas.
RFE/RL: Judge Jean-Claude Antonetti
concluded in the Seselj verdict that "the propaganda of nationalist
ideologies is not criminal. The prosecution failed to show a
concrete link between Seselj's nationalist speeches and the crimes
committed." What is your reaction to that ruling?
Ellis: I simply disagree with that
position. Jurisprudence in international tribunals, not just at the
ICTY but at others, are clear in this. Inflammatory speech can
incite individuals to commit crimes -- and that's exactly what
happened here, in this case. Volunteers were being sent to the
front. These volunteers went on to commit murder. They went on to
displace families because of their ethnicity.
An individual may not be directly
responsible for that murder or displacement, but certainly was
involved with inciting or aiding and abetting. This is absolutely
what the prosecutor had argued for. And I think that there was, in
my opinion, evidence to support that. The majority of the court felt
no. But to suggest that political incitement through inflammatory
speech would not be relevant in these types of trials, I don't think
is true.
RFE/RL: Considering Seselj's
inflammatory calls during the early 1990s for the creation of a
"Greater Serbia" at the expense of other ethnicities in the Balkans,
are you surprised that the ICTY has acquitted Seselj?
Ellis: I was surprised that the court
limited itself to this type of analysis and didn't follow the
jurisprudence of the tribunal that, I think, would have been able to
connect this political goal of a Greater Serbia as part of a joint
criminal enterprise that existed -- and that existed in order to
conduct these criminal acts. It was all part of this kind of joint
enterprise that had -- at its heart, at its core -- this goal of
creating a Greater Serbia.
To suggest that that really is not
relevant to criminal acts that occurred, I simply think is wrong. I
think the appeals court -- I'm hoping the appeals court -- would see
it that way and reverse that decision.
RFE/RL: What were some of the
problems faced by the ICTY prosecutors that led the judges to
conclude they failed to present enough evidence to prove a direct
link between Seselj's nationalist speeches and the crimes committed
by paramilitary volunteers?
Ellis: The prosecutor relied on a number
of witnesses and reliance on those witnesses simply fell apart later
on. Witnesses started to recant their testimony and their
willingness to participate in this proceeding. This has been one of
the major problems in these trials.
When witnesses are intimidated,
witnesses begin to feel that they can simply not continue to be part
of the process because they are living in the exact territory where
the crimes were committed and the pressure is quite significant on
them.
RFE/RL: What about the appeals
process? Would that be a lengthy process? Or is the judicial process
finally nearing its end after more than 13 years?
Ellis: It will stretch out now because,
as we know, the tribunal has in essence ended its mandate. But there
is this mechanism that has been created to allow this process to
continue -- including the appeals process. There should absolutely
be an appeals process on this. The prosecutor would have 30 days to
make note of whether or not he will appeal. Then he will have an
additional 90 days to make his case. And then the appeals process
will start.
So it's not going to be a 10-year
period, because that involves the trial process with all the
witnesses. Everything. The appeals process is whether there was an
error in fact or an error in law. That's what the appeals court will
review. And I think there is evidence here to suggest that there was
error on both -- that the trial chamber erred on both the
interpretation of the law and the interpretation of the facts.
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