The Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) has asked the Appeals Chamber to find that the Trial Chamber in charge of Serbian Radical Party leader Vojislav Seselj's case committed a grave error by acquitting Seselj of any responsibility for war crimes committed as part of a joint criminal enterprise in Croatia and Bosnia and Herzegovina and against Vojvodina Croats and to find him guilty and sentence him to 28 years in prison.
"The Judgement acquitting Vojislav Seselj, rendered by majority, suffers from grave defects that must be corrected. While no reasonable trier of fact could have acquitted Seselj on the evidence presented, the most troubling aspect of the Judgement is the uniquely inadequate adjudication of the case," the prosecution says in its appeal made public on Tuesday.
"The Appeals Chamber should find Seselj criminally responsible and sentence him accordingly," reads the appeal asking the Appeals Chamber to determine that crimes against humanity in Croatia and Bosnia and Herzegovina, for which the prosecution provided evidence at the trial, did undoubtedly occur and that they were committed as part of a joint criminal enterprise headed by former Yugoslav President Slobodan Milosevic. The prosecution also asks that it be found that Seselj contributed significantly to that criminal enterprise with his hate-mongering speeches and by deploying volunteers, thus instigating crimes, and that the Appeals Chamber sentence him to 28 years in prison as it requested during the trial.
If the Appeals Chamber finds that it is not possible to reexamine Seselj's criminal responsibility without questioning witnesses who testified during the trial, it should order a new trial, the prosecution believes.
On March this year 31 the trial chamber in charge of the Seselj case acquitted him on all counts of the indictment, concluding that the plan for the creation of a Great Serbia was a political project rather than a criminal act. It also found that there was no evidence that Seselj was criminally responsible for deploying volunteer fighters because it was not proven that this was done for criminal purposes but was possibly meant to protect Serbs. It also ruled that nationalist ideology propaganda was not a crime in itself. It ruled that Seselj's hate-mongering speeches served to raise soldiers' morale on the ground and that they did not result in persecution. The trial chamber also ruled by a majority vote that there was no joint criminal enterprise led by Milosevic because the purpose of the consensus among Serb officials was the defence of Serbs and the preservation of Yugoslavia, rather than the commission of crimes.
The prosecution says in its appeal that the Trial Chamber fails to provide sufficient reasons why crimes have been proven, or not, and merely provides single sentence bullet-point conclusions without any analysis of the evidence.
The Trial Chamber's finding that there was no widespread or systematic attack against the civilian population in Croatia or Bosnia and Herzegovina is "stunning" considering that the massive crimes committed during the ethnic cleansing campaign were the reason for the ICTY's creation, says the prosecution.
"One of the most disturbing errors in the Judgement is the lack of discussion of the voluminous evidence of the large number of crimes committed during the ethnic cleansing campaign at the core of this case," says the prosecution.
The prosecution believes that the Trial Chamber disregarded evidence of Seselj's criminal aspirations of ethnic cleansing aimed at creating an ethnically clean Great Serbia and evidence of the existence of a joint criminal enterprise as part of which that plan was to be carried out. Evidence such as Seselj's statements about revenge against Croats and Muslims which would lead to "rivers of blood" have not been analysed at all by the Trial Chamber, says the prosecution.
"The failure to give reasons for its important conclusions, to address key evidence and to address key Prosecution arguments amounts to a failure to issue a reasoned judgement. This constitutes an error of law that invalidates the entire Judgement," says the prosecution.
Apart from error of law, the Trial Chamber also erroneously assessed the evidence presented, says the prosecution.
"No reasonable trier of fact could have found, as the Majority did, that there was no widespread or systematic attack in Croatia and BiH... Serb Forces victimised hundreds of thousands of non-Serbs through violent crimes, causing the expulsion of a large part of the non-Serb population from Serb-claimed areas of Croatia and BiH," the prosecution says, adding that the Trial Chamber was also wrong to find that persecutions in Hrtkovci were not related to the armed conflict in Croatia and did not constitute a widespread and systematic attack.
The Trial Chamber's conclusion that Seselj's speeches did not incite hate and did not result in crimes shows that the Trial Chamber entirely disregarded the prosecution's evidence, reads the appeal.
"Ultimately, the appropriate remedy lies within the Appeals Chamber's discretion. But this remedy has to go beyond merely allowing the Prosecution's grounds of appeal. The interest of justice, including for the victim community and
the international community, and the legacy of the ICTY and the MICT (Mechanism for International Criminal Tribunals) require the Appeals Chamber’s intervention," the prosecution says.