Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17541

 1                           Thursday, 31 March 2016

 2                           [Open session]

 3                           [Judgement]

 4                           [The accused not present]

 5                           --- Upon commencing at 10.00 a.m.

 6             JUDGE ANTONETTI: [Interpretation] Registrar, can you kindly call

 7     the case, please.

 8             THE REGISTRAR:  Thank you.  Good morning, Your Honours.  This is

 9     case number IT-03-67-T, the Prosecutor versus Vojislav Seselj.

10             JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.

11             I shall ask the Prosecution, may I have the appearances, please,

12     starting with the Prosecution.  Mr. Marcussen, you have the floor.

13             MR. MARCUSSEN:  Good morning, Your Honour.  The Prosecution is

14     represented by myself, Mathias Marcussen, Ms. Lisa Biersay,

15     Mr. Arthur Traldi, and our case manager today is Angelique Langenberg.

16     Thank you.

17             JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Marcussen.

18             Before reading out the summary of the judgement, on behalf of the

19     Bench I would like to thank all those people who have contributed to

20     making it possible to hold our hearings.  And I would also like to thank

21     the interpreters, who, for a number of years, have worked hard in this

22     trial, without forgetting, of course, the court reporter, who has

23     faithfully recorded everything that was said.  I would also like to thank

24     the Registrar, who, for a number of years, has introduced to us the

25     witnesses who have testified here.  Without forgetting, of course, the

Page 17542

 1     Registrar here at the hearing, who has always assisted us primarily by

 2     providing us all the documents.  And I should also like to thank the

 3     Registrar and the Deputy Registrar who have helped us and helped the

 4     Bench to make this happen under the best conditions possible.  Without

 5     forgetting, of course, the legal team and the Judges' assistants, who

 6     have assisted the Trial Chamber and enabled this judgement to be handed

 7     down today.

 8             This legal team was new on the job since it only took up its

 9     duties in July 2015 following the departure of other legal officers who

10     went to work for other Tribunals or institutions.  It took the legal team

11     less than six months to review all the evidence on the record to enable

12     the Judges to conduct their deliberations under the best possible

13     conditions.  Towards the end of the afternoon, most of them will be

14     leaving the Tribunal.  They will be jobless even though I had asked for

15     their contracts to be extended for a few weeks, a maximum of one month.

16     Even though this has not made possible, I would like to thank them for

17     all the work they have provided.

18             I shall now begin by reading out the judgement summary.

19             The Trial Chamber is sitting today to render its judgement in the

20     case of the Prosecutor versus Vojislav Seselj.  In its order on

21     arrangements for delivery of judgement issued on 16th of March, 2016, the

22     Chamber deemed that Vojislav Seselj's transfer to The Hague was not

23     required.  The Chamber did, however, give the accused the possibility of

24     following the hearing via videolink from Belgrade.  The Registry reported

25     that Vojislav Seselj declined the Chamber's offer.  That is why he is not

Page 17543

 1     here today.  I will nonetheless proceed with the delivery of our verdict.

 2             What I will now read out is a summary of the Chamber's findings.

 3     This summary does not constitute a part of the judgement.  Only the

 4     official judgement which will be made available at the close of this

 5     hearing is authoritative.

 6             As a preliminary matter, I wish to define the scope of our

 7     judgement.  The Chamber's findings which I will set out below do not

 8     claim to establish the entire truth about the events that occurred, let

 9     alone to recount the complex history of a conflict.  The Chamber's role

10     is limited to providing a legal response to the allegations made in

11     support of the Prosecution's theory.  Therefore, this judgement is

12     dependent on the limited truth that may or may not have been established

13     by the facts presented before the Chamber.

14             In the course of this trial, which commenced on 7th of November,

15     2007, the Chamber admitted close to 1.400 exhibits.  It heard

16     99 witnesses, 90 of whom testified for the Prosecution and nine were

17     called direct by the Chamber.  The judgement consists of just over

18     100 pages and includes two annexes, a concurring opinion from

19     Judge Antonetti, I myself, a statement from Judge Niang, and a partially

20     dissenting opinion from Judge Lattanzi.

21             The Prosecution charges Vojislav Seselj, a politician, president

22     of the Serbian Radical Party and a member of the Assembly of the Republic

23     of Serbia, with having directly committed, incited, and aided and abetted

24     the crimes attributed to the Serbian protagonists in the conflict during

25     the period from August 1991 to September 1993, and of having participated

Page 17544

 1     in them through his membership in a joint criminal enterprise.

 2             The Prosecution's charges rest on the following grounds:  The

 3     idealogy of a Greater Serbia.  The Prosecution claims that the crimes

 4     were committed -- that were committed were an integral part of the means

 5     deployed to enable all of the Serbs spread out in the territories of the

 6     former Yugoslavia to live in a new and territorially unified Serbia.

 7     According to the Prosecution, this goal was to be achieved through

 8     violence, including the forcible displacement of the non-Serbian

 9     population living in certain areas that were deemed to be Serbian land.

10             The Prosecution's arguments rest on two pillars.

11             The first claims that Vojislav Seselj is -- was associated with

12     the crimes by virtue of his membership in a joint criminal enterprise,

13     whose members included local and national authorities, such as the

14     president of the Republic of Serbia, Slobodan Milosevic, military leaders

15     and deputies, as well as paramilitaries and volunteer units called

16     Chetnik or Seseljevci.  Vojislav Seselj's main role was, aside from war

17     propaganda and incitement to hatred against non-Serbs, characterised by

18     his involvement in the recruitment and organisation of volunteers who

19     would be sent into the field and incorporated into units of the Serbian

20     forces which allegedly carried out attacks in several municipalities in

21     Croatia and Bosnia and Herzegovina.  The Serbian forces are claimed to

22     have committed murders, acts of torture and cruel treatment against

23     numerous non-Serb civilians, notably Croats and Muslims.  It is also

24     claimed that they forcibly displaced non-Serb civilians and expelled

25     them.  Additionally, they are said to have destroyed villages and

Page 17545

 1     committed devastation not justified by military necessity, deliberately

 2     destroyed or damaged institutions dedicated to religion or education, and

 3     plundered public and private property.  These same "Serbian forces" were

 4     said to have imposed restrictive and discriminatory measures as part of a

 5     system of persecution.

 6             The Prosecution does not allege that Vojislav Seselj was a

 7     military leader nor does it find him criminally responsible under

 8     Article 7(3) of the Statute of the Tribunal applicable to a military or

 9     civilian superior.  Nevertheless, the Prosecution does attribute

10     extensive authority to Vojislav Seselj which he also wielded in the

11     conflict zones that he allegedly visited to -- in order to boost the

12     morale of his troops.  The Prosecution submits that Vojislav Seselj

13     established a war staff within his party that notably took care of

14     logistical needs and the deployment of volunteers, that he was kept

15     regularly informed of the activities of his troops, that he had the power

16     to intervene with volunteers and to promote them, and that he had even

17     decorated some of them, notably by conferring upon them the rank of

18     Vojvoda that he himself held.

19             According to the Prosecution's second pillar, Vojislav Seselj

20     directly committed a certain number of crimes, notably by public and

21     direct denigration in speeches inciting hatred of the non-Serbian

22     population of Vukovar (Croatia), and Hrtkovci (Vojvodina in Serbia),

23     particularly the Croats, and by calling for their deportation from these

24     parts.

25             The final version of the indictment, amended several times, in

Page 17546

 1     which all of these charges are included contain nine counts, three of

 2     which are crimes -- are counts of crimes against humanity:  Persecution,

 3     Count 1; deportation, Count 10; and inhumane acts, Count 11; and six war

 4     crimes, Count 4, murder; Count 8, torture; Count 9, cruel treatment;

 5     Count 12, wanton destruction of villages; Count 13, destruction or wilful

 6     damage done to institutions dedicated to religion or education; and

 7     Count 14, plunder of public or private property.

 8             Vojislav Seselj pleaded not guilty to all of the charges.  He

 9     represented himself and was not assisted by counsel.  At the close of the

10     Prosecution case, Vojislav Seselj opted not to call any witnesses or to

11     present additional evidence before the Chamber.  Nevertheless, he

12     actively participated in the first stage of the trial with a

13     multi-pronged defence strategy which included challenging the legality of

14     the Tribunal and claiming that there was no evidence implicating him in

15     the alleged crimes and that the charges against him were political or

16     biased.

17             Although, at first, Vojislav Seselj refused to concede anything

18     to the Prosecution, as the trial progressed his defence strategy seemed

19     to become more nuanced.  Vojislav Seselj endorses and upholds his

20     nationalist idealogy for Greater Serbia.  However, he does not attribute

21     the same purpose to it or to these idealogy as the Prosecution.

22     Ultimately he did not challenge the existence of the majority of the acts

23     of violence, destruction and plunder committed in the conflict zones.

24     Vojislav Seselj did at times challenge their scale or motives, but mainly

25     distanced himself from them by insisting that neither he nor his men

Page 17547

 1     recruited as volunteers were involved in the perpetration of these acts.

 2     Furthermore, he argues that once recruited, his volunteers were, in any

 3     case, not under his control because they were directly incorporated into

 4     the Yugoslav armed forces, the JNA or the VRS, depending on the period in

 5     question, which have their own command or hierarchy, or into local

 6     command structures.  He pointed out that the war staff of his party, the

 7     SRS, which was, in fact, headed by deputy and in which he had no direct

 8     role, had no military structure despite sounding warlike, that the

 9     distinction of Vojvoda that he bestowed on some of his men was not a

10     military distinction nor did it imply any association with the SRS.

11     According to Vojislav Seselj, some of the volunteers were also local

12     people who were already present at those locations and who, therefore,

13     had not been sent to the conflict zones by him or his party.

14     Vojislav Seselj submitted, for that matter, that there were several

15     groups of volunteers, some of whom were notorious criminals and had

16     nothing to do with his men.  He notes some confusion in distinguishing

17     them.  This confusion, according to him, is made easier by the fact that

18     the epithet Chetnik, far from being exclusively applied to the SRS

19     volunteers, was instead rather bandied about.

20             Overall, Vojislav Seselj presents the Serbs as being the victims

21     of Croat and Muslim aggression.  He also points out that the Croats and

22     Muslims respectively initiated an unconstitutional secession that set off

23     a conflict in which the Serbs appeared as the defenders of the law.  He

24     defines the recruitment and organisation of volunteers as part of a

25     legitimate operation to defend the Serbs, including in Croatia, where the

Page 17548

 1     challenge to their status as a constituent people guaranteed by the

 2     constitution coupled with their harassment and persecution constituted a

 3     serious threat their existence.  Vojislav Seselj submits that these acts

 4     needed to be taken seriously in order to avoid the repeat of the Serbs'

 5     tragic past.

 6             It is in the same vein that Vojislav Seselj provided a different

 7     description of the context in which he gave his speeches which, in his

 8     opinion, galvanized his troops and articulated his own political vision

 9     and his plan for society, and which the Prosecution wrongly qualified as

10     acts of persecution, incitement to hatred and deportation.

11             Vojislav Seselj also invites the Chamber to undertake a critical

12     analysis of the previous judgement rendered before this Tribunal, some of

13     which share the same factual basis as his case, notably the judgements in

14     the cases the Prosecutor versus Mile Mrksic et al. and the Prosecutor

15     versus Momcilo Krajisnik.  He submits that the total or partial

16     acquittals and the findings that were rejected, including the existence

17     of a joint criminal enterprise and crimes against humanity in certain

18     locations, such as Vukovar, must be applied to his case as res judicata.

19     However, he invites the Chamber to bear in mind the limited scope of the

20     conviction in the same cases because they were erroneous or were based on

21     grounds irrelevant to his own case.

22             Finally, it must be pointed out that Vojislav Seselj

23     cross-examined Prosecution witnesses and witnesses called by the Chamber

24     pursuant to Rule 98 of the Rules of Procedure and Evidence.  In his final

25     brief, he provided a comprehensive summary of the value that he assigned

Page 17549

 1     to each individual testimony.  On the other hand, he decided not to

 2     request the Rule 92 ter witnesses, and for the same reason he objected to

 3     the admission of the written statements of Rule 92 bis and quater

 4     witnesses.

 5             Prior to conducting a more detailed analysis of the specific

 6     crimes that Vojislav Seselj is charged with, the Chamber by a majority,

 7     Judge Lattanzi dissenting, made a number of observations, the first of

 8     which concerns a certain lack of precision in the Prosecution's approach.

 9     The Prosecution initially presented the charges very clearly, starting

10     from paragraph 5 of the indictment, in which it drew a distinction

11     between the crimes physically committed by the accused by limiting them

12     solely to counts 1, 10, and 11, and the other crimes that were allegedly

13     committed through the joint criminal enterprise.

14             This initial set of charges was soon obscured by subsequent

15     allegations.  Vojislav Seselj was ultimately claimed to be a member of a

16     joint criminal enterprise for all the crimes.  The Prosecution merely

17     includes all of the crimes under, primarily, the first category and,

18     alternatively, under the third category.  The alleged criminal purpose of

19     the enterprise also seemed to vary depending on the written submissions.

20     To characterise the means of creating a Greater Serbia, the Prosecution

21     oscillates between ethnic cleansing and the quest for territorial

22     continuity between the Serbs.

23             The Prosecution uses the terms "violence" and "crimes"

24     indistinctly, yet these two notions cannot be considered as equivalent,

25     especially since the backdrop of this judgement is a war.  A war is by

Page 17550

 1     definition violence, without this violence necessarily being a synonym

 2     for crime.

 3             Some of the Prosecution's written submissions give the impression

 4     that the very idealogy of a Greater Serbia is of a criminal nature, while

 5     others focus more on denouncing the means of its furtherance.  The

 6     Prosecution also seems to assume that the Serbian military campaign was

 7     illegal, thereby making any distinction between what may have been a

 8     legitimate military campaign and a campaign that may have become criminal

 9     useless, such criminal campaign which alone would be punishable.

10             Added to this ambiguity a wide-ranging charges, which for the

11     Prosecution consist in targeting all of the possible modes of criminal

12     conduct provided for under Article 7(1) of the Statute of the Tribunal

13     without them necessarily corresponding to the described facts.  Thus, the

14     same facts have been qualified as acts of direct commission, acts

15     attributed to a criminal enterprise, acts of incitement, or aiding and

16     abetting.  The same facts that are qualified as murder, torture and cruel

17     treatment, crimes of deportation, inhumane acts (forcible transfer),

18     wanton destruction and plunder of public or private property, are also

19     referred to as acts of persecution.  Overall, the Prosecution applies a

20     circular approach in which practically each crime has multiple

21     qualifications and each mode of participation in crimes seems to contain

22     or superimpose all the others.

23             While cumulative charging is generally permitted, on condition

24     that the facts allow for this, in the opinion of the majority, it is much

25     more difficult to accept an indiscriminate use of all the possible modes

Page 17551

 1     of liability with almost no regard for specificity of the facts.  The

 2     Prosecution has been reprimanded for this catch-all phrase in the

 3     judgements.  The majority regrets the maximalist approach not in order to

 4     claim that it has impaired the proceedings and has compromised

 5     Vojislav Seselj's effective defence.  It must be emphasised that the

 6     latter was able to present all of his arguments.  The majority simply

 7     underlined that, regrettably, the Prosecution's ambiguities complicated

 8     an approach that could have been more simple for the Prosecution, but

 9     also for the Defence and the Chamber.  The Defence and the Chamber were

10     both chastised to a certain degree for following the furrow dug by the

11     Prosecution.  The Prosecution's briefs should have helped lift some

12     initial ambiguities.  On the contrary, instead of presenting the

13     work-plan of the Prosecution with regard to the facts to be proved and of

14     reviewing at the end of the trial how the Prosecution completed its

15     tasks, the briefs appeared to the majority, rather, as new charging

16     instruments, each of which was aimed at presenting the entire case of the

17     Prosecution.  Thus, it is with some difficulty that the Chamber has tried

18     to disentangle or untangle the disparate submissions of the Prosecution.

19             I will now present the findings of the Chamber on certain

20     important questions linked -- certain evidence-related questions.

21             The Chamber admitted into evidence many excerpts from books by

22     Vojislav Seselj.  The source of these documents represents for the

23     Chamber important indicia of whether the published speeches are

24     attributable to Vojislav Seselj.  The Chamber, however, does not lose

25     sight of the possible exaggeration of some of these statements.

Page 17552

 1             The Chamber has also admitted into evidence the initial written

 2     statements given to the Prosecution by witnesses who then partially or

 3     completely contradicted their statements when they testified.  The

 4     Chamber followed the guide-lines outlined by the Appeals Chamber and

 5     examined the evidence from these witnesses case by case.  The Chamber

 6     admitted considerable evidence that goes to a consistent pattern of

 7     conduct.  The Chamber by a majority, Judge Lattanzi dissenting, did not

 8     find it very useful to take into account this evidence which only

 9     duplicated the evidence that had already been admitted on the relevant

10     facts.

11             The Chamber received a number of documents and testimonies from

12     other proceedings.  For the facts admitted through judicial notice under

13     Rule 94 bis [as interpreted] of the Rules of Procedure and Evidence, the

14     Chamber recalls that their evidentiary value is not binding for the

15     Chamber.  Without having been challenged by evidence to the contrary

16     presented by the Defence it is not definitive.  The Chamber may set

17     these -- may set them aside in favour of more reliable evidence such as

18     the testimony of witnesses who were directly examined by the Chamber and

19     subjected to cross-examination.

20             I will -- [No interpretation].

21             The Chamber -- I will now broach the general context of the facts

22     in the indictment.  The Chamber received ample evidence retracing the

23     chronology of events that led to the disintegration of the former

24     Yugoslavia.  Vojislav Seselj founded the SPO in March 1990 together with

25     Vuk Draskovic.  Following their disagreements, on 18 June 1990,

Page 17553

 1     Vojislav Seselj founded the Serbian Chetnik Movement, or the SCP, over

 2     which he presided.

 3             On the 25th of February, 1991, Vojislav Seselj, Ljubisa Petkovic,

 4     and Tomislav Nikolic founded a new political party, the Serbian Radical

 5     Party, or the SRS.  Vojislav Seselj was elected as its president.

 6             The goals of the SRS were essentially the same as those of the

 7     SCP.  They called for the creation of a united Serbian state or of a

 8     Greater Serbia that would follow the borders defined by the

 9     Karlobag-Virovitica-Ogulin-Karlovac line.  The SRS had a two-fold

10     structure:  A central committee, the organ of the party, and municipal

11     committees and subcommittees at the levels of small towns and villages.

12     The SRS also had branches in Vojvodina, Croatia, Bosnia and Herzegovina,

13     and in Montenegro.

14             With respect to the SCP/SRS volunteers, the Chamber found that

15     the concept of volunteer within the Serbian army initially referred to

16     individuals who joined the armed forces in times of war.  From

17     August 1991, according to the Law on National Defence of the Republic of

18     Serbia, the Serbian volunteers had to join the Territorial Defence in

19     order to reinforce the troops of the federal armed forces, regardless of

20     their affiliation.

21             The Chamber focused on the disputed issue of identifying SCP/SRS

22     volunteers.  These men were called Seselj's men, or Seseljevci, a name

23     which was sometimes confused with that of Chetniks, which was used,

24     depending on the case, to refer to Serbian soldiers who identified with

25     the nationalist idealogy of Vojislav Seselj.  An analysis of the evidence

Page 17554

 1     shows that the Seselj's Men could be identified by the physical

 2     appearance and by clothing and accessories, without this method of

 3     identification always being decisive.  The Chamber was therefore careful

 4     to identify persons associated with the SCP/SRS using various sources,

 5     rather than associating any reference to the term "Chetnik" with

 6     Vojislav Seselj.

 7             The Chamber found that recruitment of SRS volunteers primarily

 8     took place in the SRS headquarters in Belgrade.  Recruitment was also

 9     done at the municipal level.  It is not disputed that the SRS also

10     recruited and sent volunteers in response to requests from other armed

11     forces, in particular, the local Territorial Defence, or the TO, in

12     Bosnia-Herzegovina and Croatia, and the armed forces stationed in

13     Bosnia-Herzegovina and Croatia, including the JNA, the VJ, and VRS.

14             The Chamber found that being a member of the SRS was not a

15     criterion for the recruitment of volunteers.  Among them there were also

16     persons without any political affiliation or whose affiliation to the SRS

17     came after they had been deployed in the field.

18             One of the key findings of the Chamber was to note that while

19     Vojislav Seselj may have had a certain amount of moral authority over his

20     party's volunteers, these volunteers were not his subordinates when they

21     were engaged in military operations.  The Chamber has ample proof of

22     this, including the testimony of Prosecution military expert,

23     Mr. Reynaud Theunens.  He explained quite clearly that, on the one hand,

24     the Yugoslav constitution and other relevant legal texts envisaged the

25     possibility of declaring an imminent state of war.  Once such a

Page 17555

 1     declaration had been made, the army could resort to using volunteers to

 2     reinforce its regular troops.  The Yugoslav armed forces were organised

 3     on the principle of unity of command.  By virtue of this principle, both

 4     regular soldiers and volunteers were sent into the field and were under

 5     the same military hierarchy.  On the basis of this principle,

 6     Vojislav Seselj could not have had any hierarchical relationship to the

 7     volunteers once they had become incorporated into the structure of the

 8     regular armed forces of the JNA, VJ, and VRS.

 9             With respect to the Prosecution's allegations that the

10     paramilitary forces participated in the crimes set out in the indictment,

11     the Chamber received evidence showing that the following paramilitary

12     groups were, in fact, present during the period relevant to the

13     indictment in some of the locations where crimes were committed, namely:

14     Arkan's Tigers; the White Eagles; the Dusan Silni Detachment; the

15     Red Berets, or the special unit of the Serbian DB security services which

16     was created on the 4th of May, 1991; the Yellow Wasps; the

17     Leva Supoderica Detachment; the Vasilje Vidovic, also known as Vaske,

18     unit; Gogic's unit, also known as the Loznica group; the Karadjordje

19     unit; the SPO Serbian Guard; the Branislav Gavrilovic, also known as

20     Brne, and Slavko Aleksic units.

21             Furthermore, the Chamber examined the alleged relationship

22     between these groups and Vojislav Seselj.  In the Chamber's opinion, with

23     Judge Lattanzi dissenting, there is not enough evidence to find that an

24     affiliation existed between Vojislav Seselj and certain paramilitary

25     groups, such as Arkan's Tigers, the White Eagles and the Karadjordje

Page 17556

 1     unit.  The Chamber also finds unanimously that there is no evidence of a

 2     direct hierarchical relationship between Vojislav Seselj and the Loznica

 3     group or the Serbian Guard unit.

 4             The Chamber further finds that Vojin Vuckovic, also known as Zuco

 5     or Zuca, was the commander of a Serbian volunteer unit that he operated

 6     independently by taking on the name Yellow Wasps.  Zuco's brother Dusan

 7     Vuckovic, also known as Repic, and a person whose nickname was Topola

 8     were also members of this unit.  Vojislav Seselj distanced himself from

 9     the Yellow Wasps after the murders committed in Zvornik.

10             With respect to the Red Berets, the Chamber found that some SRS

11     volunteers had joined the units of the Red Berets and were even

12     commanders of those units.

13             The Leva Supoderica Detachment consisted of SRS volunteers sent

14     to Vukovar by the SRS staff or recruited locally.

15             With respect to Vaske's unit, the Chamber found that Vaske was a

16     member of the SCP from its inception and a founding member of the SRS.

17     The Chamber finds that from September 1991 to late February 1992 Vaske

18     was an SRS volunteer in Benkovac, in Dalmatia.

19             With respect to Brne's units and Slavko Aleksic's units, the

20     Chamber found that these units consisted of SRS volunteers in Bosnia and

21     Herzegovina during the period covered by the indictment, but that Brne

22     and Slavko Aleksic had not been sent by the SRS to the Sarajevo region.

23     Nevertheless, Vojislav Seselj acknowledged them as being the commanders

24     of the SRS volunteers on the ground.  Their units had furthermore been

25     placed under the command of the VRS.

Page 17557

 1             I will now summarise the Chamber's legal and factual findings on

 2     the crimes set out in the indictment.

 3             With respect to the requirements under Article 5 of the Statute

 4     regarding crimes against humanity, the Chamber by majority,

 5     Judge Lattanzi dissenting, found that the Prosecution failed to prove

 6     beyond all reasonable doubt that there was a widespread and systematic

 7     attack against the non-Serb civilian position in large areas of Croatia

 8     and Bosnia-Herzegovina, notably in the municipalities of Vukovar,

 9     Zvornik, the region of Sarajevo, and in the municipalities of Mostar and

10     Nevesinje during the period covered by the indictment.

11             The evidence tendered and considered, in fact, establishes that

12     there was an armed conflict between enemy military forces with civilian

13     components.  The majority is of the opinion that the Prosecution failed

14     to present the Judges with an account that clearly shows that civilians

15     who did not participate in combat were targeted en masse.  The

16     Prosecution does no more than make general statements that fail to

17     account for the specific evidence heard by the Judges.  Under such

18     circumstances, the majority cannot dismiss the Defence's argument - amply

19     supported by some of the testimonies - according to which these civilians

20     had fled the combat zones to take refuge in villages inhabited by members

21     of the same ethnic or religious group, that the buses that were provided

22     for this purpose did not constitute operations to forcibly transfer the

23     population but were, in fact, provided on humanitarian grounds in order

24     to assist non-combatants who were fleeing combat zones in which they no

25     longer felt safe.

Page 17558

 1             In the case of Vojvodina, the majority of the Chamber,

 2     Judge Lattanzi dissenting, finds that this area was not a zone of armed

 3     conflict.  The majority did not note any effort made by the Prosecution

 4     to argue - let alone prove to the Chamber - that there was a clear nexus

 5     with the conflict in Croatia and in Bosnia and Herzegovina.  The

 6     Prosecution has not presented any evidence on the conditions under which

 7     Serbian refugees arrived from Croatia in order to establish such a nexus.

 8             The majority also noted other shortcomings in the Prosecution's

 9     approach.  The majority notes the particular weakness of the evidence

10     presented by the Prosecution to establish a nexus between the acts of

11     violence and the departure of civilians from certain areas.  The report

12     of expert Ewa Tabeau merely provides a comprehensive list of the

13     departures that occurred throughout 1992, without specifying the cause

14     behind them.

15             Similarly, Witness VS-061, upon whom the Prosecution relies

16     heavily, was not convincing.  He was caught out on a number of occasions

17     and had to admit that his account contained serious omissions and

18     fabrications.  These fabrications concerned essential issues such as the

19     murder of a Croat, Mijat Stefanac, which, according to the witness, was

20     claimed to be the event that made the Croats flee.  Under

21     cross-examination, he admitted that this murder had been committed in a

22     cafe in the context of a private dispute which got out of hand and that

23     those responsible for the murder had been arrested and tried.

24             The majority notes that, generally speaking, the violent acts

25     against the civilians in Hrtkovci, such as they have been described, are

Page 17559

 1     not comparable, in terms of their scale and modus operandi, to a

 2     widespread and systematic attack against the civilian population.  The

 3     testimony that has been heard, far from suggesting that there was a

 4     large-scale attack against the Croatian civilian population, rather

 5     points out acts that were based mainly on local or even private reasons.

 6     Their primary reason would appear to be the acquiring of accommodation by

 7     Serbs who had none because of their refugee status.

 8             Finally, the majority notes, and without neglecting the

 9     particularly troubling speech made by Vojislav Seselj on 6th May in which

10     he clearly called for expulsion of Croats, in particular those whom he

11     considered to be disloyal, that it was not alleged that Vojislav Seselj

12     was directly involved in the exchanges of houses.  Yet these exchange

13     contracts are specified as the principle means by which the Croats were

14     expelled from Hrtkovci.  At best, the Prosecution could have sought to

15     establish that Vojislav Seselj bore indirect responsibility, not direct

16     responsibility, for acts of persecution.  In any event, the majority

17     notes the absence of crucial legal elements to establish any form of

18     criminal responsibility for crimes against humanity.

19             Consequently, the Chamber by majority, Judge Lattanzi dissenting,

20     finds that the conditions required under Article 5 of the Statute have

21     not been met.

22             With regard to the requirements under Article 3 of the Statute

23     regarding war crimes, the Chamber notes:  The existence of an armed

24     conflict in Croatia and Bosnia and Herzegovina during the period covered

25     by the indictment; 2, the crimes specified in the indictment as

Page 17560

 1     violations of the laws or customs of war could have been committed by

 2     members of the Serbian forces in order to support the armed conflict or

 3     as a result of that conflict.  With regard to war crimes, the Chamber

 4     notes that it heard certain evidence on crimes not alleged in the

 5     indictment.  Given Vojislav Seselj's right to be informed of the charges

 6     against him, the Chamber did not take this evidence into consideration.

 7             Furthermore, the Chamber holds that the Prosecution has not

 8     provided sufficient evidence to establish that the following crimes were

 9     committed:  The murders in the Crna Rijeka sector; cruel treatment in the

10     form of forced labour inflicted on the detainees at Ovcara farm; the

11     cruel treatment inflicted on detainees in the Velepromet warehouse; the

12     torture and cruel treatment of the detainees in Sonja's house, in the

13     Semizovac barracks, and at the tire repair garage at the Vogosca

14     cross-road in the Sarajevo region; and the plunder of private property by

15     Serbian forces in the villages of Nevesinje municipality.

16             The Chamber by majority, Judge Lattanzi dissenting, holds that

17     the Prosecution has not provided sufficient evidence to establish that

18     the following crimes were committed:  The murder of non-Serb detainees on

19     the Zuc hill near Sarajevo; torture and cruel treatment at the Gero

20     slaughter-house near Zvornik; and the plunder of public or private

21     property in the town of Vukovar and its houses.

22             The Chamber by majority, Judge Lattanzi dissenting, also did not

23     accept the charges of wanton destruction or devastation not justified

24     about by military necessity of towns, villages, and homes, and of the

25     deliberate destruction of institutions dedicated to religion or

Page 17561

 1     education.  The majority holds that there is insufficient contextual

 2     information on the destruction to allow for an assessment that would take

 3     all the factors on the ground into account.

 4             The Chamber noted the existence of certain crimes, and it will

 5     provide a list of these crimes before determining whether they can be

 6     attributed to Vojislav Seselj.

 7             In the municipality of Vukovar:  Murder, torture and cruel

 8     treatment, including sexual assault inflicted on detainees at the

 9     Velepromet warehouse and the Ovcara farm.

10             In the municipality of Zvornik:  The murder of Muslim civilians

11     during the attack on Zvornik in April 1992; murder, torture and cruel

12     treatment inflicted on Muslim detainees at the Ekonomija farm, on

13     detainees at the Ciglana factory, on detainees at the Drinjaca Dom

14     Kulture, on detainees at the Karakaj technical school, and on detainees

15     in the Celopek Dom Kulture; the murder of a large number of non-Serb

16     detainees at Gero's slaughter-house; torture and cruel treatment

17     inflicted on detainees in the Standard shoe factory; and the plunder of

18     private property from houses belonging to the inhabitants of Zvornik.

19             In the Sarajevo region:  The murder of 17 Muslim civilians during

20     an attack on the village of Ljesevo; torture and cruel treatment

21     inflicted on detainees in the Iskra warehouse in Podlugovi, and on

22     detainees in Planja's house; and the plunder of Muslim houses after the

23     attack on the village of Svrake.

24             In the municipality of Mostar:  The murder of non-Serb civilians

25     in the dump in Uborak and in the buildings of the main city mortuary in

Page 17562

 1     Sutina; torture and cruel treatment inflicted on detainees in the locker

 2     room of the Vrapcici football stadium, and on the detainees in Sutina;

 3     the plunder of private property from houses belonging to Muslims in the

 4     Topola hamlet.

 5             In the municipality of Nevesinje:  The murder of villagers in

 6     Presjeka; the murder of Muslims in Breza and at the Kilavci heating

 7     factory; the murder of villagers detained at the Zijemlje school; torture

 8     and cruel treatment inflicted on detainees in the Kilavci heating

 9     factory, on detainees at the Zijemlje school, and on detainees in the SUP

10     building in Nevesinje.

11             I will now provide a summary of the Chamber's findings on

12     Vojislav Seselj's liability for the charges in the indictment.

13             The Prosecution holds Vojislav Seselj responsible for the

14     physical commission of crimes in relation to crimes of persecutions,

15     deportation, and inhumane acts (forcible transfer) with respect to the

16     accused's speeches, the commission of crimes as a co-perpetrator

17     participating in a joint criminal enterprise, or JCE, and instigation and

18     aiding and abetting.

19             Seeking to establish responsibility on the basis of a criminal

20     enterprise primarily requires the identification of a common criminal

21     purpose.  If the purpose is not criminal in itself, at the very least,

22     the crimes committed to achieve the purpose must be an inherent element.

23             The majority of the Chamber, Judge Lattanzi dissenting, has noted

24     an entire series of shortcomings and cases of confusion.

25             According to the Prosecution, the plan for a Greater Serbia

Page 17563

 1     advocated by Vojislav Seselj contained an implicit criminal element as a

 2     result of its aim to unify all Serbian territory in a homogenous Serbian

 3     state comprising Serbia, Montenegro, Macedonia, and vast swaths of

 4     Croatia and Bosnia and Herzegovina which would involve the deportation or

 5     forceable removal of the non-Serbian population.  The majority has

 6     analysed the evidence admitted on the matter in order to determine

 7     whether this definition is tantamount to a joint criminal enterprise.

 8     The Prosecution lays emphasise on the transfer under Serbian control of

 9     targeted territories.  This transfer was allegedly planned and included

10     certain common characteristics such as:  A, declaring vast areas of

11     Croatia and Bosnia and Herzegovina to be Serbian Autonomous Regions and

12     taking control of public institutions and local administrative bodies; B,

13     conscripting volunteers and co-ordinating the actions of the JNA/VJ, the

14     Ministry of the Interior, MUP, TO, and other formations; and C, covertly

15     arming Serb civilians; and D, committing crimes in the field.

16             The majority is of the opinion that the Prosecution has given a

17     very partial interpretation of the events it claims demonstrate the

18     existence of a criminal plan for a Greater Serbia or for an entity known

19     by a similar name.  By depicting the establishment of Serbian Autonomous

20     Regions in Croatia and Bosnia-Herzegovina as actions that were part of

21     the criminal plan for a Greater Serbia, without clarifying the broader

22     context in which these acts were taken - namely, the secession of both

23     Croatia and Bosnia-Herzegovina - the Prosecution gives an interpretation

24     which at best hides the way the events unfolded, and at worst distorts

25     them in relation to the evidence presented to the Chamber, which was

Page 17564

 1     mainly Prosecution evidence.

 2             The majority considers that the plan for a Greater Serbia such as

 3     it was advocated by Vojislav Seselj was in principle a political plan,

 4     not a criminal one.  For Vojislav Seselj, only the Serbian Radical Party

 5     pursued the objective of a Greater Serbia which was to include all the

 6     Serbs, whether they were of the Orthodox, Catholic, or Muslim faith.  The

 7     statements Vojislav Seselj made about his vision of a Greater Serbia do

 8     not seem to have been contested by the Prosecution.  Moreover, such

 9     statements can be found in numerous documents drafted prior to the

10     proceedings in this case.  Even if certain attitudes thought to be

11     discriminatory on the part of the Serbs are taken into account, namely,

12     the establishment of their local institutions in Croatia and

13     Bosnia-Herzegovina, the majority holds that the totality of the evidence

14     does not lead to the conclusion that declaring the autonomy of the

15     Serbian people of Croatia and Bosnia-Herzegovina was the result of a

16     criminal enterprise.

17             In fact, it is not in dispute that Vojislav Seselj was driven by

18     an ardent political ambition to create a Greater Serbia.  Nothing,

19     however, indicates that there was a criminal purpose in sending

20     volunteers.  There is a reasonable possibility that sending of volunteers

21     was aimed at protecting the Serbs.  The evidence shows that the

22     recruitment and deployment of volunteers by Vojislav Seselj and his party

23     and the co-operation therein with other Serb forces, including the JNA

24     and VJ, the MUP, the TO, and the other paramilitary formations, did not

25     constitute an unlawful activity.  On the contrary, it could have been

Page 17565

 1     amply justified by the context of war.  The legal framework of the former

 2     Yugoslavia allowed resorting to volunteers.  These were integrated into

 3     the armed forces of the SFRY, including the Yugoslav People's Army and

 4     the Territorial Defence.  Moreover, the Chamber notes that

 5     Vojislav Seselj was not the hierarchical superior of the volunteers

 6     deployed on the ground.

 7             The above findings do not by any means presume to underestimate

 8     and even less to conceal the crimes committed in different localities in

 9     Croatia and Bosnia-Herzegovina in which the volunteers deployed by

10     Vojislav Seselj or his party may have taken part or have been indirectly

11     involved.  The majority simply notes that it is not satisfied that the

12     recruitment and subsequent deployment of volunteers implies that

13     Vojislav Seselj knew of these crimes on the ground, or that he instructed

14     or endorsed them.  In the opinion of the majority, these crimes cannot be

15     considered as an inherent element of the political design of

16     Greater Serbia or the activities aimed at protecting the Serbs.

17             The Chamber has received an abundance of evidence establishing

18     that the local Serbs of Croatia and Bosnia-Herzegovina were arming

19     themselves.  Nevertheless, evidence shows that Croat and Muslim civilians

20     were equally arming themselves.  In the view of the majority, this global

21     picture gives credence to the reasonable possibility of a scenario in

22     which all the warring factions were preparing themselves for the imminent

23     hostilities in order to preserve the lands they considered as theirs,

24     rather than a singular and unilateral step of the Serbian occupiers

25     driven solely by the criminal purpose of expelling the civilians of other

Page 17566

 1     ethnic groups.

 2             The lack of evidence of a criminal purpose is in itself

 3     sufficient to reject the allegation of a criminal enterprise.  The

 4     majority explored further, albeit superfluously, the issue of the

 5     identity of views between the alleged members of the criminal enterprise,

 6     this being a necessary element for the finding of existence of a joint

 7     criminal enterprise.

 8             The Prosecution focused most of its allegations on identity of

 9     views between Vojislav Seselj and Milosevic, as representing the JNA/VJ

10     and the Serbian MUP, between Vojislav Seselj and other members associated

11     with Republika Srpska and the Army of Republika Srpska, and between

12     Vojislav Seselj and other paramilitary groups such as Arkan's Tigers.

13             In its judgement, the Chamber cited the exchanges that took place

14     between the different protagonists in the Milosevic trial during

15     Vojislav Seselj's testimony in that case.  It appears from these

16     exchanges that the Judges in that case were as much at a loss as the

17     majority of the Chamber in the present case as to the object of the

18     alleged criminal purpose.  The Prosecution first stated that Milosevic

19     did not share the idealogy of Greater Serbia.  It was then confronted

20     with its own earlier written submissions from which it transpired that

21     the notion of Greater Serbia lay at the very heart of its own case.  The

22     Prosecution prevaricated, changing versions more than once, all the while

23     refusing the adjournment willingly offered to it by the Judges so that it

24     could take its time and clarify its submissions that were found to be

25     confusing.

Page 17567

 1             In the view of the majority, not only does the confusion remain,

 2     but a lot of the evidence shows that the collaboration was aimed at

 3     defending the Serbs and the traditionally Serb territories or at

 4     preserving Yugoslavia, not at committing the alleged crimes.

 5             The Chamber, by a majority, Judge Lattanzi dissenting, therefore

 6     finds that the Prosecution has failed to prove the existence of a joint

 7     criminal enterprise.

 8             The Chamber by a majority, Judge Lattanzi dissenting, also

 9     rejects the responsibility of Vojislav Seselj in terms of the actual

10     commission of the crimes of persecution, with all the consequences of its

11     finding that the standards for applying Article 5 of the Statute have not

12     been met.  The Chamber unanimously finds that Vojislav Seselj is not

13     responsible for the actual commission of expulsions and inhumane acts,

14     forcible transfer, as crimes against humanity charged in the indictment.

15             I will now summarise the findings of the Chamber regarding the

16     Prosecution's allegations of incitement to commit crimes with which

17     Vojislav Seselj is charged.

18             Firstly, the Chamber accepts that the propaganda of a nationalist

19     idealogy is not in itself criminal.  It deemed, however, that it was its

20     duty to analyse and to qualify the statements made by Vojislav Seselj and

21     their potential effect on the perpetrators of the crimes charged in the

22     indictment in the light of their context.

23             The Chamber examined the substance and the context of several

24     incriminated speeches by Vojislav Seselj, specifically:  One, a speech

25     delivered on the Vukovar road on 7 November 1991 where Vojislav Seselj

Page 17568

 1     allegedly stated that "very soon, there will not be a single Ustasha left

 2     in this area."

 3             Two, a speech delivered by Vojislav Seselj in Vukovar between 12

 4     and 13 November 1991 where he is said to have stated that "not a single

 5     Ustasha must leave Vukovar alive" and "Ustashas, surrender!  There is no

 6     need to lay down your lives anymore."

 7             Three, a speech made in Mali Zvornik in March 1992 during which

 8     he is said to have called upon his Chetnik brothers to take revenge

 9     against the "balijas" and push them back towards the east, far beyond the

10     Drina river.

11             Four, a speech delivered on 6 May 1992 in Hrtkovci (Vojvodina)

12     when Vojislav Seselj allegedly stated that there was no place for Croats

13     in Hrtkovci.

14             The Chamber finds that the speeches on the Vukovar road and in

15     Vukovar were indeed made by Vojislav Seselj.  However, the majority,

16     Judge Lattanzi dissenting, could not rule out the reasonable possibility

17     that these speeches were made in a context of conflict and were meant to

18     boost the morale of the troops of his camp, rather than calling upon them

19     to spare no one.

20             The Chamber by majority, Judge Antonetti, that is to say, myself,

21     dissenting, also finds that Vojislav Seselj did indeed deliver the said

22     speech in March 1992 in Mali Zvornik, even if it considers that the

23     precise circumstances of the speech have not been established.

24             The Chamber by majority, Judge Lattanzi dissenting, was

25     nonetheless unable to find beyond all reasonable doubt that in calling

Page 17569

 1     upon the Serbs to cleanse Bosnia of the "pogani" and the "balijas,"

 2     Vojislav Seselj was calling for ethnic cleansing of Bosnia's non-Serbs.

 3     The majority, in fact, believes that the evidence supplied by the

 4     Prosecution is not sufficient to exclude the possibility, in view of the

 5     context, that in making this appeal, Vojislav Seselj was rather

 6     participating in the war effort by galvanizing the Serb forces.

 7             The Chamber by majority finds, Judge Antonetti, that is to say,

 8     myself, dissenting, that the statements made by Vojislav Seselj in his

 9     speech in Hrtkovci constituted a clear call for the expulsion or forcible

10     transfer of Croats from this locality.  Nevertheless, the majority,

11     Judge Lattanzi dissenting, is of the view that the Prosecution failed to

12     show that this speech caused the departure of the Croats or the campaign

13     of persecution alleged by the Prosecution.

14             The Chamber by a majority, Judge Antonetti dissenting, finds the

15     two other speeches delivered in the Serbian Parliament on the 1st and the

16     7th of April, 1992, constituted clear appeals for the expulsion and

17     forcible transfer of Croats.

18             In the first speech, on the 1st of April, 1992, while debating a

19     draft law on refugees, Vojislav Seselj stated, I quote:

20             "We are going to expel the Croats, exercising the same right that

21     Tudjman exercised to expel the Serbs.  We are not going to resort to

22     genocidal activities because it is not in the blood of the Serbs.  We are

23     not going to start killing you, of course.  We are simply going to pack

24     you into trucks and trains and let you get on with it in Zagreb."

25             The second speech of 7 April 1992 reiterates substantially the

Page 17570

 1     same.  Even though, in the view of the majority, Judge Antonetti

 2     dissenting, these speeches were appeals for expulsion, a different

 3     majority, Judge Lattanzi dissenting, holds that these statements, forming

 4     part of an opposition to the official Serbian policy, were an expression

 5     of an alternative political programme that would never be put into place.

 6     The Prosecution did not offer anything to show its impact.

 7             The lack of any measurable impact combined with the certainty

 8     that the appeals to Serbian authorities to use reprisals against Croats

 9     were never favourably received do not allow the majority to find that

10     there was incitement to war crimes, even when taking into account the

11     most virulent speeches, such as the one in Hrtkovci, and those delivered

12     before the Serbian Parliament.

13             The Chamber by a majority, Judge Lattanzi dissenting, therefore

14     finds that the Prosecution has failed to show a causal link between

15     Vojislav Seselj's speeches of the 1st and 7th of April, 1992, and the

16     crimes committed in April 1992 in Mostar, Zvornik, and the Sarajevo area,

17     or that Vojislav Seselj could be held even indirectly responsible for the

18     crimes committed between May 1992 and September 1993.  Under these

19     circumstances, the majority is unable to qualify Vojislav Seselj's

20     speeches of the 1st and 7th of April, 1992, as physical acts of

21     incitement.

22             The Chamber by a majority also rejects the Prosecution's

23     delegation of incitement to crimes on the basis that Vojislav Seselj

24     failed to take steps to punish the Seseljevci who had taken part in

25     crimes against non-Serbs.  The majority recalls that no formal or

Page 17571

 1     de facto hierarchical link was found to exist between Vojislav Seselj and

 2     the volunteers involved in the crimes charged in the indictment.  Failure

 3     to punish, however, cannot be invoked in the absence of any hierarchical

 4     link that would make Vojislav Seselj responsible for the volunteers'

 5     conduct.  In the view of the majority, it is established that in terms of

 6     their actions on the ground, the volunteers were under military

 7     authority.

 8             With respect to the alleged responsibility of Vojislav Seselj on

 9     the count of aiding and abetting, the Chamber by a majority,

10     Judge Lattanzi dissenting, rejects it, noting that the underlying

11     allegations of the Prosecution had the same factual basis as its

12     allegations on his responsible under the joint criminal enterprise and

13     incitement.

14             I will now read the disposition.

15             For the reasons summarised above, the Chamber rules as follows:

16             On Count 1, persecutions, as a crime against humanity, the

17     majority, Judge Lattanzi dissenting, declares the accused not guilty.

18             On Count 4, murder, as a violation of the laws or customs of war,

19     the majority, Judge Lattanzi dissenting, declares the accused not guilty.

20             On Count 8, torture, as a violation of the laws and customs of

21     war, the majority, Judge Lattanzi dissenting, declares the accused not

22     guilty.

23             On Count 9, cruel treatment, as a violation of the laws and

24     customs of war, the majority, Judge Lattanzi dissenting, declares the

25     accused not guilty.

Page 17572

 1             On Count 10, expulsion, as a crime against humanity, the

 2     majority, Judge Lattanzi dissenting, declares the accused not guilty.

 3             On Count 11, inhumane acts, forcible transfer, as a crime against

 4     humanity, the majority, Judge Lattanzi dissenting, declares the accused

 5     not guilty.

 6             On Count 12, wanton destruction of villages or devastation

 7     unjustified by military necessity, as a violation of the laws and customs

 8     of war, the majority, Judge Lattanzi dissenting, declares the accused not

 9     guilty.

10             On Count 13, destruction or wilful damage done to institutions

11     dedicated to religion and education, as a violation of the laws and

12     customs of war, the majority, Judge Lattanzi dissenting, declares the

13     accused not guilty.

14             On Count 14, plunder of public or private property, as a

15     violation of the laws and customs of war, the Chamber declares the

16     accused not guilty.

17             With this acquittal on all the nine counts of the indictment, the

18     arrest warrant issued by the Appeals Chamber on 17 June 2015 is hereby

19     rendered moot.  Following this verdict, Vojislav Seselj is now a free

20     man.

21             Judge Antonetti provides an assenting opinion; Judge Niang

22     attaches a declaration; Judge Lattanzi attaches a partially dissenting

23     opinion.

24                            --- Whereupon the hearing adjourned at 11.25 a.m.