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This time the Yugoslav tribunal got it wrong

Serbian ultranationalist and war crimes suspect Vojislav Seselj waves to supporters during a rally in Belgrade, Serbia(AP Photo/Andrej Cukic, File)

A United Nations court in The Hague has acquitted Vojislav Seselj, the Serbian nationalist whose volunteers helped to start the war in Croatia in 1991, of all charges. It isn’t the “not guilty” verdict that is shocking or necessarily wrong; it is the tribunal’s reasoning, which contradicts much of what this court has taught us about the war over the past two decades.

The verdict comes just days after the International Criminal Tribunal for the former Yugoslavia sentenced former Bosnian Serb leader Radovan Karadzic to 40 years in jail for war crimes he committed during the attempt to create a Greater Serbia by clearing the territory of non-Serbs. The big difference between the two men is that Karadzic was in charge. He had a clear chain of command through which his orders could be carried out. Seselj’s position, as a Belgrade parliamentarian who sent volunteers to fight at the front, was less clear-cut.

So the prosecution may well have failed to demonstrate Seselj’s direct responsibility for the war crimes his fighters carried out. But the tribunal’s two-judge majority went much farther. They argued that the prosecution failed even to show that the crimes were crimes because Seselj’s project for a Greater Serbia was a political one, the fighting happened in the context of Croatia and Bosnia’s secession from Yugoslavia, and because Seselj might just have thought he was defending Yugoslavia and protecting Serbian civilians, which would be legitimate.

When Seselj gave speeches at the front, calling on fighters to wipe the Croats from Greater Serbian territory, the judges said they could not rule out that his comments “were meant to boost the morale of the troops of his camp, rather than calling upon them to spare no one”. Well, yes they could.

After covering the first weeks of fighting in eastern Croatia in July 1991, I went to see Seselj. People I had spoken to on both sides of the fighting in villages along the west bank of the Danube, where it forms the border between Croatia and Serbia, said the killing began when “Seselj’s men” infiltrated across the river to arm and fight with local Serbs. They were distinguishable by their beards and costume-style uniforms. Seselj, too, was disarmingly frank. As I wrote at the time:

“On the wall above his desk in his Belgrade office, he has pinned the colours of the Chetnik nationalist movement of which he is the leader — a white skull and crossbones against a black background and with the inscription ‘Free or Dead’. The crude simplicity of the Chetnik logo suits Mr Seselj well: he seems to have made the idiom his own. ‘We want no one else on our territory and we will fight for our true borders. The Croats must either move or die,’ he said.”

Seselj was equally clear that he was not trying to defend Yugoslavia, which at the time was what Serbian leader Slobodan Milosevic insisted he was trying to do:

“We are against Yugoslavia,” Mr Seselj said. “We do not want to live in the same country as Croats.” Slovenia, he says, should be allowed to be independent. And so should Croatia — up to a point. For before Croatia is freed, it should amputate the arm of its territory that runs south along the Dalmatian coast, all of Slavonia — its eastern shoulder — and part of its centre. Everything south and east of the new Croatian border would then become greater Serbia.”

Equally, in Kosovo, the 90 per cent ethnic Albanian majority were “guests”, who must become loyal Serbian subjects or go home, Seselj explained. Macedonia was an artificial construct, as was Bosnia. Montenegro was simply Serbia. All of it was Greater Serbia.

Wanting a Greater Serbia did not, as the court rightly said, make Seselj a war criminal. In the same way, wanting a caliphate doesn’t make Isis terrorists. Britain and other countries have tied themselves in knots trying to find ways to jail preachers such as Abu Hamza, who proselytised in favour of al-Qaeda — without directly recruiting their disciples to go to kill British infidels. As vile and dangerous as these people were, they committed no crime.

But Seselj did recruit fighters and did then incite them in public speeches to go to kill Croats and Bosnian Muslims, whom he also referred to as fascists and “excrement”, respectively. To argue that Seselj’s project for a Greater Serbia did not necessarily require ethnic cleansing, or that he maybe didn’t mean it when he said Croats should “move or die”, or that buses laid on to ship Croatian civilians from villages claimed for Greater Serbia might have been “humanitarian” — as the tribunal did — is hard to justify. Seselj revelled in his hard line. The buses were enlisted for ethnic cleansing. As the man his volunteers described as their commander-in-chief, he had a duty, at the least, to tell them to spare civilians, even as he urged them to fight Croatian soldiers.

I have to agree with Judge Lattanzi, the dissenting member of the tribunal, when he concludes: “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 Seselj. On reading the majority’s judgment, 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).”

This is not just what happens in war, as the tribunal’s majority implies. It certainly was not for Karadzic or the 79 other Serbs, Croats and Bosnian Muslims, whom the court has convicted of war crimes since its formation in 1993. Telling fighters you have recruited to expel an ethnic group, which they then proceed to do, should not be within the laws of war.

Marc Champion writes editorials on international affairs for Bloomberg View