Last week the United Nations’ International Criminal Tribunal for the former Yugoslavia convicted Radovan Karadžić, the Bosnian Serb president during the 1990s Balkans war, of genocide, crimes against humanity, and war crimes. He was sentenced to 40 years in prison. On Thursday, the tribunal acquitted Vojislav Šešelj, founder of the far-right Serbian Radical Party, who had been charged with nine counts of war crimes and crimes against humanity. UConn Today asked Richard Ashby Wilson, professor of law and anthropology at UConn School of Law and founding director of UConn’s Human Rights Institute, to explain the significance of these trials and verdicts.
What do the outcomes of the Karadžić and Šešelj trials mean to the evolution of international law, particularly as a means of restraining and punishing violations of human rights in wartime?
They are very different cases so they have different implications. Starting with Radovan Karadžić, the verdict demonstrates that an international court can hold accountable a former head of state for genocide, crimes against humanity, and war crimes, and issue a reasoned judgment that reasonably applies international criminal law to the facts of the case. For Bosnian Croatian and Bosnian Muslim (Bosniak) victims of the Bosnian conflict, it provides some closure to that bloody conflict, which left more than 100,000 dead. The genocide determination for the murder of 8,000 Bosniak men at Srebrenica identifies the principal political perpetrator in that sad episode. The Tribunal has finally convicted the most high-level political actor in the Bosnian conflict, so it is gratifying to see international criminal justice reach the top of the chain of command. It is important also that he was acquitted of genocide in a number of other municipalities, which showed that the prosecution did not prove its case beyond reasonable doubt.
The Vojislav Šešelj case is quite different in that Šešelj was primarily a propagandist who incited others to engage in crimes against humanity, and primarily the deportation of Croats from Serbia during the time of the charges (1991-1993). Unlike Karadžić, he was not in a position of superior responsibility, and yet according to the prosecution encouraged and instigated his followers to commit crimes against other ethnic and religious groups using the most graphic language. Connecting speech acts to criminal acts is a tall order, and usually requires material perpetrators to indicate that they formed their intention after hearing the inciter. In the Šešelj case, all of the insiders recanted after pressure and intimidation from Šešelj’s supporters. That is the main reason why the prosecution failed to prove its case and the defendant was acquitted.
Karadžić is in custody but has filed an appeal. Do you expect he will serve the terms of his sentence?
Karadžić was sentenced to 40 years, which is already a relatively low sentence, and I do not expect it will be reduced on appeal, since General Krstić was previously sentenced to 35 years for aiding and abetting genocide at Srebrenica. Defendants usually only serve two-thirds of their sentence, so I expect that Mr. Karadžić is looking at 28 years – which, given the fact that he is 70, probably means life imprisonment.
Karadžić was charged 21 years ago and Šešelj more than 10 years ago. Why has it taken so long to adjudicate these cases?
Karadžić was on the run for many years and only arrested in 2008, apprehended on a bus in Belgrade posing as a faith healer. He had changed his appearance totally, and was sporting a long beard and a braided ponytail which made him virtually unrecognizable. The trial in The Hague was not expeditious by any stretch of the imagination, but given the gravity and scale of the charges against him, the case did proceed at an even pace. Karadžić defended himself in the trial and this added to the delays, since he had to read all the evidence disclosed by the prosecution himself, after translation from English to Serbian. However, he mounted a vigorous and substantial defense, aided by American lawyer and amicus Peter Robinson, and the trial is widely seen as procedurally fair.
The Šešelj trial, on the other hand, was a circus. The defendant voluntarily surrendered to the ICTY in 2003 but the actual trial did not begin until late 2007, after a prolonged period of obstructionism by Šešelj, who engaged in hunger strikes and filed frivolous motions to disqualify judges and prosecuting attorneys on grounds of bias and ethics violations. Even after the trial got underway, the defendant was convicted three times for contempt of court for revealing the identities of protected witnesses. After the proceedings ended, and only a few months before the Trial Chamber’s judgment was expected, one of the judges in the trial, Judge Harhoff, was disqualified and removed in August 2013 for demonstrating an ‘unacceptable appearance of bias’ in favor of conviction, after sending a private letter to his friends. The Tribunal replaced Harhoff with another judge, who was given more than a year to familiarize himself with the trial. At 13 years, this is the longest-running trial in war crimes history, and probably should have been ruled a mistrial. His acquittal has to be understood in the context of a trial beset by procedural irregularities.
The accusations against Šešelj were not only that he participated in the planning of war crimes but that his public speeches instigated crimes in which he did not otherwise participate. How might his acquittal affect the direction of international law on the matter of inflammatory speech that calls for harm to others?
Prosecutors refer to the Šešelj case as the only clear-cut ‘propaganda trial’ at the Tribunal, and they often equate it to the ‘Media Trial’ at the International Criminal Tribunal for Rwanda. International tribunals are taking on more of these kinds of cases; but proving that a leader’s public utterances prompted his followers to murder and deport members of other national, religious, ethnic, or racial groups is an arduous undertaking for prosecutors, for reasons of both law and logistics. Even though there may be ample evidence of criminal intention on the part of political leaders like Šešelj, who mobilize their base through public expressions of discriminatory animus against the out-group, there is often very little in the way of what prosecutors call ‘linkage evidence’ that connects the accused to the actual crimes committed. Political leaders in conflict situations, including the most irresponsible of demagogues, generally steer clear of directly issuing orders for, or participating in, physical acts of violence. Leaders like Šešelj are seldom accused of materially perpetrating murder, torture, or other offenses beyond the use of their words to instigate and encourage others, who may only loosely be described as their ‘subordinates.’ Having said all that, my view is that the ICTY Trial Chamber erred when it stated that although Šešelj had committed hate speech, his speech had not taken place in the context of a widespread or systematic attack on a civilian population. In one town called Hrtkovci where he spoke in 1992, 90 percent of the Croats left in the following two weeks, after a campaign of arson, murder, and harassment against them.
Will the results of the trials have any effect in the United States, where powerful free speech rights have thus far supported increasingly strong rhetoric in political campaigns and other public debates?
Although Šešelj was ultimately acquitted, his prosecution demonstrated a worldwide shift toward greater criminalization of inciting speech on the part of political leaders who whip up a crowd to attack minority groups. In Germany, ‘incitement to popular hatred’ is punishable under section 130 of the Criminal Code. In England and Wales, which share our common law heritage, the Racial and Religious Hatred Act (2006) makes it an offense to incite hatred against a person on the grounds of his or her religion. The U.S. is complex in this regard, and has often been seen as an outlier in its broad freedom of speech protections. The Supreme Court in Brandenburg held that speech that incites ‘imminent lawless action’ is not protected by the Constitution, but it is seldom applied. As we have seen in the presidential campaign, even comments that sail very close to the wind of incitement, for instance Donald Trump’s comments that he would pay the legal fees of individuals who assault a protester, elicit little legal response. At the same time, propagandists for Islamic jihadist groups have been held criminally responsible. In 2014, a federal judge in New York sentenced al-Qaeda’s chief spokesman Sulaiman Abu Ghaith to life in prison for what his defense attorney Stanley L. Cohen called ‘just talk.’ Perhaps one day the law will catch up to the propagandists of ISIS, with their recruitment videos that glorify violence. The most useful impact of these cases on the United States is to compel us to think harder about inciting speech, and ensure that our law is clear and consistent on these matters.