Ko preživi 11 godina…

Vojislav Šešelj leaves the scene as he entered it, a monument to other people’s failures. Having constructed his first political career in Bosnia-Hercegovina on the strength of (largely accurate) claims of corruption in the local Communist party, he went on to build a second one in Serbia with an opposition party constructed by counterintelligence services designed to preemptively occupy political space that could eventually be taken up by a genuine opposition party. Building on a career that drew on the failure of two consecutive parties, he made a well publicised third career in The Hague drawing on the failures of legal and medical institutions.

A gadfly in his Sarajevo days, he was pumped up into a proper horsefly in Serbia. Documentation from the Belgrade committee of Milošević’s Socialist Party of Serbia (SPS) offers some interesting details of his political rise: first engaged to aid in deposing the government of the province of Vojvodina in 1988, SPS was satisfied that he did not “make great demands” and decided to promote him as a front candidate for an available parliamentary seat in Rakovica in 1991.

From there Šešelj’s Serbian Radical Party grew to become the “reserve force” of SPS, propping it up when its electoral support fell short, openly advocating the goals that the nominal government was compelled to keep silent, and maintaining the illusion that more than one party – not just the officially ruling one, but also one that the ruling party publicized and financed – had access to state institutions. And he enjoyed himself in the way that sociopaths do, spending years threatening opponents, waving pistols around, increasing his waist size and making unfunny jokes about bananas.

It wasn’t only political dirty deeds that Šešelj did dirt cheap, though. Paramilitary organizations nominally under the command of his party operated during the conflicts in Croatia (more than anywhere else in Vukovar) and Bosnia-Hercegovina (where, for example, his forces participated in a massacre of civilians in Zvornik), engaging in the kind of intimidation and violence that was beneath the dignity of the military. Even while the conflict was ongoing, Šešelj was happy to acknowledge openly that these forces were armed, trained and financed through the military, the State Security (DB) service of Serbia, and the Serbian interior ministry. He engaged his forces within the borders of Serbia as well, particularly during a violent campaign over the course of 1992 to expel the ethnic Croat population of Vojvodina – at the peak of which most of the Croat population of the village of Hrtkovci was compelled to leave their homes.

Political power and privilege kept Šešelj mostly protected from prosecution while Milošević was in power, and for some time after he was no longer in power. His motivations for delivering himself to the International Criminal Tribunal for the Former Yugoslavia (ICTY) are a matter of discussion. On the one hand, he had been saying for years that he wanted very much to be charged and tried at ICTY, and that he “would never miss such a show.” In that context it is not surprising that just a month after an indictment against him was issued in January 2003, he would happily respond. On the other hand, there were many things he could be prosecuted for in Serbia from which ICTY protected him very effectively – among them his unclarified role in the conspiracy to murder prime minister Zoran Djindjić, which was carried out a short three weeks after his departure for the Netherlands.

Convicting Šešelj at ICTY was never likely to be a simple affair. One of the problems was that despite his encompassing public image, he had never done much independently – his activity was as a frontman, variously, for Milošević, for DB, for some organised crime groups. And while he was best known for making crass and outrageous public statements advocating violence and discrimination, it is not clear that being a vile and distasteful human being is a crime under international law. The strength of the case against him always depended on showing the existence and coordination of the joint criminal enterprise (JCE) to commit crimes for political purposes, and showing that his contribution to the JCE in those instances where he was not directly involved consisted in encouraging other people, who were more capable, to commit crimes.

That is to say that the likelihood of convicting Šešelj depended on ICTY doing some things that it did not do: convicting the head of the regime, Milošević; convicting the general who directed Milošević’s flows of arms, people and money, Perišić; and convicting the people who formed, trained and supplied the paramilitaries, Stanišić and Simatović. With no convictions in those cases, attributing the JCE to Šešelj would be like attributing the White Album to Ringo.

ICTY added to the inherent problems of the case by creating a few of their own, which were compounded by a set of problems created by the defendant. Briefly there were three fundamental problems with the management of Šešelj’s trial at ICTY: 1) they couldn’t start it, 2) they couldn’t conduct it, and 3) they couldn’t end it. I could go into detail on all of these levels, but people who have followed the case already know the details and they are uninteresting to everybody else.

But we are where we are: with a trial that began four years after the entry of the defendant into custody, dragged on for five more years (despite the defendant declining to present a defence), and that remains undecided two and one half years after the last word was spoken in oral arguments. ICTY already tried once to relieve itself of the defendant they do not know how to try, and failed. This time (new word, everyone, proprio motu) they figured they could do it if the judges gave the order without consulting the parties, and have ordered the release of the gravely ill defendant.

Will there be a verdict? One of the unusual characteristics of this judicial panel is that it contains a judge who was not present to hear the evidence, since the previous judge was removed from the case in a high-profile pissing contest. The new judge says (probably truthfully) that he needs time to catch up, and that the earliest a verdict can be expected is mid-2015. Liver metastases are not in the habit of waiting that long.

The defendant, for his part, says that he is not interested in medical treatment but revenge.

With this move, ICTY cements its reputation as a judicial establishment that convicts low- and middle-ranking offenders, acquits politicians and commanders, and engages in high-risk experiments that produce no result.

Gospodar noćnog saobračaja

Lifting arms like that can also be a core exercise.

Tuesday may weld but Wednesday casts asunder. Or so you might be tempted to think after last night’s surprising news that Vojislav Šešelj won a huge victory — a victory not only and probably not even primarily for him — in getting judge Frederik Harhoff removed from his case at ICTY on grounds of partiality.

You will remember Harhoff for the brouhaha he caused by writing a leaky little letter. That letter turned out to be the only piece of evidence discussed in relation to Šešelj’s motion. So no doubt, it continues to be an object of contention.

First as to why the decision, though it is his victory, does not primarily benefit Šešelj. There was never a certainty of conviction on the charges against Šešelj, particularly since they relied on indirect forms of responsibility and on showings that Šešelj exercised command when he was in fact subordinate to DB. But once the verdicts came down exonerating Perišić, Stanišić and Simatović, nobody any longer expected Šešelj to be convicted. If no guilt applies to the people who armed, trained, financed and organised the direct perpetrators of crimes, then none is likely to apply to a clown who was hired to wave pistols in front of cameras.

The rusty spoon of fate determined, though, that at one point Šešelj’s interests would coincide with a complex of others and deepen the mess into which ICTY has been sinking itself of late. Presiding judge Meron’s bold circumscriptions of the applicability of international law to really existing states and militaries (parastates and paramilitaries are still fair game) have meant that an interest in sustaining his credibility is now shared by defendants and ex-defendants from multiple sides, Meron’s Wikileak co-stars, defence counsel in ongoing, past and future cases, and the Thick White Četnik Duke. As the proverb says, well-oiled beds make low-friction bedfellows.

Concretely, though, the decision is not likely to do much to alter the course of Šešelj’s case. Its credibility was already damaged by rococo untimeliness and ulcer-inducing mismanagement, so one fiasco more or less means fairly little. The most likely outcome here is that a new judge is assigned to replace Harhoff and that the panel reaches its 2-1 decision a little later rather than a little sooner. It is possible that a rehearing could be ordered before a new panel, but not probable — though trial junkies could just love a trial that competes for longevity with Coronation Street. But most probably this decision will have minor effects on the process and no effect on the outcome.

The main effect will be on processes outside the Šešelj case. Like the letter that brought the ruling about, the ruling itself is symptomatic of the general malaise that derives from divisions within ICTY, which reflects a wider division among people interested in international law more generally. So what did the panel that dismissed judge Harhoff have to say? A few things, most of which are tangentially related to the grounds of Šešelj’s petition:

1. The panel confirmed that ICTY is deeply divided, by adding another 2-1 decision to a long list of 2-1 and 3-2 decisions on matters of fundamental importance where clear law or a united (or even well-managed) judiciary would seek unanimity and clarity.

2. The panel was unanimous in disapproving of a judge using leaks to the media to substitute for arguments in chambers. Judge Liu, writing in dissent, condemned the inappropriateness of the unpurloined letter in stronger language than the majority.

3. The panel agreed that ICTY started making new law in 2012. Both the majority and the dissenting opinion concur that the central issue was whether judge Harhoff had indicated that he faced a dilemma in applying “the current jurisprudence” of the Tribunal. This could have the effect of undermining the argument of people who would like to present recent appeals chamber decisions as though they are settled law.

4. As much as a single document can be said to prove anything (the old “killer fact!” theory), the panel might have indicated that in the oft-discussed contretemps between the Merovingians and the Harhoovers, the Merovingians could perhaps have the upper hand for the time being. But don’t take my word on this one, I’m not too sure and it is a job for a wizard or a Kremlinologist anyway. What is striking regardless of who has the upper hand is the extent to which activity like this demonstrates a competition in the assignment of blame: does it go to Meron whose innovations have contributed to dissension in the Tribunal, or to Harhoff who clumsily made it publicly known?

The upshot? In the first place, we are very much where we were before this happened, except ICTY’s credibility is a little more damaged. In the second place, we see an interesting arrangement of forces in which the nacoši are all on the same side regardless of nationality (but this was probably always the case).

Postscript: No links, sorry, I wrote this on a plane. I’m sure people who are interested will have no trouble finding a copy of the decision.