Court Decides Crimes in Vojvodina Not Covered by ICTY Statute

Vojislav Seselj, accused of war crimes and crimes against humanity, won a point with the Trial Chamber on his challenge to the indictment against him. In part, Seselj challenged charges against him for alleged actions in Vojvodina, Serbia on the basis that there was no armed conflict in Vojvodina. The two statutory provisions under which he was charged, Article 3 - War Crimes and Article 5 - Crimes Against Humanity, both require that an armed conflict exist before they become applicable. Other than requiring the Prosecution to clarify the meaning of 'committed,' the Court dismissed the remainder of Seselj's challenges.

In addition to allegations of crimes committed in Croatia and Bosnia-Herzegovina, the indictment charged Seselj with deportation of the non-Serb population in Vojvodina, directed mostly at Croats. He is accused of instructing 'his associates [in the Serbian Radical Party, which he led] to contact non-Serbs and threaten them with death if they did not leave the area' at a May 1992 meeting in Vojvodina. Following the meeting, he 'gave an inflammatory speech in the village of Hrtkovci, Vojvodina calling for the expulsion of Croats from the area and reading a list of individual Croat residents who should leave for Croatia,' the indictment reads. After the speech a campaign of ethnic cleansing began, including harassment, intimidation and threats, which continued for a three months. Many Croats left the area, their homes then looted and occupied by Serbs.

The indictment sought to link these events to the larger campaign of ethnic cleansing in Croatia and Bosnia, where the existence of an armed conflict has been established. However, the Court ruled that the Prosecution must also allege, and provide sufficient supporting material to support the allegation, that an armed conflict existed in Vojvodina at the time the events are said to have occurred. Should it fail to do so, the Vojvodina charges will be withdrawn or dismissed.

For the most part, war was not fought on Serbian soil. However, alleged ethnic cleansing in Vojvodina is clearly a part of the overall criminal scheme the Prosecution has charged. The ICTY Appeals Chamber's view in Kunarac (June 12, 2002) seems contrary to the Trial Chamber's decision: 'There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict.' Since the Prosecution has alleged a joint criminal enterprise, including Serbian and federal officials, to remove non-Serbs from parts of Croatia, Bosnia and Vojvodina, the fact that fighting between two armed forces did not happen in Vojvodina should not matter. Forced removal of a civilian population, as part of a joint criminal enterprise, should fall within the statute. As the Appeals Chamber in Kunarac concluded, 'A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place.'

The Trial Chamber gave the Prosecution permission to clarify jurisdictional issues related to Vojvodina and armed conflict. If the Chamber remains unsatisfied, the Prosecution can seek permission to appeal.