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Vojislav Seselj in the ICTY courtroom. (Photo: ICTY)
International justice experts are concerned that the most recent contempt charges brought against Vojislav Seselj at the International Criminal Tribunal for the Former Yugoslavia, ICTY, have failed to include any of the war crimes suspect’s associates for their alleged role in disclosing the names of protected witnesses.
There is anxiety that if others said to be involved in publishing confidential information are overlooked there will be little to deter similar offences in future.
The ultra-nationalist Serbian politician, who is also being tried for war crimes by the tribunal, will appear in court this week to answer contempt charges for the third time after he failed to comply with the court’s order to remove a book containing details of protected witnesses and other confidential material from his website.
But Seselj, who remains the head of the Serbian Radical Party, SRS, is imprisoned in The Hague with no access to the internet so it is not him who is thought to be actually posting the confidential information.
“Until you’re able to go to the support networks - the people through whom Seselj must be doing this - and start removing them by punishing them with jail time, then you are not going to be discouraging the next book with the next disclosure of confidential information on a protected witness,” said Luka Misetic who represents the former Croatian general, Ante Gotovina, before the ICTY.
The court’s prosecutors have not just sought charges against Seselj. They also asked judges to charge the man they allege to have, at one stage, been the registered owner of the website - Miroljub Ignjatovic. Meanwhile, the court’s registry informed judges in February that the website is currently registered to Seselj’s son, Nikola Seselj. However, on May 24 the three-judge panel decided to charge only Seselj with contempt.
Seselj himself used a recent court appearance to point out the key role played by his son in the website.
"I am proud of my son Nikola Seselj and his collaborators. He’s my editor-in-chief. We have developed networks of links with other sites. No one can shut us down," the war crimes suspect said.
The court’s registry asked Seselj’s son to remove the offending book from the website in February this year. But he refused to comply with their order, informing the court that he had “no intention of acting in accordance with [the] order since Vojislav Seselj is the only person authorised to create the contents of his internet site and who can give me orders on what and when to upload or remove from the site”.
According to ICTY spokeswoman, Nerma Jelacic, the court has also asked those hosting the website to remove the book, but without success.
Milan Antonijevic, a lawyer with the Lawyers’ Committee for Human Rights in Serbia, said that on the basis of the information in the public domain it was “odd” that the judges have not charged members of Seselj’s family such as his son Nikola.
“We should really think about what the background of those decisions is, why there is no action against those who are responsible,” Antonijevic said.
Asked why only Seselj had been charged and not any of his alleged support group, Jelacic said it was because Seselj “is the executive in charge [of the website]”.
“He is listed as the person responsible. That is their position. His son is listed as the registrant of the website and [Vojislav] Seselj is the only person who has the authorisation to give orders about what should or should not be on the website,” Jelacic said.
She added that she was unable to speculate as to whether Seselj would be the only one charged in the case. She pointed out that in all its work the tribunal targets those it alleges to be most criminally responsible.
“Like the majority of war crimes cases we do have to concentrate on those who are most deemed to possibly be the most responsible for the failure to act, whether we are talking about contempt or war crimes,” Jelacic said.
Seselj was transferred to The Hague in 2003 after he voluntarily surrendered to the ICTY. He is on trial for war crimes and crimes against humanity allegedly committed in a bid to create a “Greater Serbia” between 1991 and 1993. He stands accused of encouraging his SRS party volunteers to murder and torture non-Serbs in Croatia and Bosnia.
Having started back in 2007, the trial has been blighted by several delays and claims of witness intimidation by both the defence and the prosecution. Both parties have denied the allegations and no charges have been brought.
As such, Antonijevic outlined the importance of removing the names of the protected witnesses from Seselj’s website and holding any offenders accountable.
“You really have protected witnesses that are now probably under some kind of pressure, their names are discussed and someone is searching for them and it is really not safe in the world to live if you’re mention[ed] in those books [published on Seselj’s website] as someone who testified against either Seselj or in the Milosevic case,” Antonijevic said.
This is the third time that Seselj has been charged with contempt for disclosing confidential information. He was convicted in July 2009 for publishing the names of three protected witnesses in a book he wrote, receiving a 15-month jail term. It is this book that is still available on the website, despite several orders from the court to remove it, and is the subject of this third charge. Seselj’s second contempt charge was in February 2010 for publishing information that could help identify a further 11 protected witnesses. Judges have not yet reached a verdict in that case.
As Seselj continues to allegedly disregard court rules, experts say that it is vital to use this third case to clamp down on all those said to be involved in publishing confidential information relating to his case.
According to Misetic, it is “critically important” that Seselj and his whole network are prosecuted as a deterrent against further exposure of protected witnesses. The case is particularly crucial given “the fact that [Seselj] has already been convicted for contempt and it did little to discourage him from doing it again”, Misetic said.
As a resident of the United Nations detention unit in The Hague, Seselj has his telephone calls recorded and all his visitors are closely monitored. Although, as a self-represented defendant, he is granted privileged phone calls to his legal advisers, it is thought to be possible to identify those allegedly involved in revealing the identities of protected witnesses.
“It should not be too difficult to determine who the network of enablers are and how Seselj is able to do this,” Misetic said.
Other commentators point out that judges are right to home in on Seselj as the alleged ringleader behind the publishing of confidential information. Without Seselj there would be no disclosure issue, they say.
“I don’t know what the relations are between [Seselj] and those that maintain the website, but if he admits that it is his website then clearly he is the one who is most responsible,” explained Goran Sluiter, professor of international law at the Amsterdam University.
As leader of the SRS, Seselj maintains a huge following in Serbia despite being incarcerated in The Hague for the last eight years. He has also had a number of books published while in detention. As the man at the helm of his political party and related publications, some argue it is logical to focus on Seselj and try to curb his behaviour rather than that of others allegedly acting on his orders.
“You can charge his friends or family for contempt of court, but he will find other people to follow his instructions,” said Zarko Markovic of the Belgrade Center for Human Rights. “So the only possible way to stop it is to charge [Seselj] or to try to force him to stop it.”
Meanwhile, the mounting tally of contempt cases against Seselj for disclosure of confidential information is proving to be a thorn in the side for the court, some say.
“It is really something that the court has to find new ways [to deal with],” Antonijevic said.
“This case proves that the procedure that is meant to stop the violation of rulings of the court Hague tribunal and should prevent the disclosure of the names of protected witnesses is not strong enough.”
The issue seems to be particularly pertinent as the court nears closure, leading to concerns that the problem could be exacerbated when the tribunal’s mandate ends and only a residual court remains.
“Once there [is] only the residual [court], this will only encourage those handlers, those enablers, to further disclose information,” Misetic said.
“I’m sure there are volumes of protected information disclosed to Seselj over the course of the years and unless you are able to demonstrate that people are going to go to jail for disclosing this information willfully, the problem is only going to get worse once the ICTY [winds down].”
However, Jelacic said the court’s procedures for preventing disclosure of confidential information were sufficiently robust.
“I don’t think it has got to do with any gaps, this is a specific case-related indictment against a person who has [allegedly] violated disclosure orders and the court takes the responsibility to safeguard such information and punish those who violate such orders,” she said.
She also emphasised that the ICTY’s residual court will have the same powers as the present one to prosecute those who break rules related to confidential information.
“Should someone violate or disclose confidential information after the tribunal as we know it now is closed the residual [court] will have the same power to prosecute for contempt,” Jelacic said.
“It shows how important safeguarding the confidentiality of the material or witnesses identity is for the ICTY and the United Nations in general.”
Misetic says it is important that the court takes this opportunity in the Seselj case to nip the problem in the bud and set a strong deterrent.
“Otherwise you’re just passing the buck down to the residual mechanism. Nobody knows what that residual mechanism is really going to look like or what kind of capacity it is going to have to monitor however many cases there were at the ICTY with all sorts of confidentiality orders,” he said.
“You want to deter the Seseljs and his crew and you also want to deter everyone else in every other case from saying ‘Ok, the ICTY is closed, I can start publishing confidential information’.”
Simon Jennings is an IWPR reporter.
As coronavirus sweeps the globe, IWPR’s network of local reporters, activists and analysts are examining the economic, social and political impact of this era-defining pandemic.
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