Will Seselj Face Charges for Vojvodina Ethnic Cleansing? ICTY Rules Provide Dilemma for Prosecution

During the Status Conference in the case of Prosecutor v. Vojislav Seselj, Judge Carmel Agius expressed his displeasure with the Prosecution's approach to obtain review of a recent decision of his Trial Chamber. 'I'm going to be very blunt with you, Madame [Hildegard] Uertz-Retzlaff,' the Judge began. 'I was very irritated when I saw this motion.' The motion asked Judge Agius to preserve the Prosecution's right to seek certification from the Trial Chamber to appeal under Rule 72 B ii should the Appeals Chamber rule the OTP had followed the wrong procedure by appealing directly to it under Rule 72 B i. Without intervention by Judge Agius, the Prosecution would lose the alternative means of appeal due to a shorter time limit for filing under Rule 72 B ii.

The issue on appeal is the Trial Court's decision that, absent an armed conflict in Vojvodina, the Prosecution could not bring charges against Seselj for crimes committed there, in this case, forcible deportation of the non-Serb population. The Court left it open to the Prosecution to amend the indictment to either remove charges concerning Vojvodina or add sufficient facts to sustain the charge.

The Prosecution intends to appeal the Trial Chamber's decision on the ground that it erred in construing the law. The Prosecution maintains that the Trial Chamber confused requirements under Article 3 of the ICTY statute on crimes of war and Article 5 concerning crimes against humanity. While Article 3 requires a 'close nexus' between armed conflict and criminal acts, Article 5 'requires only that there be an armed conflict and that the criminal acts occurred within the frame of that armed conflict,' according to the OTP's motion. The Prosecution admits there was no armed conflict in Vojvodina, but maintains that the alleged forced deportation of non-Serbs from the region was undertaken as part of the joint criminal enterprise which sought to create an expanded Serb state.

The Prosecution believes the issue of Vojvodina's exclusion from the indictment is jurisdictional, i.e. concerns what the Court has power over, and thus will file an appeal directly with the Appeals Chamber under Rule 72 B i. However, there is the possibility that the Appeals Chamber will dismiss the appeal before ever reaching its substance, if it finds the Prosecution has used the wrong procedure in bringing the issue before it. The correct procedure to follow depends on how the Appeals Chamber characterizes the issue -- is it jurisdictional or purely a matter concerning the form of the indictment, requiring certification by the Trial Chamber before it can be appealed. If the Prosecution chooses wrong, there will be no trial on crimes alleged to have occurred in Vojvodina.

The rules establish two ways to appeal a pretrial decision depending on the nature of the matter at issue. If it is jurisdictional, the Prosecutor has 15 days from the date of the decision to file an appeal with a three-judge panel of the Appeals Chamber. If it is not jurisdictional, the Prosecution must seek certification from the Trial Chamber that the 'decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial' in order to appeal, in which case the time limit for filing is only 7 days.

If the Appeals Chamber finds the Prosecution followed the wrong procedure, the Prosecution would have no further recourse, since the time for seeking certification from the Trial Chamber will have expired. It is for this reason that the Prosecution has taken a two-pronged approach: planning to file an appeal directly with the Appeals Chamber within two weeks, and requesting the Trial Chamber to reserve its right to seek certification to appeal should the Appeals Chamber refuse to hear the appeal because it is not a jurisdictional issue. While unorthodox and not addressed by ICTY Rules, the OTP's decision to seek this relief from the Trial Chamber is entirely understandable given the consequences of making the wrong choice.

At the end of the Status Conference, Judge Agius ruled orally against the Prosecution to the effect that the pretrial judge has no authority to postpone the time limit for seeking certification to appeal. If the Prosecution has chosen wrong in filing its application directly with the Appeals Chamber under Rule 72 B i, Seselj will not have to answer charges for the forcible deportation of non-Serbs from the Vojvodina, who are unlikely to understand the technicalities that have prevented them having their day in court.

There seems little justification for such procedural technicalities which prevent charges being brought into court where they can be fully aired and answered, and a judicial determination made. The ICTY in its rule-making would be well-advised to assure such situations do not occur.