letter - ban ki-moon

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January 15, 2015

H.E. Mr. Ban Ki-moon

Secretary General

United Nations

New York, NY 10017

Tel: + 1 212-963-5012

Fax: +1 212-963-2155

Email: [email protected]

Re: Prosecutor v. Vojislav Šešelj, ICTY Case No. IT -03-67

Excellency,

I write to express my deep concern about persistent problems encountered by

the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the caseagainst accused Serbian war criminal Vojislav Šešelj. Šešelj was indicted by theICTY in 2003 and stands accused of serious crimes, including war crimes and crimes

against humanity. According to the Prosecutor, Šešelj participated in a Joint CriminalEnterprise to create a “Greater Serbia” by, inter alia, (1) mobilizing paramilitaryforces to go into Croatia and Bosnia & Herzegovina for the purpose of committing

crimes against the civilian population, and (2) by making inflammatory speeches

calling upon paramilitary forces and others to engage in a persecution campaign

against the local Croat population. Despite the passage of more than twelve years, the

ICTY still has not delivered a judgment in Šešelj’s case.1 Instead, in November

2014, the ICTY released Šešelj on humanitarian grounds and indicated that a judgment against Šešelj cannot be expected before 2016. Excellency, the victims of

the crimes alleged to have been committed by Šešelj are entitled to receive a judgment by the ICTY much sooner. The victims are also entitled to see Šešelj ordered to

return to the detention of the ICTY Detention Unit. I kindly ask that you take allmeasures at your disposal to ensure that both objectives are satisfied, including by

seizing the Security Council of this important issue.

1 Nevertheless, it should be noted that one Trial Chamber in a different case has already concluded that

Šešelj was indeed a member of the Joint Criminal Enterprise. See Prosecutor v. Milan Martić, Case No. IT-95-11, Trial Judgement, 12 June 2007, at paragraphs 445-446. This Trial Judgement was

affirmed by the Appeals Chamber.



I. Šešelj Should Be Ordered to Return to the UN Detention Unit

For reasons that are not entirely clear, in November 2014 the ICTY

provisionally released Šešelj on “humanitarian grounds” due to “deterioration in theAccused’s health,” and ordered that he be returned to Serbia. The ICTY undertookthis action despite the following facts: (1) Šešelj remains under indictment by the

ICTY for war crimes and crimes against humanity and is awaiting judgment; (2)

Šešelj has been found in contempt of the ICTY on three separate occasions ongrounds of failing to comply with witness protection orders, and continues to refuse to

promise he will comply with witness protection measures; (3) Šešelj was not required by the Trial Chamber to refrain from making public statements or engaging in

political life while on provisional release, despite the fact that this is a common ICTY

precondition for provisional release ;2 (4) Šešelj made no promise to return to theICTY when required to do so by the Tribunal; and (5) Šešelj expressly refused to

promise to comply with any orders issued by the Trial Chamber. In all cases prior to

Šešelj’s, an Accused was required to promise to comply with Tribunal orders, torefrain from public comments, to refrain from political engagements, and to comply

with witness protection measures before provisional release could be granted.

Inexplicably, Šešelj’s Trial Chamber decided to waive these requirements for the benefit of an individual who has shown nothing but contempt for the Tribunal, for its

orders, and for its witnesses.

Upon his return to Serbia, Šešelj made inflammatory public statements with

the intent of insulting the victims of his crimes. 3He publicly proclaimed that he was

returning to political life and that his political platform would be based on a goal of

establishing a “Greater Serbia” through the seizure of territory of the Republic of

Croatia and the Republic of Bosnia & Herzegovina.4 He made threatening statements

against witnesses who testified against him for the Prosecution.

5

2 See, e.g., Prosecutor v. Ramush Haradinaj, Case No. IT-04-84bis, Decision on Ramush Haradinaj’s

Motion for Provisional Release, 8 December 2010, at page 8.3 See e.g.: Serbian Radical Party, (“Dr. Šešelj congratulates Serbian Chetniks on the Day of the

Liberation of Serbian Vukovar”), Press Release, 18 November 2014, available at:http://www.srpskaradikalnastranka.org.rs/srbija/3920 (The President of the Serbian Radical Party and

Chetnik leader Prof. Dr . Vojislav Šešelj congratulates Serbian Chetniks on the Day of the Liberation ofSerbian Vukovar. On this day 23 years ago, Serbian Chetniks, after three months of heroic struggle,

freed Vukovar from Ustaša paramilitary units.”). 4 Vojislav Šešelj, Transcript, Press Conference, 13 November 2014, available at:

http://www.srpskaradikalnastranka.org.rs/srbija/3908 (“Journalist: Do you give up the idea of a GreaterSerbia? Vojislav Šešelj: The meaning of the Serbian Radical Party, the meaning of our existence is the

idea of a Greater Serbia. If this idea is to die, what would we be looking for at the political scene? Both



Šešelj’s warmongering statements, along with the failure of Serbian officialsto publicly disavow those statements, have caused tension among the countries of

Southeastern Europe as well as significant distress for the victims of Šešelj’s crimes.I was pleased to see that the ICTY Prosecutor, upon observing Šešelj’s misconduct,quickly petitioned the ICTY Trial Chamber to revoke Šešelj’s provisional release. Tomy dismay and to the dismay of Šešelj’s victims, the Trial Chamber rejected theProsecution’s motion on 13 January 2015, thus allowing Šešelj to remain free.

Mr. Secretary General, please rest assured that I am aware that the ICTY is an

independent judicial body. Nevertheless, I am also aware that in its Resolution 808

(1993), the Security Council established the ICTY in order to “contribute to therestoration and maintenance of peace.” The release of Mr. Šešelj has undermined theSecurity Council’s purpose in establishing the ICTY, as explained above. As a result,I request that you take whatever steps necessary to ensure that Mr. Šešelj is returnedto the custody of the ICTY until such time as he is prepared to satisfy the conditions

for provisional release that all other ICTY detainees must satisfy.

II. The ICTY Should Deliver Judgment Against Šešelj Immediately

Šešelj was indicted in 2003 and his trial was finished in 2010. Nevertheless,no judgment has been delivered in his case, which has been pending for over twelve

years. By any objective standard, this delay has been an unquestionable failure by the

ICTY. The victims of his crimes deserve better. The ICTY Prosecutor has stated that

a judgment in the case will not be delivered before the end of 2015.6

One reason for this significant delay is due to the length of time it will take the

Trial Chamber to issue a written judgment in the case. However, because the

“deterioration in the Accused’s health” is believed to be a reference to Mr. Šešelj’s

diagnosis of liver cancer, it is imperative that the ICTY issue a judgment in the case assoon as possible so that Mr. Šešelj does not avoid facing judgment through death, inthe same way that Slobodan Milošević did. For this reason, I urge you and theSecurity Council to insist that the Trial Chamber issue an oral judgment without delay

in Mr. Šešelj case, pursuant to ICTY Rule 98(c) ter. This Rule allows a TrialChamber to issue an oral judgment immediately, and then to issue a written judgment

Tomislav Nikolić and Aleksandar Vučić were sworn by this idea for 15 years and then they gave itup.”). 5 See e.g. Vojislav Šešelj Transcript, Press Conference, 13 November 2014, available at:

http://www.srpskaradikalnastranka.org.rs/srbija/3908 (“I can only publicly brand the traitors that made

deals with the prosecution for lesser sentences, agreed to falsely testify for the Prosecution.”). 6 See B92, “Hague Prosecutor: No Verdict Before End of 2015”, 13 November 2014, as found at:

http://www.b92.net/eng/news/crimes.php?yyyy=2014&mm=11&dd=13&nav_id=92226



“as soon as possible” thereafter. If the ICTY were to adopt this approach, Mr. Šešeljcould face a judgment of the Trial Chamber as soon as June of this year. The Trial

Chamber could then take as much time as necessary to issue the written opinion

explaining its judgment.

Mr. Šešelj’s victims in Croatia and Bosnia & Herzegovina suffered greatly athis hands and the hands of his paramilitaries during the conflict in the 1990s. For

twelve long years they have waited for the ICTY to administer justice. Many

courageous victims travelled to The Hague to personally testify against Šešelj, at great personal risk to themselves and their families. All of these victims deserve to hear the

judgment of the ICTY condemning Mr. Šešelj’s criminal conduct, as does theinternational community as a whole. I trust that you and the Security Council will do

everything in your power to ensure that Mr. Šešelj’s judgment day arrives soon.

Your Excellency, please accept the assurances of my highest consideration.

KOLINDA GRABAR-KITAROVIĆ

________________________________

PRESIDENT-ELECT OF THE REPUBLIC OF CROATIA

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