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Appeal Judgement, Para MICT-16-99-A 912 A912-A821 11 April 2018 AJ UNITED NATIONS Case No . MICT-16-99-A ., Mechanism for International Criminal Tribunals Date: 11 April 2018 Original: English IN THE APPEALS CHAMBER Before: Judge Theodor Meron, Presiding Judge "Lee G. Muthoga Judge Florence Rita Arrey Judge Ben Emmerson Judge Ivo Nelson de Caires Batista Rosa Registrar: Mr. Olufemi Elias Judgement of: 11 April 2018 PROSECUTOR v. VOJISLAV SESELJ PUBLIC JUDGEMENT The Office of the Prosecutor: Mr. Serge Brammertz Mr. Mathias Marcussen Ms. Barbara Goy The Respondent: Mr. Vojislav Seselj, pro se 911 CONTENTS I. INTRODUCTION .......................................................................................................................... 1 A. BACKGROUND .............................................................................................................................. 1 B. THE APPEAL ................................................................................................................................. 2 II. STANDARDS OF APPELLATE REVIEW ............................................................................... 4 III. COMPLIANCE OF THE APPEAL BRIEF WITH THE PRACTICE DIRECTION ......... 8 IV. PROCEDURAL F AIRNESS .................................................................................................... 10 A. INDICTMENT AND POLITICAL BIAS ............................................................................................. 10 B. SELF-REpRESENTATION .............................................................................................................. 12 C. DETENTION CONDITIONS AND PREPARATION OF DEFENCE ......................................................... 13 D. ADMISSION OF WITNESS STATEMENTS AND ALLEGEDLY FALSE EVIDENCE ............................... 14 E. UNDUE DELAY .................................................................................................................... ; ....... 15 F . CONCLUSION ......................................................................................................... ~ ..................... 18 V. VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR ................................................... 19 VI. CRIMES AGAINST HUMANITY .......................................................................................... 21 A. APPLICABLE LAW FOR CRIMES AGAINST HUMANITy ................................................................. 22 B. EXISTENCE OF A WIDESPREAD OR SYSTEMATIC ATTACK AGAINST THE CIVILIAN POPULATION 24 1. Croatia and Bosnia and Herzegovina ..................................................................................... 24 2. Vojvodina (Serbia) ................................................................................................................. 30 C'. CONCLUSION .............................................................................................................................. 32 VII. JOINT CRIMINAL ENTERPRISE....................................................................................... 33 A. NATURE OF THE COMMON PURPOSE ........................................................................................... 34 B. RELIANCE ON TRANSCRIPTS FROM THE S. MILOSEVlc CASE ........................................................ 37 C. WHETHER A PLURALITY OF PERSONS SHARED THE COMMON CRIMINAL PURPOSE .................... 38 D. EVIDENCE ON PATTERN OF CRIMES ............................................................................................ 46 E. CONCLUSION ............................................................................................................................... 53 VIII. PHYSICAL PERPETRATION AND INSTIGATION THROUGH SPEECHES ........... 54 A. FAILURE TO PROVIDE A REASONED OPINION ............................................................................. 54 B. SPEECHES IN MALI ZVORNIK, BEFORE THE SERBIAN PARLIAMENT, AND OTHER STATEMENTS .. 56 C. SPEECHES IN VUKOVAR .............................................................................................................. 60 D. I-IR.TKOVCI, VONODINA ............................................................................................................. 61 1. Commission and Instigation of Deportation, Persecution (Forcible Displacement), and Other Inhumane Acts (Forcible Transfer) ........................................................................... 63 2. Commission of Persecution (Right to Security) .................................................................... 69 E. CONCLUSION .............................................................................................................................. 72 IX. AIDING AND ABETTING ...................................................................................................... 73 , X. IMPACT OF THE APPEALS CHAMBER'S FINDINGS ON THE VERDICT ................. 76 XI. DISPOSITION ........................................................................................................................... 78 XII. ANNEX A - PROCEDURAL HISTORy................................................................................ 1 A. COMPOSITION OF THE ApPEALS CHAMBER ................................................................................... 1 B. NOTICE OF ApPEAL AND BRIEFS ................................................................................................... 1 Case No. MICT-16-99-A 11 April 2018 910 C. ApPEAL HEARING ......................................................................................................................... 1 XIII. ANNEX B - CITED MATERIALS AND DEFINED TERMS ......................... ~ .................. 3 A. JURISFRUDENCE ........................................................................................................................... 3 1. Mechanism ................................................................................ ~ .............................................. 3 2. ICTR ........................................................................................................................................ 3 3. ICTY ........................................................................................................................................ 4 B. DEFINED TERMS AND ABBREVIATIONS ......................................................................................... 8 ii Case No. MICT-16-99-A 11 April 2018 909 1. The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals ("Appeals Chamber" and "Mechanism", respectively) is seised of the appeal of the Office of the Prosecutor ("Prosecution") against the "Jugement" in the case of The Prosecutor v. Vojislav Seselj, Case No. IT-03-67-T, rendered on 31 March 2016 ("Trial Judgement") by Trial Chamber ill of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("Trial Chamber" and "ICTY", respectively).1 I. INTRODUCTION A. Background 2. Vojislav Seselj was born on 11 October 1954 in Sarajevo, Republic of Bosnia and Herzegovina.2 On 23 February 1991, he was appointed President of the Serbian Radical Party, and in June 1991, he was elected as a member of the Assembly of the Republic of Serbia.3 3. The Prosecution charged Seselj with persecution, deportation, and other inhumane acts (forcible transfer) as crimes against humanity (Counts 1, 10, and 11, respectively), as well as murder, torture, cruel treatment, wanton destruction of villages, destruction or wilful damage to institutions dedicated to religion or education, and .plunder of public and private property as violations of the laws or customs of war (Counts 4, 8, 9, 12, 13, and 14, respectively).4 c The Prosecution alleged that Seselj planned, ordered, instigated, committed, or otherwise aided and abetted these crimes.5 It further alleged that he participated in these crimes between August 1991 and September 1993 by way of a joint criminal enterprise, the common' purpose of which was the permanent and forcible removal, through the commission of crimes, of a majority of the Cro~tian, Bosnian Muslim, and other non-Serbian populations from approximat~ly one-third of the territory of Croatia and large parts of Bosnia and Herzegovina in order to make these areas part of a new Serbian-dominated state.6 1 See also Trial Judgement, Individual Statement of Judge Mandiaye Niang, 14 June 2016 (original French version filed on 31 March 2016); Concurring Opinion of Presiding Judge Jean-Claude Antonetti Attached to the Judgement, 16 September 2016 (original French version filed on 31 March 2016); Partially Dissenting Opinion of Judge Flavia Lattanzi - Amended Version, 1 July 2016 (original French version filed on 12 April 2016). 2 Indictment, para. 1. 3 Trial Judgement, paras. 2,55; Indictment, para. 4. 4 Indictment, paras. 15:..34. See also Trial Judgement, para. 8. 5 Indictment, paras. 5, 11, 15, 18,28,31,34. See also Trial Judgement, paras. 2,4,7,221. 6 Indictment, paras. 5-11, 15, 18, 28, 31, 34. See also Trial Judgement, paras. 2, 5, 222. The Indictment also charged Seselj with responsibility, through participation in a joint criminal enterprise, for the crimes committed in Vojvodina, Serbia. See Indictment, paras. 15, 31. However, at the conclusion of its case, the Prosecution no longer sought Seselj's conviction for the crimes committed in Vojvodina on that basis. See Prosecution Final Trial Brief, paras. 1, 9. See also Appeal Brief, nn.
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