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Geoffrey Nice: Lengthy Hague trials affect victims the most

Geoffrey Nice

Geoffrey Nice

It seems self-evident that the the war crimes case of Serbian Radical Party leader and war crimes defendant Vojislav Seselj case lasted far too long, said Geoffrey Nice, who was a deputy prosecutor at the trial of Slobodan Milošević in The Hague, in an interview with RFE/RL.

“Look at this, and at other very long cases not from the point of view of lawyers or judges, not even from the point of view of defendants, but from the point of view of victims, whose lives were affected or whose loved-ones were killed because of things done by the people on trial. Such long trials are completely unhelpful for them. They store up anxiety and sometimes bring despair when a verdict is finally pronounced,” emphasized Nice.

He initiated the prosecution's initial case of linking atrocities committed in the former Yugoslavia to Milosevic.

RFE/RL: The Hague Tribunal announced that the verdict in the Vojislav Seselj case will be announced by the end of March without the presence of the accused not because his presence is not required, but because he refuses to attend and meanwhile Serbian authorities have not done enough to return him to the tribunal.

The Court did not come out with a unison decision because presiding Judge Jean-Claude Antonetti and Judge Flavia Lattanzi voted for the decisionwhile Judge Mandiaye Niang dissented.

Nice: Without access to the medical evidence, which may never be made public, I can’t comment on the decision of the two judges that Seselj’s medical treatment in Serbia can neither be interrupted nor carried out in The Hague.

However, I would find it surprising if the medical treatment that he is currently undergoing could not be carried out in The Hague. I find it hard to believe that medical treatments available in Serbia are not also available in the Netherlands. Hospitals in The Netherlands are likely to be at least as sophisticated and up to date as those in Serbia.

RFE/RL: Do ICTY rules require the presence of the accused while the sentence is rendered?

Nice: Obviously not, otherwise the two judges would not have made the decision they did; but the expectation is that everyone should be there for their verdicts and I think until now everyone has (apart, of course, from those who died in custody before their cases were even concluded).

Generally, judges do have power to deal with some parts of cases in the absence of the accused. By a majority, it seems, the judges in the Seselj case are content to exercise that power at the verdict stage of his case.

RFE/RL: Since Seselj was temporarily released in 2014, The Hague Tribunal has urged the Serbian authorities several times to hand him back because his inflammatory nationalist speeches caused uproar in the Balkans. However, nothing has come out of it so far. How would you comment on the fact that The Hague Tribunal has not been firm in its stance as it was five or ten years ago when it pushed Serbia hard to get most wanted fugitives handed over? And it was a prerequisite for Serbia to continue its path to the EU.
Is there any political calculus or an attempt to balance given the fact that when Croatian general Gotovina was cleared of charges it caused furious reactions in Serbia? Then, when Serbian general Perisic was acquitted many reacted in the same vein in Bosnia and Croatia. In addition, former Kosovo Prime Minister Haradinaj was released.

Nice: Of course, I can’t say if it is something politically motivated or not without being party to, or present at, the decision which was made by the three judges concerned. But when in last few years The Hague expressed a desire to have Seselj back it has been thwarted by the authorities in Belgrade.There are clearly two or maybe three possibilities. One is that Belgrade is simply more powerful than The Hague. I’m sure that The Hague wouldn’t like to admit that, especially given that Serbia is ambitious to advance into Europe and that, for that advance to happen, it needs to be seen to be complying with its international duties. Analternative is that The Hague is simply too weak to exercise its will. This is highly improbable. As you rightly remind me, whenever The Hague needed to have somebody handed over, it always succeeded in the end. That was so not just with Milosevic, but also for Karadzic, Mladic and others. So, it is neither probable that Serbia is simply too powerful nor the The Hague is inherently too weak. A third possibility that needs considering is that this outcome may be acceptable in some ways to both parties.

RFE/RL: As I mentioned, many were puzzled by the acquittal of Gotovina, who in the first instance was sentenced to 24 years in prison, then Perisic and Haradinaj.

Nice: There have been a number of events in The Hague that allow for the possibility that there has been political motivation behind some of its decisions. These allegations are easy to make and I have being tempted sometimes to make them myself. However, it is in the nature of big institutions like the ICTY that a great deal of what may happen behind closed doors stays behind closed doors. The particular decisions that you describe led to outrage and consideration by some of the possibility that ‘political’ decision making balanced things out. But, I don’t have any direct evidence of that. It is the kind of possibility which is unlikely to be made real by direct evidence.

It is likely to remain only ever a possibility until decades pass and archives are opened up or until individuals who currently must maintain confidentiality feel free to speak. At present there is simply no evidence.

RFE/RL: To continue with this kind of surmise, maybe the reason behind the latest ICTY decision is that the Seselj case itself has been conducted. He voluntarily surrendered at the beginning in 2003. However, his trial commenced only in 2007 and lasted for seven years. And in 2014 ICTY temporarily released him quoting as a reason medical necessity. All in all, it took eleven years and yet the process is inconclusive. It seems pretty long.

Nice: It’s far too long in my view. It may be that the three judges - presided over by judge Antonetti-were doing everything possible that they could to bring the case to a conclusion. But even if they did, it seems to me self-evident that the case lasted far too long. Look at this, and at other very long cases not from the point of view of lawyers or judges, not even from the point of view of defendants, but from the point of view of victims, whose lives were affected or whose loved-ones were killed because of thing done by the people on trial. Such long trials are completely unhelpful for them. They store up anxiety and sometimes bring despair when a verdict is finally pronounced. What they fail to do is to give victims the resolution they need and should have in a sensible period of time.

The very length of these trials leads some people to ask whether there has been a willingness to delay the process of justice. But, to repeat, without accesses to material, presently confidential, it is always going to be difficult or impossible to be certain. As you said, it’s a matter of speculation.

RFE/RL: There were some other cases which took too long, like in the Krajisnik case. What are reasons for such lengthy processes in The Hague?

Nice: You’re touching interesting and important points. There are a number of reasons why these trials take a long time. First, they often involve very large factual histories that have to be explored. Second, these histories of events are explored by the particularly “luxurious” adversarial legal system. However no such trials have been tried in Europe by any other system to establish whether different systems could be quicker – I believe they might be.

Third, defendants often represent themselves, as in the Seselj case, which may make trials longer than they would otherwise be. And, fourth, there may have not been neither capacity in the Court nor the determination of judges to see these cases dealt with very swiftly. One example of all that is the Milosevic case where the judges were, I think, always very keen to press ahead. The trial lasted four years before Milosevic died but was very often interrupted because Milosevic, representing himself, was often too ill to appear . If he had been tried - even under the adversarial system - in a conventional court, say in England or America, working conventional court days five days a week, then his case would have been lasted in total about two years, a long time but probably acceptable given that it covered a ten year period and three wars.

Whether the length of other trials in any way reflects political willingness to delay, I can’t say. I was determined to get the cases I dealt with concluded as swiftly as possible while ensuring that they were fair; I think I achieved that so far as as it lay in my power.

I can’t speak for others, but I’ll repeat - because I think it is insufficiently understood or appreciated - that these lengthy trials are not good for anyone and certainly not good for victims who sit and wait, sometimes to get the verdict they hope for, but all too often to get the verdict by which they are disappointed or worse.

RFE/RL: In February this year, Serbia’s Prime Minister Aleksandar Vucic sent a protest letter to ICTY, about the way the Tribunal treats Serbia, as well as against how it acted concerning a recently deceased Serb, Zdravko Tolimir who was waiting to be sent to serve a life sentence in the 1995 Srebrenica genocide case.
Belgrade’s move came in the aftermath of a Hague hearing concerning three Seselj Radical party officials accused of threatening witnesses at trial of their party leader
Serbia said it resented the way its legal representative was treated during the hearing, adding that the Tribunal acted arrogantly. The Tribunal accused Serbia of failing to cooperate with the court.
Serbian officials claim if they are to hand over three officials from the Seselj party it would trigger political instability. Is there a link between this event, when The Hague took a hard stance and, following the adamant Serbian reaction, a milder approach by not insisting Seselj has to be present when the verdict will be rendered?

Nice: I can’t make that link. It’s a matter of speculation.

RFE/RL: If Seselj would have been cleared of charges is then he entitled to seek compensation for 11 years he spent in prison?

Nice: If he is cleared of all charges there is, so far as I know, no remedy in the form of financial compensation at the ICTY or the United Nations for those who spent time in prison and are acquitted. Some would say that Seselj himself was to blame for the time his trial took and, thus, for the period of time he was detained.