Introduction: Instigation in Bosnia-Herzegovina
During the early 1990s atrocities in the former Yugoslavia, Serbian Radical Party leader and paramilitary organizer Vojislav Šešelj called for Serb forces to ethnically cleanse Croats and Muslims from Serbian parts of Bosnia and Herzegovina.
In a speech in the Serbian Parliament, on 1 April 1992, Šešelj raged:
In another speech in the Serbian Parliament on 7 April, he substantially repeated this rhetoric and added:
“If we had grounds after World War Two to expel…hundreds of thousands of Germans because of their collaboration and servitude to fascist Germany, there are many more grounds for the Croats to be expelled, because the crimes, which the Croats have committed, the Germans could not even dream about…we shall expel the Croats from [Greater] Serbia.”
“[The] best solution [for the Croats] . . . would be simply putting them on buses and trucks and taking them to Zagreb [the capital of Croatia].” — Vojislav Šešelj
Speech of Vojislav Šešelj, 1991.
Source: Genocide Studies Program, Yale University.
Prompting another to commit an offence
Resulting in commission of the offence
The prompting makes a “substantial contribution” to the offence.
The Trial Chamber noted that instigation requires no proof that “the crime would not have been committed without the involvement of the accused, but it must be shown that the [speech] was a contributing factor in the behavior of another person who committed the crime” and it found that Šešelj’s April 1st and 7th speeches “constituted clear calls for the expulsion and forcible transfer of Croats.“
It suggested the speeches were a significant factor in bringing about the ethnic cleansing, referring to “the reality of a certain influence and aura of the Accused, notably with respect to members of his own party and certain combatants.“ The Chamber elaborated further regarding the impact of Šešelj’s words on those who carried out the target crimes:
“One of [the Serb combatants] - VS-002 - affirmed that the Accused ‘was a Voïvode Serb. We would never have refused his orders.’ Other witnesses specified that the Accused was the ideological leader of the volunteers and that they considered the Accused as a god. The Chamber also heard several witnesses who testified that the Accused’s speeches had an important impact on those who were listening.”
Surprisingly, though, the Trial Chamber ruled that Šešelj could bear no liability for instigation flowing from this speech because “the Prosecution was not able to marshal evidence that this speech would have been at the root of the departure of the Croats or the persecution campaign alleged by the Prosecution that was supposedly carried out in the locality after the speech.“
To be “at the root of” an occurrence smacks of a “but for” causation standard – in other words, it suggests that the Prosecution needed to prove not just that Šešelj’s speeches made a substantial contribution to the ethnic cleansing but that the ethnic cleansing would not have occurred without the speeches.
This finding was upheld by the Appeals Chamber and thus may stand as a serious impediment to the successful prosecution of hate speech as instigation.
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