Case Studies

03 — Vojislav Šešelj | Bosnia and Herzegovina

Introduction: Instigation in Bosnia-Herzegovina

Vojislav Šešelj is a former Serbian politician who was indicted by the International Criminal Tribunal for the former Yugoslavia for planning and publicly calling for the ethnic cleansing of non-Serbs from territories within the former Yugoslavia.

Serbian Radical Party leader Vojislav Seselj during the war in Croatia. Photo: ICTY.

Vojislav Šešelj (second from left) with Yugoslav People's Army troops in the city of Benkovac, in 1991, near the start of Croatia's war of independence.


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.

Our western enemies are attempting to carry out a new genocide against the Serbian people. Brother and sister Serbs, it is our task to stop it, and we are sending this message to our enemies: not only shall we avenge the previous ones too, when they dared to put the Ustasha knife under the Serbian throat again.…Bosnia and the brave Serbian Herzegovina, it is particularly you who must not allow to be divided. You have one political party, the Serbian Democratic Party, you have your leadership which has proved its qualities in action, on the front lines, and which has upheld the honor of Serfdom. They showed the Ustasha, who are superior in manpower, that the Serbian heroism is still alive. The Serbian Chetnik units will be active in all other areas of western Serbian Serbian Krajina, in Serbian Slavonia, Baranja and Western Srem. We shall not give up a single inch of Serbian territory. Let the Slovenes leave Yugoslavia. They have never been our brothers or friends. Let the Croats go, let Croatia secede. But we are not giving them an inch of the territory to the east of the Karlobag – Ogulin – Karlovac – Virovitica line!


Elements of the Crime

The indictment alleged that, shortly after Šešelj’s speeches in the Serb Parliament, and owing in part to those speeches, Croats were ethnically cleansed from the cities of Mostar and Zvornik, and in the area of Sarajevo. Among other crimes, the ICTY Prosecutor charged Šešelj with instigation to war crimes in reference to his April 1st and 7th calling speeches for the expulsion of Croats in the Serb Parliament. The legal element of instigation include:

  1. Prompting another to commit an offence
  2. Resulting in commission of the offence
  3. The prompting makes a “substantial contribution” to the offence.


Prompting another to commit an offence



Resulting in commission of the offence



The prompting makes a “substantial contribution” to the offence.


The Trial Judgement

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.


Key Points