"For the Court the procedural problems have really started now," ICTY Registrar Hans Holthuis commented on Friday December 8. Vojislav Seselj, president of the Serbian Radical Party (SRS) and one of the most prominent defendants before the Hague-based court, has just ended the hunger strike he began twenty-eight days ago to protest his Court-imposed lawyer and maintain the right to defend himself. The Appeals Chamber upheld his right. Although the tribunal's relief was bitter, it was nonetheless real in a situation that was becoming ever more complicated. On December 6, the tribunal, which had been contemplating drip-feeding Seselj, asked the Dutch government to provide medical services for Seselj. Under pressure, the Minister of Justice frantically began studying the latest medical codes of ethics, both Dutch and international. The tribunal's request was even on the agenda of the weekly cabinet meeting on Friday, December 8. Meanwhile, Tribunal president Fausto Pocar stressed that there would still be room for consideration if Seselj decided to address the court via the legal route.

Following in the footsteps of the World Medical Association, the Dutch Medical Association has developed a strict policy against force feeding prison detainees on a hunger strike, no matter what orders physicians might receive from prison or other authorities. The demands of patients must always come first for physicians. Upon leaving the cabinet meeting, the Minister of Justice declined to say whether a decision had been made, stating only that he "would do everything necessary to make the work of the tribunal possible." On December 7, Seselj's requests finally reached the Appeals Chamber and it appeared urgent to wait for the chamber's decision.

Issued just hours later, the decision focused on Seselj's primary request - to represent himself - even though he already had this right. A standby counsel had been appointed to him back in 2003, but Seselj had refused to have any contact with him. In August 2006, attorney David Hooper was assigned as counsel, but the Appeals Chamber overturned the decision in October on the grounds that Seselj had not been officially warned [IJT-56]. On October 25, the Pre- Trial Chamber again appointed Hooper as standby counsel, this time following the proper procedure. Tension mounted after Seselj was denied permission to appeal this decision on November 7. Moreover, he received a warning the following day, for having disclosed confidential information. Two days later, he began his hunger strike. Finally, on November 27 the court imposed Hooper as assigned counsel after Seselj failed to appear in court for the second time since the beginning of his hunger strike.

The Trial Chamber's "error"

At this stage of the conflict, the Appeals Chamber appeared to be seeking an immediate solution to avoid the image of a court forcibly feeding its most popular defendant. Although Seselj was not able to appeal the October 25 ruling, the appeals judges did agree to hear his motion. By reversing the Trial Chamber's "discernible error" in appointing a standby counsel, the Appeals Chamber was able to lure Seselj back into eating and back into the courtroom. The Appeals Chamber takes part of the blame for the escalation of the situation, stressing that it should have been clearer about the fact that it was not possible to appoint a standby counsel immediately after the assigned counsel was withdrawn. Yet it also cited the Trial Chamber's "provocative move" and the "collision course" it took when it adopted an "untenable position."

The appeals judges were thus able to diffuse the crisis. In so doing, however, they are leaving their colleagues who are in charge of trying Seselj in a position that is just as untenable for the remainder of the trial, by failing to provide a solution to a crisis in which, just like Slobodan Milosevic, the defendant's main strategy is to disrupt the proceedings in order to gain a political advantage in the eyes of Serbian nationalists.