FIXING THE LAW
Reform, Prevention & Punishment
THE PROBLEM
Existing jurisprudence has arguably created a causation requirement for instigation even though the crime only requires that the speech make a substantial contribution, as seen in the case of Vojislav Šešelj.
THE SOLUTION
Despite the trial court’s approach in the Šešelj case, to find someone guilty of having instigated an atrocity does not mean that he must have uttered words that were absolutely necessary for the crime to take place.
Rather, a less burdensome standard – that the words made a “substantial contribution” to the eventual commission of the crime – is what is required.
Based on the evidence at trial, the kind of serious impact that Šešelj’s Serb Parliament speeches had vis-à-vis the commission of ethnic cleansing in Bosnia should have satisfied the “substantial contribution” requirement.
