Comment: Milosevic Mocking Justice

”They want to kill him!” a paranoid-sounding Mira Markovic told the Belgrade news magazine NIN last week, describing the trial of her husband Slobodan Milosevic as “a form of organised execution” and “a crime that is going on before the eyes of the whole world”.

She said the tribunal “cannot handle him any other way” because “Slobo undermined their whole indictment”. And then she confirmed that her husband ”of course, thinks the same”.

To the question of whether Milosevic thinks The Hague is out to get him we will return later, when we come to the specialist medical examinations ordered by the trial chamber last week.

Meanwhile, in Belgrade, the “Sloboda” association, which gathers the most fervent supporters of the former president of Serbia and Yugoslavia, surpassed his wife and officially brought criminal charges in Belgrade against Hague chief prosecutor Carla Del Ponte and the main prosecutor in the Milosevic trial Geoffrey Nice for “attempted murder”.

There were rumours in the corridors of the tribunal that Nice wants to represent himself if the case ever makes it to court in the Yugoslav capital. Not that he would be allowed to do so. Under local law, a defence counsel is mandatory where an accused faces a possible sentence of over ten years or more, which, for an “attempted murder” charge, is likely to be the case.

The aforementioned point to what the “trial of the century”, which has run for just nine months, might easily turn into.

Namely, if the accused and his followers are allowed to continue to behave in the same manner, there is a risk that the whole process will turn into “the farce of the century”.

The manner in which the accused made use of his right to self-representation over the last nine months has little to do with defence in criminal court.

It seems to me more like mockery of the court, international justice and, last but not least, of the victims of the crimes committed in Yugoslavia.

Over the greater part of the last decade, Milosevic skilfully made use of the doubts and complexes that the international mediators had in respect of the Serbian or Yugoslav “cause”.

For example, many of them could not decide for a long time whether recognition of Slovenia, Croatia and Bosnia was premature; whether it was justifiable to blame “only Serbia” for breaking the joint state and the war that ensued; and whether they did enough to protect the rights of Serbian minority in Croatia, etc.

Whenever he detected such doubts, complexes or troubled conscience, Milosevic exploited them very skilfully, and that is one of the things that kept him for so long in high esteem among the interlocutors as a “partner” or “indispensable participant” in all peace efforts.

Milosevic is now exploiting the trial judges’ concerns over him acting as his own defence - which has manifested itself in extraordinary patience and tolerance of the defendant’s antics.

Using the cover of cross-examination, Milosevic has turned the courtroom into a political debating club from which he sends encouraging messages to his supporters and open threats to his opponents.

At the same time, he intimidates the present and future witnesses; accuses the superpowers and neighbouring countries of hatching “a global conspiracy” against him and Serbia; and rewrites the recent history of the Balkans.

And, on top of all that, he is using every opportunity to express his contempt not only for “the false indictment”, but also for the “illegal and illegitimate court” which is conducting this “political process” against him.

Without taking an oath and without risk of being cross-examined, Milosevic has managed to turn a great part of the prosecution case into his own testimony about the events that are being discussed in the courtroom.

Although the judges on many occasions told him that the purpose of cross-examination is to examine witnesses, not to give his own testimony, and that whatever he says on such occasions is not regarded as evidence, Milosevic is persists with this tactic because he knows that every minute wasted in this manner is one minute less for the prosecution and its presentation of evidence.

When Judge Patrick Robinson told him in July that his health was of “paramount concern” for the trial chamber, Milosevic discovered another way of exploiting the judges.

Following a pause of ten days because of his “exhaustion”, Milosevic made a short appearance in the courtroom on November 11, then stated the following day that he was “tired” and did not return for the rest of the week.

According to a report by Dr Paulus Falke, the Medical Officer of The Hague detention unit, the accused was suffering again from high blood pressure.

Since it is known that he is under medication for regulation of blood pressure after a specialist examination in July, this deterioration could mean either that he is receiving the wrong therapy or that he is not taking his medication on regular basis.

Reliable sources in Belgrade claim that in the Central Prison in Belgrade – where he was accommodated from his arrest on April 1 until extradition to The Hague on 28 June 2001 – Milosevic was “caught in the act” of throwing his pills into a toilet bowl.

Milosevic’s initial prolonged sick leaves, in March and June this year, occurred after exhausting duels with so called international witnesses: first with British politician Paddy Ashdown and then Ambassador William Walker and General Klaus Naumann.

Sceptics indicate that his latest bout of ill-health was designed to put off testimony he’d rather not hear.

At the end of the half-day court session held last Monday, protected witness C-036 was brought to the courtroom, but due to technical difficulties his testimony was postponed for the following day.

But the following day, Milosevic, suffering from high blood pressure, was said to be too tired to attend. And this situation continued until the end of the week.

Judging by the scraps of data from the public documents of the prosecution, the defendant is no rush to meet this particular witness face to face.

C-036 is apparently one of former top politicians of the so-called Republika Srpska Krajina - which was established in 1991 on one third of Croatia’s territory - who can be regarded as the most important “insider” at this trial so far.

Moreover, C-036 is one of the accomplices, or participants, in the “joint criminal enterprise” described in the Croatian indictment against Milosevic.

He himself is under investigation by Hague prosecutors and could be indicted soon.

The judges allowed him to testify in the presence of his lawyer, in order to protect himself from making self-incriminating statements.

Meanwhile, the judges are doing their best to persuade Milosevic to take on legal assistance.

Last Monday, when he appeared in the courtroom for a short time, the judges made special efforts to persuade him that it was in his best interest – both legal and medical – to engage lawyers who will share the burden of cross-examination and preparations for the presentation of his case.

Milosevic, though, rejected their advice, stating that lawyers can solve neither his medical problems nor the problem of the abundance of documents submitted by the prosecution, which he has to study himself, because “the lawyers know far less than him about these things”.

In response to a prosecution proposal to have a lawyer imposed on him, Milosevic referred to International Pact on Civil and Political Rights, European and American Human Right Conventions, the ICC Statute and other documents, which give accused the right to defend themselves in court.

For obvious reasons, of course, he did not cite Yugoslav law, which would compel him to be represented by a lawyer.

The propositions put forward by amici curiae Steven Key and Branislav Tapuskovic in a confidential submission fared much better with Milosevic.

He supported as “reasonable” their suggestion that he be released for a year so that he could improve his health and prepare for the rest of the trial.

However, it is not very probable that judges – after pressing for an early start to the trial and imposing a fast tempo to proceedings from the very beginning – will accept any prolonged recess in order to give a chance for the accused to recuperate.

Instead, the judges could not resist the temptation to seek a solution to the problems of the defendant’s real or imagined poor health by proposing a reduction of the prosecutor's case.

In response, Nice said the case had already been reduced to an "irreducible minimum", and any further reduction “would be simply unjust”, both from the point of view of public interest and the victims of crimes committed in former Yugoslavia.

On account of the fact that during this month alone more than ten working days have been lost, Nice warned that the trial chamber will have to provide “sufficient additional time” so that the prosecution could present its case in an appropriate manner.

Prosecution spokesperson Florence Hartmann said at the last week’s press-briefing that they do not want an “Al Capone solution”, that is, putting Milosevic behind bars by proving some minor crimes and giving up on the task of proving his overall responsibility for the atrocities during the three Balkan wars of the last decade.

None of the options considered by the judges seem particularly attractive:

First, imposing a lawyer on an uncooperative defendant; second, a “stand-by counsel” who would “lead” the accused through the proceedings but leave him free to speak in the courtroom; third, further reduction of the prosecution case; fourth; a prolonged recess for the accused to recuperate.

Before making their decision, the judges wish to have a complete picture of the current health of the defendant, and so last week they ordered two specialist examinations of Milosevic: by a cardiologist and a psychiatrist.

According to the trial chamber's order of November 13, 2002, both examinations were suggested by the chief medical officer at The Hague detention unit, Dr Paulus Falke.

The cardiologist is requested to submit within seven days a report in writing about the causes of frequent exhaustion of the accused, as well as “a prognosis as to the defendant’s future health and his ability to attend court and stand trial”.

The psychiatrist was given twice that time to submit a written report "in the light of the comments made by Dr Falke in his report of November 12, 2002 as to the mental condition of the accused".

It is not clear what the judges may expect to find in the psychiatric report. Is it just an opinion on possible mental causes of frequent exhaustion, or a general assessment of mental status of the accused and his ability to follow the trial and take part in it?

Psychiatric examinations are not so rare in The Hague tribunal and so far about a dozen accused underwent such assessments.

However, they were always conducted at the request of defence lawyers who tried to prove their clients suffered from “post-traumatic stress” or that at the time of their alleged crimes their “accountability was diminished”.

This is the first case that the accused is ordered to have an examination by the trial chamber.

There is no doubt that Milosevic will interpret this initiative as yet more proof that The Hague is “after him”.

After calling the tribunal “a sophisticated concentration camp with gas chambers and crematory”, Mira Markovic probably will not miss a chance to give it a new name: The Hague Gulag.

Mirko Klarin is an IWPR senior editor in The Hague and the editor-in-chief of SENSE news agency.