Ivan IVANOV – Independent analyst and researcher
The International Criminal Tribunal for the Former Yugoslavia (ICTY) last Thursday (August 25th) held another court hearing on the case of Gen Ratko Mladic, following almost two months of lull since the last hearing in late June. But summer vacation is not the only thing to explain such a long pause. In fact, the events unfolded in quite an unpleasant way.
Last week`s hearing focused mainly on the prosecution`s appeal to split the indictment against Mladic in two separate trials: to first try him for the 1995 Srebrenica massacre, for which he is accused of genocide in the killing of 8,000 Bosnian Muslims, and of ethnic cleansing in Bosnia and holding UN peacekeepers hostage. The prosecution said this would speed up the trial. Certainly, it would. But this will play into the hands of the prosecution only, not the defence. Mladic has only one lawyer, who simply cannot prepare for two trials at once. Apart from this, the prosecution is known for providing loads of the so-called 'indictment data' ( a billion of pages, if you please), most of them simply unnecessary during the trial. However, all these materials should be studied by the defence, which takes all their time.
But what deserves special attention here is that in case the trail is split in two parts, the meaning of the indictment gets changed. Originally, it was stated that all crimes included in the case resulted from joint conspiracy. But now, 12 years on, the prosecution has suddenly changed its position: now they say Mladic joined one conspiracy for 'entire Bosnia' and also a separate conspiracy 'on Srebrenica only'. How come? Apparently, the prosecutors yet have not agreed what exactly they want Mladic to be tried for!
Apart from other things, the prosecution said that two separate trials were needed in view of the fact that Mladic has 'health problems'. Does not this mean that the ICTY knows something that may halt the trial any minute, so they want to sentence Mladic at all costs? However, if things go differently, long proceedings in Mladic trial will just mean that judges and prosecutors will receive more salaries. The situation will get even more complicated after the ICTY transfers its responsibilities to the International Residual Mechanism for Criminal Tribunals (IRMCT) which will begin functioning for the CITY branch on 1 July 2013. But there is an important proviso which says that although the ICTY is due to pass over its duties to IRMCT in 2013, it will still be allowed to deal with cases until the end of 2014. The date was set not as a 'deadline' but as a 'request to do everything possible to complete all tasks on time'.
Russiahas always stressed during the UNSC meetings that the cases of Karadzic and Mladic should not be viewed as grounds for extending the ICTY mandate. But things are unlikely to go this way because if the Mladic trial starts on July 1st 2013 and fails to finish by 31st December 2014, the ICTY cannot cease to exist, otherwise new court proceedings will be required. However, this may be what some judges at Hague are looking for.
A few days before the August 25 court hearings Mladic underwent surgery. The details were not disclosed. Even Mladic`s lawyer Branko Lukic said that he did not know much of the details but was informed that the surgery went well. However, it was made known by the ICTY that Mladic did not leave the Scheveningen Prison, which means that the operation took place there, despite the fact that surgeries are usually not performed in prisons. The question is why Mladic was treated at a prison hospital? Probably, the ICTY was afraid that he could have escaped on his way to a hospital. By the way, Mladic is transported from one place to another with a mask on his face to prevent him from looking around. Very 'democratic', isn`t it? But it appears to be more likely that the ICTY simply does not want Mladic to be examined by other doctors. If we look back at how Slobodan Milosevic was tried, we`ll understand that the ICTY knows what doctors to address to achieve their goals. Still, it is evident that now the ICTY has decided not to take similar risks with Mladic. In view of the decision to split the indictment in two trials, this evokes concerns.
We`ve got used to the fact that all high-profile trials at the ICTY are held with active participation of the defendants: Milosevic, Vojislav Šešelj, Radovan Karadzic. In thiscase, a suspect defends himself on his own (but this had not always been this way: it took Šešelj 30 days of hunger strike to win the right to defend himself). But things will go differently with Mladic: he will be present at the hearings but won`t be allowed to make any comment.
Actually, this holds true for all cases considered at the ICTY, but we have not known much about this because most cases there do not receive wide media coverage. A defendant is allowed to speak only if he is also a witness in his case (which is quite a challenging and risky procedure) or if he directly asked by court. The problem is that a defendant is never asked about anything!A dialogue is held between a judge and a lawyer. For instance, Vidoje Blagojević, who was sentenced to 18 years in prison forcrimes against humanity and violations of laws and customs of war committed against Bosnian Muslims in the area of Srebrenica in July 1995, spend several months asking for the right to talk during the proceedings but in vain. The same thing is likely to happen to Gen Mladic. Actually, during the first hearing Mladic said (and was heard despite a switched off microphone) that he had not receive any indictment act, his lawyer when asked whether his client understood the charges he was facing, responded positively.
What is also notable for the Mladic trial is that the prosecution insisted that the names of all witnesses in the case should be disclosed 'for safety reasons', in addition to that- neither the defendant nor his lawyer were allowed to know where those witnesses came from! What for? First, to create a negative image of the defendant and his lawyer, and secondly- to disclose the real place of residence of witnesses which can tell quite a lot. Thus, one witness from Bosnia was given a flat in Norway. Apparently, this was not for free…
To sum up, I`d like to say that two months since Gen Ratko Mladic was arrested, the ICTY has done everything possible to not allow a Russian lawyer join the proceedings. The ICTY explained this by saying that criticism coming from Russian lawyer Alexander Mezyaev is 'hostile' towards the Tribunal and 'might result in the loss of public confidence in the ICTY'. The Tribunal used this wording to reject Mr. Mezyaev`s appeal to defend Mladic. But the Hague officials seem to be unwilling to look into the roots of this criticism. Secondly, the prosecution has been looking for any possible ways to deprive the defence of the right to have enough time to prepare for the hearings. Finally, efforts are being made to make the trial 'closed' to public. And only those will be described as 'truthful witnesses' who go from one trial to another testifying but in fact did not see anything with their own eyes. Meanwhile, the names of those who allegedly witnessed the crime, won`t be unveiled. Above all this, a possibility is being discussed to hold a more speedy court hearing on one of the indictments in the Mladic case, allegedly 'to let justice rule'.
