By Peter Brock
[With a bit of delay, although it is never too late, we publish this trenchant critique of the Mladić proceedings by author and journalist Peter Brock. The Hague Tribunal and its Sarajevo War Crimes Court clone (and their unconventional modus operandi) are again the focus of attention on several fronts. In the Mladić case the Chamber have apparently reconsidered their initial decision to postpone opening the trial sine die after the Prosecution were caught lying about the disclosure of hundreds of thousands of pages of potentially exculpatory material to the defence. The rush to start the trial has now apparently resumed, whether the defence are ready or not, and opening is scheduled for (what a coincidence!) July 9. Another similar calendar “coincidence” was the recent sentencing in Sarajevo of Franc Kos et al. defendants from the Tenth Sabotage Detachment who were involved in the execution of Muslim prisoners at Branjevo-Pilica. While the finding of guilt and the sentences were undoubtedly supported by the evidence, at the June 15, 2012 sentencing there was no detailed written verdict. Until the verdict is written and published, presumably by the year’s end, neither the Prosecution nor the defence will have a clear idea of the grounds for the Chamber’s decision, which makes it practically impossible to file an appeal. The rushed sentencing on June 15 has, however, served one useful propaganda purpose: it occurred less than a month before the annual July 11 Srebrenica commemorations in Potočari, thus contributing its share to the build up of dramatic tension. Finally, in the meandering Šešelj trial the defendant, who has already been imprisoned for ten years while the proceedings seem to be going nowhere, has now been sentenced to additional two years for “contempt of court,” a charge which he cheerfully accepts since he does not hide the fact that he deeply despises the Hague Tribunal and all its works. The interesting news is that in that trial ICTY judge Stefan Trechel has introduced a legal novelty by stating that parts of the Chamber’s judgment shall be confidential and must be redacted before publication for the general public. A “court” that has given us secret indictments, closed sessions, and masked and disguised witnesses with improvised identities should have been expected to make the next logical evolutionary step to confidential and redacted judgments.]
‘A fool with judges, amongst fools a judge.’
—William Cowper, 1782
Alphonsus Martinus Maria Orie, the 64-year-old presiding judge in the trial of Ratko Mladic, should hold himself in contempt for violating Rule 77 of the Rules of Procedure and Evidence governing the International Criminal Tribunal for the former Yugoslavia (ICTY).
Section A, Subsection iii, was breached by Orie three days ago (May 17, 2012) when he imposed an indefinite suspension of proceedings after just three hours into the second trial-day for the 70-year-old Mladic, commander of Serb troops two decades ago and who is being paraded as the last of the “big fish” condemned for Bosnian war crimes by The Hague’s career Orwellians.
Orie’s misstep in delaying the trial focuses on “millions of pages” among “hundreds of thousands” of missing documents which prosecutors failed to turn over to Mladic’s defense team. Orie and others had known about it for almost a week. He could have delayed the sensational start of the trial the previous day instead of pandering to the prosecution’s gory rehearsal of genocide charges. But, Orie simply wanted to publicly re-ignite the pack media—even if only for a day or two—and had ignored the cardinal rule that requires the disclosure of all prosecution evidence.
As a result, the grandstanding Dutch judge and the rest of the ICTY found themselves held up to unprecedented international ridicule on just about every television news program aired that evening in the known world.
“The Tribunal,” stipulates Rule 77, “in the exercise of its inherent power may hold in contempt those who knowingly and willfully interfere with its administration of justice, including any person who… (iii) without just excuse fails to comply with an order to… produce documents before a Chamber…” (Italics added)
Gladstone’s famous tenet—“justice delayed is justice denied”—cannot be more aptly offended than by wayward judges who abuse their privilege of procedural discretion and instead collude with prosecutors to conceal evidence from the defense. In most civilized Western countries the offense amounts to judicial misconduct.
The prosecution, headed by two Americans, Peter McCloskey (son of former California Republican congressman Pete McCloskey), and Dermot Groome (a little-heralded former Manhattan prosecutor and law school instructor) well understood the elementary statute about evidence disclosure—and even announced seven months ago they had complied!
But after all, it was Orie’s responsibility, and he could have summoned lawyers to a less inflammatory pre-trial hearing to determine the extent of the prosecution’s “mistake” without the courtroom carnival. Even with all those part-time “law clerks” and law school interns on virtual vacation and officiously running around at the ICTY—primarily to add an impressive line to their resumes about having worked for international justice for future employers who wouldn’t know better—apparently nobody checked?!
The prosecution’s alliance has perceptibly dissolved with biased, gnashing reporters on the other side of the bullet-proof glass from the occasionally smirking though—nobody disputes—doomed Mladic, who most medical and legal observers agree will not live through the torturous, estimated four-year trial. Let alone achieve the surrealism of a mistrial.
The clue that something was amiss should have been recognized when Orie suspiciously diverted from the official ICTY usage of English and French, oddly resorting to technical Latin terminology: “The hearing is adjourned sine die.” Most journalists did not recognize right away that the legal jargon translated to “indefinitely.”
Even the near-institutional bias of the media could not shield Orie’s circus from its indictments the next day with headlines that the caricature “was thrown into confusion” by an “apparent clerical error” which “cast a shadow over one of the court’s biggest cases—and over the reputation of the court itself.” (Associated Press)
How serious is the issue?
Orie clownishly referred to it as a minor denouement of only “insignificant disclosure errors.”
But, despite the forgone prediction about Mladic’s waning mortality, not to mention any lingering vapor of hope for a declared mistrial, the defense pegs the missing documents at “a million pages” while prosecutors admit that, yes, “more than 37,000 documents could be missing.”
Orie’s own spokeswoman, Bosnian Nerma Jelacic, adored by the foreign press corps as their favorite ICTY “pin-up” when vamping at press conferences, spoke out that prosecutors “acknowledged that the error ‘could impact on the fairness of the trial to the accused’.” The tribunal itself rushed out a letter from prosecutors to defense lawyers, which attempted to head off a motion for mistrial, offering that the “missing documents were not uploaded onto an electronic database accessible to defense lawyers. ‘We sincerely apologize for the inconvenience,’ it read.”
The usually friendly reporters impugned the blunder as the latest ICTY “fiasco” and “debacle” (The Guardian).
The BBC’s Allan Little felt obliged enough to put in sidebar, though compelled to understate:
“It has been an embarrassing day for international justice. As grieving relatives sat through the chilling detail of the worst atrocity on European soil since World War II, it emerged that the prosecution had failed to disclose thousands of pages of evidence that should have been shared with the defence.
“General Mladic's lawyers told the court they need six more months to process those documents.
“Both sides accept it was a clerical error, but it adds to the perception that the process of justice here is cumbersome and frustrated by endless delay…”(Italics added)
For the “grieving relatives”—not to mention jailed defendants—it just meant more delay.
Whined Barnaby Phillips for Al Jezeera, the “hearings” were supposed to run for two days. However, judges can stage opening statements of trials for as long as they wish. So, Al Jezeera program directors then decided to re-roll McCloskey’s opening statements against Mladic from the previous day to fill dead air.
As expected, The New York Times’ ICTY-protector, Marlise Simons composed a soft-pedaled two-paragraph litany for the top of her report, beginning with the standard reference to the 1995 “massacre” at Srebrenica—but without any traditional disclaimer, i.e. “alleged massacre”—and instead seductively selecting for her opener that prosecutors described the killings with bizarre “clinical detail”. For some reason, the jumbled metaphor won out over “specific details” or “minute details” or “tragic details” or even “gruesome details”.
Obviously, Simons wanted to clinically sanitize Orie, the ICTY, the prosecutors and to get in her own apology for them all, beginning in the third paragraph:
“…Frederick Swinnen, an adviser to the prosecutor, said that the prosecution had reviewed more than a million pages from other trials to check for material that it must share with Mr. Mladic’s defense. ‘But there was a technical error,’ Mr. Swinnen said, ‘and several thousand pages were not accurately uploaded when they were sent. We recently learnt of this, and we are trying to correct it as fast as possible’.”
The New York Post withheld any Murdochian sensation and reported without tabloid sarcasm that “evidence errors” had caused the suspended proceedings. Its cross-town rival The New York Daily News unsheathed its 200-word verdict (hacked from the Agence France-Presse service), death sentence, and banishment from the planet:
“To see 70-year-old Bosnian Serb general Ratko Mladic hauled before a war crimes tribunal is to witness a man of evil called to account for the blood on his hands…That blood collected in immeasurable quantities during the 1992-95 war that followed Yugoslavia’s dissolution. …On this Earth, he can never pay enough for his crimes.”
But, upstaging even Simons, Orie, ICTY prosecutors, and the rest of the “What Genocide-deniers” was simultaneously published in the Arianna (formerly Stassinopoulos) Huffington Post.
Anthem-like, Jasmina Tesanovic, “feminist author and political activist”, according to her byline—although coming across more like another self-hating Serb”—bemoaned the defiant image of Mladic, alluding to his baldness, and her dissatisfaction with proceedings at The Hague, generally. Reminiscent of the primitive Slavic bard, the guslar (from the single-stringed instrument called the gusle that accompanied dirge-like ballads mourning the plight of life’s misfortune), Tesanovic’s own third paragraph recited from a Serbian proverb that “The wolf loses his hair but not his character.”
“There is little going (sic) in The Hague courtroom that wasn’t described by Hannah Arendt during Eichmann's trial in Jerusalem in 1963.
“It outdoes Hollywood, though. Angelina Jolie's recent movie, In the Land of Blood and Honey, is a pale replica of this horror reality show, live from The Hague…In Belgrade, I lived in the same street with a couple of those notorious criminals: we shopped at the same bakers, and our children went to the same schools. In Belgrade, we were not sniped-at, shot or shelled, we looked peaceful, and the covert war did not touch our streets until it fell from distant jets in the air, in the NATO bombing…
“The central mastermind died behind the bars in the Hague. Two major stars are under trial now. A bunch of minor ones are serving sentences. My neighbor, the professor turned war profiteer, committed suicide as a Shakespearean anti-hero. But there were thousands of others whose activities were just as bloody and sinister, who still live in Belgrade, shopping, sometimes reminiscing over the bad old days.
“The Serbian population is still living in denial, and other nations have learned to let this new nation do that…” Ah, tell us all about it.
There is no dateline to Tesanovic’s raging lament. But, any taverna in Belgrade with a TV might do.
Mike Corder, of the Associated Press and the “dean” of correspondents covering the war crimes trials at The Hague for the past seventeen years, did his usual job—all sizzle, no steak. He consistently knows more than he tells and will never encounter a shriek of protest from the Mothers of Srebrenica.
Best hands-down reporting of the day was the drive-by job of Bruno Waterfield in the Daily Telegraph’s Brussel’s bureau:
“…Court officials estimate that ‘millions of pages’ contained in ‘tens of thousands of documents’ were not disclosed to the defence as they should have been under the UN court’s rules.
“The deadline for disclosure was last November and despite complaints from the defence in February, the UN prosecutors had failed to hand over the documents by last Friday.”
Orie’s boss, Tribunal president Theodor Meron, an 82-year-old American and an Holocaust survivor, likewise cannot be happy that the prosecution had much earlier informed Orie about the missing evidence. Meron was ensconced behind his chamber doors as ICTY apologists scurried around to come up with a reasonable explanation for Orie’s exhibition of incompetent trial management in the headlong rush to start the Mladic show the day before. Neither were Orie’s two assisting judges—Christoph Flugge of Germany, and Bakone Justice Moloto from South Africa—who sat like sphinxes and painfully listened to their presiding colleague.
Meron had just 48 hours earlier denied a defense motion to remove Orie from presiding in the case because of his tangled impartiality in previous sentencing of several former subordinates of Mladic.
Orie joined the ICTY in 1995 at about the same time as Meron, but not as a judge. Orie’s inaugural role was unspectacular as an underpaid stable-mate of court-appointed defense lawyers. He quit along with three other attorneys representing “small-fry” POW camp guard and racketeer Dusko Tadic in 1997 in the ICTY’s first war-crimes trial.
Orie stayed on to be robed six years later and began sitting on high-profile trials during the last decade
Perceived as a Dutch favorite-son at The Hague, Orie bragged to Deutsche Presse-Agentur in 2008 that he and two-dozen other trial court judges enjoyed “very nice” annual salaries and perks worth almost $250,000—including “official” travel and lodgings, generous holidays, etc.
Orie had been uncremoniously scratched as presiding judge at the outset of the Radovan Karadzic trial. Karadzic, currently defending himself against war-crime charges before another Hague tribunal, was worried about dying in the manner of two previous Serb presidents who had mysteriously succumbed while in custody—Slobodan Milosevic, who died from poison-induced heart failure in mid-trial, and Milan Babic, who led the Serb Republic of Krajina and committed suicide at 50 after negotiating a plea-bargain for ratting out Milosevic.
Karadzic had insisted on Orie’s disqualification in an itemized letter to then-ICTY president Fausto Pocar, pleading that Orie had exerted “decisive influence” and interfered with a tribunal appeals court that was close to extending leniency for another Serb defendant who abruptly was handed a life sentence. Karadzic also had alleged that Orie meddled in other cases, telling Pocar he feared he would be “physically liquidated”!
Other judges made no secret of not wanting to be tapped for the Mladic trial—and the likelihood of the latter suffering a fourth and fatal stroke. But not company-man Orie.
Meron, an avid Shakespearean, and author of several prohibitively expensive volumes that deal with the obscure (to general readerships) minutiae of international law, also wrote Henry’s Wars and Shakespeare’s Laws (Oxford University Press, 1993); and Bloody Constraint: War and Chivalry in Shakespeare (1998). Most intriguing is his newest collection on the subjects of the international tribunals dealing with Yugoslav and Rwandan wars, entitled The Making of International Criminal Justice—A View from the Bench: Selected Speeches.
The “making” of laws without the use of democratic legislatures and parliaments used to worry such organizations as the American Bar Association in the ICTY’s formative beginnings in the 1990s. But no longer. There are big bucks in international law. It cost an average of $10 million per criminal case with Yugoslav and Rwandan tribunals, said Cherif Bassiouni, reputed “father” of international criminal law, at a 2010 international conference in Washington, D.C.
Bassiouni also shocked listeners with the pronouncement that international tribunals were inefficient, bureaucracy-laden failures—and would be replaced by national courts.
Nobody knows if Meron, who became a “judge” last year of the peculiar-sounding “International Residual Mechanism for Criminal Tribunals (Mechanism)”—whatever that is!—or the insatiable Orie, agrees.
Nor whether Meron, whose ardor for Henry V is legendary, will still whip a “tattered copy of the play out of his coat pocket”, quoting memorized lines from the fictional “panorama of attitudes toward chivalric norms” in the Middle Ages. (See Vermeer in Bosnia, Lawrence Wecshler, 2004, that describes it firsthand.)
Meanwhile, Meron may fantasize sending the nether-worldly Mladic—for as long as he’s here—to the blackboard ten times a day to write:
“We would have all such offenders so cut off; and we give express charge that in our marches through the country there be nothing compell’d from the villages; nothing taken but paid for; none of the French upbraided or abus’d in disdainful language; for when lenity and cruelty play for a kingdom, the gentler gamester is the soonest winner.”
—Act III, scene vi