Ailing Defendants Cause Headaches for Hague Tribunal

The UN’s Mechanism for International Criminal Tribunals, MICT in The Hague adopted an unconventional solution last month for probably the most persistent problem in the past two decades of the court’s existence.

Its solution was intended to address the issue of a defendant who is deemed fit to stand trial but whose illness significantly slows down and interrupts the course of justice.

The MICT judges created a legal precedent when they allowed the retrial of former Serbian State Security Service chief Jovica Stanisic to continue in the absence of the accused, who is chronically ill.

According to the trial chamber’s decision, Stanisic, aged 65, will follow the proceedings via webcast from his home in Belgrade when the court reconvenes from its summer recess in mid-August.

Stanisic is charged with committing for crimes against humanity in Croatia and Bosnia and Herzegovina during the conflicts from 1991 to 1995.

He is set to stay on provisional release, under strict conditions, at least until the end of September and probably until the prosecution closes its case. He has waived his right to be present in the courtroom and will be represented by his lawyers.

Before Stanisic, no defendant has ever been provisionally released by the UN court during the evidence phase of the trial, with the exception of the terminally-ill Goran Hadzic and Momir Talic.

Stanisic’s long-term condition, pouchitis, is debilitating but not life-threatening, according to Dutch and Serbian specialists.

But since his initial arrest in 2003, his illness has significantly influenced the progress of the case in The Hague. He has been detained for more than five years and has spent more than six years on provisional release.

After lengthy litigation about Stanisic’s fitness to stand trial, the first attempt to start proceedings in 2008 failed because the accused refused both to waive his right to be present and to participate in the trial via video link from his cell.

In 2013, Stanisic and his former assistant Franko Simatovic were acquitted by the International Criminal Tribunal for the Former Yugoslavia, ICTY. Two years later, the appeals chamber quashed the acquittal and ordered a retrial.

Now the court’s recent extraordinary decision to allow Stanisic to remain in Belgrade and follow the proceedings remotely is expected to allow the retrial to proceed at a much faster pace than before.

Exploiting the court’s fears

Caring for the health of the accused has never been a simple humanitarian feature of the high-profile trials at the ICTY.

The defence has often used it as a powerful tool of leverage to exert control over judicial proceedings.

Emblematic is the case of Vojislav Seselj, the Serbian ultra-nationalist accused of crimes against non-Serbs in Croatia, Vojvodina and Bosnia from 1991 to 93.

Having spent almost 12 years in detention, Seselj, aged 62, was provisionally released in November 2014 on the trial chamber’s own initiative after he turned down chemotherapy for liver cancer.

Without treatment, Seselj’s condition “could have ended in death”, presiding judge Jean-Claude Antonetti later acknowledged.

So the judge’s fear that the accused might die if held in custody for any longer prompted Seselj’s ‘preemptive’ provisional release – although he flatly refused to obey the terms under which he was allowed to return to Serbia, and then also refuse to return to The Hague for his verdict.

The origins of the ICTY’s fears lay in the UN court’s worst trauma – Slobodan Milosevic’s untimely death in March 2006, just weeks before the end of his trial on genocide charges.

Seselj – who has proclaimed himself “the Tribunal’s worst enemy” – has successfully exploited such fears in the past when he went on hunger strike only months after Milosevic’s death.

In order to save Seselj from himself, the court then agreed to remove the ‘standby counsel’ it had previously imposed on the defendant, who was representing himself.

“Ultimately it is the accused Seselj who is… to decide to accept or refuse treatment, even if he dies in prison,” judge Antonetti’s reasoning on Seselj’s provisional release went.

However, he continued, “the judges… should do all they can to enable the accused to live on”.

Seselj has not only lived on since his provisional release but also, as he has publicly boasted, succeeded in ‘beating’ both cancer and the Tribunal and being voted back in to the Serbian parliament.

The trial chamber subsequently acquitted Seselj in March 2016 although the prosecution has launched an appeal. Seselj however has pledged never to go back to The Hague of his own free will.

Demands for treatment abroad

The defence lawyers for the Bosnian Serb Army commander General Ratko Mladic have been waiting for the end of his trial on genocide charges to play their health card.

In March, the defence argued that Mladic, aged 75, should be allowed to continue his treatment in Russia while awaiting the Tribunal’s judgment.

Citing Serbian and Russian experts, Mladic’s lawyers claimed his condition “has worsened” after “six years of ineffective treatment” in The Hague.

“These court proceedings could tragically follow the case of Slobodan Milosevic who died in detention while awaiting a decision on provisional release to Russia,” Mladic’s lawyers warned.

Before his arrest in May 2011, Mladic had already suffered three strokes which severely impaired his speech and almost paralysed the right side of his body.

In spite of additional ailments – including pneumonia, arteriosclerosis, diabetes, and hypertension – a significant improvement of Mladic’s condition has since been reported to the court by in-house and outside specialists.

In June 2013, almost a year into the trial, Mladic publicly admitted as much, maybe in spite of himself.

“I will not praise the Tribunal. I did say ugly things about it. But had I not come here, I would have been in heaven a long time ago,” he said.

Mladic then said that he “deeply bowed” to the doctors “who have pulled me out of a grave by both my legs”.

“Had it not been for your care, for medications, and God’s will, I would have visited St. Peter a long time ago,” he added.

In its provisional release motion, however, Mladic’s defence dismissed these words of appreciation as “lay-person’s compliments and thanks from the impaired accused himself”.

But the judges denied him provisional release, ruling that there is “no acute medical issue that remains unaddressed”.

The ruling did however admit that he faced some health risks “corresponding with Mladic’s age and medical incidents in the past, mainly stemming from before his arrest”.

Both ICTY and MICT have gone to unusual lengths in the past to prove that the detainees have medical care in accordance with the highest international standards.

In May 2016, when the former Bosnian Serb political leader Radovan Karadzic publicly speculated about “increased malignancy” at the UN Detention Unit, where defendants are held, after some of the detainees died, the court promptly ordered an investigation.

A team of Dutch experts in February found that there was “no evidence of a cancer cluster or an increased risk of cancer”.

According to their report, there have been 10 cases of cancer among approximately 170 people who have been detained at the UN Detention Unit over the past 20 years.

This rate is considered similar to the one among the general population in the former Yugoslavia.

As the Tribunal’s last defendants grow older however, it seems likely that their health will continue to be a factor in some of the proceedings until the final verdict is handed down.