Severance of Mladic Trial Denied by Trial Chamber

The Trial Chamber in the Mladic case has denied the Prosecutor’s motion to sever or divide the charges and to hold separate trials. Here is the ruling. The idea was that there would be an initial trial only about the Srebrenica massacre. Then, depending upon the result, a second trial might be held, perhaps by the Residual Mechanism which is to replace the Tribunal when it concludes its activities in a year or two.

It was an unusual application to begin with, because it was the Prosecutor after all who submitted the indictment. From the very beginning of the charges against Mladic, in the mid-1990s, there were two separate indictments . The first was issued in July 1995, and concerned the overall conduct of the conflict. The second appeared later, and was addressed to the Srebrenica massacre. But later the Prosecutor joined the indictments with a view to holding a single trial. Later, he changed his mind, but this time he required the permission of the Tribunal, which has been denied by yesterday's ruling.

The reason for dividing the indictment and holding separate trials was concern that Mladic might not survive a long trial. The experience of Slobodan Milosevic, who died of a heart attack during his trial, weighs heavily here. So the Prosecutor thought that he would finish one relatively quick trial, obtain a conviction of Mladic for genocide accompanied by a life sentence, and then consider whether it was necessary to do anything more (or leave that matter to his successor).

In yesterday’s ruling, the judges said that they could not rule on the issue of Mladic’s health and the likelihood he would survive a long trial because of a lack of evidence.

The Chamber does not consider the Accused's health to be a factor because the Chamber has had no information properly presented to it on this subject. The Chamber has received no medical reports to review and considers the parties' submissions in this respect to be speculative and unsubstantiated… If the argument is that justice is better served by concluding with a judgement, whether in a conviction or acquittal, of at least one smaller trial on some portion of the current counts, the Chamber stresses that the parties must argue this clearly and directly in their submissions. If the basis underlying the Motion is the health situation of the Accused, the Chamber would have expected the parties to make detailed submissions in this respect, supported by medical documentation, and stresses that it cannot base its findings on media reports or other such sources. Again, no such medical documentation has been provided to the Chamber. (para. 30).

It is interesting that this ruling appears at the very time that Mladic has been transferred to hospital in The Netherlands for pneumonia. But even then, evidence that a man in late middle-age is hospitalised for pneumonia does not mean he is in chronically fragile health or that his demise in imminent. No doubt it was difficult for the Prosecutor to accumulate hard evidence concerning Mladic’s health, because that would require his cooperation. But that also suggests that the Prosecutor’s application was based upon speculation rather than clear evidence. And speculation suggests that we are dealing with stereotypes about the longevity of men of a certain age who comes from a certain part of the world.

Life expectancy – at birth – of Serb males is about 71 years. Mladic will be 70 next March. But the life expectancy of a 70 year-old Serb is more than 1 year. If he’s survived this long, he probably has a sturdy constitution. And he is being so well looked after, with the legendary high-quality medical care of The Netherlands, and the fine food and other living conditions of the Scheveningen detention centre. As Mark Twain said, ‘rumours of my death are greatly exaggerated’. He could drop dead tomorrow, but then so could we all (touch wood!)

Yesterday’s decision also considered the consequences of severance for the other part of the charges against Mladic, which are referred to as the Sarajevo, Municipalities and Hostages case.

Furthermore, the Chamber acknowledges that the Motion envisions a second trial based on the proposed Sarajevo, Municipalities and Hostages Indictment, but notes that it does not address how a second trial also could be impacted by "unforeseen circumstances". Nor does the Motion address how, if the second trial could not be concluded due to these "unforeseen circumstances", a decision to sever could also impact justice for the victims of the crimes alleged in the proposed Sarajevo, Municipalities and Hostages Indictment.

The Chamber also recognized the difficulties that might be imposed upon an accused who was forced to battle in one trial, while at the same time preparing a second.

If Mladic does not survive the trial, the Chamber will get the blame as a result of this decision.

It strikes me that there is a simple solution. The Prosecutor should simply narrow the charges and narrow the evidence. Convicting Mladic of genocide with respect to Srebrenica should not be overly challenging, given the earlier rulings of the Tribunal in Krstic and Popovic, not to mention the 2007 judgment of the International Court of Justice. The sentence will be high and, in any case, given that the Prosecutor thinks it unlikely Mladic can survive a long trial, can it really matter how high the sentence is? It may be hard for the Prosecutor to argue for a lengthy custodial sentence after claiming the poor man may not live for more than a few years.

You can’t discuss these matters for very long before people start invoking ‘the victims’. The Prosecutor wants a speedy trial on one charge in order to respond to ‘the victims’. But the judges say, ‘what about the victims of the other crimes’? And my flippant suggestion about sentencing will surely provoke cries of outrage that only a life sentence can do justice for ‘the victims’. Of course, the interests of victims are an important factor in the entire international criminal justice system. But they get invoked at very turn, and in every direction. It seems that virtually any argument, no matter how fragile, can be burnished by invoking ‘the victims’.