Case Watch: A Setback for the Prosecution of Ratko Mladic

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

This week the judges of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rejected the prosecutor’s request to hold two separate trials in an effort to expedite the proceedings against Ratko Mladić, the former Bosnian Serb military leader.

This decision to hold one single trial flies in the face of the experience from the case against Slobodan Milošević, the former president of Serbia, where after four years of hearings, covering a substantial number of allegations, the death of the accused resulted in the premature termination of the trial,  without a final judgment. Mladić’s ailing health means there is now an increased risk of history repeating itself.

The trial judges ruled against the prosecution by finding it was not fair to Mladić to proceed first with the relatively more “compact” set of allegations relating to the 1995 massacre at Srebrenica, with the remainder of the allegations to be considered in a second and subsequent trial. Among other points relating to anticipated difficulties in trial management, the judges found that it would be too burdensome on the defense to work on the appeal on the first case whilst at the same time commencing the second case.

However, two critical aspects were glossed over by the judges on account of insufficient information at the disposal of the judges.

Firstly, the judges stated they could not consider the health of the accused as a relevant factor because they had received no submissions from the prosecution, or the defense. Although there have been recent media reports of Mladić’s ill health and his recent admission to hospital for pneumonia, the judges concluded that without receiving medical reports, the state of health of the accused is unverified speculation.

Secondly, the judges found that the notion that justice requires judgment in at least one smaller trial was not an argument specifically articulated by the prosecution and thus could not form a basis for their decision. In a terse reminder to commentators, the judges stated that they did “not consider public interest in a speedy resolution on one aspect of the charges against the accused over others to be relevant to its consideration.”

It will be essential for the prosecution to address these two issues on appeal, and both points should be relatively straight forward,  given that they simply require a provision of information omitted in the original prosecution filing.

It is worth noting that several other international criminal processes have accepted that a case can be severed into a series of shorter trials. It is typical for courts based on the civil law model, such as the Extraordinary Chambers in the Courts of Cambodia, where judges recently decided to expedite proceedings through severing the case and commencing trial against the four elderly former leaders of the Khmer Rouge regime on the basis of the forced transfer of the population, with the remainder of the allegations concerning security centers, execution sites and labor camps to be addressed subsequently. The infamous trial of Saddam Hussein also proceeded upon the same basis of sequenced trials, with Saddam Hussein convicted and executed after the first case concerning the Dujail killings.

Given the magnitude of the allegations under examination against Mladic and the global resources invested in this high profile case, it is essential that the practical realities of protracted trials are taken into consideration.

Although the rights of the accused must be appropriately provided for and although there are strong reasons for comprehensive trials in order to broaden the trials contribution to the historic record of the conflict, the concerns raised by the trial judges can be adequately addressed on appeal.  This is particularly so when considering the risk that the world may again lose another reasoned judgment on the responsibility of a key protagonist allegedly behind the brutal conflicts in the Balkans.

Update October 19th, 2011:

Shortly after posting this blog, Reuters reported that the ICTY prosecution says it will not appeal the judges’ decision to hold one trial instead of two, and is instead considering cutting allegations from the case against Mladić.

The basis for this position of the prosecution is not entirely clear. As set out above, an appeal could potentially involve addressing the two points that were not sufficiently placed before the judges—namely the medical condition of the accused and the merits of obtaining judgment on at least one part of the allegations.

Cutting allegations in the manner the prosecution is now proposing often raises concerns from victims, particularly after their expectations have been raised that the evidence collected on their behalf will have its day in court.

Criminal tribunals cannot reasonably be expected to create an entire historical record of the conflicts they address. But there is scope for the prosecution in the case against Mladić to appeal the judges decision not to proceed first on the Srebrenica allegations, and thereby determine whether there is potential to follow the model of other courts which have sequenced trials in order to maximize judicial efficiency.