Prosecution’s case falls apart

Before discussing Milosevic’s death, we would like to highlight a fairly recent development that makes all the difference. Mr Nice, the head of the prosecutor team, withdrew the Greater Serbia charges against Milosevic in August 2005. For those who have watched the trial closely, in particular Milosevic himself, this meant that the “joint criminal enterprise” had no basis. Arguably, that dealt a major blow to the Milosevic’s criminal culpability in its entirety. When the tribunal proved reluctant to acquit Milosevic. Milosevic asked his judges with good reason on November 29, 2005:

“So what’s the point of all these witnesses who talked about a Greater Serbia as my primary goal here? Are you going to take that out of the evidence, or are you going to let me examine them further? Also what about this joint criminal enterprise? And what would its objective be after this charge? And what is this phantom of a joint criminal enterprise that is being discussed here? And what is it that is exactly being alleged?”

The rest of the charges remained unchanged, however. That suggests that the withdrawal of the Greater Serbia charges was only apparent. It had no substantive consequences in terms of the other charges, as it should have, because it pulled the rug from under the criminal liability in the first place.

The predicament had begun a lot earlier for the prosecution. After the prosecution ended presenting its case, the two leading Dutch newspapers, Volkskrant and NRC Handelsblad, titled their articles “No Conclusive Evidence against Slobodan Milosevic" (VK February 26, 2004) and "Case against Milosevic Falls Apart” (NRC February 28, 2004).

However, the worst was yet to come. When the turn for presenting his case came, Milosevic presented, with mostly Western witnesses, forceful evidence that there was no humanitarian emergency in Kosovo on the eve of the NATO war of 1999 against Yugoslavia, that the KLA was conducting a large-scale terrorist campaign at the time, that international terrorism had secure positions in Bosnia while it was being supported by the West throughout the 1990’s, that the Twin Towers suicide terrorist Hatta resided there in the 1990’s for a number of years and that Osama Bin Laden was received by the Bosnian president Izetbegovic in November 1995.

As if this had not been bad enough for the prosecution's case, Milosevic's witnesses also gave evidence that the Albanians were not driven out by the activities of the Serbian army in Kosovo but mostly as a result of the intensive NATO bombings and the intimidation by the KLA. For that reason there were also relatively more Kosovo Serbs among the refugees than Kosovo Albanians during the 1999 war.

The final blow was the evidence given by Alice Mahon, who was a member of the NATO Parliamentary Assembly in 1999. She told the tribunal that the civil population was openly terrorized by the NATO bombings in the 1999 war. It is against this background that we may speculate why Milosevic was found dead in his cell a few days later.

Motive

This does not only suggest that Milosevic had no motive for a suicide but also that the prosecutors did have a motive for getting rid of him one way or the other. The withdrawal of the Greater Serbia charge was a tacit acknowledgment that the case was going very badly for the prosecution.

It is more than mere speculation that the prosecution and the judges are alive to the interests of NATO and its member states. In that sense, there may well be a connection betweenthe prosecution case gone awry and Milosevic’s death. When the former vice-prosecutor Hewitt resigned, he stressed in an interview given to the Dutch newspaper NRC Handelsblad that countless officials of the tribunal spent at least as much time in the US Embassy in The Hague as they did in the tribunal's office. Jamie Shea's memorable words during the Kosovo bombing are also to the point:
 
“NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, and of course to build a second chamber so that prosecutions can be speeded up so let me assure that we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don't anticipate any others at this stage.”

Mr Shea could just as well have said that the tribunal was the finest judicial organ that money could buy. If financing was a way to buy immunity, then there is very little difference between financing and bribing.

Report

After Milosevic was found dead on March 11, 2006, the tribunal had to put off fires on a number of fronts when it published its report on the death of Milosevic which came out in May 2006. In its report, the tribunal did not delve into the motives of either Milosevic himself or any other parties. Instead, it dwelt on the technicalities. It is in this perspective that we will evaluate the report below although it would seem that the motives have been left out of the report for a good reason. It they had not, many of the hypotheses put forward would prove untenable. It is for that reason that we cannot neglect the motives either, Milosevic's or the tribunal's, in what follows.

Rather surprisingly, the ICTY report on the death of Milosevic admits that Milosevic did not commit suicide, though that does not keep it from concluding that Milosevic caused his own death. The difference is subtle, but it must seem significant to the tribunal. That is an indication that the tribunal is doing its best to please everybody now that it got rid of its greatest enemy. The tribunal may have wanted to throw a bone to its detractors and continue its argument to others as if Milosevic had committed suicide anyway. In the end, it is difficult to tell what actually happened. It may seem outrageous to speak of culprits in this context, now that the tribunal suddenly seemed to run out of chances to prove Milosevic guilty as it had hoped, but that does not keep the tribunal from pinning the blame on Milosevic for his own death anyway. Proving that is a lot easier now that Milosevic is not there to give the tribunal a hard time. The tribunal seems to conclude that the only one who could damage Milosevic’s health and ultimately bring about his death was Milosevic himself.

Heart condition

Even if the tribunal is willing to cater to different tastes in the matter, it does not back down from its premise that Milosevic is somehow to blame for everything that went wrong. This one-sided logic is evident throughout the report. For instance, even if the tribunal concludes that Milosevic's condition was untreatable, it infers that it was Milosevic who brought on himself his own death. The report speaks of Milosevic acting “at obvious risk to himself” when it says that Milosevic “was manipulating the effectiveness of his prescribed treatment for other purposes, at obvious risk to himself” (par. 111). Those "other purposes" is as far as the report is willing to go to explain Milosevic’s motives.

This is just the other side of the coin. The report suggests elsewhere that whatever the tribunal would have done to his health, including heart surgery or notably the lack thereof, did nothing to change the course of events because Milosevic was a doomed man anyway as far as his health was concerned (par. 95 to par. 102).

First, the tribunal feels obliged to answer the critics who say it did not do enough to save him. The report quotes two specialists when addressing the cause of his death and gives the impression that his condition was untreatable. The two specialists, Dr Tavernier and Professor Leclercq, speak of preventive treatment and preventing the cause of death, which in their opinion would have been impossible in this case (par. 100). However, if Milosevic had had a heart surgery, as recommended by Professor Bockeria (par. 96), he would not have undergone a preventive treatment. Just preventing somebody's death, or saving somebody's life, does not automatically qualify as preventive treatment. Before any conclusion is drawn in regard to the effectiveness of preventing the cause of death, it should be noted that both Leclercq and Tavernier were not sure that the cause of death was what the pathological report said it was (par. 101), which deals a severe blow to the tribunal’s assumption that the autopsy report closes the matter.

The conclusions Leclercq and Tavernier reached concerning the supposed ineffectiveness of intervention are based on the pathologists' findings after Milosevic was dead. Normally a diagnosis comes too late if the physician waits for all the facts to come in after the patient is dead. In par. 102, the report even concludes that it was not certain whether surgery would have prevented the death of Milosevic. In vernacular, that is called benefit of hindsight. Only, in this case the tribunal concludes that even hindsight does not provide any benefit. As Jacques Vergès and Dr Patrick Barriot point out in their open letter to the Chief Prosecutor Carla del Ponte, even if a physician does not have an obligation de résultats, the physician does have an obligation de moyens, as they are called in French. In other words, the physician is responsible for treating the patient but not for the outcome of that treatment. Conversely, even if the success of a certain treatment is uncertain, the physician has to perform it if it has the possibility of benefiting the patient.

The tribunal says in par. 102 that there was a difference of professional opinion concerning the need for surgical intervention and its effectiveness, but that is not strictly speaking the point. Presumably that difference of opinion was between Professor Bockeria on the one hand and Professor Leclercq and Dr Tavernier on the other. If the overriding principle was to save the life of the patient, it is difficult to see what harm could have been done by “erring” on the side of Professor Bockeria, in whose opinion surgery would have saved Milosevic's life. In referring the case to Professor Bockeria, the physicians would have fulfilled their obligation de moyens.

Significantly, Dr Tavernier did have a recommendation: he recommended life-style changes. Milosevic would certainly have agreed. The trouble is that Milosevic doubtlessly had a broader interpretation of the appropriate life-style changes than the tribunal. And if Milosevic’s condition was untreatable, why did Professor Leclercq offer a recommendation as well? As Jacques Vergès and Dr Patrick Barriot point out, Professor Leclercq stated in another context: “It is incontestable that the stress contributes to the irregularities of the blood pressure and a period of rest has to be prescribed.” Leclerq was one of the three doctors who recommended a six-week rest, which the report admits in par. 64. The report also admits that Dr Mijailovic had detected “untreated hypertrophy with alterations to the organ” as early as 2001 (par. 42), which suggests that the condition was treatable, even if the report then takes the liberty of contesting the recommendation by Professor Bockeria concerning the need for heart surgery.

Privileges

At the risk of exaggerating the same self-complementary logic, the report on the Milosevic’s death repeats the word privileges 39 times to draw attention to the fact that Milosevic had wide-ranging privileges. It is hard to avoid the impression that Milosevic had the privilege of ending his days in such a fine establishment that made his health considerations prevail over everything else, a bit like Reverend Gardiner's Home for Wayward Boys in one of Stephen King’s novels. Even when the report suggests that at least some of those privileges should have been revoked, its stated purpose was to prevent any non-prescribed medicines from being delivered to Milosevic.

However, talking about privileges is misleading. Milosevic was the only detainee in the detention unit who was not allowed to have visits by his family members. The report even suggests that he should not have used the telephone to call his family members, because the telephone was meant for “defense-related purposes” (par. 118). That already gives the lie to the concept of privileges in regard to Milosevic.

Jacques Vergès and Dr Patrick Barriot also point out that the tribunal did searches in Milosevic’s cell in his absence, which was illegal. Of course the tribunal could justify that practice by the non-prescribed medication it then supposedly found in his cell, like the Prilazid Plus, which had been confiscated from Milosevic on his arrival in the detention center in 2001. Again, the tribunal could hold up the protection of Milosevic's health as the overriding principle for performing the illegal searches.

Health and the rights of the defense

The rule of thumb is that whenever the case was going bad for the prosecution, the more obsessed the tribunal became with Milosevic’s health.

First, now that even the tribunal has admitted that “There is nothing in his medical documentation that could suggest a heightened risk of suicide” (par. 37), it may be hard to believe that at the beginning of the trial Milosevic was forced to sleep under the constant glare of lamps in his cell and he was kept under video surveillance for fear he might commit suicide. The reason cited was that both his parents had committed suicide. Even if the surveillance may have conceivably averted the danger of suicide, the surveillance and the lamps were sure to damage his health in the long run. In fact, there is no indication that the round-the-clock video surveillance of his cell was ever lifted, which also reduces the likelihood that Milosevic could have taken any non-prescribed medicines, as the report purports.

Second, Milosevic was told to have a psychiatric examination in November 2002. Maybe the interests of the prosecution seemed too obvious. Or maybe the scenario was simply too Stalinesque for the public to stomach. Anyway, the plan to have Milosevic undergo a psychiatric examination never got off the ground. He was, however, examined by a cardiologist at that time. One may speculate how different the report would look if Milosevic had agreed to the psychiatric examination when it was ordered by the judges.

Third, also in late 2002, the tribunal administered the wrong medicine to Milosevic. Whether that was done deliberately was debated at the time. As the leading Dutch newspaper NRC Handelsblad of November 23, 2002 reported in its article “Milosevic got the wrong medicine”:

“In the Scheveningen prison Slobodan Milosevic was given the wrong medicine, causing his blood pressure to rise very quickly. This was why at the beginning of this month the trial against the former president of Yugoslavia was suspended. Sources within the tribunal have confirmed this. However, a spokesman for the Tribunal denies that mistakes were made. He refuses to discuss the issue further on grounds that ‘This is about the privacy of the defendant'.”

Here we see the willingness of a tribunal official to hide behind the privacy of the defendant. However, that privacy did not keep Christian Chartier, Head of Public Information Services, from commenting that the medication Milosevic got was actually the best Milosevic could have and even denied that Milosevic had been given the wrong medicine at all. In other words, the tribunal can compromise the privacy of the patient if it is in its own interests to do so. Moreover, here we see the arrogance of the tribunal: it was the tribunal that knew what was best for Milosevic even when it turned out to be damaging to his health. That same brazen optimism was to last until Milosevic’s death and beyond.

Fourth, in summer 2004, the tribunal kept Milosevic from representing himself in his defense by imposing defense counsels, Steven Kay and Gillian Higgins, to represent him. In its order, the Trial Chamber mentioned Dr Van Dijkman’s report although it never quoted it. When the defense witnesses refused to appear in court under such circumstances, the tribunal had to reverse its decision concerning the imposition of defense counsels.

Paradoxically, the allegations that Milosevic was manipulating his treatment justified the curtailing of his rights even further. Jacques Vergès and Dr Patrick Barriot have enumerated the instances as follows: The tribunal suppressed the facilities that had been given to him for the preparation of his defense by the Order concerning the Preparation and Presentation of the Defence Case of September 17, 2003. It reduced the time for the organization of his defense and increased the rhythm of the sessions from three to four or five so that Slobodan Milosevic did not have the material and physical means to prepare his witnesses, because the fatigue and the stress became insupportable. And, finally, the tribunal rejected Milosevic’s request for hospitalization in the Bakulev Institute in Moscow. The only regret that the report on his death expresses is that his “privileges” were not cut even further.

As to the last point it has to be remembered that the tribunal did allow Vladimir Kovacevic and Pavle Strugar to leave the detention center for treatment. Vladimir Kovacevic was granted provisional release to allow him to fly to Belgrade for the treatment of mental health problems. Pavle Strugar was allowed to go back to Serbia and Montenegro for a hip replacement surgery. On the other hand, Slavko Dokmanovic, Milan Kovacevic, Milan Babic were less lucky, like Milosevic, and died in the detention center. Dokmanovic and Babic reportedly committed suicide, while Kovacevic died of a rupture of the abdominal aneurysm. The tribunal treats all these incidents with laconic efficiency and death in detention is treated almost as a normal occurrence in the report on Milosevic's death.

Rifampicin

The report on Milosevic’s death hinges on the finding that Milosevic had administered the leprosy medicine rifampicin to himself (par. 111). Rifampicin countervailed the effectiveness of the prescribed antihypertensive medicines, and the report suggests that Milosevic used the medicine to make his hypertension seem worse. However, the report itself provides a number of clues that Milosevic did not administer the medicine to himself.

As the report says in par. 76, Milosevic did not know that he was tested for rifampicin until 3 March 2006. He had been tested for it for two months, since 12 January 2006. However, if Milosevic wanted to countervail the effectiveness of the antihypertensive medicines, why was he supposedly taking the antihypertensive medicine Prilazid Plus which the report says were found in his cell and which according to it was smuggled from Serbia (par. 82)? It was found in his cell on February 1, 2006, i.e. more than a month before Milosevic found out he was being tested for rifampicin. In other words, does it make sense for him to take an antihypertensive medicine of his own and another medicine that countervails its effectiveness, if he really wanted to keep his blood pressure up?

Interestingly, the ICTY admits that rifampicin was indeed found in his blood. One might expect the tribunal to deny such embarrassing information. A cynic might think that the tribunal must have a reason for admitting the fact. Indeed, from the fact that it had not been prescribed by the detention unit staff, the report draws the uncomplicated conclusion that Milosevic administered it to himself.

The open letter to Carla del Ponte written by Jacques Vergès and Dr Patrick Barriot has some interesting observations concerning both the rifampicin and the Prilazid Plus. The Prilazid Plus pills had expired in March 2003. Those were the same tablets that Slobodan Milosevic had in his pocket when he was "transferred" to The Hague in June 2001. They were confiscated on his arrival at the Detention Unit. For some reason, those tablets were found by the prison guards in Milosevic's cell on February 1, 2006.

The origin of rifampicin is even more interesting. Milosevic found out in March that he had been tested for rifampicin for a couple of months. As the report says, the crucial blood test, which eventually revealed the presence of rifampicin in his blood, was taken on January 12, 2006. In their report, the toxicologists noted that they were unable to account for the low levels of metoprolol and amlodipin in his blood.

Contrary to what the ICTY report suggests, Milosevic was told of the results of the blood tests already in January. Dr Falke told Milosevic on January 27 that the levels of the prescribed medicines in his blood were too low but he only suggested that his kidneys should be examined. Milosevic was not allowed to see Dr Touw's report.

Why was the level of metoprolol and amlodipin abnormally low in the blood samples? In his report of January 20, 2006 (pages 6 to 7), Dr Touw gave several possible explanations for a low reading of metoprolol: "Low metoprolol concentrations can therefore be caused by the following factors: 1. poor absorption from the gastrointestinal tract, 2. insufficient compliance with the therapy, 3. interaction with for example a substance binding with drugs such as activated carbon, 4. decreased absorption by induction of enzymes, for example, rifampicine, and 5. a fast metabolism for CYP2D6.”  Then he concluded in regard to Slobodan Milosevic’s situation: “We cannot draw any conclusions on the poor absorption, compliance with the treatment and binding to for example activated carbon. An interaction resulting in an increased pGp activity is unlikely, in view of the combination with the amlodipine medication and CYP2D6 genotyping carried out on a blood sample taken on 6 August 2004 shows that there is no CYP2D6 gene duplication in any case, which is the most common cause of a fast metabolism in Caucasians."

Dr Touw excluded explanation number 5, the fast metabolism. That is what the tribunal also did in par. 107 of its report, referring to the testing of August 6, 2004, which was the same test - or actually only the same sample - that Dr Touw mentioned in his report. Dr Touw also expressed reservations about the possibility of "the increased pGp activity" which could have been induced by rifampicin. He thought it was "unlikely” that rifampicin played any part because Milosevic was taking metoprolol in combination with amlodipine. In other words, even if Dr Touw did not rule out rifampicin outright, he thought it was an unlikely explanation and cited it only as an example.

However, two months later, on March 7, Dr Falke announced that he had received another report from Dr Touw, dated February 23. The reported concluded that “a repeated analysis" of those same blood samples had revealed very high levels of rifampicin. In fact, those levels were so high that they would have corresponded to a dosage of 2 tablets of 300 mg a day for an adult. Stunningly, the rifampicin quantities were 100 greater than the quantities of other medications detected by Dr Touw, which suggests, if true, that the test must have been botched at least at one point. Dr Falke’s accompanying letter, which was dated March 3, drew the triumphant conclusion that rifampicin must indeed be the reason Milosevic's medication was not having the desired effect. The first three possibilities seemed to have been discarded.

As the ICTY report says in par. 76, the blood test of January 12, 2006 was “the first time that a blood test of Mr Milosevic had undergone the additional specific testing for rifampicin”. In this light, it is surprising that the toxicologists could initially do nothing else but speculate on the presence of rifampicin in the blood in their January report, especially as they noticed two months later that the levels were staggeringly high.

So, either there was rifampicin in his blood in the test taken in January, and the finding was omitted from the report, which suggests that the finding was too embarrassing for the tribunal to disclose, or there was no rifampicin in the blood test, even if the tribunal chose to accuse Milosevic of medicating himself two months later.

Ironically, the absence of rifampicin would be the least damaging scenario for the tribunal, in which case one might speculate why it admitted that the substance was found. First, if there was no rifampicin, then it would stand to reason that his urine did not turn red, as it would if rifampicin had been in his body. In that case, the tribunal would not have had to resort to the argument that Milosevic administered rifampicin to himself and did not tell anybody of the discoloration of his urine because he must have been aware of that side-effect in advance (par. 77). Second, if no rifampicin was found in his blood, then we do not have to wonder why there was no rifampicin at the time of the autopsy, which is a bigger problem than the tribunal cares to admit. If Milosevic had taken the medicine up to the time he found out that he was being tested for it, that is to say March 7 (or March 3 according to the report), would all the traces of the medicine really have disappeared from his blood when he was found dead four days later? Third, this option would also relieve the tribunal of the uncomfortable fact that the blood test was requested by Milosevic himself (or he “volunteered to take a further blood test,” as the report says in par. 76), because it is unreasonable to assume that he thought he would not be tested for rifampicin when he made the request.

The tests were also performed under controlled circumstances. The tribunal even admits this in par. 132: “It is noted that when a strictly controlled test was conducted on 12 January 2006 a nurse actually administered the medication and a guard then watched Mr. Milosevic for two hours. Steps such as this can overcome subterfuge but they are
hardly practical for normal practice.” In other words, the idea of subterfuge on Milosevic’s part, with which the tribunal likes to toy in its report in par. 132, is excluded at least in regard to the blood test of January 12, 2006, by the tribunal’s own admission.

But why did the tribunal insist in the end that it did find rifampicin in Milosevic’s blood? One explanation may have been to sidetrack the growing chorus of Milosevic supporters. The report quotes Milosevic's letter in which he expresses his certainty that the tribunal had tried to poison him with rifampicin. Curiously, that is also the only "hard” evidence mentioned in the report to that effect. The supporters of Milosevic would then have no reason to doubt that rifampicin was found. Once the supporters got what they wanted (so to speak), the tribunal could treat Milosevic’s detractors to the more palatable theory that he administered the medicine to himself and thus caused his own death (without committing suicide, curiously enough). What killed Milosevic in reality, in this scenario, might have been the shock caused by the sudden revelation of rifampicin findings in his blood and the certainty of his never getting out of the detention center now that his request for provisional release to fly to Moscow had been turned down.

The reality is even starker than that. The rifampicin was found at a time when the tribunal could no longer sell the story of Milosevic sabotaging his own treatment, as the prosecutor, the physicians and the Registrar had been claiming since the summer of 2004. That myth was about to be exploded when Milosevic requested the blood draw under controlled circumstances in January 2006. The first time Milosevic's blood was tested by the detention unit staff was in the second half of July, the second time was in August 2004, the third in November 2005 and the fourth in December 2005. Conveniently, those tests coincided with the imposition of counsels and the rejection of Milosevic’s supposedly ill-timed request for provisional release. The tribunal insisted that Milosevic was manipulating his treatment. Even if all the previous blood draws showed the reading of the prescribed drugs to be lower than expected, no adequate examination took place until Milosevic himself demanded the controlled test that was carried out on January 12, 2006. It is then scarcely surprising that the tribunal had to scramble for an explanation in 2006 and thought that the presence of rifampicin suited it best.

It can hardly be stressed too much that the blood tests of January 12, 2006 were not prompted by the tribunal but by Milosevic. He wanted to put to rest the repeated accusations that he was manipulating his own treatment, although the tribunal did not hesitate to turn the results, whatever they were, against Milosevic himself. It was hard for the tribunal not to grant Milosevic’s request. If it was administering rifampicin to Milosevic at that time without his knowing, the levels of the metoprolol and amlodipin were sure to turn out low, for which the tribunal was prepared. The disconcerting fact was that the rifampicin would also show up in the blood sample. The very dilemma the tribunal was facing would seem to account for the delay of two months that elapsed between the actual test and the time Milosevic was told of the results. By that time rifampicin might well have disappeared from his blood if its administration had been discontinued in January and all we had as evidence was Milosevic's own letter to the Russian Ministry of Foreign Affairs that the substance was ever found in his blood. That solution had something to offer to everybody, and nobody was likely to draw attention to the fact that if Milosevic was taking rifampicin until he was told he was being tested for it, the substance would probably still have been in the blood at the time of the autopsy a week later.

No matter which option is true, one question remains: If there was rifampicin in the blood to begin with, why was it not reported to Milosevic until March? The report says that this was due to “the difficult legal position in which Dr Falke found himself by virtue of the Dutch legal provisions concerning medical confidentiality". Strange to say, that is not entirely untrue. It is true that Dr Falke found himself in a difficult legal position. However, the reason was not that the Dutch law prohibited him from divulging the information to Milosevic. If the Dutch legal provisions concerning medical confidentiality played any part in what was going on, it was because they would have required Dr Falke to divulge that information to Milosevic at his request. The amici curiae Gillian Higgins and Steven Kay had informed the Trial Chamber of the way Dr Falke and others seemed to be doctoring the relevant medical information. However, the Trial Chamber only required them to defend themselves in writing, which they did, and the matter was considered settled.

The report then dutifully criticizes those Dutch provisions in par. 134 and following. The substantive problem with this argument is, however, that there are no legal provisions in Dutch law that prohibit a doctor from telling a patient the result of his own blood test. Even if there were, a delay of almost two months would seem excessive. Obviously, the tribunal was willing to peddle such a blatant untruth in order to buy that crucial two-month period during which it could spin a tale around the blood test results.

If there was rifampicin in Milosevic’s blood, then the reasons for the delay in telling Milosevic himself of the findings are particularly relevant. It is significant that the tribunal made no public announcement of the findings. The report quotes no such announcement. Instead, it quotes the letter by Milosevic to the Ministry of Foreign Affairs of the Russian Federation (par. 80). As the report admits, the information in the letter appeared to have reached representatives of the media through a legal associate of Mr Milosevic. That letter is indeed the only document that made the findings public to the outside world.

However, it seems preposterous that the tribunal clings to the only public document that shows that rifampicin was found in Milosevic’s blood, namely Milosevic's letter Ministry of Foreign Affairs of the Russian Federation, and then spins a tale around it that directly contradicts what the letter says. It is easy to understand why the tribunal would do that. The blood draw results do not seem to stand the light of day. The spin would also divert the attention from the uncomfortable fact that Milosevic was found dead in his cell about three weeks after his request for further treatment in Moscow had been rejected. The tribunal understandably tries to spin a tale around that unfortunate event too, but as one of the common law principles states: res ipsa loquitur, i.e. the thing speaks for itself. In medical malpractice cases, the plaintiff only has to show that a particular result occurred and would not have occurred without someone's negligence. That is the case here.

It is hard to resist the conclusion that the tribunal did not communicate the finding to the public directly because it wanted to “frame” Milosevic as the architect of his own death. If the tribunal was so sure that Milosevic had administered the medicine to himself, then, in an apparent display of magnanimity, the tribunal wanted Milosevic to be the only one who should know about it. That possibility might persuade some unsuspecting observers, if such magnanimity were not so rare or even unheard-of. But why did Milosevic make the findings public in the first place, if he knew he had taken the medicine himself? The quote the tribunal has chosen for its report might seem to suggest to some that Milosevic was in panic after being "found out” and used the “poisoning” to get a trip to Moscow. However, it would appear to be more than a coincidence that the tribunal did not divulge that information to Milosevic until it had turned down Milosevic's request to that very effect on February 23, 2005. It would then appear plausible that the tribunal waited until the rejection of Milosevic's request before it made the rifampicin findings known to Milosevic.

The tribunal would never revisit its rejection. Milosevic appealed the decision, but he was found dead in his cell less than a month later, on March 11, which is in itself too close for comfort. And the additional complication is that the tribunal admits in its report that Milosevic did not commit suicide. Yet, it supposes that Milosevic in effect poisoned himself, although the report also says that he was not poisoned.

Milosevic’s letter sounds true. Yet we must remember that it is the only evidence the report gives of rifampicin having been found in his blood. It would appear that if Milosevic's letter involved any spin, it could not have been ascribable to Milosevic. Even if Milosevic had indulged in spin, does the tribunal suppose that Milosevic decided to die a few days later after writing his letter just to show the tribunal that he knew what the tribunal was doing and he wanted everybody else to sympathize with him? In other words, was Milosevic prepared to pay the ultimate price, his life, just for the pleasure of “framing” the tribunal as his murderer, which would be the prima facie case when a patient dies within three weeks from the rejection of his request for provisional release?

As Michael Crichton writes in his techno-thriller The State of Fear:

“If someone tried to kill you, you did not have the option of averting your eyes or changing the subject. You were forced to deal with that person’s behaviour. The experience was, in the end, a loss of certain illusion. The world was not how you wanted it to be. The world was how it was.”

And that is the feeling one gets reading Milosevic’s letter.

The only remaining problem is that rifampicin should have caused the discoloration of his urine. Why did Milosevic not tell the nurse or anybody else in the detention center? For those who know Milosevic, this question is contrived. Of course he would not tell.

Just look what happened on November 15, 2005 when he tried to discuss his medical report with the Trial Chamber:
 
Judge Patrick Robinson: I do not wish to have it discussed now. Are you deaf? Call your next witness.
 
Milosevic: I probably am deaf.
 
Judge Robinson: Well if you are, we'll see about that. Call the next witness.
 
However, the discoloration of his urine and the arrogance of the trial judges would account for his urge to get treated in Moscow. Milosevic was not stupid. If his urine had turned red, he would probably have suspected the tribunal first. He would have expected the tribunal to deny that the eventual discoloration was attributable to the treatment. Obviously, that is exactly what happened.

One has to note two reservations. First, Milosevic did not tell anybody, not even his closest associates. That has to be taken into account, although the blood of one's urine is not necessarily something one likes to discuss with anybody. Second, some of those involved in the case appear too hasty to wash their hands of any responsibility. That suggests that the tribunal must have had its own reasons for "canonizing” the rifampicin scenario, which suggests at least to some observers that there was no rifampicin to begin with.

The tribunal’s willingness to designate a so-called independent expert is a case in point. The trial chamber requested the Registrar in January 2006 to designate an “independent expert” who could give his opinion on the results of the blood tests, albeit without doing any other blood tests himself (par. 70). The Registrar chose Professor Uges (par. 71). Professor Uges did not see or test Milosevic's blood at any point. However, the tribunal states that Professor Uges' report was delayed because it was Milosevic who refused his consent for the relevant medical information to be provided to him (par. 71). That leaves unanswered the question what it means by the “relevant medical information”, because Milosevic himself did not hear of the supposed rifampicin findings until early March. On the other hand, it is known that whatever the “relevant medical information” was, there is no indication Professor Uges handled the blood samples.

That technicality did not keep Professor Uges from writing a report which concluded that Milosevic did not take the prescribed medicines and administered the rifampicin to himself. At least, that is what Professor Uges told the media two days after Milosevic’s death. On the other hand, the Registry was not aware of any report by Dr. Uges other than the one dated January 24, 2006, which did not mention rifampicin. If Professor Uges is right about his writing another report, then he knew, quite spectacularly, without even seeing the samples on which he was to give his expert opinion, 1) that rifampicin had been found in Milosevic’s blood; 2) that Milosevic had administered the medicine to himself; and 3) that Milosevic did this to twist the tribunal’s arm to get a provisional release to fly to Moscow. It is not clear how Professor Uges could give his medical opinion on who had administered the medicine, and even less clear how he could give a medical opinion on Milosevic's supposed motives for doing so. If Professor Uges is wrong about his having written a report to that effect, however, it does not matter what he said in the report that he did write.

Other medicines

In support of its view that Milosevic had taken the non-prescribed medicine himself, the report is at pains to establish a certain pattern of the use of non-prescribed medicines on Milosevic’s part. Those non-prescribed medicines include cilazapril/hydrochlorothiazide, co-trimoxazole, diazepam, nordazepam and prazepam.

First, the report mentions cilazapril/hydrochlorothiazide in par. 108. Interestingly, in par. 109 the report mentions that “another medication”, Prilazid Plus, was found. However, Prilazid Plus was not "another medication”: Prilazid Plus consists of cilazapril/hydrochlorothiazide, as the report says itself in par. 82. As we have already noted, the Prilazid Plus was confiscated on his arrival in Scheveningen and then miraculously found in his cell.

It must also be noted, as Jacques Vergès and Dr Patrick Barriot point out, that Dr. W. Zwart Voorspuij had concluded in his forensic report of March 11, 2006 on the discovery of the body that Milosevic was known to take non-prescribed medicines. He wrote that Milosevic took a medicine that was not available in the Netherlands, namely Vascase Plus, which contains cilapzapril and hydrochlorothiazide, mentioned above. However, Vascase Plus appeared in the prescriptions in July and August 2002 and it seems to be available in Vascase Plus. Did Dr W. Zwart Voorspuij confuse Vascase Plus and Prilazid Plus? That already raises the suspicion that the truth never stands in the way of a good story, although the forensic report was supposed to be only about facts. Dr. W. Zwart Voorspuij was so eager to mention this supposedly relevant detail that he did so even before describing how the body was found.

Second, the report mentions in par. 109 that diazepam and nordazepam had been found in Milosevic's blood and says that he had not been prescribed either of them “at the time” (i.e. November and December 2005). Yet in par. 68 we read that he had been prescribed diazepam for his back pain a month before (October 2005) and that diazepam transforms into nordazepam in the body. However, since Professor Donald Uges thought that neither of the substances would be found after two weeks in the blood, the inference was that Milosevic was taking non-prescribed medicines. On the other hand, in his statement given in the middle of February 2006, Dr Falke admitted that Diazepam was given to Milosevic several times during his stay in the detention unit, although it did not appear in the medical report until the autumn of 2005 (for some reason).

If Diazepam was thought to be a non-prescribed medicine at the time of the four blood tests taken between November 20 and December 16, 2005, we may infer that Milosevic was being tested for not only for the prescribed but also for non-prescribed medicines before the strategic blood test of January 12, 2006, in which rifampicin, a non-prescribed medicine, was then reportedly found. That suggests that any non-prescribed substance should have been detected right away in January.

Third, the report discusses nordazepam, this time in connection with prazepam, a minor tranquilizer, in par. 106. It evidently ascribes the presence of the nordazepam in Milosevic’s blood to medicines which belonged to Dragoslav Ognjanovic, nicknamed Misa. To the credit of the tribunal, it must be said that those medicines were not found in his cell but in his office. The date was July 9, 2004. From the viewpoint of the tribunal it must have been a happy coincidence that Misa was one of Milosevic's legal associates. To clamp down on the “privileges” of Mr Ognjanovic the tribunal first had to suppose that the medicines were actually meant for Milosevic. The tribunal had no other proof for its assumption than the two blood tests of July 2004 which contained nordazepam and prazepam. However, Branko Rakic, one of Milosevic’s legal associates, has denied that prazepam was found in the blood test, which means that the nordazepam must have been a trace of diazepam.

As we already noted, diazepam was prescribed in 2005 for Milosevic’s back pain, so the medicine could not really have been “non-prescribed”. We also noted that diazepam transforms into nordazepam in the body, as the report says. Indeed, that may offer an explanation for the presence of nordazepam in the blood draw of July 2004, too, although diazepam did not appear in the medical report until the autumn of 2005. There is then no need to account for the presence of nordazepam by way of prazepam, which was found in the envelope belonging to Misa, although prazepam transforms into nordazepam as well.

Branko Rakic adds that Milosevic's legal associates kept some of their belongings in the same office, such as books, pens, different documents etc. Since they also worked there, it was normal to leave or even forget something there. He also remarks that the last time Mr Ognjanovic, or Misa, had been in the office was about May 20, 2005, and when the envelope with the medicines was found, it was still sealed, which means that nobody had taken the medicine in the intervening period of 50 days. Milosevic did not know of its existence, because it was in a drawyer used by Mr Ognjanovic.

After that discovery, all the visitors were searched manually from head to toe. From the beginning of 2005, a guard would permanently watch Milosevic and his visitors through the glass of the office door. The visitors also underwent x-ray controls. Even if the ICTY report pretends to deplore the inevitable lacunae in the surveillance system, it would have been impossible for anybody could have smuggled a daily dosage of 2 tablets of rifampicin to Milosevic. The supposed dosage was so high that Rakic, Vergès and Barriot do not believe that it would have been possible even for the tribunal to administer it without Milosevic knowing. Significantly, rifampicin was never confiscated at any point, which would make the tribunal's theory at least a little more plausible, even if we did not forget what the tribunal did with the Prilazid Plus.

Those technicalities do not prevent the tribunal from concluding that Milosevic "administered rifampicin to himself". On the other hand, we have accounted for all the medicines on the tribunal’s “bad book” except for co-trimoxazole, an antibiotic, which is mentioned in par. 108.

As if to add a touch of humor, the report suggests that other "incriminating” evidence includes a bottle of whisky that had been found, not in his cell, but in “Milosevic’s privileged office” (par. 106 and par. 127). However, the tribunal is not joking. Branko Rakic points out that Milosevic's legal advisers told Milosevic's visitors that no gifts were allowed. Even those who did not ask his advisers’ advice did not hide what they had with them. For instance, Carolos Papulas, President of Greece, declared the bottle of ouzo he had brought with him at the entrance of the jail and it was taken way from him.

Culprits

In cases like this, it would seem natural to ask who assisted Milosevic in whatever he was doing. The tribunal remains strangely uninterested in that question. An additional complication is that the tribunal admits in its report that Milosevic did not commit suicide, while suggesting that Milosevic did in effect poison himself. The tribunal remains oblivious to that discrepancy. Its main preoccupation is to divert the suspicion away from itself.

The tribunal seeks “to avoid any repetition of such conduct”, meaning the surreptitious way Milosevic supposedly got the medicines (par. 130). It does not address the issue who delivered them. Of course, it would be for the Dutch police to find out culprit, but the report wisely lashes out against the Dutch legal system. The pretext is the supposed confidentiality of medical information under Dutch law. The report does not cite any actual law to substantiate its claim, so the criticism sounds much like a warning not to come too near the tribunal.

The tribunal may be conscious of the lack of the culprit, apart from Milosevic, of course, even if he did not commit suicide. Instead, the report does paint a rather curious picture of Dr Van Dijkman, perhaps unfairly. Dr Van Dijkman’s main preoccupation seems to have been to keep Milosevic’s blood pressure down (in particular par. 56 and following). It seems, however, that hypertension was not even the biggest of Milosevic’s worries. True, Dr Mijaliovic had mentioned arterial hypertension to Dr Falke, but it was only one among many other problems such as “untreated hypertrophy with alterations to the organ” (par. 42). Likewise, Professor Tavernier established that Milosevic had a target organ damage (par. 55). And all Dr Van Dijkman does is to treat his hypertension.

Dr Van Dijkman dutifully established that Milosevic’s ECG remained “unchanged” (par. 57, 58 and 62), though that does not mean that the ECG was not all wrong to begin with. In fact, Prof Elena Golukhova had found significant ECG abnormalities in 2003 (par. 50). (That same “no change” ploy is again used in par. 83). Dr Van Dijkman suggests lifestyle changes (i.a. par. 46), which must have been a very appealing suggestion to Milosevic considering the life he led in the detention center cut off from the visits by his family. In face of that fact, Dr Van Dijkman has the audacity to suggest that Milosevic was suffering of “a mental stress of an unknown nature” (par. 51). The report also mentions that the problem was that Milosevic did not make the changes to the lifestyle that he was strongly encouraged to (par. 103).

But more to the point, what happened to the “periods of rest” Dr Van Dijkman prescribed (par.  45 etc.)? As the report says, “The Trial Chamber adjourned for three months to allow Mr. Milosevic to prepare his defense” (par. 51). Obviously, the three months were not enough, so he had to use his so-called “periods of rest” to prepare his defense too. That, again, was Milosevic’s fault: he should have used his rest time “adequately” (par. 48).

As if to show whose side he was on, Dr Van Dijkman even thought that the period of rest of at least six weeks would be “too much” (par. 17). What does he mean by “too much”? The rest of six weeks was recommended by Drs Leclerq, Shumilina and Andric, who examined Milosevic on November 4, 2005. They had all been chosen by Milosevic himself. The tribunal writes in its report that the Trial Chamber did meet those physicians’ recommendation for six-week rest from December 12, 2005, while denying Milosevic’s request for provisional release to Moscow (par. 94). The trial would have been suspended for a three-week winter recess anyway.

The fact that Dr Van Dijkman, “an experienced cardiologist of high standing” (finding #4), was allowed to act as Milosevic’s cardiologist suggests that Milosevic’s needs could not be met in the Netherlands (cf. par. 66) and the Trial Chamber was wrong to turn down Milosevic’s request to fly to Moscow.

The report stresses the findings of the autopsy report. In finding #3 it says that the independent findings by Dutch authorities show that Milosevic was not murdered. However, its faith in the report is relative. In order to rebut Prof Bockeria’s claim that surgery would have saved Milosevic because he suffered from myocardial infarction, as the autopsy report apparently stated, Judge Parker, the writer of the report, has to turn against the autopsy report for a while. He writes that in Prof. Leclercq’s opinion the trouble was not myocardial infarction at all, even if that was what the Dutch term hartinfarct meant to her (par. 101). However, if there is such a discrepancy between the specialist opinion and the autopsy report, why does that discrepancy not count elsewhere? The report refuses to dwell on the matters raised by Dr Shumilina for the very same reason although the reasoning is now inverted: because the autopsy report did not indicate any connection between her findings and the death of Milosevic (par. 92). That reasoning might be valid if the autopsy report had mentioned Dr Shumilina at all. It is easy to guess that the tribunal did not agree with Dr Shumilina, in which case she had to be ignored.

Apparently (although this is very unclear in the report), one of the reasons of the heart attack was hypertrophy of the myocardium (par. 101). But it had to be a curable condition even if the tribunal now tries to argue that it could do nothing to treat it. As noted above, Dr Mijaliovic had talked about an “untreated hypertrophy with alterations to the organ” (par. 42), which suggests that it could be treated

Nature of the report and further action

All in all, the report is pleading for the innocence of the tribunal. There is nothing in the report that suggests that tribunal did anything wrong. It supposes that the tribunal should be given the benefit of the doubt as in any criminal case. Indeed, it is a plea. But where is the judge who will hear this plea? The fact that the report has been written by a judge hardly matters. It is imperative that the matter be investigated by an independent organ. Relegating the investigation of the death of a former head of state to the bureaucracy of the ICTY itself only adds insult to injury.

We are indeed at a crossroads. The ICTY statute put an end to the immunity of the heads of state, like Milosevic. The logical next step is to put an end to the immunity of the officials of international judicial bodies like the ICTY.

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Nico Steijnen is a member of the Dutch Bar and has been authorized by Milosevic to act on his behalf in defending his fundamental human rights in the Dutch courts.