Jacques Vergès is the best-known of French lawyers and the author, among others, of "Justice pour le peuple serbe" (Justice for the Serb people) published by L'Age d'Homme. Dr Patrick Barriot is a medical colonel, the former medical chief of the French Civil Security Agency, the author with Eve Crépin of "Le procès Milosevic ou l'inculpation du peuple serbe" (The Milosevic trial or the prosecution of the Serb people) published by L'Age d'Homme. Part 1: Row of rotating doctors Part 2: Filing for Moscow Part 3: Manipulations of treatment: Allegations & Findings Part 4: Rifampicin & Conclusion

Slobodan Milosevic was found dead in his cell in the United Nations Detention Unit in The Hague on March 11, 2006. According to the pathological report, the cause of death was the heart infarction. That is still debated. The cause of death hinges, at least in part, on the question whether the cause of death could have been prevented by the treating physicians. Understandably, they would prefer a cause of death that could not be detected nor treated. The debate can get convoluted and technical, but it cannot be overstated that Milosevic was known to be a sick man when he came to The Hague. The tribunal could not pretend it did not know of his health problems. The detention unit even confiscated Milosevic’s antihypertensive drugs on his arrival. Even if Milosevic's hypertensive problems have become part of the tribunal’s folklore by now, closer medical attention has revealed much more profound health problems. Those who do not want to admit that the tribunal could have done anything about the problems seem to opt for ventricular fibrillation as the cause of death, because it fills the bill: it was hard to detect and to treat. However, that was not all. To cite just one of the preventable, though perhaps more innocent-sounding, health conditions we could mention the hearing loss, which was ultimately diagnosed by one of the Dutch physicians. Because the cardiac problems had taken the center stage, the tribunal did not have the opportunity to decide how it was going to conduct the trial in spite of Milosevic’s hearing problem.

Milosevic's medical history soon turns into a report card of the court’s appointed physicians. One does not have to be prejudiced or particularly harsh to conclude that at least the medical officer, Dr Paulus Falke, may have been out of his depth. The Trial Chamber even remarked that one of his reports was unsatisfactory. The fact appeared in all its poignancy after the examination by three “foreign”, i.e. non-Dutch, doctors who examined Milosevic on November 4, 2005 at Milosevic’s request. One of them, Dr Margarita Shumilina, was bold enough to mention in her report that the treatment of Milosevic in the detention unit had been inadequate so far. The visiting doctors made the concrete proposal to prescribe a six-week rest for Milosevic until further tests could be carried out.

The prosecution thought the medical problems concealed some sinister conspiracy against the tribunal. Its theory must have been that Milosevic was losing his nerve as the end of the trial was approaching and did everything he could to disrupt the remainder of the trial. So he sought an escape by some desperate act. Even the reliability of the visiting doctors was questioned. It did not seem quite plausible to argue that they had been bought by Milosevic to produce reports that he wanted. However, no matter how remote that possibility seemed, the tribunal clung to that explanation rather than admit that its physicians had been wrong.

In the meantime, Milosevic must have been strengthened in his conviction that his health was really at stake and that whatever could still be done about it was not going to happen in The Hague. After a period of medical as well as legal uncertainty, he submitted his request for provisional release on December 20, 2005. He wanted to get treated at the Bakoulev Center in Moscow.

By that time, the reports of November 4, 2005 seemed outdated and, as it turned out, the original reports submitted by the visiting doctors were not formulated clearly enough with Moscow-based treatment in mind. The prosecution made the most of the time gap between the reports and Milosevic's current medical position. In fact, the prosecution realized how useful it was to delay the process. The winter recess, during which Milosevic planned to get treated in Moscow, had passed, and the prosecution was still posing questions about his choice of the Bakoulev Center. The Center’s main attraction, the expeditious treatment promised by the Head of the Center, Dr. Bockeria, began to wear thin.

But so did Milosevic's health. The time-consuming case within a case that Milosevic’s request had prompted was at cross purposes with the urgency of the matter. The arguments centering on the expeditiousness that were thrown around in the process sounded hollow. All they did was to prolong the resolution of the case even further.

Not that Milosevic’s choice for the Bakoulev Center had come out of the blue. Dr Elena Golukhova from the Bakoulev Center had examined him in early 2004, as was confirmed in the Parker report, which the tribunal published after his death. He had good reasons to trust the specialist from the Bakoulev Center, and his declared trust in the medical specialists at the Center was put forward in the request for provisional release as the main reason his wish should have been respected. Instead, the prosecution started making ad hominem arguments against Dr Shumilina, whose primary fault was that she had stated that Milosevic’s current treatment was inadequate.

The confidentiality of Milosevic's medical file has been lifted, at least some of it. There are still many unanswered questions, and the documents that would answer them are not available. What we can do is to point out the questions. Still, the medical file to date contains more than 360 pages. In what follows we will review the documentation. Due to the amount of material that we intend to cover, the article is not really an article. It is longer.

I. Row of rotating doctors

On November 4, 2005 Milosevic was examined by three doctors selected by him at his own request pursuant to Rule 30 of the Rules of Detention, as the Medical Officer of the Detention Unit, Dr Falke, states in his report of November 11, 2005. Except what he probably had in mind was Rule 31 of the Rules of Detention. Before we let the Prosecution argue that “the Accused has a settled intention to obstruct this trial and prevent it from being brought to a conclusion” (para. 10 of the interim report of 22 December 2005), let us establish once and for all that Milosevic was well within his rights.

Rule 31 Rules governing the Detention of Persons awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal ("Rules of Detention") provides the following:
A. Detainees may consult a doctor or dentist of their choice at their own expense. All such consultations shall be made by prior arrangement with the Commanding Officer as to the time and duration of the consultation and shall be subject to the same security controls as are imposed under Rule 61.
B. The Commanding Officer shall not refuse a request for such consultations without reasonable grounds.
C. Any treatment or medication recommended by such doctors or dentists shall be administered solely by the medical officer or his deputy. The medical officer shall be informed of the outcome of all consultations of doctors or dentists. He may, in his sole discretion, refuse to administer any such treatment or medication.
The three doctors, Dr Margarita Shumilina, Vukasin Andric and Florence Leclercq, delivered each their separate reports and a joint opinion on the Combined Medical Examination, both dated November 4, 2005.

Orders

In no time, the Trial Chamber was after the three visiting doctors like King Herod after the three Magi. What followed was a flurry of orders and referrals. On 11 November 2005, Dr Falke filed a brief report in which he neither addressed nor diagnosed the problems complained of by Milosevic (“noted by the visiting doctors,” as the assigned counsel later pointed out in the motion). Since Shumilina had mentioned inadequate treatment, Falke might have been expected to address the situation or refute the accusation. Instead, he did nothing. By his inaction, he came close to admitting that the treatment was indeed inadequate.

The Trial Chamber understood the gravity of the situation before Dr. Falke even realized what was going on. On 11 November 2005, the Trial Chamber ordered a further report from Falke as his original report was "unsatisfactory”. There seems to have been no trace of the visiting doctors' reports as yet in the documentation the Trial Chamber had at its disposal. Instead, the Trial Chamber wanted Falke to explain why Milosevic had not appeared in court. It ordered Falke to provide a diagnosis of Milosevic’s condition that rendered him unfit to attend court and to distinguish between the degree of fitness necessary to attend court and conduct one's own case.

Falke’s report of 14 November was the first time he mentioned the visiting doctors’ report in passing, almost by accident. Falke provides the diagnosis of a Dutch treating ear, nose and throat specialist at Bronovo Hospital in The Hague. His name is not mentioned. Falke may have assumed that the Trial Chamber had got wind of the visiting doctors’ reports and readily announced: “Contrary to the joint conclusion of the Visiting Doctors, the treating specialist concludes that it is unlikely that the vascular abnormalities have a direct relationship with the symptoms complained of".

Of course, the joint conclusion had mentioned nothing of the sort. It is an inference Falke had made of the visiting specialists’ separate reports. The joint opinion only recommended six weeks of rest.

As a bonus, Falke reported that in the specialist’s opinion a period of rest would have no positive effect on his symptoms. (The Trial Chamber eventually allowed Milosevic to have his six-week rest in connection with the winter recess.) According to Falke, Milosevic had stated that he was fit to stand trial, and apparently he took Milosevic's word for it. Milosevic did complain of his ear and attributed the complaint to the change of headphones, but Falke does nothing to address the problem.

On 15 November 2005, the Trial Chamber ordered for the first time expert medical reports on the visiting doctor’s reports. It assigned the treating cardiologist Dr Van Dijkman and the unnamed treating ear, nose and throat specialist for the job. It is not clear what the Trial Chamber expected to learn from them. Did it except Van Dijkman to admit that Shumilina was right about the treatment being inadequate? Anyway, it wanted the Dutch specialists’ opinion on Dr Shumilina's reference to inadequate treatment and the necessity of additional tests and advice concerning the length of rest period required.

On 18 November 2005, Dr Van Dijkman filed a report that addressed Professor Leclercq’s report. As to the Trial Chamber’s second request, Dr Van Dijkman recommended that the current trial regime should not be changed. He wrote that Leclercq’s report did not add to what was already known about the patient. He obviously did not find it necessary to do anything about the problems Leclercq had pinpointed, like the “very anomalous” ECG and the “left ventricular hypertrophy” which was asymptomatic. The only thing that he admitted in Leclercq’s report was the advisability of an ischemic test. Of course, Leclercq had not requested an ischemic test. The only possible reference to an ischemic test in Leclercq’s report was his opinion that ischemia could not be “totally ruled out”.

An ear, nose and throat specialist.named Spoelstra filed a report on November 21. He mentioned that he might arrange a hearing aid for Milosevic. However, in the next sentence, he added that it might not be a good idea to have a hearing aid after all. Instead the volume in the headphones should be adjusted properly. That was simple. The problem was that Andric had observed that the hearing threshold converged with the pain threshold, which meant that before Milosevic could hear anything the volume in the headset should have been adjusted so high that it hurt.

Spoelstra added: “As regards the other psychosocial complaints mentioned, also pointed out by the three foreign colleagues, I do not have an opinion.” Instead, he recommended that Dr De Laat from Leiden University Medical Center should take a look at the case. It is not quite clear what Spoelstra meant by the “other psychosocial complaints mentioned”.

On 21 November 2005, Dr Falke filed a medical report to the Trial Chamber in which he recommended that Milosevic was not fit to attend court for the rest of the week. Just a week before Falke had reported that Milosevic was feeling fine (apart from his ear).

On the same day, on 21 November 2005, the Trial Chamber ordered a further report from Dr Van Dijkman in which he should address Shumilina's report. The Trial Chamber referred to its earlier request which had not been met. Nothing had yet been heard from the unnamed ear, nose and throat specialist. Instead, the Trial Chamber ordered Dr Van Dijkman to examine the patient and report to the Trial Chamber.
 
In his report of 23 November 2005, Dr Van Dijkman seems to have realized that he was supposed to comment on Shumilina’s report. Apparently, he had expected the unnamed ear, nose and throat specialist to do so. However, Van Dijkman must now have realized that Spoelstra, which is likely the specialist in question, had nothing to say apart from adjusting the volume in the headset. Just as Spoelstra had referred the case to someone else, Van Dijkman said that he did not consider himself sufficiently expert to give an opinion, so instead he recommended a neuro-radiologist.

In his report of 28 November 2005, De Laat, a physicist-audiologist, in effect confirmed Andric’s report. The reason may be that De Laat provided the first real diagnosis of Milosevic's hearing problem by a Dutch physician instead of giving a personal opinion.

The Trial Chamber may not have been too impressed with Van Dijkman’s performance so far, so it asked him once again, on December 1, 2005, if the sitting regime of the trial was OK. The Trial chamber wanted to know “urgently” if his proposal for sufficient rest was a reference to a period of rest outside the normal sitting regime. In his previous report, 23 November 2005, Van Dijkman had said that he stongly advised provision for sufficient rest. He added: “On the other hand, it seems to me that a six week rest period is somewhat too much".

On the same day, on December 1, 2005, Dr Van Dijkman responded by explaining that the six-week rest period recommended by the visiting doctors was an "arbitrarily chosen period". He also criticized the visiting doctors for the lack of vision concerning any longer-term recommendations. A week before he had thought that even the six week rest period was too much. The visiting doctors had stated that essential diagnostic procedures could be carried out only after the six-week rest period. That is elementary.

Dr Van Dijkman explains that in his view Milosevic was able to appear in court three days a week, prepare his defense two days a week and have a decent rest two days a week. He said that it corresponded to a normal five-day working week. He supposed that Milosevic was able to cope with the load of a normal five-day working week of an able-bodied person, even if he was in ill-health and near the age of retirement. He also adds that the winter recess would also come close to the six-week period of rest recommended by the visiting doctors. Actually, the winter recess would have been three weeks (a difference that one would not really call “close”), although the Trial Chamber eventually extended the winter recess to six weeks.

Just as Spoelstra had referred the case to Dr De Laat, who had already filed his report, Van Dijkman had recommended a neuro-radiologist. A neurological radiologist was found. Dr Aarts, a neurological radiologist, filed his report on 6 December 2005. He finally set the Trial Chamber’s mind at rest concerning Shumilina's report, which had vexed the tribunal for a month. Just by reading the table of points of disagreement (a reassuring name for a document), which had been drawn up by the tribunal, the Trial Chamber could see that, in Dr Aarts’s opinion, the findings did not point to a pathological condition. That was the palatable version, but it was not the whole truth. First, Aarts had only said that the high signal in the transversal sinus did not point to a pathological condition. Second, Shumilina had not said that it did.

Bonomy

Judge Bonomy did not go along with the decision of the rest of the Trial Chamber on 15 November, 2005, and issued a dissenting opinion. As we have seen, the Trial Chamber ordered 15 November 2005 expert medical reports on the visiting doctor’s reports. Even if it is unclear where the Trial Chamber thought it was heading with its decision, Bonomy's dissenting opinion essentially told Milosevic to sort out his own mess that he had caused by consulting the three visiting doctors.

Falke

While the courtroom exchange between Robinson and Milosevic on that same day (the famous are-you-deaf sequence) was discretely left out of the order, Judge Bonomy chose to emphasize Milosevic’s responsibility in the debacle. By so doing, Bonomy practically exculpated Falke.

Bonomy drew the attention to the communications from the Medical Officer Dr Falke. Bonomy mentions in par. 2 that on November 11, 2005 “the Accused was absent from court through illness for the first time since April. At that stage there was no explanation of the condition that might have caused him to be unfit to be in court…[T]he Trial Chamber made an Order that [Dr Falke] should report on Monday, 14 November, on the fitness of the Accused to attend court on the next court day…and, in the event of his being unfit, should specify his diagnosis and the area of specialization relevant to his diagnosed condition.” According to para. 3, Dr Falke reported on 14 November that the Accused had stated that he was fit to stand trial and to defend himself, and the following day Milosevic was present in court.

With that prelude, Bonomy sets the scene and seems to put the earlier exchange between Milosevic and Robinson in context. The Trial Chamber had not seen the reports from the visiting doctors until Milosevic drew its attention to them on November 15. Bonomy criticizes the delay, because Milosevic had had the reports since November 4. Of course, Dr Falke was equally to blame for the delay, though Bonomy never goes so far as to blame him. Milosevic may even have been under the impression that the Dr Falke had already forwarded the reports to the Trial Chamber. It is certain that Dr Falke had seen them, because in his report of November 14, Falke revealed that he had discussed their contents with the Dutch specialist. Maybe Dr Falke had waited until he could get the Dutch specialist’s views to soften the damaging impact of the visiting doctors’ reports, as he well might.
 
However, Bonomy makes it abundantly clear that in his view Milosevic is the only one to bear the blame. He mentions that when Robinson asked Milosevic what he wanted the Trial Chamber to do “arising from this report,” Milosevic said: “Nothing other than asking the Trial Chamber not to ignore what it says in the doctors’ report, and that means that they said quite specifically suspension of all physical and mental activities for a period of six weeks.” (para. 4) Bonomy is not happy with that response at all. He may even have found it insolent.

Of course, the Trial Chamber is not to decide how Milosevic should be treated. One has to go along with Judge Bonomy in that respect. It is Dr Falke who should take the heat for the debacle, and to some extent he did. Dr Falke had obviously been sitting on the visiting doctors’ reports and would probably have continued to so if Milosevic had not drawn the Trial Chamber’s attention to them.

Even if Bonomy is careful not to offend Dr Falke here, the Trial Chamber was less happy with him. The Order concerning Further Medical Report of 11 November 2005 stated that the Trial Chamber ordered a report from Dr. Falke, as his original report (also of November 11) was found to be “unsatisfactory”. In particular, Dr Falke's report did not address or diagnose Milosevic's problems. In the Order, the Trial Chamber ordered Dr Falke to submit a decent report which would answer "what is the area of specialization relevant to the Accused's diagnosed condition." When it says “diagnosed”, the Trial Chamber can only be referring to the visiting doctors' reports, although it does not want to admit that it was aware of them. Instead, it ends up pretending that Falke should have diagnosed Milosevic, which is something he never did. The Trial Chamber also wanted Falke to specify the diagnosis of the condition which would render Milosevic unfit to attend court on 15 November.

“Cryptic statements”

Bonomy does a masterful job covering Dr Falke’s tracks. Milosevic has to pay dearly for the fact that it was he who wanted the Trial Chamber to address the visiting doctors’ reports. Bonomy attacks the roundabout way in which it was done. “It is for him, as the person conducting and in charge of his case, tendering material which is the result of investigations he has caused to be made, to say what course of action he wishes the Trial Chamber to take. All he has suggested is ‘taking account of’ the reports. To what end? That is for him to specify.” Bonomy also says “that it is not for the Trial Chamber to divine his wishes from his cryptic statements”. Milosevic has been accused of many things (Bonomy should know something about that), but this must be the first time he is accused of making cryptic statements. That rouses the suspicion that Bonomy thought it insolent of Milosevic to put his health above the good administration of the trial.

Milosevic has at least as few possibilities of influencing his treatment as does the Trial Chamber. Under different circumstances, Milosevic might have been excused for “causing investigations to be made,” as Bonomy puts it, because it was his health that was at stake. Did Bonomy really expect him to provide the Trial Chamber with a diagnosis of his own as well as the prescriptions, or was he only trying to Milosevic’s life even more unbearable? Milosevic was just as much a layman as Bonomy in these matters. The only thing that Milosevic could do was to persuade the Trial Chamber to order a proper evaluation of his medical situation. If Bonomy had stopped acting so stolid for a minute, he might have realized that Milosevic was right. He would also have appreciated that Milosevic’s hands were tied even more in this matter than his. Milosevic did not have to provide the Trial Chamber with a blueprint of the proper conduct of the trial with all the medical information factored into it. The Trial Chamber could act on its own initiative in those matters, and in fact it should. And in fact it did, except for Bonomy's flamboyant dissenting opinion.

Even if the Trial Chamber did indeed act on its own initiative to sort out the mess Dr Falke was reluctant to address, Milosevic's court-assigned counsel Higgins and Kay heeded Bonomy’s advice to submit “a Motion seeking action by the Trial Chamber in relation to the Accused's health…in writing, and should identify clearly the issues to be addressed by the Trial Chamber and the relief sought” (para. 5 of the dissenting opinion). Bonomy said in para. 8 of his dissenting opinion that if Milosevic wished the Trial Chamber to take any form of action in light of the medical reports (favorable to Milosevic), he should have presented a motion to the Trial Chamber in writing.

Andric

Bonomy notes in his dissenting opinion that Vukasin Andric had appeared as a witness for the defense. The exact dates were February 23 and 24, 2005. He was cross-examined by Nice on February 28. In the sitting of August 23, 2005, Milosevic summarized his testimony as follows: “For example, Vukasin Andric testified here. He was the secretary for health in Kosovo and he showed films about the assistance and the aid distributed to the displaced Albanians, about how efforts were made to persuade them to return home, how there was no discrimination when aid was being distributed, and so on and so forth.”

In the sitting of November 15, 2005, in other words, a day before he wrote his dissenting opinion, Judge Bonomy asked Milosevic if Vukasin Andric mentioned in the reports of the visiting doctors was the same person who had given witness earlier in 2005:

JUDGE BONOMY: “Mr. Milosevic, just clarification on one thing from earlier this morning. You presented us with a number of medical reports from experts. One of these is by a Professor Vukasin Andric. Now, earlier this year we heard evidence from a Professor Vukasin Andric. Is it the same person?

THE ACCUSED: Yes, the same person, and he is a very distinguished oto-rhino-laryngologist. And it has nothing to do – the examination, ear, nose, and mouth, has nothing to do with the testimony.

JUDGE BONOMY: Thank you.

If Bonomy believed that Vukasin Andric was the same person, did he have any reason to doubt that his testimony in February 2005 had anything do with his being an ear, nose and throat specialist? He was there when Andric gave his evidence, so he should know. The only time his specialization is referred in the course of his testimony is the single sentence: “After your schooling and specialization you came back to Kosovo and Metohija to work as a doctor.”

On the basis of his testimony, we know the following facts about Andric. He was born in Kosovo and Metohija, in the village of Raka Urosevac in 1950. He is a medical doctor, professor at the school of medicine at the university. He did his entire schooling in Kosovo except for university studies in Belgrade. After his schooling and specialisation, he came back to Kosovo and Metohija to work as a doctor. In October 1973, he started working in the institute of labour medicine in Pristina, in the electrical company of Kosovo. All the time after completing your university studies you worked there until to date? With the exception of a brief period in 1988, he worked all the time in Kosovo and Metohija. He became professor at the medical faculty in Kosovo in 1981. He passed all the steps from assistant professor to full-time professor, and he is still a full-time professor at the medical faculty of the university in Pristina. Throughout this time, he served as the secretary for health in Kosovo and Metohija on the government.

While the Trial Chamber in its entirety went after Shumilina, Bonomy attacks Andric, the ear, nose and throat specialist. Dr Falke’s report does the trick. Bonomy notes that the unnamed ear, nose and throat specialist did not share Andric's opinion on the relationship of the hearing problem to his cardio-vascular problems. If Bonomy had not taken notice of the medical reports before he heard of them from Milosevic, how did he know that Andric had said anything of the relationship? Dr Falke’s report had only talked about “the treating ear, nose and throat specialist”. It was not Andric. Falke’s report does not identify the three visiting doctors in any way, and it does not even specify their specializations.

That implied that Bonomy knew more than he was willing to give away. Indeed, Andric had talked of “a case of bilateral impairment of the peripheral vestibulocochlear apparatus of primarily vascular origin”. How could Bonomy act on the reports (that he implicitly denied of knowing anything about until Milosevic mentioned them to the Trial Chamber) only to refer to them to curb Milosevic’s rights and demand him to submit a motion in which he was supposed to spell out what specific steps should have been taken (para. 4)?

Bonomy’s excuse sounds lofty enough: “The Trial Chamber’s first and foremost consideration must always be to ensure a fair trial of the Accused. It should not countenance the risk that a situation could develop in which its impartiality, and hence the fairness of the trial, might be put in question.” There is at least one fault with this reasoning. The question of Milosevic’s health is about Milosevic, not about the Trial Chamber. Or had Bonomy already bought into the rumors that were circulating about Milosevic manipulating his own treatment? If Milosevic’s health was compromised, so would the good administration of the trial, and not the other way around. Or maybe Bonomy was not at all concerned about the impending public relations disaster as he may have been about the tribunal’s reputation as a unit that gives its sponsors value for their money.

Bonomy’s view was that Milosevic should be treated only by doctors who had not appeared before the Trial Chamber as defense witnesses (see para. 7). He apparently does not rule out the possibility that Milosevic could be treated by prosecution witnesses, which is a scenario savored by the prosecution in its interim response of 22 December 2005, signed by Geoffrey Nice. In para. 6 of that response we read that “the Accused’s medical condition has been a matter which the Trial Chamber has managed on the evidence of doctors who have been its interlocutors”. The prosecution will also gravitate toward the scenario that Milosevic should be examined by its own doctors. The prosecution argues that “the Prosecution should have an equal right to have the Accused examined and to have access to his medical records”. The prosecution prefaces this argument by the inconspicuous but operative little word “arguably”.

Rule 31 of the Rules of Detention provides that the detainees may consult a doctor of their choice at their own expense and that the Commanding Officer shall not refuse a request for such consultations without reasonable grounds”. Should the reasonable grounds for refusal include the fact that a doctor has appeared as a defense witness in a case where his client is a defendant? Does Bonomy mean that if the defendant is willing to trust his life in the hands of one of his own witnesses, the suggestion is that the witness’s testimony should be trusted even if he had been a witness for someone like Milosevic? Arguably, Bonomy would never have allowed the presumption of innocence to be taken to such absurd extremes. Bonomy’s logic might work the other way around: a witness who has treated the defendant may not appear as a witness, but when Andric appeared as a defense witness, nobody could have known. If Bonomy had been at his very best, he would have said that since Milosevic had paid the three visiting doctors for their services, he had bribed one of his witnesses. Some people are hard to please.

Unless Bonomy has made a point of getting even with Milosevic, he might have wanted to be more explicit in what way the treatment of Milosevic and Andric's testimony were interrelated and how their interrelation was supposed to damage the credibility of the tribunal. In a duplicitous choice of words, Bonomy called the medical examinations by the visiting doctors "investigations he has caused to be made”. Why did he say investigations instead of examinations? Investigation implies an existing suspicion, and that gives Bonomy the idea that the process is adversarial. One thing is certain. No matter what happened next, Bonomy had managed to cast a shadow on Andric's testimony.

An indication that the prosecution relished Bonomy's dissenting opinion beyond due measure is the fact that in its interim response of 22 December 2005, signed by Geoffrey Nice, the prosecution states in paragraph 16 that Milosevic’s medical condition is now presented as an adversarial issue. Presented by whom? The prosecution cannot be oblivious to the fact that Bonomy said in para. 5: “…in this adversarial process it is not for the Trial Chamber to divine his wishes from his cryptic statements”.

The prosecution will also cling to the statement Bonomy makes in the last paragraph: “Whenever issues of health and fitness arise in a court process it is vital that the right decision is made at the end of a thorough and scrupulously objective assessment of the issues on the basis of the opinions of experts who are not involved in the trial” (para. 8). There is no doubt that the prosecution was waiting mouth open for every word Bonomy was speaking. In its interim response of 22 December 2005, signed by Geoffrey Nice, the prosecution quotes that whole sentence in para. 20. Whatever the word “objective” meant in this context, it was not necessarily easy to reconcile it with the case law that the assigned counsel quoted in para. 9 of the request for provisional release: “The Trial Chamber ‘must focus on the concrete situation of the individual applicant, and consequently the provision must not be applied in abstracto, but with regard to the factual basis of the particular case.’” It was pointless to make a point of rehearsing the case law if time was of the essence, as it was in Milosevic’s case. The phrase “thorough and scrupulously objective” could only mean “long”.

We take it that Bonomy is no medical expert, so he should be in no position to dictate at what point the "right decision" is to be reached. The right decision does not have to be made at the end of “a thorough and scrupulously objective assessment,” if the benefits of a certain treatment seem to outweigh the potential risks. Otherwise, the treatment may come too late. Ethical consideration may not weight too heavily for Bonomy, but in pharmaceutical tests, for instance, it is considered unethical to put off making a pharmaceutical product available too long. Besides, in pharmaceutical tests the objective is to save lives, whereas all Bonomy (along with the prosecution) is interested in is keeping the trial on schedule.

Bonomy has earned his place in history with his malicious punctiliousness. He pretended not to understand why Milosevic wants the Trial Chamber to take account of the reports of the visiting doctors. Even if Bonomy had chosen to demonstrate that he was not in full possession of his mental faculties on November 16, he could not have posed a better question than the one he did: “All he has suggested is ‘taking account of’ the reports. To what end?”

Andric

The report written by Andric can hardly be called emotive. That qualification is reserved by the prosecution to Dr Bockeria at the Bakoulev Center in Moscow. For instance, Andric is the only physician who sets out Milosevic's complaints. The court’s appointed physicians never ceased talking about Milosevic’s “complaints” but did not stop to enumerate them.

“Over the past three years ringing in the ears, more pronounced in the right ear. The symptoms became very intense during the past month, manifesting themselves as booming and drumming in the right ear with a distinct difference in tone color, with distortion and severe pain in the right ear, especially when he hears high-pitched sounds. Autophony has been present during the past months accompanied by hearing fatigue during protracted sound stimulation. In addition to the above symptoms, there is enduring mild or more severe vertigo accompanied by queasiness, nausea and a strong tendency to vomit.”

As an ear, nose and throat specialist, Andric concluded that the "result of the physical examination of the ears, nose and throat was normal."  That was borne out by the Romberg test, the modified Romberg test, and the Unterberg test. However, he performed four other tests: tympanometry, tone laminar audiometry, speech audiometry and nuclear magnetic resonance. Tympanometry was normal. The NMR excluded the presence of any intracranial expansive process, and that was the reason Andric suspected vascular origin. Tone laminar audiometry revealed bilateral sensorineural hearing impairment. Speech audiometry corroborated those results and incated bilateral intracochlear impairment, significantly greater on the right side.

Dr Andric attributed the symptoms to vascular origin: “it may be concluded that this is a case of bilateral impairment of the peripheral vestibulocochlear apparatus of primarily vascular origin.” He did not expect the condition get any better: “the current condition of the cochlear apparatus is irreversible with an obvious tendency toward deterioration in the future”.

He ascribed most of the blame to the “chronic acoustic irritation exacerbated by the use of earphones over a long period of several years.” He did not recommend that Milosevic should not use headphones, but he stated that the pain in the right ear was the result of the convergence of the hearing threshold with the pain threshold.

Even if he did not have high hopes of Milosevic’s hearing getting any better in the future he did recommend rest: “the subject must not be exposed to continuous sound stimulation for more than an hour, and will then need to have a break from listening of the same duration." Besides the rest, his recommendation consisted of medication: pentoxifilline, cinrizien and subsequently betahistine.

Andric’s findings provide a basis for Shumilina’s report. She seeks an explanation for “the patient’s cochleovestibular disorders”. Conversely, Andric accepts the vascular origin of the disorders, suggested by Shumilina. The Dutch audiologist De Laat agrees with Andric’s findings.
 
Shumilina

Dr Margarita Shumilina had made the most critical comments on the patient’s treatment so far. However, we know about as much about the institution where she works and her resume than we do of her findings. Her findings appeared in the court documents only in so far as they are flanked by Dr Aarts refutations.

While Bonomy was grilling Andric, the rest of the Trial Chamber did not waste time to take Dr Shumilina under a special scrutiny. It got hold of the Curriculum Vitae of Dr Margarita Shumilina (which it did not do in case of the other two visiting physicians). According to the curriculum vitae, she began working at the A.N Bakulev Cardiovacular Surgical Research Centre of the Russian Academy of Medical Science in 1989. She holds the position of Senior Research Fellow at the Clinical Diagnostic Department of the Institute of Coronary Surgery and Vascular Pathology at the A.N. Bakulev Cardiovascular Surgical Research Center. She is the author of 115 publications. The subjects of her studies are the pathology of peripheral arteries and veins, research into the haemodynamics and pathological physiology of the cerebrum, diagnostics and treatment methods.

In the tribunal’s own documents, Dr Shumilina is known simply as an angiologist. In case the tribunal was unsure what an angiologist was, it had at its disposal a table showing points of disagreement between Margarita Shumilina and NJM Aarts. The table contains a helpful footnote, which explains that an angiologist is a specialist in the study of the anatomy of blood and lymph vascular systems, hemodynamics, diagnosis of the vascular pathology and treatment of the vascular pathology. It is then assumed that the tribunal knows what the lymph vascular systems and hemodynamics are. If it did not, what was it supposed to do with this table and the official translation of her resume it had gone to such lengths to get hold of? Obviously, it needed the court’s assigned physicians to interpret its own documents.

The reason that the Trial Chamber took Shumilina under special scrutiny was the two words in her medical report: “inadequate treatment”. She wrote in her report: “The presence in patient Slobodan Milosevic of an almost constant noise, over the course of two months, and of vertigo testifies to a decompensation of cerebral circulation, inadequate treatment and the necessity of additional test..."

The findings that Dr Aarts then supposedly refuted in his report of December 6, 2005 have been summarized in the table of points of disagreement between Margarita Shumilina and NJM Aarts. In fact, there are two tables. In the table that was circulated first, the first point of disagreement was that the patient's conchelovestibular disorders were the result of pathological disorders. In her report, she then went to list five different "pathological disorders” that might have contributed to the patient’s cochleovestibular disorders. However, in the so-called updated table, the relevant “pathological disorders” were narrowed down to two: 1) “hypoplasia of the right vertebral artery” and 3) “stenosis or convolution of the right internal carotid artery with stenosis of the septum”.

The three other disorders that were dropped from item 1 in the updated list were 2) "thoracic outlet compression syndrome", 4) arterial hypertension and arterial sclerosis, and 5) “disorder of the cerebral venous circulation”. They had there own entries already in the earlier version of the table.

That may seem a technicality, but it makes a big difference in terms of what "pathological disorders" Aarts was referring to in his refusal to accept pathological disorders. When Aarts said that the findings did not point to a pathological condition, he was addressing the last point (5), and not all five points as in the original table or the first two points, as in the updated table. In particular, by “no pathological disorder” he was referring to Shumilina's finding that there was an increase in signal intensity in the transverse sinuses. He did not suggest that none of the finding pointed to a pathological disorder.

Leclercq

Leclercq was a cardiologist, and as such the natural counterpart of Milosevic's treating cardiologist, Dr Van Dijkman. The Trial Chamber was conspicuously uninterested in finding out anything about Leclerq’s background or the institution he worked for. His own report only indicates that his address was Montpellier, France. That was a word for the wise. Everybody working in the tribunal must have been expected to know the solid reputation of the University of Montpellier in the medical field. Leclercq was also from the West, so the tribunal refrained from throwing the full weight of its inquisitive powers on him, as it did in regard to Andric and Shumilina.

That does not mean that Leclercq’s report was nothing short of devastating, no matter how nice a gloss Van Dijkman put on it afterwards. Milosevic’s ECG was found to be "very anomalous”. There was a left ventricular and atrial hypertrophy, which was confirmed in both the ECG and the ultrasound. Leclercq suspected secondary repolarization disorder (which is a possible cause of arrhythmia). The diastolic function was irregular. The blood pressure was 160/100 reclining, even on the antihypertensive medication, which he called “intensive”. Leclercq stated that he did not have the results of the coronary scan and several ambulatory blood pressure readings that were supposed to have been taken earlier.

Leclercq also mentioned the auditory symptoms. It was because of them that he had been asked to give an expert opinion. Leclercq rules out a cardiac origin of the auditory symptoms. However, that does not affect Shumilina’s and Andric’s finding of their vascular origin. He concludes: "There is no doubt that stress can contribute to blood pressure irregularities."

Van Dijkman v. Leclercq

Van Dijkman noted in his report of November 18, 2005 the points of agreement between Leclercq and himself. The tribunal has no list of the points of disagreement between them.

Leclercq remarked that he had no new suggestions regarding adjustment of the medicinal treatment, which Van Dijkman thought was "of interest”. In fact, Leclercq did not say he had no suggestions. He did have a suggestion: he said that no changes should be made to the antihypertension treatment. That is different from Van Dijkman’s view that he had "no new suggestions regarding adjustment of the medicinal treatment”. The difference is that, in Van Dijkman’s interpretation, it was possible that adjustments were somehow necessary but Leclercq did not know what adjustments would be needed.

That is significant because that was exactly what Van Dijkman did: he changed the medication. He suggested that "the patient should stop taking beta-blockers for a few days”. Beta-blockers were the antihypertensive medicines Milosevic was taking, as Van Dijkman confirms when he says that he was “not in favour of reducing anti-hypertension medication during stress of the trial". He said that "all this” could be arranged the following week. He must have foreseen that Falke would report to the Trial Chamber on November 21 that Milosevic would be unable to attend court for the rest of the week. That was when the first blood test was carried out.

Van Dijkman’s reason, strangely enough, is that “there are not many reasons not to carry out an ischemic test”. In other words, an ischemic test should be carried out because there are few reasons not to. What does he mean? Was there some cogent reason to carry out an ischemic test if some considerations might have dissuaded him? If Van Dijkman did perform the ischemic test, what was the result? Unless and until we can be certain that the test was carried out and the result was negative, we cannot discard the possibility that the cause of death could be ischemia, now that certain specialists, like Leclercq, doubt if the autopsy report was right in ascribing the death to myocardial infarction (see para.101 of the Parker report).

Or does Dr Van Dijkman’s recommendation simply suppose that Leclercq had suspected ischemia and he was expected to carry out an ischemia test? On the contrary, Leclercq came very close to ruling out ischemia altogether as the explanation for the negative T-waves in all precordials. Instead he suspected secondary repolarization disorder. Van Dijkman does not mention the repolarization disorder at all.

He does rule out atherosclerosis which Leclercq does suspect (the difference being that Van Dijkman speaks of coronary atherosclerosis, which was not indicated by a heart catheterization in the past, whereas Leclercq talked of atherosclerosis of the neck or intracranial vessels).

Van Dijkman stressed that Milosevic had no anginal complaints to date, whereas Leclercq spoke of “the disorders the patient is now complaining of”. So, did Milosevic have complaints or not? The operative word here is asymptomatic. Leclercq said that the pronounced left ventricular hypertrophy was asymptomatic, in other words without symptoms, which meant that Milosevic had no complaints even if his condition was serious. Van Dijkman preferred to discuss the problems that were asymptomatic, whereas Leclercq did not choose to ignore the problems that were not. By so doing, Van Dijkman was patently neglecting problems that did not have any symptoms.

Aside from the tug-of-war between Leclercq and Van Dijkman, a tantalizing bit of information is disclosed in another of Van Dijkman's reports. We may speculate that Dr Van Dijkman’s reasons for the ischemic test must relate to the necessity of stopping the beta-blockers for a few days. The most important beta-blocker was metoprolol. Van Dijkman's report was dated Friday, November 18 and he said that the test could be carried out next week. On Wednesday, November 23, Van Dijkman writes that Dr Falke and Van Dijkman had the idea to check out the concentration of metoprolol. We know that four blood tests were carried out between November 20 and December 16, 2005. The readings of the prescribed medicine were too low each of those four times, which fed the rumor that Milosevic was not taking the prescribed medication. If the patient had stopped taking the beta-blockers, like metoprolol, as Van Dijkman had written in his report, the concentration of the metoprolol was sure to turn out low. That was all the tribunal needed.

Another noteworthy thing that took place at that time is that the metoprolol product that Milosevic was taking until December was a "generic product containing Metoprolol" until it was changed to Selokeen ZOK. What that "generic" product may have been is not indicated by the list of medicines.  The lists do show the generic mention of amlodopine. Earlier in 2005 Milosevic got Selokeen. Did he get anything instead, and if he did, why did Dr Touw not know the product’s name in the report he wrote in January?

“The treating ear, nose and throat specialist,” Spoelstra and De Laat

In the case of Shumilina and Leclercq, it is clear who had been assigned to respond to their reports. In the case of Dr Vukasin Andric, it was a lot less certain. That had probably less to do with the objections Bonomy raised about Andric than with the fact that an unnamed “treating ear, nose and throat specialist” had (according to Falke) had had voiced a wholesale rebuttal of the three visiting physicians’ reports. Andric’s report could then be subsumed in that wholesale rebuttal. One particular problem with Andric’s report could not be solved so easily, however. The problem was that Andric’s report was basically confirmed by a Dutch specialist, Dr De Laat, later.

Anonymous

In his report of November 14, 2005, Dr Falke referred to the reports of the Visiting Doctors. He mentioned that he had discussed them with the Dutch treating ear, nose and throat specialist at the Bronovo Hospital in The Hague.

According to this anonymous ear, nose and throat specialist, “following thorough diagnostics (MRI and audiograms) there are no pathological findings which could explain the complaints of the patient.” (That blank diagnosis “no pathological findings” was later ascribed to Leclercq, although he had very little to do with it.)  In fact, the anonymous specialist did not necessarily refute Andric’s report. Andric had concluded that the "result of the physical examination of the ears, nose and throat was normal," though in speech audiometry he found that the hearing was impaired especially on the right side. On the other hand, the anonymous Dutch ear, nose and throat specialist reportedly said that Milosevic’s hearing loss was “commensurate with someone of his age”. Here the falling-out with Andric begins. Andric had found that the pain in the right ear was the result of the convergence of the hearing threshold with the pain threshold, which was hardly commensurate with anybody’s age.

As a bonus, the ear, nose and throat specialist also commented on other fields which were only marginally connection with his specialty, although we only Dr Falke’s word for it. It is worth remembering that the medical officer Falke is a general practitioner, so it is possible that a lot of what the specialist reportedly said was Falke’s own thoughts like the statement that “the treating specialist concludes that it is unlikely that the vascular abnormalities have a direct relationship with the symptoms complained of.” The Trial Chamber had requested Falke to give a diagnosis, had it not? If he does not give it here, then where did he give it?

One could point out the operative words in the same quote, like “unlikely” and “direct relationship”. Despite such uncertainties, Dr Falke’s report then chose to attack the recommendation of a six-week period of rest head on. In regard to Milosevic’s rest periods, the report said: "Indeed, he has had short rest periods in the recent past and they have not reduced the symptoms complained of." If Falke had been fair to the visiting doctors’ reports, he would have noted that the joint recommendation had not held up the six-week period as a panacea. The visiting doctors had only said that a six-week rest would “probably reduce - or at least - stabilize - the symptoms". The visiting doctors also concluded quite explicitly that the duration of the rest period should be "at least" six weeks.

If that observation in Dr Falke’s report had anything to do with Andric’s report, it referred to his recommendation that “the subject must not be exposed to continuous sound stimulation for more than an hour, and will then need to have a break from listening of the same duration." However, did it logically follow that if short periods of rest had had no positive effects, neither would long periods of rest?

Spoelstra

The ear, nose and throat specialist was not named. The only treating ear, nose and throat specialist at the Bronovo Hospital we know by name is Spoelstra, who made an appearance with his real name on November 21, 2005.

Spoelstra did not offer any kind of diagnosis. Contrary to the report by the unnamed ear, nose and throat specialist, Spoelstra did not arrive in his report of November 21, 2005 at any conclusion concerning the link between vascular abnormalities and the symptoms complained of. He denied he had any comments on the conclusions made by the Visiting Doctors, while on the other hand, the unnamed ear, nose and throat specialist was supposed to have refuted them a week before: “As regards the other psychosocial complaints mentioned, also pointed out by the three foreign colleagues…” Was Dr Falke putting his own conclusion to somebody else’s mouth, or had Spoelstra changed his mind?

It may not have been clear even to Spoelstra what exactly he was expected to comment on. At least he did the only sensible thing to do in such circumstances: he referred the matter to an audiologist, Dr De Laat from the Leiden University Medical Center. He noted: “As regards the other psychosocial complaints mentioned, also pointed out by the three foreign colleagues, I do not have an opinion, since I do not think that I am enough of an expert in that field. For this reason, I suggest you contact an audiologist, namely Mr. De Laat, employed at the LUMC.”

Spoelstra’s only recommendation was: “I could solve the problem of the patient with a hearing aid, possibly two. Bearing in mind that I suppose that he uses headphones during the trial, it seems to me that it would be better to proceed without a hearing aid, but rather with properly adjusted volume in the headphones.”

He did not mention what diagnosis his recommendation is based on, if any. Was it Andric’s? Neither did he did take into account Andric’s observation that the hearing threshold converged with the pain threshold, let alone Andric’s recommendation that the subject must not be exposed to continuous sound stimulation for than an hour.

De Laat

De Laat saw Milosevic on November. His report is dated November 28, 2005. In the first paragraph of his report, he wrote: “Mr Milosevic has been diagnosed with a hearing disability, including a noise /exposure/ anamnesis”. What does he mean when he says that Milosevic was diagnosed? By who? Could it be Andric (again)? If so, he obviously agreed with Andric's diagnosis.

De Laat mentions that an audiogram and BERA tests were performed. The results with the graphs were enclosed with his report. They confirmed Andric’s findings. De Laat observed perceptive hearing loss on both sides, more so on the right.

De Laat contradicted the unnamed ear, nose and throat specialist. There was indeed a perceptive hearing loss on both sides, which also confirmed Andric’s findings. De Laat was against using the headphones (recommended by Spoelstra): “we think it would be extremely sensible to refrain from using the headphones”.

On the other hand, De Laat concurred with Andric, who had said that this was a case of bilateral impairment of ...primarily vascular origin. De Laat stated that even if the noise exposure was partly to blame, “it is probable that the cardiovascular situation is also connected to the hearing loss. We cannot be sure of this." Not only did he concur with Andric but he contradicted on this point what the ear, nose and throat specialist had said.

De Laat did disagree with Andric on the recommendation. Andric's recommendation would have brought the trial to a halt in practice. De Laat agreed there was a perceptive hearing loss but considered that with different technical arrangements Mr. Milosevic could continue with the trial, as the Parker report states in para. 63. Neither did he prescribe any medication. On the other hand, both De Laat and Andric agreed that the headphones were bad for him, contrary to what Spoelstra had suggested.

Shumilina v. Aarts

In his report of December 6, 2005, Aarts had investigated the MRI’s and his findings are paraded against Shumilina in the table showing the points of disagreement between them.

The surprise is that Aarts did not refute the findings, at least not in such a categorical manner that has been suggested in the table. We have seen that the conclusion that the finding did not point to a pathological disorder did not originate from Aarts but the unnamed ear, nose and throat specialist (though more likely the general Dr Falke).

The first objection that Aarts did raise (the findings do not point to a pathological condition) did not address the point that the table shows. It was meant to address point 5 on Shumilina's report, not points 1 and 2, as the (updated) table suggests. Point 3 (thoracic outlet compression syndrome) is then supposedly dismissed with the Aarts’s (unpersuasive) argument that the MRI did not show the neck. Point 4 (arterial sclerosis) was refuted with the claim that the artherosclerosis was normal in view of Milosevic's age, which would admittedly, if true, have meant that the disorder was not strictly speaking pathological (though it might have been part of geriatrics). Point 5 (disorder of the cerebral venous circulation) was also dismissed with a reference to Milosevic's age.

The table then shows that, in Aarts's view, the vascular loop is connected to a perceptive loss of hearing, not to tinnitus or vertigo. However, it was Aarts himself who found the vascular loop. If that finding had any bearing on Shumilina's finding, the vascular loop must refer to the decompensation of cerebral circulation, which, according to Shumilina, accounted for the tinnitus and vertigo. Whatever the truth and relevance in Aarts’s statement, he did not go as far as to deny that Milosevic was in fact suffering from a perceptive loss of hearing. It was good that he did not, because the loss of hearing had already been confirmed by De Laat.

Aarts did not address the fundamental question what might have caused the cochleovestibular disorders, which was Shumilina's preoccupation in her report He just discussed the structure of the inner ear and stated that the appearance of a smaller vertebral artery on the right side, as opposed to the left, had been known to occur and was by no means an indication of compression (point 2).

Shumilina answered all points raised by  Aarts on December 14, 2005. She did not have to defend her points 1 and 2, since they were in reality not criticized by Aarts even if the table suggested they were. Instead, she questioned Aarts’ criticism of her point 3. Aarts had said that the MRI did not show the neck, but she answered that the thoracic outlet compression syndrome was diagnosed, not with MRI, but with the ultrasonic dopplerography. As to his criticism of her point 4, Shumilina replied that Milosevic was too young for his artheriosclerosis to be normal. As to his criticism of her point 5, Shumilina responded that the MRI indicated venous blood flow rate reduction, which suggested venous congestion.

II. Filing for Moscow

Request for provisional release of 20 December 2005 or “Motion”

In his dissenting opinion of November 16, 2005 Judge Bonomy had expressed his view that Milosevic should have submitted a written request in regard to the measures he wanted the tribunal to take in relation to his health. The majority of the Trial Chamber chose another route and tried to tease a diagnosis out of the Dutch physicians on its own. That approach was not working too well.

But by early December, the defense must have realized that the court's appointed physicians were not going anywhere with their medical reports, so instead it did something unexpected. It took Bonomy's advice. In light of the inactivity of the court’s appointed physicians, Bonomy’s dissenting must have appeared a lot less obnoxious now than it had about a month earlier. So, it did file a motion. Besides, in the sitting of 12 December 2005, Judge Robinson gave Milosevic the same kind of advice. If Milosevic’s wish was to get treated in Moscow, it was in fact an application for provisional release and should, as such, have been made in writing. That was what the Assigned Counsel did on 20 December, 2005.

The Assigned Counsel made two requests in its request for provisional release. It is crucial to bear that in mind. After shuffling paper to and fro for a couple of months, the Trial Chamber seems to have forgotten that there were actually two requests it should have addressed.

The first was the following: “The Assigned Counsel request the provisional release of the Accused for the purposes of his attendance and treatment at the Bakoulev Medical Centre pursuant to conditions as deemed necessary by the Trial Chamber.”

The Bakoulev Center had not been singled out in the medical reports. The first time it was mentioned was by Shumilina, who works there. The date of Shumilina’s relevant communication was her email to the assigned counsel Gillian Higgins of December 19, 2005. The real impetus for the choice of the Bakoulev Center was the fax that his brother Borislav Milosevic had sent on December 12. In it, Professor Bockeria had indicated his willingness and ability to receive Milosevic in the Bakoulev Center.

The second was the following: “In the alternative, in the event that the Trial Chamber is not satisfied as to the current medical condition of the Accused, the Assigned Counsel request the Trial Chamber to hear evidence from the relevant specialists in order to determine (a) the nature of the Accused's condition and (b) the most appropriate method of treatment.”

In the alternative request, the assigned counsel submitted that the Trial Chamber might have chosen to hear evidence from “the relevant specialists”. That can only refer to the specialist who had already examined Milosevic. In a rather strange turn of events, the prosecution later insisted on having its “own” medical experts examine Milosevic.

The request for provisional release was submitted after the six-week period of rest had already begun. No doubt the matter was urgent. That was a signal for the prosecution to start playing time, which meant that Milosevic would not get his rest period in Moscow as he had hoped. Indeed, the Trial Chamber would be unable to reach a decision on the request until February 23, which was one month after the six-week period of rest had ended. The Trial Chamber had done a good job messing up its own trial schedule. It is true that the Trial Chamber eventually rejected the request, so in that respect nothing was really lost by waiting two months for the decision. The question is rather, why did it take so long to take such a simple decision?

Amidst all its arguments that it puts forward in support of its requests, the Assigned counsel make one patently political submission under the heading “potential regional conflict”: “The geographical location of the Accused would be remote from the territories of the former Yugoslavia and there would be no risk of conflict arising in the host country, nor interaction with alleged victims.” Truth be told, the other arguments are not really that legal either: The request discusses the possibility of absconding, interference with justice, return to the jurisdiction and interests of justice. Interests of justice, in particular, is an open invitation for the Trial Chamber to use its discretion, which does not bode well for the defendant.

A less discretional point is the principle of equality of treatment, which includes the presumption of innocence. Those who have wondered why the Trial Chamber does not take the presumption of innocence seriously get the answer here. One likely reason has already been touched on: the potential of regional conflict, if Milosevic were released even provisionally. While equality and presumption of innocence are legal concepts and one would expect the Trial Chamber given them more weight than any considerations of political expedience, the reality is different. In its further interim response to the request for provisional release of January 20, 2006, the prosecution has no scruples to reprint an article it has found on the Internet which highlights the political risk that releasing Milosevic even in Russia would cause: “Any and all medical background notwithstanding, this decision is rather political and implies the far-reaching consequences.” That cannot have left the Trial Chamber indifferent, considering how poorly its decision is supported by any legal arguments.

The last fairly legal point (there are only two by this count) is the period of time the Accused has been on trial. We know that Bonomy cherished his own interpretation of a fair trial which curbed the defendant’s rights. The assigned counsel saw the matter in a different light. They suggested that given Milosevic's age, ill-health and length of the trial to date, it would be appropriate for a relatively short period of time to be devoted to the restoration of his health. They named the Bakoulev Center. The prosecution pretended to have not clue why the Assigned Counsel have singled out Bakoulev, even if Milosevic had just been offered a place there, but the answer should be obvious. As the motion states in para. 2: "The reason for this application is to enable the Accused to be admitted for medical treatment for a defined period at the “specialist Bakoulev Scientific Center for Cardiovascular Surgery in Moscow…” Yes, the Bakoulev Center was in Moscow.

Instead of only seeing the fact that Bakoulev Center is in Moscow, the prosecution and the Trial Chamber might have paid attention to the fact that the medical treatment would be for a defined period and a relatively short period of time, as spelled out by the had of the Center, Professor Bockeria. As the Assigned Counsel point out in para. 15, the requisite period of treatment would have been “not less than 1.5 – 2 months.” That was a quote from Bockeria’s letter. Despite the phrase “not less” the Trial Chamber might have seen how short the period was. The period of 1.5 months was in fact so long that it corresponded to the recommended period of rest of 6 weeks (which had already started).

So why would the Bakoulev the best, if not the only, viable option, which in the prosecution’s view it should be before any idea of releasing Milosevic could be entertained? Because in order not to mess up with the trial schedule too badly, the head of the Bakoulev Center had already arranged a place for Milosevic and assured that Milosevic would be treated there within 2 months. What other hospital could have done that? Instead of getting obsessed with the little phrases like “not less” and “long time”, tt is a testimony to the Bakoulev Center that Bockeria’s letter had called two months a “long time”.

In para. 7 of the Request for Provisional Release the Assigned Counsel underlined the importance of leniency: “In the Prosecutor v. Jokic, the Trial Chamber stated that “A measure in public international law is proportional only when 1) it is suitable, 2) necessary and when 3) its degree and scope remain in a reasonable relationship to the envisaged target. Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure, it must be applied." When the prosecution quoted the same passage in para. 20 of its further interim response, it stopped after the “envisaged target” and did not mention leniency. Instead, a couple of paragraphs down, the prosecution frustrated the considerations of proportionality with the fanciful remark that Milosevic was known not to avail himself of the treatment prescribed (para. 22).

If preventing Milosevic's was the envisaged target, it is difficult to believe that any measure would have been disproportionate. True to its track record of dodging any responsibility, the tribunal is still on the lookout for a cause of death that would have been impossible to diagnose, like ventricular fibrillation. The question is this: would a patient have died in his sleep if he had been under a cardioscope control in an emergency unit? The tribunal tries to argue that Milosevic’s cause of death escaped diagnosis, but the further question is: diagnosis by whom? Just because it could not be diagnosed by the treating specialists runs the risk of proving the whole point. If Milosevic had died of ventricular fibrillation at the Bakoulev Center, the tribunal would undoubtedly have argued that the cause of death was preventable and had held the Bakoulev Center responsible. The problem would have been that if Milosevic had been kept alive under cardioscope, the tribunal would have said it was just an excuse to keep him away from court. At least he would have been alive.

The crux of the problem is that the tribunal did not even pretend to prevent the cause of death, and as long as it could reasonably expect that the treatment in the Bakoulev Center would do just that, Milosevic was to stay where he was. Granted, it is difficult to tell the future, but if the tribunal had applied the most lenient measure, as it should have, the balance of probabilities would have been observed as well, unworkable as it was without it.

Prosecution interim response of 22 December 2005, signed by Geoffrey Nice

The prosecution needed no more than 2 days to file its interim response. In all, the prosecution did not file only one but two interim responses and a notice of intention to file an interim response. Clearly, the prosecution was aware that the matter hinged on the latest observations that the prosecution had to offer. Suddenly, the prosecution must have realized that its position was not clear even to itself so it made a plea that the tribunal should make clear how far the prosecution could go to influence the Trial Chamber’s decision. As the assigned counsel later note in footnote 3 of its second addendum of 18 January 2006, the prosecution’s interim response exceeded the standard page limit for the filing of briefs and motions.

“Unclear locus”

In para. 6 the prosecution states that it is unable to provide a fully formulated Response to this application. Does it not understand that other parties were just as unable to provide any fully formulated response to anything? Bonomy had castigated Milosevic for having made a poorly formulated request to take account of the visiting doctors’ reports.

What does the prosecution mean by locus when it says that its locus on the application is unclear in para. 6? When it says "its locus" it probably means the locus of the prosecution, and when it says “locus” it probably means position. But if its position was not clear even to itself, how can it say that it maintains its prior position on the medical issue, namely that its locus was unclear? It seems to defy logic that the prosecution was so firm on a question that is, by its own admission, unclear to it.

That suggests that the Trial Chamber should not have granted the Prosecution its request. If the locus was unclear, why did it think it had the right to file an interim response every time the Assigned Counsel complemented its request? A month before, Bonomy had given Milosevic a hard time for the cryptic statements Milosevic had supposedly made. In a typically desultory reasoning, Nice criticized the visiting doctors of second-guessing in para. 15, even if his statements leave the door wide open for second-guessing. Well, Nice could easily answer that everybody was doing cryptic statements these days, so why should he be treated any differently? By the way, “second-guessing” was an expression that was launched by the former presiding judge Richard May in the sitting of September 30, 2003, as the prosecution mentions in footnote 4 of its further interim response of 20 January 2006 and yes, he did say: "We cannot have a party second guessing the Court's doctors. It's quite out of all proportion and propriety."

And indeed the Trial Chamber did not accommodate the prosecution’s request. Or that is the impression the Trial Chamber would us have. Maybe it did. It did not take the trouble of how determine how Milosevic should be examined and by whom but it knew that the prosecution would not raise an objection to that. Instead, it just turned down the request altogether, which was much more convenient not only for the Trial Chamber but for the prosecution as well.

In other words, judging by the outcome, the prosecution’s locus was anything but unclear. Its wishes were the Trial Chamber’s command. Any “unclear locus” (which is as unclear an expression as one has encountered in the Prosecution's long and tortuous submissions), was then interpreted in the favor of the prosecution with catastrophic results for Milosevic. Never mind the presumption of innocence and all the friendly stuff in the Statute.

Medical evidence

Geoffrey Nice writes that the Accused was examined by a group of specialists instructed by him, who made unsolicited recommendations as to the future conduct of the trial in a joint report filed subsequently with the Chamber (par. 8).

He must be referring to the sentence in the joint opinion that stated: “Accordingly, the patient should be prescribed a period of rest, i.e. the suspension of all physical and mental activities a minimum period of 6 weeks, which will probably reduce - or at least stabilize – all symptoms.” First, the recommendation said that he should be prescribed a period of rest, not how the trial should be conducted. Neither did the prescription come from them. Second, the recommendation was not unsolicited. It was requested by Milosevic. Third, the Trial Chamber had already arranged for Milosevic to have his period of rest of 6 weeks, starting from December 12, 2005 (as the Parker report confirms in par. 94). That was 10 days before Nice wrote the interim response.

Nice refers to that decision. He notes that Milosevic’s application to extend the allotted time for presentation of his defense and adjourning trial to 23 January 2006 “demonstrated a strategy, moving now with greater momentum in light of the Trial Chamber’s Order of 12 December, aimed at preventing this trial from being brought to a timely conclusion.” Is it the Trial Chamber or the accused that Nice is criticizing here? And what does he mean by “timely conclusion”? If the trial had ended in summer 2006, it would have lasted more than four years. Whatever “strategy” Milosevic may have had, the prosecution had a strategy of its own: to wreck his health. In December 2006 it did not really matter if the trial went any slower or any faster, because both options would damage his health just as surely. Nice even doubted if the trial would be brought to a conclusion at all, for which he of course blamed Milosevic, who would “prevent it from being brought to a conclusion". (par. 10). Not just a “timely conclusion” but simply “a conclusion”.

Nice realizes that it is necessary to find out what the true medical position was (para. 11.1). At least ostensibly. By "the true medical position" he means Milosevic’s medical condition, what treatment he required and what the outcome of any treatment may be. The “medical position" is a curious expression which suggests that Milosevic's health was a matter of perspective. Matter-of-factly Nice criticizes the “series of incomplete reports filed by treating doctors and other specialist”. That statement could be construed as meaning that the doctors should quibble with each other about the true nature of the problem. However, Nice’s urgency is selective. Although he does not even refer to the visiting doctors here, there is no doubt it was the visiting doctors that he meant (par. 11.1). It was them who were second-guessing the court’s appointed doctors, not the other way around. On the other hand, Nice is only too quick to bypass the court’s appointed doctors himself when he argues that Milosevic should have been examined by the prosecution’s doctors.

Even if Nice criticized the six-week period of rest, he conceded that the trial should go ahead as scheduled on 23 January, after the six-week rest period was over, and so that Assigned Counsel may prepare to call witness in the Accused’s absence (para. 12). Nice is back to the old stratagem of making the Assigned Counsel, Gillian Higgins and Steven Kay, conduct the trial on Milosevic's half. Indeed, Higgins and Kay were still Milosevic’s assigned counsel, just waiting to be unleashed, even if Milosevic had been given back his right to conduct his defense. Judging by the suggestion that he submits, Nice may not have been dissatisfied at all with the expectation that Milosevic’s treatment would not coincide with the period of rest after all. Any excuse to get Milosevic out was good enough.

Nice criticized the visiting doctors for second-guessing the court’s appointed specialists and provided reports of their own (para. 15). In fact, the visiting doctors (or Milosevic’s own doctors, as Nice called them) did not refer to the court’s appointed specialists in any way. Shumilina mentioned “inadequate treatment” in her report, and that is when all hell broke lose. Nice also notes that they have provided reports of their own, but it would have been remarkable if they had not. It was the court’s appointed specialist who second-guessed the visiting doctors’ conclusions, not the other way around. It must not be forgotten that the disagreements between them have been exaggerated.

“The Accused has attempted to take this matter out of the Chamber’s hands,” Nice thunders in para. 16. One would think that medical matters out of the Chamber’s hands. All the Trial Chamber could do was to order the accused to have a medical examination, but the rest was in the hands of some higher power. It seems that it is Nice who is trying to take the matter out of the Chamber’s hands. In particular, it is not clear what he means when he says that Milosevic's condition is presented as an adversarial issue. It would seem that Nice wants to perpetuate the series of incomplete reports, even if he had criticized the length of the paper trail so far. Adversiality would have meant that reports could always be shown to be incomplete. On the premise that the visiting doctors were "Milosevic's own doctors", Nice makes the rather self-conscious demand that Milosevic should have been examined by the "Prosecution's own medical experts". It is clear that they would be adversarial, in other words making a point of criticizing their colleagues’ reports. The endless series of adversarial reports which Nice wanted to perpetuate would have made sure that Milosevic would not have been treated at all.

Before brandishing adversiality as a trump card the prosecution should have kept in mind that it in a properly adversarial process the prosecution has the burden of proof: instead of torpedoing the medical reports that have already been written, it had the burden to prove where the reports were wrong. If it could not prove it, they were supposed to be right. In short, it should have given a better material reason for choosing its own doctors than making a point of exercising a right just for the sake of exercising a right which it was not even certain it had despite the case law of Strugar and Kovacevic that it paraded in para. 18.

Instead, the prosecution fails to avail itself of the medical reports that the court assigned physicians had written on the visiting doctors’ reports (who were supposedly second-guessing them). If the prosecution did not trust the court-appointed physicians, why did it expect Milosevic to do so? Why did it want to push the court's appointed physicians aside? It is not satisfied with the medical experts because it knows that in an adversarial process it would have the burden of proof. Maybe the prosecution confuses two things. Even if the prosecution purports that the prosecution does not have the burden of proof in regard to guarantees (para. 24), we are not talking about guarantees here. The prosecution still had the burden of proof in any adversarial issue concerning the medical reports.

Even if it had been granted its wish, the prosecution could have used its own medical doctors to refute the medical reports even without requesting the Trial Chamber for “facilities” to conduct an "independent” examination of Milosevic. Milosevic had invited the visiting doctors at his own expense, as it says in the Rules of Detention.

Nice refers to Strugar and Kovacevic cases in support of its claim that it is entitled to have an Accused examined by medical experts of its own choosing (par. 18). Medical experts instructed by both sides have been called on applications for provisional release (par. 19). However, when he quotes Bonomy in par. 20, Nice inadvertently admits that the experts should not be involved in the trial. The prosecution even admits adding the parentheses around the crucial passage: "on the basis of the opinions of experts who are not involved in the trial". That phrase is quote from Bonomy’s dissenting opinion and, as we have noted, Bonomy's authority in these matters is suspect: "Whenever issues of health and fitness arise in a court process it is vital that the right decision is made at the end of a thorough and scrupulously objective assessment of the issues (on the basis of the opinions of experts who are not involved in the trial)".

In fact, in par. 21 Nice criticizes the medical reports only in so far as they suggest Milosevic should go to Moscow, even if he had pretended to find fault with the incompleteness of the medical reports in general. However, Moscow had not been mentioned in the visiting doctors’ medical reports. Nice was only on the lookout for things he could disagree on. Shumilina suggested that Milosevic should get "ethiopathogenic treatment in a specialized hospital". The prosecution must have assumed that such ethiopathogenic treatment could not be received in Holland, so it is obvious the prosecution itself that made the conclusion they are now criticizing. Nice must have meant that the request for provisional release did not reflect the visiting doctors’ reports, but he could never have admitted that because it would have suggested that he trusted the visiting doctors’ opinion in some matters.

Nice also notes that "If he wishes to be treated by specialists from Russia, then there may be no good reason why they may not treat him, alongside Dutch specialists, in The Hague" (para. 21). Amazingly, the Trial Chamber quotes this half-baked argument in full in its decision of 23 February 2006. Milosevic's wishes certainly did not count.

Just to place the burden of proof where it belongs, we might ask: Would there have been any good reason why the prosecution’s own experts could not have examined him in Russia? In other words, why is the prosecution against having Milosevic examined by his own doctors first where they could work best? They certainly not work alongside the Dutch physicians. In fact, Nice had just criticized them for second-guessing the opinions of the court’s appointed doctors. If the prosecution was so interested in recommendations, why did it call the recommendations by the visiting doctors "unsolicited” in para. 8? What does he mean by unsolicited? Milosevic had asked for the recommendations so they could not be unsolicited. Bonomy criticizes Milosevic for not bringing the report to the tribunal’s attention earlier, so he did not treat them as unsolicited, on the contrary, although he did object to Andric's participation in the process.

There is must be a profound reason for calling the reports unsolicited. The prosecution’s intention in this case, as in so many others, is obviously to reverse the burden of proof to the detriment of the defense. In other words, if Milosevic came up with “unsolicited” material, it was not for the prosecution to prove them wrong but for Milosevic to prove them right.

However, Nice’s job is to address the request for provisional release and not the medical reports. If Bonomy found himself unable to comment on them outright, how could Nice? The distinction does not matter much to Nice. Instead, he starts second-guessing the visiting doctors' opinions. He notes that "there is no reason to believe that once in Russia, the Accused might not then be found unfit to travel for the purposes of return." (par. 26). The prosecution thus admits (by way of triple negation) that it knows that Milosevic was such a poor condition he might be unfit to return. If Nice had been willing to be more fair to Milosevic, it should have concluded that Milosevic was in such a poor condition that he might be unfit even to go to Moscow. Even if the prosecution did not even say that he might be unfit to travel back (only that he might be “found” unfit to travel back) it is not entirely true that he suggested the doctors would use their discretion for some ulterior motives. Indeed, this is an indication that the prosecution understands how serious Milosevic’s condition is. In that light, was Milosevic even fit to stand trial, no matter what Falke said? Besides, if Nice wanted the trial to go on even with his absence, why could it not be continued in his absence if he was unfit to travel back?  In its interim response, the prosecution requested that any order for provisional release be stayed pending appeal. How badly did the prosecution really want to carry on the trial without Milosevic if it meant that he should be allowed to go to Moscow?

Nice chooses his words carefully. He has not forgotten that the request would be decided on the balance of probabilities. If it was more probable than not that Milosevic would not return, he would not be allowed to go. The perversity of all this is that if Milosevic was so sick that he would not be able to return, the balance of probabilities would turn against his treatment in Moscow. Understandably, Nice does not spend too much time on this detail, but Milosevic’s poor health could in fact be evoked as one more reason that he should not be allowed to leave Holland and get treatment as long as the probability of his return was the main issue. The reasoning is wrongheaded for a variety of reasons. It is absurd to restrict the application of the balance of probabilities to actions like absconding. It should also have applied to determining if serious damage would ensue to a person’s health if his request was not granted. In this case, serious damage did ensue, and it was probable that it would. And even if it were not probable, it should have been, as he was found dead a little later.

Then, in an apparent non sequitur, Nice lashed out against Milosevic in par. 28. Milosevic had done all he can to thwart the proper function of this trial. He referred to his initial appearance on July 3, 2001, which took place four and a half years before. Then in par. 29 he quoted Milosevic as saying: "Of course I have no intention of declaring my views on your administrative issues”. Does that suppose that Milosevic would not come back? In his personal guarantee of December 20, he had promised that he would not only come back but he would be back in time. He undertook to “return to the ICTY at such time and on such date as the Trial Chamber may order and to comply strictly with any further order of the Trial Chamber that may vary the terms or, or terminate, my provisional release”. Milosevic had stated his intention twice. He had already expressed his wish to spend the (at that point three-week) winter recess at the Bakoulev Center in Moscow to Judge Robinson on December 12, 2005.  He promised to come back after the recess: “It would not affect your programme in any way, because I would be back here again before this is resumed in accordance with your programme".

Nice contrasted Milosevic’s position with that of Ojdanic, who surrendered to the tribunal voluntarily in par. 36. It should be noted that Ojdanic surrendered after Milosevic had been transferred, that they were in the same initial indictment and that Ojdanic did do his best to challenge the legality of the tribunal in his attack on the corner stone of the criminal culpability in the tribunal: joint criminal enterprise. However, the case The Prosecutor v. Sainovic and Ojdanic did spawn case law, including a list of relevant factors that the Trial Chamber was a expected to consider in addressing an application for provisional release. The assigned counsel reproduced the list in para. 10 of the motion, and the prosecution later admitted the list was correct. The last point on the list was “the fact that the accused provisionally accepted to be interviewed by the Office of the Prosecutor”. Milosevic had done more than that: he was interacting with the prosecution. It was therefore incorrect to note that Milosevic did not "recognise or respect this court in any legal or substantive way," as the prosecution did in para. 28 of the interim response.

Nice added that “in the event that guarantees are provided by the Russian Federation, the Prosecution will argue that they do not provide sufficient assurance to the Trial Chamber that the authorities of the Russian Federation will arrest the Accused if he violates any of the conditions of his release." (par. 36). In making such a blanket objection, Nice seems to have assumed that the burden of proof rested on the defense. Not only did Nice not know if Russia would give guarantees, but neither did he know what those guarantees would be, whether there would be any conditions to his release, what those conditions would be and if indeed he would be released. When Nice quoted Rule 52, he did not quote part C which provides that even if conditions may be required, they were not necessary. To make that silence more deafening, the Assigned Counsel had pointed out in para. 11 of its request that according to the tribunal’s case law the guarantees were not required for provisional release.

Burden of proof

The prosecution argued that it had no evidentiary burden to demonstrate that provisional release is inappropriate in para. 24. It referred to the Appeals Chamber's decision on Fatimar Limaj's request for Provisional release, 31 October 2003, para. 40. As this decision pertained to the interpretation of Rule 65 of the Rules of Procedure and Evidence, it could conceivably reverse the burden of proof in the whole proceedings. Where the reversal of the burden of proof stopped was anything but clear.

The Limaj decision, which is referred to by the prosecution, did lay bare the prosecution's unbridled belief in its own powers. According to para. 39 of the same decision, the prosecution had argued that it was well established in the settled jurisprudence of this International Tribunal that the burden of proof rested on the accused. That attitude was evident in the proceedings at hand.

Incredibly, the Rules of Procedure and Evidence had nothing to say in the matter. For all we knew, the burden of proof could indeed be permanently placed on the accused. Had the tribunal really gone so far as to place the burden of proof in all matters on the Accused? The only provision that kept that from happening was the presumption of innocence in Art. 21(3) of the Statute: the accused shall be presumed innocent until proved guilty according to the provisions of the present statute. If the presumption of innocence meant anything at all, it meant that the burden of proof was on the prosecution.

The balance of probabilities, addressed above, should have turned the burden of proof in favor of the accused. The admirable Pascal might have pointed out that the accused had a lot more to lose than the prosecution had to gain. Milosevic was in danger of losing his life while the prosecution might have scored a point by keeping the trial on track, however tenuous that argument had become over the years. If one weighs the probabilities with the respective gains and losses, it should be clear that the prosecution ought to have come up with a very good reason for overriding Milosevic’s wishes in regard to his health. In other words, the question of provisional release should have been decided in Milosevic's favor unless the prosecution had some conclusive evidence that Milosevic was not sick at all. If the principle of proportionality did not mean that, what did it mean? Even the registrar-appointed physicians were not willing to conclude that nothing was wrong with Milosevic (apart from some unnamed ear, nose and throat specialist).

The probabilities are not just some mathematic trick. It is part of the tribunal's case law. In the Talic case, the accused was deemed to have only a few months to live and was granted a provisional release. If the prosecution was so sure of Milosevic’s deplorable condition as it seems to have been, it should have accepted the probability of impending death and stopped undermining every effort that was made not only to treat him adequately but also to let him end his days in dignity.

Russia

Russia got its share. In par. 38 the Prosecution cited some indictees who had fled to Russia. For instance, The Office of the Prosecutor believed that Vlastimir Djordjevic was in Russia, but he has not been arrested. Also, the Office of the Prosecutor had clear intelligence information about Zelenovic’s location but Russia was unable to locate him. If the prosecutor’s intelligence information matter were so reliable, Karadzic and Mladic should have been transferred by NATO to The Hague long before Milosevic was even indicted. Among the success stories, the prosecution discussed other indictees, like Gojko Jankovic, Vujadin Popovic and Sredoje Lukic. It mentioned that they were brought to The Hague from Russia only with the assistance of the Serb and Bosnian Serb authorities.

One cannot help wondering what the prosecution would say if Milosevic had requested for provisional release in Serbia. Strugar and Vukacevic, who had been mentioned in para. 18, did go to Serbia and Montenegro. In light of what the prosecution says here, its confidence in the Serbian authorities seems to overweigh its distrust of the Russian authorities. It is a pity (in a way) that the assigned counsel had given that point away in the motion when it said that flying to Russia would not cause a regional conflict: “The geographical location of the Accused would be remote from the territories of the former Yugoslavia and there would be no risk of conflict arising in the host country, nor interaction with alleged victims.” It would have been fun to see how the prosecution would have used some pseudo-legal argument to wriggle out of the provisional release in Serbia. Its arguments would probably have been opposite to the ones it now put forward.

In par. 39 Prosecution says that Zelenovic was not as high level as Milosevic. It seems to suppose that it would be easier for Milosevic to go hiding. The assigned counsel had already pointed out in par. 18 of its request that the opposite was more likely: “The Accused is instantly recognizable and well-known. He was 64 years of age and suffering from ill-health. The likelihood of him “’going on the run’ is an unrealistic proposition”. The assigned counsel had also evoked the principle of equality of treatment: “The Accused is entitled to equal treatment before the Tribunal and is presumed to be innocent.” If the prosecution had gone by the book, it should not have mattered if Zelenovic was “as high level as Milosevic” or not.

If Milosevic’s brother Borislav, who is in Moscow and has constantly appeared in the media in support of his brother and is very critical of the tribunal (para. 40), is any indication, as the prosecution seems to suggest, Slobodan Milosevic would not have gone hiding at all. Not only did the prosecution seem to be saying that Milosevic had to pay for the criticism that his brother had voiced (why else bring up the subject in the first place?), but also that it did not matter if Milosevic went hiding in Russia or not, because he was not going to Russia at all. If he had gone there, he would probably appear in the media as well.

The prosecution also mentioned that Milosevic’s wife and son are reportedly in Russia, although his brother has never confirmed that information. Were his wife and son wanted by the tribunal too? Or did Nice simply want to imply that Milosevic might want to stay in Russia because his family is there? The tribunal might have wanted to think about that before it denied Milosevic the visits by his family members. Besides, the tribunal did have the uncanny ability to find Milosevic's family when it stated that Milosevic's family had been informed of his death.

In any case, the indictees that the prosecution mentioned in no way suggested that Russia had the habit of breaking the condition of provisional release, because there had been no cases of provisional release to Russia before this (as para. 13 of the second addendum later points out).

First addendum to the request for Provisional Release of 22 December 2005

The assigned counsel put forward supporting documentation before the Trial Chamber. They had an official translation of Dr. Shumilina's resume and an updated version of the table showing points of disagreement between Shumilina and Aarts, accompanied by photos, supplied by Dr. Shumilina.

Preliminary Order on Request for Provisional Release of 11 January 2005

In its preliminary order on the request for provisional release, the Trial Chamber noted “the importance of these guarantees to the determination of the Motion”. The Trial Chamber mentioned that the guarantees mattered a lot. It did not address the point raised by the assigned counsel. The assigned counsel had submitted in para. 11 of the Request for Provisional Release that the jurisprudence at the Tribunal reflected the position that they were not a “requirement for a grant of provisional release”.

Second Addendum to Request for Provisional Release of 18 January 2006

The guarantees from Russia arrived. As the assigned counsel noted in footnote 5 of the second addendum: “Time has been required in order to obtain guarantees from the Russian Federation, given the closure of the relevant Embassies over the Christmas period.” The assigned counsel also provided the personal undertakings, which were signed by Milosevic on December 20. The assigned counsel submitted that the guarantees of Russia were unequivocal and demonstrated a firm intention to cooperate with the ICTY (para. 14).

It is easy to use one’s imagination and think of other guarantees which it might be nice to include in the list and argue that as long as some point had not been addressed, the guarantees were insufficient. That was how the prosecution approached the list later on when it was its turn to file an interim response. The guarantees of Russia were the following:

1) To admit Milosevic to Russia for the purpose of receiving medical treatment at the Bakoulev Center in Moscow, for the duration of such treatment and in accordance with the orders of the Trial Chamber.
2) To provide security for Milosevic during his temporary stay in Russia at the Bakoulev Center in Moscow.
3) To abide by all conditions set by the Trial Chamber for the provisional release of Milosevic in respect of his transit, arrival and stay in Russia for the purpose of medical treatment.
4) To abide by any order of the Trial Chamber varying the terms of provisional release.
5) If required, to regularly submit written reports to the Trial Chamber concerning Milosevic’s compliance with the conditions set by the Trial Chamber.
6) To return Milosevic to the custody of the ICTY at such time and on such date as ordered by the Trial Chamber.

All was there. The three preemptive obligations left no doubt as to Russia’s willingness to satisfy all parties. Russia was willing to abide by all conditions set by the Trial Chamber. It was prepared to abide by any order the Trial Chamber might give to modify the terms of Milosevic’s provisional release. Russia was prepared to submit written reports.

It is simply unacceptable that the Trial Chamber decided as a matter of course that it was not satisfied with the guarantees. What kind of scenario did it have in mind? Did it really expect the Russian government to default on its obligations under the critical of the international community?

Before such a commitment by a sovereign state could be turned down, a modicum of diplomacy would have been in order. The tribunal displayed none. As the prosecution noted in its Notice of Intention to File Further Response of 19 January, the Chief Prosecutor represented the tribunal to the outside world, the implication of which was that the Trial Chamber had to settle for whatever struck Carla del Ponte’s fancy. That was the problem with the guarantees: the phrase "the Trial Chamber” should have been replaced with “Carla del Ponte” or at least “the prosecution”. It was ultimately the prosecution that decided the matter.

That list should have been all that was required at that stage. Russia understood that some technical and financial matters remained to be taken care of, but it provided that it would facilitate all necessary communications with the ICTY and Holland to that effect. In its next interim response, the prosecution wanted more information on the security at the Bakoulev Center. It could not wait until the release had been granted. Instead, it was about to use the uncertainty to stall the process a bit further and arrange an oral hearing where it could cross-examine the head of the Center, Dr Bockeria, in regard to no less technical a matter than the security measures in his hospital (para. 26 of the futher interim response of 20 January 2006). If it was true that Russia had had certain reservations in regard to the tribunal in the past, the prosecution's response was presumably not designed to bridge the differences but rather to widen them. In a word, the prosecution was not going to let Milosevic go

At this stage, the assigned counsel responded to the issues raised earlier by the Prosecution. It noted that the only matter outstanding was the provision of guarantees from Russia, which did not affect the substantive merits of the application (para. 7). The Prosecution had also maintained that the timing of the application was intended to have maximum disruptive effect on the proceedings. The assigned counsel reply that the application arises as a result of the continuing deterioration in Milosevic’s health (para. 9). The Prosecution had again insisted that the trial should be carried on in absentia, while the assigned counsel had ICTY jurisprudence to back up their claim that a trial in absentia would be unfair (para. 10). The prosecution had also argued that Milosevic would not return to The Hague after the treatment. "There is no evidence to suggest that the Accused would not return to the ICTY", said the assigned counsel, careful enough to use the double negative to indicate that the burden of proof was on the prosecution (no matter what the prosecution had argued) (para. 11). The assigned counsel replied that to “withhold the medical treatment offered to the accused and to thereby potentially damage his health while in the custody of the Tribunal, would constitute a breach of his basic human rights” (para. 11). However, in the same paragraph they said that the application “arises due to the failure of the local doctors to identify and treat his condition." That hardly needed elaborating any more, but it was something the prosecution could savor later on.

The prosecution had criticized the guarantees from Russia as insufficient even before Russia had given any guarantees, as the assigned counsel point out in para. 12. The examples that the prosecution had given of indictees in Russia have little to do with the current case because they did not deal with a provisional release (para. 13). The personal undertaking signed by Milosevic should have been enough: The prosecution obviously did not know of its existence on December 22, 2005. It had just said that “no such personal guarantees from this Accused could now ever be credible”. The assigned counsel rejected that and submitted “that the signed statement evinces a clear intention to abide by all conditions which may be made by the Trial Chamber” (para. 15).

The criticism that the Prosecution leveled at the Russian guarantees even before they had been given indicates the attenuation of the connection between the prosecution's criticisms and the facts. Just because the burden of proof did not rest on the prosecution (in its view), that did not mean that it could criticize something even before it existed just out of principle.

Prosecution’s Notice of Intention to File Further Response of 19 January 2006

The Prosecution wasted no time in responding. Responding was what it did best. It did so the following day, and all it said was that it would file a further response the following day.

"The Prosecution notes that it will be unable in this limited time frame to assess and express any opinion about the sufficiency of the guarantees from the Russian Federation". If there is a message in this submission it is that if the Trial Chamber were fair to the prosecution, it would not take account of the guarantees. In the footnote the prosecution stated: “Sufficiency of a state guarantee is a matter for consideration by the Prosecutor herself rather than just by those conducting a trial, who do not have regular contact with states and their representatives.” One might add that, if one goes strictly by the book, it is for the Trial Chamber, not “the Prosecutor herself” to consider the sufficiency of a state guarantee.

The prosecution also noted, once again, "that its locus on this application remains unclear". Why did it have to keep repeating that? In every submission the prosecution had filed after the assigned counsel submitted their request, the prosecution had said the same thing about the locus without getting any clearer what it meant by that.

Prosecution further interim response of 20 January 2006, signed by Carla del Ponte

Even if it could be argued that the prosecution must make things as hard for the accused as possible, there has to be a limit. That limit may be called by many names, like "good faith" or "interest of justice". No matter which name one chooses, the prosecution's interim report of January 20, 2006 simply went too far.

III. Manipulations of treatment: Allegations & Findings

Medical condition

The prosecution did not really want the doctors to carry out any more tests, because the reports the court's appointed doctors had come up with so far did not provide a definitive diagnosis of Milosevic's problem. The risk was too great that Milosevic’s complaints would have been found to be real. Further medical tests were an option for the prosecution only if it could be certain that the physicians would be on their side, and there is no shortage of circumstantial evidence how persuasive the prosecution could be when it knew what it wanted.

The blood tests which were carried out on January 16 under controlled circumstances were the first occasion for the tribunal to reach a diagnosis of its own. The trouble was that the tests were requested by Milosevic himself, and even if we do not know the exact results for sure (the rifampicin finding came too late to be convincing), we may assume that the results must have proved that Milosevic had not taken any non-prescribed medication, as the rumor would have it. The prosecution did not refer to the tests in its further interim response. It is not clear if the results of the test were known to the prosecution at that point. Instead, the prosecution seemed to relish the obscurity that shrouded the past: “The Accused has, in the past, been known not to avail himself of the treatment prescribed…” (para. 22)

The prosecution seemed to imply that the Russian doctors came up with phony diagnoses to help Milosevic escape. Otherwise, the prosecution’s request to quiz Bockeria on the security systems of his hospital (para. 16) would have been “out all proportion and propriety,” to quote Richard May’s words in footnote 4. The security systems certainly did not have anything to do with the medical care that the hospital was able to provide, even if the medical condition was the issue that the prosecution pretended to be discussing in this passage.

But like it or not, the visiting doctors’ reports were the only diagnoses the tribunal had. Van Dijkman’s and Aarts’s responses to them could not stand as independent diagnoses but only as comments on someone else’s diagnoses. Therefore, the visiting doctors’ medical reports had to be turned against themselves by the prosecution.

Bakoulev

The discussion of Milosevic’s medical condition boiled down to the question of credentials of the Bakoulev Center, where Milosevic wanted to be treated. The tribunal had recently been in contact with two of the doctors working there: Dr Shumilina and Professor Bockeria. Dr Shumilina was known for being one of the three visiting doctors. Since she was the only one of the three visiting doctors that was working at the Bakoulev Center, the prosecution became obsessed with her medical achievements so far.

Instead of getting the credentials, the prosecution examined if the doctors had presented enough credentials for themselves. While examining the credentials, the prosecution turned its Janus face and basilisk’s gaze to the credentials the physicians working at the Bakoulev Center had presented. If they did present credentials, they should not have, because if they did, they were partial. If they did not, they should have, because otherwise the application was incomplete. If the doctors had come up with a diagnosis, then they should not have, because all that diagnosis was good for was to act an excuse for further tests. If the doctors did not come up with a diagnosis, they should have, because otherwise they had no basis for their assumption that further tests were required.

Since the prosecution was so critical of the Bakoulev center, it should have had the burden of proving that Milosevic could not be treated there, at least not for the complaints he had. Instead, the prosecution supposed that Shumilina should have demonstrated that the Bakoulev Center was actually one of its kind in the whole world. It perpetrated a multiple reversal of legal and evidentiary burdens, not that it cared. First, the prosecution assumed the legal burden to argue that the legal burden should actually have rested on the defense in so far as the uniqueness of the Bakoulev Center was concerned. Then it supposed that the defense should also have had the evidentiary burden to show that it really was unique in the world. It was getting difficult to keep track where the prosecution was going with all this.

Dr Shumilina did not state anywhere that Milosevic was only able to undergo the diagnostic treatment, or any other treatment, in the Bakoulev Scientific Centre. She merely said: “Bakoulev Scientific Center is one of the biggest hospitals for cardiovascular interventional and surgical activities." That was a quote from Shumilina’s e-mail message to the Assigned Counsel Gillian Higgins on December 19, 2005. Because she had not said that the Bakoulev was the only option, the prosecution argued that she should have. And if she had, she should not have because her partiality showed that she was wrong and lacked judgment.

Did the prosecution want to play games? Could a patient be admitted for treatment in a hospital only if that hospital was the only one that performed a certain kind of treatment? Shumilina had refrained from saying many things, which is not necessarily to her discredit. The reason the tribunal was picking on her must be that she had said too much in her exchanges with Aarts. In any case, not only did she not say that that Milosevic was able to be treated only at the Bakoulev Center. Actually she did not state in so many words that Milosevic was able to get treatment in Bakoulev at all. That was not a decision, which shows that she did not lack judgment. She just said that the Bakoulev Center was one of the biggest hospitals. So how can we be certain that the Bakoulev Center was able to perform the measures that Shumilina had in mind? Does the prosecution deduct from that statement that Shumilina should have said that the Bakoulev Center was the only proper hospital and prove it too?

The prosecution, i.e. Carla del Ponte, made it impossible for Milosevic to get treated anywhere. Never before had the self-declared reversal the burden of proof served it so well. Instead of proving Shumilina wrong, the prosecution was just throwing stuff at Shumilina and arguing that she should have said this or that, and if she did, she should not have.

Shumilina had done a diagnosis. She called it discreetly a “preliminary conclusion”. The prosecution did not take the hint. She should not have done a diagnosis, but if she did, the conclusion should not have been preliminary but definitive. If one reads attentively para. 14, that is exactly the gist of the prosecution's argument: “Dr. Shumilinar makes recommendations as to diagnostic treatment. She is not able to say with any degree of certainty what treatment may be required following diagnosis. At best, she opines that certain treatment may be necessary. Dr. Shumilina has examined the Accused once…She felt able, after this examination, to recommend … that the Accused ‘should be prescribed a period of rest…'”

The prosecution had to attack her credibility via her diagnosis, because Dr. Shumilina did not state anywhere that Milosevic was only able to undergo the diagnostic treatments recommended, or any other treatment, in the Bakoulev Scientific Center. That would have been an easy target for the prosecution. She merely said: ‘Bakoulev Scientific Center is one of the biggest hospital for cardiovascular interventional and surgical activities.’”

Even if the joint opinion of 4 November 2005 had two other signatories, it is Shumilina that the prosecution was interested in. She worked in the Bakoulev Center, so she was the one to attack. Milosevic wanted to go to the Bakoulev Center, and the prosecution was there to stop him.

Then it was Professor Bockeria’s turn. The only thing the prosecution noticed about Bockeria was that he worked in the Bakoulev Center too. That meant that his opinion did not count. Unlike Shumilina, Bockeria had not examined the patient. The prosecution is quick to point that out: “Dr. Bockeria has not examined the Accused. As such, his letter, insofar as it purports to be a medical opinion on the Accused’s condition, is of minimal, if any, evidential weight” (para. 12). Thank you very much!

To what extent did Bockeria’s letter purport to be a medical opinion? He mentioned two Bakoulev doctors who had examined Milosevic: Elena Golukhova and Margarita Shumilina. Was his own medical opinion required or even possible if he had not even examined the patient, of which he must been aware? The letter mentioned a third doctor, who had examined Milosevic, even if he did not work in the Bakoulev Center: Mijailovic. The existence and even relevance of all these three doctors was later attested in the Parker report of May 2006.

In other words, insofar as Bockeria's letter purported to be a medical opinion, it should not have. Insofar as it really was a medical opinion, it was wrong. If that ambiguity is combined with the prosecution's cherished view that the defense had the burden of proof, the defense could evidently not refute two contradictory statements put forward by the prosecution, without confirming at least one of them.

The prosecution did not address any material points Bockeria might have raised. Instead, the prosecution criticized the “emotive” style of Bockeria’s letter in para. 15. It drew the conclusion that it was “of minimal evidential value for the reasons stated above”. Bockeria had spoken of his “physician’s and human being duty” in his letter dated December 12, 2005. And so on. Who understands the prosecution’s reasoning in regard to Shumilina will understand the prosecution’s reasoning in regard to Bockeria.

If the prosecution had paid any attention to what was said, it might have realized that Bockeria promised (in effect) to conduct a bypass surgery within a few weeks. Normally Milosevic would have had to wait several months, and if the prosecution had had the opportunity to choose a hospital for Milosevic, he would certainly have been on the wait list longer than that. Or maybe the prosecution did pay attention. If Milosevic could get a surgery that fast, he would probably have got it in time. The only delay one would have had to put up with would have been caused by his recuperation which might have taken many more months. Not only would the trial have been put off indefinitely, but maybe Milosevic might even have received some sympathy in the world media as the archetype of a survivor. That was a risk the prosecution was not willing to take. As Carla del Ponte states in so many words in para. 29: “Defiance of the Tribunal may be seen by some in Serbia and in the Russian Federation to be an heroic act. That is the environment in which this specious undertaking is given.”

In actual fact, Bockeria and Shumilina did not single the Center out any more than was natural for anybody who worked there. That should not have been difficult to understand, whereas it is difficult to understand why the prosecution had such a problem with their reasons for choosing Bakoulev Center, unless the prosecution was against Milosevic getting treated anywhere. Does the choice of a hospital where the doctor works make his or her choice suspicious?

The Bakoulev center did not make the request for provisional release, neither did it conclude that Milosevic should be treated there and nowhere else. It was Milosevic who made the request, and it was Milosevic who chose the Bakoulev center as his destination. He said he trusted the persons there (as the assigned counsel pointed out in para. 16 of the motion). As he well might: Dr Golukhova had examined him in 2003 for the first time, and her findings were reviewed in para. 50 of the Parker report. Either the tribunal would respect Milosevic’s wishes or it would not. It was a pointless exercise for the prosecution to go on bickering about what kind of image the persons working at the Bakoulev center had portrayed of their institution, because Milosevic was convinced of their competence. That was what mattered.

If the prosecution had been as interested in the interests of justice as the assigned counsel had been, it should have borne in mind the basic truth that the interests of justice dictated that the accused should stay alive at least till the end of the trial. As the assigned counsel had submitted in para. 18 of the request for provisional release of December 20: "It is in the interests of justice and the smooth running of the trial that the Accused receives appropriate treatment for his current condition without undue delay.” They could have added that it was also in the interests of justice that the Accused stayed alive. It is easy to image how difficult their position would have become after such an insolent remark.

Burden of proof

As amazing as it may seem, we don’t know for certain if the prosecution really cared about the interests of justice and all that. In its first interim response it seemed to have a very ambiguous attitude to them. It said: “Recognition of the Accused’s right to a fair trial, of the presumption of innocence, and of the standard and burden of proof, do not exclude a finding at this stage that the Accused has a settled intention to obstruct this trial and prevent it from being brought to a conclusion” (para. 10 of the interim response of 22 December 2005”). It arrogated the right to arrive at a finding. Not just any finding, but “a finding at this stage,” i.e. two days after the request.

The prosecution played all kinds of supposedly subtle games to reverse the burden of proof. In para. 12, the prosecution stated: "Assigned Counsel submit, in summary, that the Accused reasonably requires treatment in Moscow." If you put it like that, the burden of proof is reversed. The defense would have to prove that it was indeed reasonable. In reality, the assigned counsel were careful not to reverse the burden of proof. Instead of saying that its request was reasonable, it stated that its request was not unreasonable: “It is not unreasonable for Accused to express his wish as to where he should be treated and by whom, given his declared trust in the medical specialists at the Center.” (para. 16 of the motion). That was a subtle difference, but it did affect the burden of proof. In other words, if the prosecution did not think that the request was not unreasonable, it was up to the prosecution to prove that it was. Now it only concluded: “The application is manifestly unreasonable and made on insufficient evidence" (para. 21). It was not enough that the application was "manifestly" unreasonable and made on "insufficient evidence". On the contrary, it was the prosecution’s job to provide the evidence that proved that the application was unreasonable.

In para. 24 of its interim response of 22 December 2005, the prosecution had argued that the burden of proof was on the accused. It had limited the application of that principle to Rule 65, but considering how extensively Rule 65 could be applied, it was evidently going for a definitive reversal of the burden of proof. It had earlier argued that Milosevic intended to keep the trial from coming to a conclusion, and in the prosecution’s view that must have meant that he had no procedural rights. In its further interim response, the prosecution did not seem willing to waste any time discussing at length the burden of proof. Instead, it just assumed that the burden of proof had been reversed. That was very clear in its discussion of the proportionality of relief sought (para. 20 and following).

The reversed burden of proof is mentioned in passing in its discussion of the oral hearing on guarantees in para. 23 and following. It already assumed that the burden had been reversed: “If the Chamber is not satisfied that the Accused has satisfied the burden of proving that the preconditions for release under Rule 65 are met…” (para. 25). Not only was the evidentiary burden reversed. The phrase “preconditions for release” could be extended as far as the prosecution saw fit.
 
The prosecution further argued that the oral hearing should take place only if the Trial Chamber was satisfied that the accused would appear for trial. If the Trial Chamber was not satisfied, then there was no need for an oral hearing (para. 25). If the Trial Chamber was satisfied, the oral hearing was not only possible but necessary (para. 26). Gone was the observation made by the assigned counsel in its motion that guarantees were not required for a grant of provisional release, even if it had been established in the tribunal’s case law (para. 11 of the request).

But was there a need for an oral hearing if the Trial Chamber was already satisfied? If it was to be more than a mere formality, then the oral hearing could only serve the purpose of undermining the satisfaction that the Trial Chamber might have acquired by then. But how could the Trial Chamber say it was satisfied if it knew that the prosecution was waiting for the opportunity to undermine its certainty in the oral hearing? If the oral hearing did not have that sole function, what function did it have, in the prosecution’s view? It made sense that the Trial Chamber could make up its mind only after the oral hearing had been held, which suggested that the oral hearing must take place in all cases and before the Trial Chamber knew if it was satisfied. If the hearing was possible and necessary only in cases where the Trial Chamber was satisfied, the stage was set for the prosecution's winning formula: all it thought it had to do was to raise an objection and expect the defense to prove it wrong.

Political considerations

The prosecution did not overlook any detour that it could find to deny the provisional release. The interim report was a legal disaster and should have been thrown out of court for that reason alone. Luckily, the prosecution was getting so impudent that it forgot to keep its cards close enough to its chest. In its further interim response it produced a rather obscure article from an English website for the Russian daily newspaper Kommersant. The prosecution quoted some passages from it in footnote 19. In annex A the article is reprinted in full, and that is where things get more interesting.

The article stated: “Any and all medical background notwithstanding, this decision is rather political and implies the far-reaching consequences, said sources close to the Kremlin community.” It should be noted that those sources were not referring to any decision that the Kremlin might make because the decision was not theirs to make. Rather, the article started out by saying that "the Hague tribunal is expected to decide on giving the go-ahead” for Milosevic. It was the tribunal’s decision they called political. The same article even made the following bold assertion: “So, the question is not in rendering some medical help to the former president.” (par. 27)

Those who have been arguing for years that the tribunal is a political organ can rest their case. The legal argument had revolved around the reliability of guarantees. The Kommersant article proved that the medical help was not even the issue. It stated, with the tribunal’s endorsement, that the decision on the request for provisional release was "political".

Decision on Request for Provisional Release of 23 February 2006

The Trial Chamber rejected the appeal for two simple reasons:

First, the Trial Chamber accepted the submission by the Prosecution that if the Accused wished to be treated by specialists who were not from the Netherlands, such physicians could come to the Netherlands to treat him (par. 17). That is interesting, in view of Nice’s remarks that the visiting doctors had offered “unsolicited” recommendations and had had the audacity to “second-guess” the court-approved specialists. The foreign doctors would have had no say in the Netherlands. They would also have had to work alongside the Dutch physicians, with which the relationship would have been strained afterwards. Remarkably, the Trial Chamber adopted the Prosecution's submission.

Second, the Trial Chamber was not "satisfied” that it was more likely than not that the Accused, if released, would return for the continuation of his trial” (par. 18). There must have been many reasons for the Trial Chamber to decide why Milosevic would not return. All the reasons could not have to do with his desire to abscond. The Prosecution had submitted that Milosevic might be found unfit to travel back, and that finding could not have been related merely to the possibility of absconding.

The Trial Chamber's remark that Milosevic might face the possibility of life imprisonment sounded malicious in view of the fact that he died in detention three weeks later. What did a life sentence mean anyway? If Milosevic died before the trial was even finished, did that not make the trial a life sentence? After all, the length of the life sentence depended on the length of the time that the person managed to live.

If the presumption of innocence had been more than a PR trick, the tribunal would not have denied medical treatment on the grounds that Milosevic might have faced life imprisonment. How did it know? In its eyes, Milosevic should still have been presumed innocent. Of course, in the prosecution’s eyes, he was not. As the prosecution had already remarked, the presumption of innocence did not exclude the conclusion that Milosevic was scheming his escape.

The Trial Chamber decided that the burden of proof rested on the accused seeking provisional release and the standard of proof was that of the balance of probabilities (para. 10). However, it applied them only to Rule 65(B). In other words, the accused had the burden of proving that it was more probable than not that he would appear for trial and, if released, he would not pose a danger to any victim, witness or any other person. It cited the tribunal's case law in the matter. That did not settle the question if the accused had the burden of proving that he was really in need of the medical attention he was requesting. That conclusion had to be read to Rule 65 and the relevant case law. In para. 11 the Trial Chamber was blind to the particular circumstances of the case, unless they had to do with the fact that Milosevic was charged with serious criminal offences and whether he was likely to face a long prison term. His state of health was not an eligible particular circumstance.

All the talk about balance of probabilities and burden of proof aside, there had to be more to the tribunal’s conclusion on such flimsy grounds. The Trial Chamber came to them. It said in para. 7: "Although certain allegations have been made during this period, the Trial Chamber has made no conclusions that are adverse to the Accused on the basis of the information received.” That is a reference to the allegations that Milosevic had manipulated his own treatment. Even if the Trial Chamber had supposedly made no conclusions from the allegations, it certainly had made a note of the allegations. The question is: where did it draw the line? If the allegations had been unimportant, why mention them in the decision?

Obviously, it did not need that information to make a conclusion that would be adverse to the Accused, because it was doing such a good job without it. Otherwise, it would be hard to believe that the two simple reasons the Trial Chamber cited for rejecting the motion would have been so conclusive. One must not forget that, in the Parker report, the tribunal accepted the allegation that Milosevic had indeed manipulated his health.

Quite remarkably, the Trial Chamber did not consider the guarantees, even if it had found the guarantees important as long as they had not arrived. One possible explanation, if it can be called that, is that the prosecution had indicated in its intention to file on January 19 that it would have no time to evaluate the guarantees in only one day. Another possible explanation was that the assigned counsel had argued in its motion that the guarantees were not a requirement for a grant of provisional release. In the Trial Chamber’s eyes, that must have meant that they had no bearing on the decision on the request for provisional release. It is mystery how the Trial Chamber could have reasoned that the guarantees suddenly lost their importance as soon as they had been obtained, after pointing out how important they were a month before.

There was no need for an oral hearing either. The prosecution had found a grateful audience for its observations about the oral hearing being unnecessary if the Trial Chamber was not satisfied that the guarantees were sufficient. Possibly the Trial Chamber confused the oral hearing (which the prosecution had touched on under the heading “Oral Hearing on Guarantees” in its further interim report) with the evidentiary hearing (which the Assigned Counsel had requested for determining Milosevic's true medical situation). Why else would the Trial Chamber have left both of them unaddressed in its decision?

It is difficult to say what the Trial Chamber meant by the “importance of these guarantees” in its preliminary order of 11 January. It eventually rejected the Request for Provisional Release on the grounds that “notwithstanding the guarantees of the Russian Federation ... the Trial Chamber is not satisfied ... that it is more likely than not that the Accused, if released, would return for the continuation of his trial" (para. 18 of the Decision of 23 February 2006). No reason is given. The Trial Chamber was not “satisfied”. That was all.

Appeal

The Assigned Counsel filed a motion for expedited appeal against the decision on March 2, 2006. That was nine days before Milosevic’s death.

As if the Trial Chamber had forgotten about the fact, the assigned counsel reminded it that it had sought specific alternative relief in the form of an evidentiary hearing due to the conflicting medical diagnosis and consequent issues concerning the most appropriate treatment and its location (para. 22). They continued in footnote 28 that evidentiary hearings had been held in a number of cases at the ICTY in order to determine the precise medical condition of a detainee, for example, in the Prosecutor v. Talic, in which the Trial Chamber held an evidentiary hearing in order to receive testimony from Dr. Falke, who determined that Mr. Talic had a carcinoma and had "several months maximum" to live. The Trial Chamber decided to obtain a second opinion and, through the intervention of the Registrar, appointed two leading experts to examine and report on Mr. Talic's condition. The Trial Chamber proceeded to a second evidentiary hearing in which the two medical experts testified in closed session. Evidentiary hearings in the context of provisional release on medical grounds were been held in The Prosecutor v. Stanisic and The Prosecutor v. Dukic.

In footnote 34, the Assigned Counsel quoted the decision by the European Court of Human Rights in the case Mouisel v. France, Application No. 67263/01 [2002] ECHR 740 (14 November 2002), at para. 45: [T]he Applicant’s illness was progressing and […] the prison was scarcely equipped to deal with it, yet no special measures were taken by the prison authorities. Such measures could have included admitting the applicant to hospital or transferring him to any other institution where he could be monitored and kept under supervision, particularly at night.” The European Court found a violation of Article 3 of the European Convention on Human Rights on the basis that the national authorities did not take sufficient care of the applicant’s health to ensure that he did not suffer treatment contrary to Article 3 of the Convention.

One could almost hear the prosecution licking their lips when they read that. In its judgment in Naletilic, the European Court of Human Rights had decided that human rights violations were none of its business as long as they were allegedly committed by the tribunal. That entailed a number of things, one of which was the inapplicability of the ECHR case law in regard to a prisoner's medical care.

For good measure, the Assigned Counsel quoted the tribunal’s Rules of Detention in footnote 39. The Judges had already shown themselves to be only dimly aware of the Rules of Detention, so the power of the argument is uncertain. That does not mean that the Assigned Counsel did not do a good job. The preamble of the Rules of Detention states: “The primary principles on which these Rules of Detention rest reflect the overriding requirements of humanity, respect for human dignity and the presumption of innocence”.

That may not have been the most convincing argument in the Appeals Chamber's eyes, where the case was now heading, but then the Assigned Counsel arrived at the tribunal’s case law further down in footnote 39. The above-mentioned principles had been recognized in the Prosecutor v. Blaskic, Decision on Motion of the Defence seeking Modification of the Conditions of Detention of General Blaskic of February 9, 2002 and in The Prosecutor v. Brdjanin and Talic, Decision on the Motion for Provisional Release of the Accused Momir Talic, of September 20, 2002.

The assigned counsel also pinpointed the fundamental problem of the proceedings in para. 11: “The party challenging a decision on provisional release bears the burden of showing that the Trial Chamber committed a discernible error.” That is ironic. The party challenging a decision on provisional release bore the burden of proof by the assigned counsel’s admission. Now they found themselves in the unenviable position of having the burden of proving that the Trial Chamber had reversed the burden of proof, which was the second ground in their appeal (para. 26 and following)

Allegations concerning the manipulation of treatment by Milosevic

Carla del Ponte brought up the suspicion that Milosevic had been manipulating his own treatment in para. 22. of her interim report of January 20. The Trial Chamber mentioned in its decision that it did not heed such allegations.

Sure it did. The Parker report on Milosevic’s death made the most of all those allegations to let the tribunal off the hook, and Milosevic's medical file, whose confidentiality has now been lifted, contains Dr Uges’s report of 24 January, 2006, which concluded: “In conclusion, there are very strong indications for no, or a not regularly intake of the prescribed medication." In fact, Uges was only commenting on Dr. Touw's findings and added that his laboratory would have used a more sensitive method like the LC/MS or GC/MS. Which does not mean that it did. His report was enclosed in the Trial Chamber’s Order on Release of Medical Information of 24 January 2006. Even if the Trial Chamber may later have claimed in its decision that it had paid no attention to "allegations," it did not say that it had paid no attention to the reports enclosed in its order.

Dr Uges’ criticism of Dr Touw’s research methods were pointed out by the assigned counsel. The tribunal answered: “…the test undertaken by Dr Touw was requested as an aid to assess if the drugs were in the patient’s system from a therapeutic perspective and was not intended as a forensic analysis for legal examination.” Indeed, Dr Touw thought the examination was done for therapeutic purposes. He did give some recommendations from a therapeutic perspective to correct the low metoprolol levels. His recommendations were not carried out. The brutal truth is that the examination was not a therapeutic examination, even if Dr Touw may have thought so. The tribunal's intention was not to treat Milosevic. The tribunal was conducting a forensic analysis for legal examination to find some incriminating evidence that would undermine Milosevic’s request for provisional release.

The prosecution had also submitted to the Trial Chamber on 1 February 2006: “The Accused has been found with potentially fatal quantities of non-prescribed drugs on two occasions in 2004 (during a search of the private office assigned to him by the UNDU some time in August, and during a routine cell inspection in the week starting 29 November 2004)” (para. 6 of the Submissions Following Trial Chamber’s Order of 26 January 2006). Even if that was undoubtedly an “allegation,” the UNDU memos which they relied on, were not. The prosecution also argued that the recent findings made the guarantees from Russia outdated (para. 10 of the Submissions), and that is the only explanation the Trial Chamber finally dismissed them even without explanation why it did so. The forethoughts expressed by the prosecution as to the guarantees also explain why all the findings started to come together rapidly in early February. Conveniently, the UNDU staff found the Prilazid Plus in Milosevic’s cell on the same day. The Deputy Chief of the Detention Unit Fraser Gilmour understandably lost no time reporting this discovery to Hans Holthuis, who reported it to Robinson the following day. Robinson referred to both reports in the Second Order on Release of Medical Information of 3 February 2006.

The sudden haste seemed suspect, and the Assigned Counsel replied in their Submission on 6 February 2006 and responded to all those allegations one by one. The Assigned Counsel did not draw attention to the fact that Prilazid Plus was an antihypertensive drug. No could it, because the rifampicin findings were done only later. If they had not, the conclusion would have been that Milosevic could not have taken both, because Prilazid Plus is an antihypertensive drug, while rifampicin countervailed the effectiveness of the antihypertensive medication.

From allegations to findings

The allegations had been smoldering for a long time until they finally erupted in January 2006. On October 14, 2004, the chief of the Detention Unit, Tim McFadden, had complained about the privileged facilities that Milosevic had for preparing his defense. The underlying reason was that the privileged status of Milosevic's communication was from 17 September 2003. It was granted because at that time Milosevic was representing himself before the tribunal. Even if Milosevic had continued representing himself ever since, McFadden argued that since the appointment of the Court assigned counsel (Higgins and Kay were still his assigned counsel), Milosevic’s regime of detention should not have been privileged. In particular, that privileged status should not extend to his legal associates. McFadden wrote in para. 6: “It is important to note that instances of actual abuse are difficult to establish due to the ‘privileged setting’ which must be guaranteed”. Was he saying that Milosevic was abusing the privileged setting because the privileged setting made it impossible for the Detention Unit to establish if he had actually been abusing it?

McFadden highlighted various episodes that had caused concern: Milosevic had stopped making personal phone calls, which could only mean that he must have been using the business telephone for private purposes. McFadden also mentioned the ouzo bottle that the Greek President had intended for Milosevic but had declared it at the entrance, where it had been confiscated. McFadden did not mention that the ouzo bottle had been declared. At any rate, he said that he got so suspicious about things that Milosevic's office was searched (in Milosevic’s presence), and it was at that time that large quantities of non-prescribed drugs were also discovered. Never mind that they were not intended to Milosevic (they were in an envelope belonging to one of Milosevic’s legal associates). The tribunal had its trump card. It now “realized” that Milosevic was taking non-prescribed drugs. McFadden explained that the drugs would have been fatal if taken in doses far less than the quantities found (thus assuming that Milosevic had planned to take those drugs, and not only that, but he planned to take them all at once). McFadden finally arrived at the "reasonable implication" that the drugs were deliberately smuggled into the Detention Unit. McFadden also mentioned that the medical reports ordered by the Trial Chamber (August 2004) had indicated that Milosevic was not taking the prescribed blood pressure medication and that traces of non-prescribed drugs were found in blood tests. McFadden then drew the conclusion: "it has become increasingly difficult for the UNDU to ensure the safety and security of Mr. Milosevic or the safety of his visitors.” That was all the tribunal wanted to hear. Whatever would happen to Milosevic, it would be his own fault and the tribunal could take no responsibility.

On 31 August, 2004, McFadden then wrote another internal memorandum which had the appetizing title: “Explanation of Medication Regime and Import Export Procedures at UNDU in connection with Medical Reports Filed in the Milosevic Case”. McFadden stated that the guard administering the medicines could not say for certain that the detainee swallowed the medicine. Later on, when the assigned counsel observed that Milosevic could not have spoken to the officer administering the drug if he had not swallowed it, the deputy registrar John Hocking wrote in his reply of February 14, 2006 that the assigned counsel had speculated on what Milosevic was or was not capable of. Mr Hocking, why perceivest thou not the beam that is in thine own eye? Who was the first to speculate on what Milosevic was or was not capable of, when it was stated the guard could not tell if Milosevic had actually swallowed the medicine? For some reason, the tribunal would not let this issue rest and later went still further and gave examples of ways that would ensure the medicine would not reach the bloodstream, like vomiting, storage of tablet in a cheek or below the tongue "none of which would dramatically impair the detainee's ability to talk to the officer administering the drugs”. Be that as it may, why was it so important to note that the officer could not be sure if Milosevic had swallowed the medicine? After all, he could have swallowed it and vomited it afterwards. This is a classic case of employing ad hoc arguments to prop up an already untenable position.

McFadden recommended that Milosevic should sign a document stating that the staff were not longer in a position to take responsibility for his health condition and that any consequences would be the result of his actions. McFadden also mentioned that it was the standard procedure in custodial institutions. If he had insisted on the analogies between the national custodial institutions and the UN Detention Unit, the Naletilic case of the European Court of Human Rights, which had the practical implication of affording the ICTY and UNDU officials immunity from accusations of human rights violations, would have been seriously undermined. McFadden stopped in time.

McFadden admitted that “it has not arrived at this stage yet but the situation is being monitored very closely and if the suspicion is proved to be reality then he will be asked to sign such a disclaimer.” McFadden was right: it had not arrived at this stage "yet", because it would arrive at that stage very soon. Still, Milosevic insisted he took the medicine according to the prescription and did not sign any paper that would have sealed his fate.

That was in 2004. Registrar Hans Holthuis just happened to unearth the relevant correspondence on December 20, 2005, the same day that the assigned counsel filed the request for provisional release. Holthuis referred to a document that the Deputy Registrar John Hocking had written on October 26, 2004. In it, Hocking had highlighted “a number of events which raise concern that the provisions of this privileged setting to the Accused in the UNDU may be abused." Holthuis then stated as a fact that Milosevic had been taking non-prescribed drugs. He also noted that there had been "previous instances when non-prescribed drugs have been found in the possession of the Accused". By possession, Holthuis meant that things were found in Milosevic's office.

He mentioned the instance in August 2004 (the ouzo and the medication for one of the legal associates) and another one during a routine cell inspection in the week of 29 November to 3 December 2004. Those incidents elicit a déjà-vu experience. The Parker report stated in para. 106 that a bottle of whisky and a medication belonging to one of Milosevic’s legal associates (Misa) was found in Milosevic’s office on July 9, 2004. Only, the approximate date was off by one month. It is also possible that the ouzo and the bottle of whisky got mixed up somewhere along the way as the story was told. The medication that Holthuis said was found “during a routine cell inspection” is reminiscent of para. 82 of the Parker report. It stated that Prilazid Plus was found “during a regular inspection of the cell of Mr Milosevic” on February 1, 2006. Only, the incident that Holthuis had in mind took place in late 2004. We don’t know what medication might have been found in Milosevic’s cell in 2004, but we do know that Supradyn was to be kept in his cell on doctor’s orders at least in early 2005, and Milosevic was to take it once daily.

Even if the “medical officer”, i.e. Falke, had not reacted to the visiting doctors’ reports concerning the deteriorating state of Milosevic’s health a month before, he did provide McFadden with information about Milosevic’s manipulation of his health. McFadden relayed the information to Holthuis. In his report of December 19, 2005, McFadden wrote that the medical officer had intimated to him that the “tests” revealed that Milosevic was not taking his medication as prescribed and that he was also taking some other medication that has not been prescribed by the medical team. It would be interesting to know what tests he was talking about. As we have seen, Falke and Van Dijkman had decided to measure Milosevic’s metoprolol levels after cutting his metoprolol dosage in late November 2005. McFadden did not forget to mention that the situation was life-threatening.

Relevance of the Dutch custodial regime

In para. 7 of his representation of 12 January 2006, Hans Holthuis insisted that “in circumstance where ‘a detainee poses a danger to himself or others’ it is ‘customary’ under 'the Dutch prison system' 'to breach medical confidentiality'”. Holthuis quoted the medical officer Falke's letter to him (of 6 January 2006) in his letter to Judge Robinson of 20 January 2006. Holthuis’s appeal to the Dutch practice was heeded and the medical information was disclosed without Milosevic’s consent on the grounds that he was thought to pose a danger to himself. For that reason alone, the tribunal simply had to assume that he did pose a danger to himself (and fervent attempts were made to prove it later on).

Apart from any suitable provisions in the Rules of Detention, which he later found, Holthuis mentioned explicitly that Falke handed over the medical file to him on the understanding that the patient was a danger to himself and evoked the Dutch provisions (para. 7 of the representation). Falke confirmed that in his letter Patrick Robinson of 20 January 2006.

Since it is now clear that the detention unit applied the Dutch legal regime to the detention unit, it is questionable whether the ECHR could dismiss out of hand a human rights complaint that had to do with alleged violations in the ICTY, as it did in Naletilic. That had the potential of extended far beyond the matter concerning medical confidentiality. Perhaps to aver that danger, Hans Holthuis also evoked the Rules of Detention n his representation of 12 January 2006: In paragraph 7 he mentioned that Rule 34 D (i) of the Rules of Detention provided that the confidentiality could be lifted in order to produce a report to the Trial Chamber, analyzing the data and expressing an expert opinion of its significance. Holthuis quoted other passages from the Rules of Detention as well. All the Trial Chamber now needed to do to circumvent the confidentiality was to request a report: “…I would invite the Trial Chamber to exercise its discretion in accordance with Rule 34 D (ii) of the Rules of Detention” (para. 8 of the representation).

The breach of medical confidentiality was also justified by the phrase “interests of justice and the good administration of the trial” in Rule 34 (D) of the Rules of Detention, which Holthuis had found for the purposes of his representation of 12 January 2006. That phrase appealed to Judge Robinson so much that in his memo to Falke of 18 January 2006 that he did not quote the rule that mentioned that the information was needed in order to produce a report to the Trial Chamber, as Holthuis had suggested. However, the order that ensued on 20 January 2006 was called, true to form, Further Order on Medical Information and Production of a Report.

There is an irony in this. The Trial Chamber had earlier pushed aside the assigned counsel's submission concerning "interests of justice and the good administration of the trial”, in so far as such considerations related to the health of the accused.

Prilazid Plus

The prosecution was dead set on getting its way on this one. Even if it might not have manipulated the evidence, it is remarkable how fast the much-needed findings started to materialize. There were a number of things the prosecution must have been nervous about. Even with the “concerns” voiced by the detention unit, it was still uncertain which medication had been found in Milosevic’s cell in November or December 2004. Even the date was not known. The prosecution may also have wanted to address the allegations that the treatment in the detention unit was inadequate. Falke’s erratic behavior so far and the mystery that still surrounded the low metoprolol readings did nothing to alleviate the prosecution’s fears.

Against that background, the prosecution may have been painfully aware of its own precipitance in its first interim response of December 22, 2006, when it suggested that the presumption of innocence did not exclude the conclusion "at this stage" that Milosevic was doing his best to undermine the trial. Also, Carla del Ponte's interim response of January 20 was nothing short of a character assassination of Shumilina and Bockeria: no matter what they did, it was wrong.

The prosecution was in search of a deus ex machina and, sure enough, it found it. The Prilazid Plus finding on February 1 was so welcome that it mattered little if it made any sense. The prosecution’s appetite was growing, and it was on the lookout for more. Its salvation came in the form of the rifampicin findings that reportedly related to the January 12 blood test. When something seems to be too good to be true, it usually is. While the Prilazid Plus may not have been a set-up, though it probably was, the belated rifampicin findings were simply too good to be true.

The two findings even canceled each other out: If Milosevic was taking the risk of having Prilazid Plus smuggled to him to treat his hypertension, why did he take another risk of smuggling rifampicin to countervail its effectiveness? Why did he take that double risk at a time when he knew the tribunal would be looking for any excuse it could find to undermine his credibility? He already had experienced the detention unit's wrath when the unnamed non-prescribed medications were found during a routine cell inspection in November or December 2004 (though even the date and the medicine found is not known).

Such sloppiness is not typical of Milosevic. Milosevic was well aware of the release of his medical information without his consent. Falke had informed him personally about it on January 27 and 30 and in a letter dated January 31. It is not even certain whether Milosevic had really denied the release of his medical information, as stated in the Parker report: Falke wrote that Milosevic said he understood why Falke did what he did with his medical file, meaning the “breach” of confidentiality.

In his letter of January 31, Falke also explained to Milosevic that he did not want to be drawn into the judicial discussion and he would not let that happen. What exactly did he mean: did he mean that the medical file would not be subjected to judicial discussion? Who was lacking judgment at that point? The only thing Falke was right about was that the medical "allegations" were not mentioned in the Trial Chamber's decision of February 23. The Trial Chamber did not need them to reject the request.

Submissions by the Prosecution and the Assigned Counsel of 6 February 2006

The prosecution started the next flurry of submissions on February 6. It could now state as a fact that Milosevic had taken non-prescribed drugs in an attempt to manipulate his medical condition (para. 7 of the prosecution’s submissions).

In their submissions of 6 February 2006, the assigned counsel raised many more questions. They found some inconsistencies in Falke’s communications with Milosevic. They pinpointed the inconsistencies in the way Falke called the same blood tests “scientifically valid” in one context and “not conclusive” in another. Falke later explained that the methods were scientifically valid but as long as they had not been confirmed by an independent researcher, he did not want to call them conclusive. That did not address the question how “independent” the independent researcher Dr Uges was and whether he really tested the blood at all, no matter how different Dr Uges’ research methods were supposed to be from those of Dr Touw.

Because rifampicin had not yet been found, the assigned counsel discussed diazepam and nordazepam which were found in the blood tests. At that point, those substances were thought to be the confirmation of the theory that Milosevic was taking non-prescribed medication. The assigned counsel pointed out that no report had mentioned the crucial fact that Milosevic was prescribed diazepam on several occasions (para. 26). Falke later conceded that diazepam had been prescribed to Milosevic and it was probably responsible for the presence of nordazepam in his blood (para. 31-32).

As to the mysterious drugs found in the week of 29 November to 3 December 2004, the assigned counsel remarked that Milosevic was not informed in writing of the fact and the result of the search. That constituted a breach of Rule 38 of the Rules of Detention. (para. 35) They also shed light on the origin of the bottle of ouzo. Mr Karolos Papoulias, the President of Greece, had declared it to the prison guards and it was removed. (para. 36) They also can account for the Prilazid Plus. Mr Gilmour did not mention in his report that the medication had expired almost three years ago, in March 2003, and they were the same medicine Milosevic had in his pocket when he came to The Hague (para. 39-40).

After the assigned counsel filed their submissions on February 6, the prosecution proved intolerant of the submissions by the assigned counsel and filed further submissions the following day, on February 7. The prosecution was now bombarding the Trial Chamber with “facts” about non-prescribed drugs, only to take them back three weeks later.

In passing, the prosecution also remembered to question Shumilina’s authority again, because the assigned counsel had mentioned her in their submissions. This time, the prosecution’s criticism was that she did not have access to Milosevic’s all medical information which had become available only recently. The implication was that she did not have any clue what she was talking about.

However, the prosecution was undermining its own authority. If access to all the relevant medical information was the litmus test of a specialist's reliability, it should be borne in mind that the lawyers at the Leiden University Medical Center had advised Dr De Laat not to disclose Milosevic's medical report without Milosevic's consent, as the Registrar informed the Trial Chamber in his submission of 9 March 2006. Unless one standard is applied to the prosecution and another to the defense, that refusal meant that the medical opinions the Trial Chamber had been showered with so far counted for nothing because the medical file in its disposal was incomplete.

Deputy Registrar’s submission of 14 February 2006

The important thing to note about the prosecution’s submissions is that the prosecution did not contest the assigned counsel’s remarks about the Prilazid Plus, nordazepam and the ouzo. Deputy Registrar John Hocking answered at least one of those points in his submission of 14 February 2006.

As to the Prilazid Plus, he said that it was only the label on the bottle that indicated that the medication had expired. He said that the laboratory test results were “awaited,” but it is not clear whether and when those results arrived and what they were. If those tests showed that the Prilazid Plus had expired, we are likely to hear of those results anytime soon. If one were to investigate the matter further, the authorities can always evoke the “privacy considerations,” which was the Dutch Public Prosecutor’s reply when asked about Vascase Plus mentioned in the post mortem report.

Hocking also indulged in lecturing on the distinction between cell inspection and cell searches as if to show that the assigned counsel did not know what they were talking about. The difference was that an authorization from the Commanding Officer was needed for a cell search. That may all be very well, but what exactly was Hocking trying to prove?
 
Hocking admitted that three similar packages of Prilazid Plus were removed from Milosevic's luggage on admission to the Detention Unit, but that did not seem to bother him too much. Hocking then argued that Milosevic would have had the opportunity to hide some medication in his office and cell during the move in December 2005. He explained that while Milosevic's cells were inspected regularly, they were not searched often. Even in the most charitable view, Hocking’s explanations did nothing to clarify the issue.

Assigned Counsel’s submissions of 20 February 2006

In the meantime, Falke stuck to his diazepam tale. He explained that the last recorded intake of diazepam was November 7, 2006 and it would have disappeared from the body before the blood test of November 21. He further defended himself by explaining that he had mentioned the possible kidney problems to Milosevic as an explanation for the low metoprolol levels but left them out of his reports, because, as he said, the kidney disorder in question was very rare.

Falke was on the spot. The assigned counsel pointed out in their submissions of 20 Feburary 2006 that Falke had not disclosed the result of the controlled blood test of January 12. They noted that an internal memorandum had stated in December that Milosevic was not taking his medication as prescribed but was instead taking some other medication. Where was the evidence? Further, they criticized Falke for not disclosing the medical file to Milosevic.

It should also be added that in an attempt to explain the low metoprolol levels, Dr Touw did not rule out kidney problems. In fact, one of his two recommendations was to switch to another beta-blocker, like atenolol, which is “renally cleared,” which takes into account an eventual renal insufficiency. His other recommendation was to administer the beta-blockers intravenously, which would circumvent bad absorption, treatment non-compliance, local interactions and pGp induction in the gastrointestinal tract. None of these recommendations was carried out, which raises some questions about Falke's interest in this patient. The assigned counsel’s observations raise the same questions.

Later, in its submissions of 28 February, 2006, the prosecution conceded that there was no reason to believe that Milosevic had taken diazepam "other than as prescribed," contrary to what Falke had said. The Parker report is not aware of that concession. It mentions that Milosevic took diazepam even if it had not been prescribed. The prosecution had consulted Professor Kingma on the subject. Not only did the prosecution take the view that there was insufficient evidence upon which to make a finding that the Accused had used the drug diazepam other than as described. It also notes Professor Kingma’s opinion that, from a medical point of view, the ingestion of diazepam was unimportant: the drug was relatively harmless, and it was not unusual to use it on demand.

In fact, the prosecution had first sought contact with Herre Kingma as early as 2002 concerning Milosevic’s blood pressure. He was then Inspector General of the Health Inspectorate, cardiologist by profession and a professor of clinical pharmacology. In his response to the prosecution's queries in 2006, Kingma thought Milosevic should have been seen by an internist.

IV. Rifampicin & Conclusion

Maybe the prosecution thought it could let go of the untenable diazepam tale (and Falke, who had become a liability) now that it had something much better: rifampicin. Instead of undermining the theory that the drugs were self-administered, as it should have, switching from diazepam to rifampicin only perpetuated the old story . As soon as rifampicin appeared on the scene, the automatic (though improbable) supposition was that Milosevic had administered it to himself. In the Parker report, the diazepam serves as a confirmation of the theory that Milosevic administered rifampicin to himself.

Rifampicin finding of 23 February 2006

Despite the persistent bickering, the high blood pressure remained inexplicable until rifampicin was found. Dr Touw wrote to Falke on February 23, 2006 that a more detailed examination of the blood tests had reveled rifampicin in the blood. The decision on the request for provisional release was made the same day. And that coincidence is the most eloquent commentary on the finding and its reliability that one can think of. No explanation was given why it took so long to find the rifampicin in the blood samples. The defense had no time to react to the news.

Even if rifampicin may have been welcomed as the solution to the low metoprolol levels and the high blood pressure, Dr Touw only reported that rifampicin had been found in the blood test of January 12. The reason he singled out that sample must have been that Milosevic had requested it to be carried out under controlled circumstances and it still showed too low metoprolol levels. However, Dr Touw had also analyzed the four blood samples of November and December 2005, and he did not indicate that rifampicin was found in them, although the metoprolol levels were too low in them too.

According to Dr Touw’s own documentation in January, Milosevic was tested for metoprolol not only on January 12, 2006 but also on November 21, November 28, December 5 and December 16, 2005. In the first test, on Monday November 21, the metoprolol level was "very low", <0.01 mg/l, which suggested that the medication was not taken in the prescribed dosage. In the second test, on Monday November 28, the metoprolol level was 0.015-0.030 mg/l, which justified the conclusion that metoprolol had been “taken but possibly not entirely according to the prescription”. In the third test, on Monday December 5, the metoprolol level was again <0.01 mg/l, and in the fourth test, on December 16, it was twice as high, <0.020 mg/l. Finally, on January 12, it was back to 0.01 mg/l. According to Dr. Touw, the normal levels with the dosage of 100 mg once a day were 0.19 – 0.037 mg/l (Milosevic’s dosage was twice as high), but as Dr. Touw wrote, those levels were valid for “healthy” subjects. However, the tribunal was mainly interested in Milosevic's ill-health being caused by his poor metoprolol intake instead of the low metoprolol levels being caused by his ill-health.

Dr Touw also explained in January that Milosevic had taken a generic metoprolol product until December 8, 2005, when he was switched to Selokeen ZOK. According to the list of medicines, Selokeen was prescribed at least in 2003, 2004 and early 2005. What was the generic product if there was such a thing?

In terms of therapy, Dr Touw’s recommendations were not followed. He had recommended intra-venous treatment or switching to another metoprolol product like atenolol. Intra-venous treatment would have circumvented bad absorption, treatment non-compliance, local interactions and pGp induction in the gastrointestinal tract. If the tribunal suspected treatment non-compliance (which Dr Touw did not know), why did it not administer the medication intravenously? Dr Touw could not give any reason for the low levels, even if he noted that the dosages were adequate or even high.

Conclusion

The reports filed by Drs. Margarita Shumilina, Vukasin Andric and Florence Leclercq on November 4, 2005 counted 8 pages, including the joint recommendation. In an apparent display of powerlessness, the tribunal was able to multiply the ensuing paper trail to about 300 pages in three months without taking any action in the meantime. Maybe it depends on one’s viewpoint, but part of the reason was that the prosecution was able to produce interim responses and submissions faster than the Hydra could grow heads.

One thing did happen, though. That thing is in stark contrast to the court-appointed physicians’ inability or at least unwillingness to lift a finger to address the issues raised by the visiting physicians on their own initiative. Buried in the middle of the abundance of paper is one likely explanation for Milosevic's low metoprolol levels, which became an issue in 2006.

According to his report of November 18, 2005, Dr Van Dijkman decided to carry out an ischemic test on Milosevic, which meant that Milosevic had to stop taking beta-blockers (including metoprolol). He ostensibly followed Leclercq’s advice, although Leclercq had practically ruled out ischemia. The following week, Dr Van Dijkman reported that Dr Falke and he had decided to measure the metoprolol levels in Milosevic’s blood. Did he not expect the metoprolol levels to turn out abnormally low if Milosevic stopped taking metoprolol?

Falke then informed the chief of the detention unit McFadden of the low metoprolol levels in December 2005. McFadden told the Registrar Holthuis, and Holthuis told everybody else. The low readings could not be explained, but Falke came up with the old tale of non-prescribed medicines and non-compliance in December. He also trumpeted non-prescribed diazepam intake as an explanation, although the prosecution found that to be untenable in its submissions of 28 February 2005.

Rifampicin was found in the January 12 blood tests. Dr Touw reported the finding on February 23, the same day that the Trial Chamber took its decision on the request for provisional release. Rather disconcertingly, Dr Touw's finding was only concerned with the January 12 blood test, though he had analyzed the four earlier blood samples as well. What could account for the low metoprolol readings in them? Diazepam ceased to be a serious contender after the prosecution's dismissal of it on 28 February after it had consulted Professor Kingma.

Falke's handling of the case was highly selective. Dr Donald Touw, who carried out the crucial blood test of January 12, 2006, had some recommendations which could correct the low level of metoprolol: intravenous treatment or a switch to another beta-blokcer, like atenolol. Were those recommendations followed? If not, isn't a case of medical malpractice? If these recommendations were not followed, what was Falke’s excuse for not doing so? Was his job to treat the detainees or to trap them into disqualifying them from getting the treatment? In his generally favorable comments in 2006, Professor Kingma also pointed out that Milosevic should have been examined by an internist.

The tribunal will never admit explicitly it contributed to Milosevic’s death in any way, but as long as it remains silent on the fundamental question whether it had the duty to keep him alive in the first place, it is tempting to suppose that it did. The impunity which it supposes surrounds a detainee’s death is astonishing. The hardest measure the tribunal has in stock for cases like that is a report, like the Parker report, to the President of the tribunal, which was not a measure with teeth.

Dr Falke evoked the Dutch legal regime for breaking the medical confidentiality, and that might be the best, if not the only, working solution, though not necessarily the most favorable to Dr Falke. Even if the matter should probably be handled according to the Dutch law in its entirety, it is unlikely that anything will happen anytime soon.

Trusting the investigation of the case to the tribunal is not going to lead anywhere. The detention unit staff were only too eager to pretend that Milosevic was undermining his own treatment even before they had any evidence. The conclusion it was only too hasty to draw was that the tribunal could not be responsible for what would happen to him. The tribunal could add (as the Parker report in effect did) that since death is an inevitable part of our existence, the tribunal could not be expected to make every effort to alter the unalterable course of events that makes our life what it is. It might even have quoted some old expression like “Am I my brother’s keeper?” without fully realizing how apt its quip would have been.

The prosecution pretended the question had nothing to do with medical care but with the proper running of the trial, as the material submitted by it suggested. The only conclusion the prosecution could draw from that premise was that Milosevic's intention was to disrupt the trial. The trial could hardly take any more disrupting after the prosecution got its way. The prosecution produced more or less contrived arguments based on the reversal of the burden of proof, which supposed that the prosecution could come up with any allegation it could think of and once it did, it was the defendant’s task to prove it wrong. The prosecution could play that game indefinitely. It also warned in its first interim response of 22 December 2005 that it would appeal the matter if its wishes were not respected and requested "that any order for provisional release be stayed pending appeal”. In short, the prosecution indicated it was in it for the long haul. It started out by questioning Milosevic’s motives for selecting the Bakulev Center in Moscow, and expected Milosevic to prove that it was the only place where he could be treated for his ailments. As the stream of the prosecution’s (and others') submissions grew, it was easy to forget that the Bakoulev Center was the only place where Milosevic could have expected to be treated expeditiously enough not to disrupt the trial.

The prosecution acted as if it did not to know the meaning of the word “lenient,” which can be found in the tribunal's case law. It even criticized the “emotive” style of Bockeria’s letter in para. 15 of its interim response of 20 January 2006. Bockeria had spoken of his “physician’s and human being duty” in his letter dated December 12, 2005. Now, that was emotive. If speaking of professional and human duty (like the Hippocratic oath) was emotive and the prosecution was not emotive, what became of the professionalism and humanitarianism of the prosecution? Interestingly, the Hippocratic oath played an important part in the cross-examination of Vukasin Andric by Nice but as soon as it was time to protect Milosevic, the tribunal proved less fastidious and more “objective”.

Thanks to its (partly feigned) indifference, the prosecution was able to sweep a lot of dirt under the rug. It even submitted that there was insufficient evidence that Milosevic's present treatment was anything other than appropriate (para. 21 of the further interim report of 20 January 2006). The Trial Chamber may have suppressed a smile when it read the passage and tried not to think of Falke's sluggishness in addressing the visiting doctors' reports. The prosecution itself distanced itself from Falke’s explanations a few days after the Trial Chamber's decision on the assigned counsel's request.

Luckily, the Dutch legal regime and law enforcement are not the only safety net. The ICTY Statute has something in store as well. Should the tribunal be so indifferent to the prohibition of "willfully causing great suffering or serious injury to body or health”? The tribunal may question if there are such norms, and if there are, if they should be applied to the tribunal. It may not have thought about it before, but the norms are so close to it that it may not see the forest for the trees. The norms in question are Geneva Convention 1 art. 50, Geneva Convention 2 art. 51, Geneva Convention 3 art. 130 and Geneva Convention 4 article 147. The violations of those provisions are called “grave breaches” of the Geneva Conventions. In fact, the ICTY should know them very well. The ICTY statute mentions them explicitly. According to the Statute, the ICTY has the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Convention, including “willfully causing great suffering or serious injury to body or health” (Art. 2(c) of the ICTY Statute).

From that perspective, the question whether the treatment or the lack thereof resulted in Milosevic's death is not the primary consideration. Injury does not have to result in someone’s death to be “serious”. The question is whether the injury was caused willfully or not, and it is hard to believe that the treating physicians’ indifference to the visiting doctors’ and Dr Touw’s recommendations could have been due to mere oversight. The policy of providing medical care to Milosevic as if the detention unit were running a popularity contest is a clear case of willful neglect.

It is true that the grave breaches refer to the treatment of prisoners of war, but it is safe to say that the minimum requirements for the treatment of prisoners of war should be observed in peacetime in the UN Detention Unit. That analogy is not based on black-letter law. It has more to do with things like moral leadership, though the tribunal seems to have relinquished that calling very soon after its establishment so that nothing remains of it today.

It is also true that the tribunal only has jurisdiction in regard to crimes committed in the territory of the former Yugoslavia, but is it unreasonable to assume that the ICTY should apply the same norms to itself as it applies to others? It is all very well to speak about territorial and other forms of jurisdiction, but does that mean that the tribunal does not have jurisdiction over itself? If it does not, why should it be in a position to exercise jurisdiction over anything else? That question should be answered only “at the end of a thorough and scrupulously objective assessment of the issues on the basis of the opinions of experts who are not involved in the trial”. If the tribunal is put on trial, those experts should not be associated with the tribunal.