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The tweet The plight of defendants is their latest production.
What was unusual about the way the ICTY treated defendants?
Almost everything. Many were indicted before any evidence has been gathered against them. They were then held in custody, sometimes for years, before they were brought to trial. Hague prosecutors invariably sought to extract ‘confessions’ and co-operation by putting defendants under extreme duress in plea-bargaining processes. Defendants were always aware that their defence teams did not receive anything like equal treatment to the prosecution and were prevented in many ways from doing their job properly.
Is that all?
No. There were other outrageous injustices. Slobodan Milosevic was illegally kidnapped from his home by NATO forces and forcibly taken to The Hague. This was – and is – entirely indefensible. Despite a dangerous heart condition, he was in the care of a doctor and nurse with no advanced heart-care qualifications and did not work weekends. Two weeks before he died of heart failure on a Sunday, his request to be allowed to go to Russia for specialist treatment (with his return guaranteed by the Russian government) was summarily rejected.
How about fairness in the court proceedings?
What fairness? Most of the judges did all they could to prevent an effective defence being mounted. Tough questions were regularly ruled inadmissible – the US secret service plant, William Walker, masquerading as a UN Peace Monitor in Kosovo, was protected from answering many key questions about his role in proclaiming there had been a massacre at Racak. In other cases, defence counsel were left in no doubt that they could face severe penalties if they did their work too conscientiously.
How were conditions in the prison where the defendants were held?
Repressive. Prominent defendants, who had not been found guilty of anything, were denied most of the rights accorded to those held on remand in proper legal jurisdictions. Strict controls were placed on those they could see and talk to as they worked with their defence teams to prepare their defence case. Visits from family and friends were tightly controlled. Even within the prison, some were kept in effective solitary confinement to prevent them communicating with the outside world.
What other pressures were put on them?
The Hague Tribunal defied best legal practice by admitting hours of uncorroborated hearsay evidence – more than 90% in the Milosevic trial. The defence had little basis to challenge what was said because it did not know the identity of witnesses and had few resources to investigate their testimony. Cross-examination was also strictly controlled.
What can we conclude from all this?
That the UN’s founding nations were absolutely right – the UN could not be trusted with power to establish a criminal court. They did not foresee a time when the UN Security Council would force such a court to be created illegally. It is time for the UN to be reminded of its responsibilities and admit its terrible mistake in creating the monstrous Hague Tribunal.