Orie Silences an Irrational Mladic at the ICTY

Ratko Mladic at the ICTY

Ratko Mladic at the ICTY

On July 4, Judge Alphons Orie had former Bosnian Serb General Ratko Mladic removed from the courtroom of the International Tribunal for the former Yugoslavia (ICTY) for disrupting the proceedings and communicating with the audience. Despite the fact that the vast majority of the coverage surrounding the hearing focused on the alleged mockery Mladic made of the proceedings, Judge Orie handled the situation perfectly, maintaining the dignity of the tribunal and silencing Mladic with admirable rapidity.

Mladic appeared before the Tribunal because of alleged actions taken in a number of cities in Bosnia-Herzegovina between May 12 and December 31, 1992 that amounted to genocide — a crime punishable by Section 4(3)(1) of the ICTY Statute. He was charged with a separate count of genocide for his alleged role in the infamous massacre at Srebrenica, where 8,000 Bosniak men and boys were murdered. In addition to the two genocide counts against him, Mladic was charged with the persecution of political racial, and religious groups, extermination, murder, deportation, forceable transfer, terrorism, unlawful attacks on civilians, and taking of hostages. These counts, eleven in total, represent violations of the ICTY Statute, crimes against humanity, and violations of the laws of war. Mladic was charged in his personal and superior capacity on all counts.

It is clear that Mladic was highly disruptive at the hearing. Judge Orie began the hearing by admonishing Mladic for his non-verbal communication with members of the audience at his initial appearance a month before. No less than five minutes after the admonition, Mladic could be seen gesturing to the audience, at one point giving the the crowd a smiling thumbs up. Throughout the first part of the hearing, Mladic interrupted Judge Orie several times. Judge Orie warned Mr. Mladic that if Mladic continued his disruptive course, he would be removed from the chambers. As Judge Orie started reading the first genocide count, Mladic interrupted boisterously and was promptly removed from the tribunal.

While there is no question that Mladic was in fact disruptive, an interesting question arises as to the explanation for Mladic’s behavior. Essentially, there are only two possible theories: either Mladic did not understand the nature of the proceedings, or his outrage was simply false. In the end, the legal reality surrounding Mladic’s initial appearance strongly suggests that the latter explanation is the more accurate one.

Mladic’s hearing on July 4 was an “Initial Appearance” under Rule 62 of the ICTY’s Rules of Procedure Evidence (RPE). As such, the sole purpose of this hearing was the formal reading of the charges against the accused and an initial, though non-binding, entry of the accused’s plea. If the accused pleads not guilty, the Registrar sets a date for the trial, and if the accused pleads guilty, the Registrar sets a date for the pre-sentencing hearing. It bears repeating that this initial plea is non-binding and that pleas have been changed before at the ICTY.

Here, Mladic’s principle (and only) complaint against the Tribunal was that his chosen counsel, Milos Saljic of Belgrade and Alexander Mezyaev of Russia, was not present in the chambers. This is an extraneous, if not erroneous, complaint because it is difficult to imagine a scenario in which Mladic would plead guilty to any of the charges levied against him. Moreover, Mladic had already spent considerable time with Saljic, he does not know Mezyaev personally, and he spoke of his desire to “draft a legal strategy,” which seems to imply a not guilty plea. Thus, it appears that cynical legal strategy led to his behavior before the tribunal.

There are two clear tactical advantages to Mladic’s behavior — one failed entirely and the other fell short, both thanks to Judge Orie’s prompt ejection of Mladic. The first strategy is a simple delay tactic. Mladic would be happy to have his proceeding last until the day of his death, and his attorney’s request for an additional month long extension before a plea is entered was a clear manifestation of Mladic’s desire for delay. We can expect more delay tactics of this sort as the proceeding moves forward. In denying Mladic’s request for delay, establishing that Mladic did not wish to enter a plea, and ejecting Mladic for his behavior, Judge Orie ensured that, at least for the time being, Mladic’s case will move forward as planned.

The second tactical decision at play is Mladic’s desire to delegitimize the tribunal before which he sits. This tactic is nothing new, and accused war criminals frequently resort to delegitimization attempts out of a lack of other options. In this instance, Mladic’s attempts were largely unavailing. In fact, apart from a statement that the ICTY is “not a real court,” Mladic was unable to insert any disparaging remarks into the proceedings.

Judge Orie is to be commended for his handling of the situation, which led not only to a speedy administration of justice but also upheld the dignity and decorum of the tribunal in the face of a subject whose lack of self-awareness made him uncooperative to the point of apparent immaturity. The media coverage of the hearing focused on the ejection itself, due in large part towards its “bias in favor of conflict and sensationalism“. In reality, the conflict was dampened at every turn by Judge Orie’s handling of the matter.

6 Responses to “Orie Silences an Irrational Mladic at the ICTY”

  1. Nancy says:

    Thanks for the information and pointing out what Mladic’s tactics are and how the Judge is controlling the situation.

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  2. kshorb says:

    Can’t wait to read more about the trial.

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  3. I have to agree with you on most components of what you reported but ultimately we are going to disagree. I’ll come again later on and see what you say.

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  4. Jon Bellish says:

    Jill- I deleted your posts simply becasue they were too long, not becsaue of their contents. If you believe that the ICTY is unfit to try Mr. Mladic, your views are more than welcome here. However, I would ask that you keep your comments to a readable length. When a comment is 10 times longer than the post itself, it cannot add to the conversation. I hope that you will summarize your thoughts in a way that is useful to other readers and make those thoughts known on the site.

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  5. David Akerson says:

    Good post Jon.
    Mladić is using the tactics previously employed by other pro se accused at the international tribunals, most notably Slobodan Milošević and Vojislav Šešelj — both notoriously ill-behaved.
    One issue here is that high-ranking political and military figures tend to suffer from meglomania and they refuse to recognize the authority over them of mere judges. A second issue is that the tribunal is also a final grand stage they do not want to give over to a lawyer.
    Another issue is the accused’s recognition of their guilt and likely conviction, and hence they feel they have nothing to lose in being obstructionist during the trial.
    It is an unresolved issue at the tribunals, whether to let accused represent themselves when it is clear they will not respect the authority of the judges or the decorum of the proceedings. To date, the tribunals have given in to the obstreperous accused because it is viewed as more important to have the accused sitting in the courtroom, rather than having the bad optics of proceeding without them. I would argue that the courts should have the courage to proceed without the accused or remove them from the courtroom episodically as needed.

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University of Denver Sturm College of Law

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