George Szamuely: The Strange Death of Slobodan Milošević and Its Cover-Up by the ICTY

More than 15 years have elapsed since the death of Slobodan Milošević, former president of Serbia and, subsequently, of Yugoslavia, in The Hague. Western mainstream media reacted to the news with gleeful rejoicing, albeit tempered with furious annoyance that they had been denied the delightful spectacle they had been eagerly waiting for: the U.N.-established ad hoc International Criminal Tribunal for the Former Yugoslavia handing down multiple genocide convictions on a political leader whom they had reviled for the better part of two decades.

Yet no sooner had the ICTY announced his sudden death than a number of troubling stories began to emerge about Milošević’s last days in the ICTY’s prison.  The ICTY responded to these stories with its usual campaign of prevarication and obfuscation. As for the media, they had little interest in investigating the strange death in ICTY custody of a man whom leading NATO countries had targeted for assassination and whom they had sought to arrest and remove from Yugoslavia since the conclusion of their frustrating and largely unsuccessful 11-week bombing campaign in 1999. To the media, any coverage of the ICTY that was less than wholly adulatory was an act of lèse majesté.

From start to finish, the ICTY controlled the investigation of Milošević’s death, not to mention the flow of information to the outside world. As always, the ICTY, though supposedly under the authority of the U.N. Security Council, was accountable to no one but itself. It was inevitable therefore that the ICTY’s public relations blitz would eventually prevail, and that we would never find out what really happened to the ICTY’s most famous prisoner. To this day, Milošević’s sudden death remains shrouded in mystery.

Slobodan Milošević died on the morning of March 11, 2006, at the Scheveningen detention center—the ICTY’s own private prison—a few weeks before the expected conclusion of his trial. The cause of death appeared to be a heart attack. The ICTY responded initially by suggesting that Milošević may have taken his own life. However, by the time the ICTY published the results of its internal inquiry more than two months later, it had given up on the suicide theory. Instead, while it accepted myocardial infarction (medical term for heart attack) as the cause of death, the ICTY nonetheless insisted on blaming Milošević himself for his own death. In order to do so, it went from one convoluted theory to another, presenting almost no credible evidence in support of any of them. The ICTY’s report was of a piece with much of the rest of its work during its 25-year existence: long on rhetoric and conjecture, short on evidence, free and easy with smears and unrestrained in unsubstantiated accusations.

ICTY’S FIRST RESPONSE

Slobodan Milošević’s death was not unexpected. He had suffered from a heart condition and high blood pressure for some time, and had been ill ever since NATO forces—in defiance of an order from the Yugoslav Constitutional Court—had abducted him and flown him to The Hague in June 2001. Since the fall of 2005, his health had visibly deteriorated. In November 2005, three medical specialists—one French, one Russian, one Serbian—examined him and warned that his condition was serious, that he had to rest for at least six weeks and that he needed to undergo tests. On Dec. 12, 2005, Milošević’s “assigned counsel”—attorneys that the ICTY had imposed on Milošević, but who worked independently of him—formally requested the ICTY trial chamber to release him provisionally so that he could receive treatment for his heart condition at the Moscow-based Bakulev Center for Cardiovascular Surgery. The treatment would take place during the upcoming Christmas recess. In addition, the Russian government sought to allay ICTY concerns by providing written guarantees that, following the prescribed course of treatment at the Bakulev center, Milošević would be returned to The Hague.

The ICTY prosecutors protested this request vehemently, filing innumerable motions in opposition, leveling all manner of accusations against Milošević and at the medical specialists who were recommending alternative, non-ICTY-sanctioned treatment. Though there had been considerable urgency to Milošević’s request given his obviously failing health, the tribunal judges, inexplicably, made no decision for more than two months. Finally, to no one’s surprise, on Feb. 23, 2006, the ICTY denied the request.

Most shocking of all, in its denial of the assigned counsel’s request, the ICTY peremptorily dismissed the Russian government’s proffered guarantees. The ICTY judges essentially declared Russian promises to be worthless:

The Chamber notes that the Accused is currently in the latter stages of a very lengthy trial, in which he is charged with many serious crimes, and at the end of which, if convicted, he may face the possibility of life imprisonment. In these circumstances, and notwithstanding the guarantees of the Russian Federation and the personal undertaking of the Accused, the Trial Chamber is not satisfied that…the Accused, if released, would return for the continuation of his trial.[1]

The ICTY’s arrogance was breathtaking but entirely in keeping with its usual practice. The United Nations Security Council had created the ICTY in 1993, acting under Chapter VII of the U.N. Charter. Without the backing of the Russian Federation, a permanent member of the Security Council, there would have been no ICTY. The ICTY was—nominally at least—answerable to the U.N. Security Council. However, the U.N. Security Council had, from the beginning, made little effort to oversee the work of the ICTY—neither its dubious jurisprudence nor its treatment of detainees. Consequently, it should have come as no surprise that the tribunal felt it could treat one of the Security Council’s permanent members with open disdain.

 

On March 12, the day after Milošević’s death, the ICTY announced that preliminary autopsy results indicated that the cause of death was “myocardial infarction.” “Further,” the ICTY press release went on, “the pathologists identified two heart conditions that Slobodan Milošević suffered from, which they said would explain the myocardial infarction.”[2] The ICTY also promised a toxicological examination.

 

On March 17, the Dutch public prosecutor’s office released a statement, confirming that Milošević had “apparently died from a heart infarction.” Furthermore, the statement went on, the toxicological examination gave no indications of poisoning; instead, “a number of medicines prescribed for Mr. Milošević were found in the body material, but not in toxic concentration.”[3] The statement also disclosed that

 

A request was received on Sunday, March 12 from the side of Milošević’s family to allow a Russian physician to be present during the autopsy. In view of the time passed from the moment of the decease, however, this turned out not to be possible anymore. Russian pathologists have been given the opportunity at a later time (March 14) to view the photographs of the autopsy and to study the preliminary autopsy report. Neither the Russian and Serbian pathologists nor the family have commented on the results of the autopsy.

 

Milošević was by no means the first prisoner of the ICTY to die in its prison. His death came on the heels of the death, apparently by suicide, of former Croatian Serb leader Milan Babić. In fact, defendants have died at Scheveningen at a fairly brisk pace. In addition to Babić and Milošević, Djordje Djukić, Slavko Dokmanović, Milan Kovačević and Slobodan Praljak have died in ICTY custody with legal proceedings against them still pending.

 

The ICTY responded to Milošević’s death the same way it had to the deaths of the other inmates. Whenever the ICTY’s media-tailored reputation for fairness and humaneness threatened to unravel, anonymous sources from within the bowels of the tribunal would put out one story after another, leaking highly selective tidbits from various “internal” documents to cast the tribunal in the best possible light and the recently deceased in the worst possible light. Thus, within hours of Milošević’s death, the ICTY was suggesting, via the usual embedded journalists, that it was the former Yugoslav leader, and he alone, who was responsible for his own death. Even as the ICTY was promising a full—internal, naturally—inquiry into the circumstances of Milošević’s death, it was anticipating the outcome of such an inquiry by telling the world that the ICTY had done nothing for which it could be blamed; that, to the contrary, it had provided first-rate, world-class medical care; and that it had behaved with impeccable professionalism and bend-over-backward generosity.

 

“The tribunal has nothing to be blamed for,” ICTY spokesman Christian Chartier was reported as saying on March 11. “The International Criminal Tribunal for the former Yugoslavia takes the utmost care of its indictees and of [Milošević] in particular.”[4] In an interview with the Italian newspaper La Reppublica, Carla del Ponte, the ICTY’s chief prosecutor declared, “Conditions of detention in Scheveningen prison are absolutely the best that anyone could possibly imagine. No-one has ever complained. On the contrary, the detainees themselves recognize the enormous amount of positive attention lavished on them.”[5]

No one has ever complained? Well, Milošević complained, though it didn’t do him much good, since his complaints were routinely ignored. Serb nationalist leader Vojislav Seselj also complained. He complained that he had had to wait three months for routine intestinal surgery; it didn’t do Seselj much good either. “Is this how General Djordje Djukić, Dr. Milan Kovačević, General Momir Talić and Slavko Dokmanović were killed?” Seselj asked.[6] “They all died because they did not receive medical assistance on time.”

Others also complained. Following the death of Milan Kovačević, his lawyer, Dušan Vučićević, accused the ICTY of negligence, claiming that his client had “bled to death because of errors by the prison staff.” He said that prison staff had initially ignored Kovačević’s cries of pain. Then, according to a New York Times report,

 

When the prison doctor arrived an hour later, the lawyer contends, the doctor misdiagnosed Dr. Kovačević’s crisis as a kidney problem and gave him a painkiller instead of rushing him to the nearby hospital. The lawyer said the autopsy had shown that Dr. Kovačević had not died of a heart attack but of a ruptured major blood vessel in his abdomen, which could have been repaired surgically…. In February, the hospital had found that Dr. Kovačević had an aneurysm, or widening, of a major blood vessel in the abdomen. “That aneurysm was never treated,” the lawyer said. “It was like a time bomb ticking in his body. We repeatedly asked for treatment.”[7]

 

It was not surprising, therefore, that, in the aftermath of Milošević’s death, ICTY officials could feel confident that any story they came up with, no matter how little sense it made, would encounter little challenge.

 

Sure enough, on March 17, Judge Fausto Pocar, the tribunal’s president, announced,

 

I have full confidence in the professionalism of the Detention Unit’s Commanding Officer and his staff. This has been confirmed by thorough and frequent inspections of the U.N. Detention Unit by highly respected independent bodies. They have consistently reported that conditions in the Detention Unit are of the very highest standard.

 

Pocar also declared, “I met this week with a team of Russian pathologists who reviewed the autopsy report and informed me that in their view the procedure was conducted at the highest level and they were in full agreement with the results. I am informed that the Serbian pathologists hold the same view.”

 

This was strange, for, as we have seen, according to the Dutch public prosecutor’s office, “Neither the Russian and Serbian pathologists nor the family have commented on the results of the autopsy.” Moreover, in a subsequent letter to Pocar, Marko Milošević, the former president’s son, disclosed, “Should I mention the fact that the autopsy was conducted without the presence of the independent expert team sent by our family, even though we insisted on it? Or that the Russian doctors were denied the access to the body and the tissue samples? Or that we have been denied his blood samples?”[8]

 

ICTY self-congratulations in the days following Milošević’s death were naturally echoed in media that had for years served as its public-relations agency. Typically effusive was the BBC’s Chris Stephen who declared Scheveningen to be “world’s most luxurious prison, more a hotel than a jailhouse….A doctor is on permanent standby, along with a nurse and a psychologist, and several Dutch hospitals—among the world’s most advanced—are within minutes of the prison gates.”[9] (Stephen cited no sources for these extravagant claims.) Stephen, though ostensibly reporting for the BBC, was in reality an ICTY lobbyist of long standing posing as a “journalist.” He wrote for the Observer about the Balkans while employed by the Institute for War & Peace Reporting, a body closely tied to the ICTY, funded by many of the same sources and staffed by many of the same people. Stephen could barely contain himself as he continued with his rhapsodies. “Officials say many prisoners leave the jail healthier than when they arrived…. [M]eals are carefully balanced and exercise is encouraged.” There is a “Comfort Room” which—nudge, nudge, wink, wink—”contains a bed and is reserved for conjugal visits, though whether Mr Milošević ever made use of it, during the visits of his wife Mira Markovic, is a closely guarded secret.” That “officials” may have self-interested reasons to lie obviously never occurred to this “journalist.”

 

“There is a reason for all this comfort,” Stephen’s ode to Scheveningen continued. “[W]hen the prison was designed, the court’s first president, Antonio Cassese, was determined to press home the idea that inmates are innocent until proven guilty. Once an inmate is found guilty, he is sent to another prison in a volunteering U.N. nation. No decision had been taken on where to send Mr Milošević.”

 

“Where to send Mr. Milošević”!  Like most “reporters” covering the ICTY, Stephen had made its ethos his own. Sentence first, verdict afterwards, to quote the Queen of Hearts in Alice’s Adventures in Wonderland. Neither Stephen nor his editors at the BBC saw any contradiction between his initial “innocent until proven guilty” claim and his later reference to “where to send” Milošević after his inevitable conviction. 

 

Stephen also slipped the odd falsehood or two into his report for good measure. “Suicide has been a problem at the jail,” he said. What’s the reason for that? “There are no cameras inside the cells, as it is a remand centre.” No cameras inside the cells? That’s odd. Rule 39 of the ICTY’s Rules of Detention explicitly states:

 

In order to protect the health or the safety of the detainee, the Registrar…may order that the cell of the detainee be monitored by video surveillance equipment for a period not exceeding thirty days. Renewals which shall not exceed a period of thirty days shall be reported to the President.

 

Moreover, it had been widely reported in the media that Milošević was kept under 24-hour video surveillance when he arrived at The Hague and for some time afterward. In fact, it’s not known when, if at all, this surveillance ended.

Stephen’s assertions were, not surprisingly, quickly shown to be absurd. Following Milošević’s death, the ICTY invited the Swedish government to send a team of penologists to carry out an audit of Scheveningen. Inadequate and superficial though the Swedes’ audit was (their visit lasted only three days, and much of their brief report was taken up by mind-numbingly tedious descriptions of the detention unit bureaucracy), they nonetheless didn’t come away quite as thrilled by the prison as the BBC’s man. The Swedes described the “Comfort Room” as “shabby and downright unpleasant.”[10] They also made a point of mentioning the poor quality of the food and the insufficient time prisoners were permitted to spend in the fresh air.

According to the Swedish group’s calculations, something like two-thirds of the people detained at Scheveningen have not been convicted of anything. “At the time of our visit,” they revealed, “half the inmates had been in custody for at least three years. The detainee of longest standing had been there for 8½ years.” This, incidentally, was the finding of a group that was favorably disposed toward the ICTY. In sending the penologists to The Hague, the Swedish government openly demonstrated which side it was on by declaring, “Sweden has attached great importance to the ICTY and its struggle against impunity for those people who committed crimes in the former Yugoslavia.”

 

ICTY IN A DILEMMA

Milošević’s death had put the ICTY in a bind. Milošević was its most famous prisoner. He had been head of state—first of Serbia, then of the Federal Republic of Yugoslavia—for 13 years. He was, in the ICTY’s telling, the architect of all the evils that had befallen Yugoslavia. And now he was dead. If the ICTY were now to argue that Milošević had been seriously ill for some time and that his death was not unexpected, then it would have to explain why it had continued his exhausting trial for four years; why it had allowed the prosecution to mount a vast, unwieldy, incomprehensible—even, as it turned out, to the Milošević judges—case spanning more than 10 years of Yugoslav history and three wars; and, above all, why it had refused to permit Milošević to receive the recommended medical treatment.

If, on the other hand, the ICTY were to argue that Milošević wasn’t really that ill and that its doctors had certified him to be in pretty good shape, then it would have to explain his sudden death.

If the ICTY were to claim that Milošević had committed suicide, then it would have to come up with some proof: a suicide note perhaps or testimony from friends or fellow-detainees suggesting that Milošević was discussing or contemplating suicide. Nothing like that was available. No suicide note. And people who had spoken to Milošević during his last days described him as optimistic and in fighting spirit.

Yet, within hours of his death, Carla del Ponte was indeed floating the possibility of suicide. In that same La Reppublica, interview, she said,

He [Milošević] may well have thrown down the final gauntlet in our faces…. The trial was drawing to a close. He had only 40 hours’ worth of courtroom time in which to finish questioning his witnesses for the defence. Then it would have been the prosecution’s turn once again and I would have delivered my final speech. The trial would have been over before the summer. According to our assessment, it would have ended with a sentence of life imprisonment. Perhaps he wanted to avoid all of that.[11]

However, the Dutch forensic report, which said that no toxins had been found in Milošević’s body, pretty much closed off the suicide option. Any suggestion that Milošević may have taken a poison that left no traces would have redounded against the ICTY. It was the ICTY that controlled and monitored Milošević’s medication intake; it would have been far better placed than he to find and administer a toxin that left no traces.

The possibility that Milošević may have been murdered was dismissed with the superficially plausible argument that the ICTY and the NATO countries wanted to see Milošević convicted, not dead. Why would they have gone to the trouble of putting him on trial if it wasn’t to convict him and thereby to provide a post facto justification for NATO’s decade-long destruction of, and war against, Yugoslavia? Indeed, following his death, NATO government officials wailed interminably to the effect that, by dying before the judges could bring in their guilty verdict, the ceaselessly-reviled “Butcher of the Balkans” had escaped justice.

This argument however overlooked an important point. Milošević’s trial had not gone well for the prosecutors. They had presented a weak case, and his conviction would have convinced only those who were already convinced of his guilt. Critics of the ICTY would have had a field-day picking apart and ridiculing the trial judgment and, subsequently, the appellate court judgment. The cause of Milošević had already attracted the support of a number of high-profile lawyers, journalists, intellectuals and activists. Milošević’s living in a prison cell in NATOland, would have been a rallying point for NATO’s critics.

ICTY’S PROBLEMS BEGIN TO MOUNT

The ICTY faced a number of near-insurmountable problems in the aftermath of the Yugoslav president’s death. First, there was the Nov. 4, 2005, report from the specialists, expressing serious concern about the medical treatment Milošević had been receiving at the ICTY. Milošević’s deteriorating health had been apparent to anyone but the willfully obtuse. On top of his high blood pressure, he had complained of hearing problems and buzzing in his head. A couple of times, he had even left the courtroom complaining of ill health and—extremely unusually for him—had allowed the trial to continue in his absence. The specialists’ joint opinion was:

 

[T]he state of health of the patient is not stable and that complications are possible. Such a state of health requires further tests with the aim of identifying the origin or origins of the current difficulties. It is therefore necessary to propose to the patient a period of rest, i.e. the suspension of all physical and psychological activities for a period of a minimum of 6 weeks which would probably help diminish the symptoms or at least to stabilize them and then approve additional indispensable diagnostic procedures in order to prescribe a more appropriate therapy.

One of the specialists, Margaret Shumilina of the Bakulev Center, said that Milošević may be showing “initial signs of more serious cerebral circulatory disorders.” Another, Vukasin Andrić, an ear, nose and throat specialist from Serbia, wrote that Milošević’s hearing was rapidly deteriorating, probably caused by his heart condition. The ICTY’s response to the specialists’ recommendations was outright hostility, bordering on fury. “Are you deaf?” presiding Judge Patrick Robinson infamously barked on Nov. 15, 2005, seeking to silence Milošević after he had alerted the trial chamber to the independent physicians’ report. It was a particularly spiteful comment, given that Milošević’s most recent complaints had involved his deteriorating hearing, which may well have been caused by his cardiac condition. Judge Iain Bonomy wrote on Nov. 15 that the medical opinion of Andrić, the ear, nose and throat specialist from Serbia, was of no value because he had been a defense witness. It was inappropriate, Bonomy piously declared,

for the Trial Chamber to be asked to take into account the views of Professor [Vukasin] Andric. 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. The Trial Chamber should not be placed in the position where it may have to assess the reliability of a witness in a context unrelated to his evidence in the case prior to having to evaluate that evidence. Issues relating to the management of the trial process should be dealt with through the assistance of experts who are not involved as witnesses of fact in the case.

 

Bonomy went on, “Whenever issues of health or 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.” This verbiage failed to explain why either Andrić’s testimony as a fact witness, or his diagnosis as a treating specialist, was compromised.

Bonomy’s concern about a possible conflict of interest was extraordinary in light of the ICTY’s usual blasé attitude toward members of the prosecution staff testifying as prosecution witnesses, indeed even as expert witnesses. To mention one example of many, in June 2002, prosecution witness Frederick Abrahams of Human Rights Watch frankly admitted that he had “conducted research and provided analysis for the Kosovo indictment against Slobodan Milošević.” Judge Richard May dismissed any suggestion that there might be a conflict of interest: The “fact that he worked on this particular indictment does not make his evidence inadmissible.”[12] A political activist such as Abrahams was clearly far more trustworthy than a professional physician offering a professional diagnosis. Wisely, Bonomy, though happy to cast aspersions on Andrić, evinced little interest in cross-examining him.

Moreover, Bonomy’s punctiliousness and demand for scrupulous objectivity when it came to medical diagnoses stood in stark contrast to his and his fellow-judges’ rush in September 2004 to impose counsel on Milošević, who had hitherto represented himself. The ICTY justified its imposition of counsel on the ground that Milošević was allegedly too sick to act on his own behalf. It based its decision on the medical diagnosis of its own handpicked specialist, Dr. Rene Tavernier. According to Tavernier, Milošević was “not fit to represent himself”[13] but not too sick to stand trial. Tavernier revealed his good faith with his observation, “If Mr Milošević would continue to represent himself this will delay the progress of the trial significantly.” One would have thought a medical doctor’s chief concern is the wellbeing of his patient, not with the “progress” of some trial in which he was not involved. But then everyone associated with the ICTY has always been determined to push the ICTY agenda.

When Milošević sought a second opinion to challenge that of Tavernier, ICTY prosecutors protested that there was no need for any further examinations because Milošević had left his challenge to Tavernier too late. The judges agreed, refused to permit a second opinion and swiftly imposed an attorney on Milošević. It was hard to understand how Milošević’s challenge could have been too late since the court had only just decided to impose an attorney. Moreover, the ICTY had been unable to cite any precedent of a court’s denying a defendant the right to self-representation on grounds of ill health. And the ICTY based its decision on the opinion of one doctor, someone who hadn’t even been Milošević’s treating physician.

However, let’s return to the independent specialists’ report. The ICTY trial chamber’s first response to the report was to turn to the detention unit doctors to ask for their appraisal. Needless to say, they dismissed any criticism of their treatment. On Nov. 14, the detention unit’s resident doctor, Paulus Falke, wrote to Hans Holthuis, the ICTY registrar, citing N.J.M. Aarts, the Dutch ear, nose and throat specialist who had been treating Milošević for two months. Aarts, according to Falke, had said that Milošević’s hearing loss was “commensurate with someone of his age.” “Contrary to the joint conclusion of the Visiting Doctors,” Falke went on, “the treating specialist concludes that that it is unlikely that the vascular abnormalities have a direct relationship with the symptoms complained of. The treating specialist states that a period of rest will have no positive effect upon his symptoms.”

 

On Dec. 6, Aarts added, “The atherosclerosis is normal in view of the patient’s age….The MRI shows an image of both cerebral hemispheres which is normal for his age. There is no pathological atrophy.”

 

Milošević’s treating cardiologist at the ICTY, Paul van Dijkman, wrote to Falke on Nov. 23, saying

 

The patient has no cardiac complaints whatsoever, in particular no chest pains or shortness of breath.….In general, the blood pressure is acceptable, and even the strain in the ECG is somewhat less pronounced. Clearly, the trial sessions are so stressful that the blood pressure increases, together with the heart rate….In view of the current work schedule, it is understandable that the patient feels fatigued. He has three court sessions per week, and spends the rest of the time preparing for them, including interviewing witnesses. There is not much time for rest. It is predictable that the blood pressure will increase again during stressful trial sessions. As in the past, I strongly advise provision for sufficient rest. On the other hand, it seems to me that a six week rest period is somewhat too much.

 

The six-week rest that the specialists recommended, van Dijkman wrote further on Dec. 1, was an “arbitrarily chosen period, for which in my view, no firm reasons were given.” So there was no need for undue concern. Whatever Miloševic was suffering from, it was all perfectly normal for a man of his age. Maybe he was overworking.

 

Van Dijkman’s comment was baffling. Why did he consider six weeks be too long? How much would have been enough? His comment hardly suggested overwhelming concern for the health of his patient. Van Dijkman’s generally optimistic diagnosis, at least as far as Milošević’s cardiac condition was concerned, was noteworthy in that a little more than a year earlier, he had happily endorsed Tavernier’s assessment that Milošević “was not fit enough to defend himself”[14]! Now Milošević was apparently in such fine fettle that even six weeks’ rest was more than he needed. “Soon the Christmas recess will start,” said Van Dijkman. “Mr. Milošević will be able to get some rest also in this period, which comes very close to the period of rest of six weeks as recommended by the three physicians.”

 

Well, not exactly. The specialists had recommended a total rest of six weeks, not six weeks of trial preparation.

 

The ICTY of course refused to follow the outside specialists’ recommendations either on sanctioning further tests or on permitting a period of rest. But now, in March 2006, Milošević was dead and, despite the standard encomia to the tribunal offered by the likes of the BBC’s Chris Smith, some mainstream media were starting to raise questions. They didn’t care very much about Milošević, but the trial’s unsatisfactory conclusion was leading to growing grumbling. Stories about the specialists’ recommendations and the ICTY’s dismissive attitude toward them had begun to circulate. Referring to Dr. Leo Bokeria, head of the Bakulev Center in Moscow, where Milošević had sought treatment, the New York Times wrote:

 

Bokeria, a Russian heart specialist, who flew to The Hague to review the autopsy records…suggested that Mr. Milošević had died from undetected blockages in his coronary arteries. ‘Two stents’ could have saved his life and given him ‘many long years,’ he said, according to the Itar-Tass news agency, referring to tubes placed in arteries to reopen blockages.[15]

 

An AFP report had Bokeria claiming that “appropriate tests ‘would have shown the levels of narrowing of the vessels….The problem could have been resolved in dozens of countries in the world, and if Milošević had received help he would still be alive.’ ”[16] Also, Florence Leclercq, the third of the three specialists who had examined Milošević, was quoted as saying, “His medical condition was not good, so we asked for additional tests to evaluate his cardiac situation. But these investigations were never performed, and now that’s a problem.”[17] Apparently, “Prison officials assured her that some cardiac tests, like an ultrasound, had been done and were ‘normal,’ but they could not show her the actual test results, leaving her to conclude that more was needed.”[18]

Then there was Dr. Patrick Barriot, a “French doctor who frequently visited Mr. Milošević,” who said that Milošević “suffered symptoms of increasingly severe high blood pressure in the six months before his death, including headaches, visual changes and a constant thrumming noise in his ear…. ‘Each time I saw him, he was clearly deteriorating, more and more tired.’ ” Andrić was quoted as saying, “What was shocking was that in four years lots of tests and exams on his heart had never been done.”

That outside specialists were openly telling the media that they did not think the ICTY had provided adequate medical care to Milošević was embarrassing enough. Even more awkward to explain away was the ICTY’s refusal, barely more than two weeks before his death, to permit Milošević to receive treatment in Moscow for his heart condition. On Dec. 12, 2005, Milošević had asked the court to allow him to go to the Bakulev Center. “It would not affect your programme in any way,” Milošević explained, “because I would be back here again before this is resumed in accordance with your programme, so I’m asking you to make this possible for me for health reasons. I don’t see any hindrance in the way of this because it really would not disturb your programme in any way.”[19]

That same day, Bokeria wrote a letter to Judge Fausto Pocar, the ICTY president, in which he declared that Milošević “is in a critical condition” and urged immediate treatment at the Bakulev center:

I consider that it is my physician and human being duty to insist on immediate interruption lawsuit for the ministration to Slobodan Miloshevich high quality diagnostic and long time, not less than 1.5-2 months aethiopathogenic curative treatment in a specialized cardiovascular profile hospital. [I am ready] to do everything maximally possible for preventing him from cardiovascular catastrophe.

On Dec. 20, 2005, Milošević’s “assigned counsel” made an application to the court for Milošević’s provisional release to enable him to get treatment in Moscow. They pointed out that “the Accused’s current condition was neither originally discovered, nor treated appropriately, by the Registry-approved doctors and consultants.” The specialists who examined Milošević in November had “determined that the Accused’s treatment was inadequate.” Moreover, the ICTY’s prison doctor Falke’s Nov. 11, 2005, response to the specialists’ report “neither addressed nor diagnosed the problems complained of by the Accused, noted by the team of visiting specialists.”

The assigned counsel made two requests: First, they asked for Milošević’s temporary release in order to get treatment in Moscow. Second,

in the event that the trial chamber is not satisfied as to the current 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.

Clearly, the assigned counsel were anticipating both the prosecutors’ likely fierce attack and the judges’ probable rejection of their request. To ensure that the ICTY didn’t get off the hook, the assigned counsel, in effect, challenged the judges either to show that Milošević wasn’t really ill or to come up with an alternative treatment program. Thus, their warning: Accept or reject the specialists’ diagnoses and criticisms, but don’t ignore them! Needless to say, neither the trial chamber’s Feb. 23, 2006, rejection of the request nor the ICTY’s final report on Milošević’s death addressed, or even acknowledged, the existence of the assigned counsel’s second request. The judges held no hearings with the specialists.

On Dec. 22, 2005, Geoffrey Nice, chief prosecutor during the Milošević trial, responded to the assigned counsel’s request by declaring, as he had done many times before, that Milošević wasn’t really ill—he was merely reacting to the accumulation of damaging evidence against him. “On 4 November 2005, the Accused was examined by a group of specialists instructed by him, who made unsolicited recommendations as to the future conduct of the trial,” Nice wrote. The word “instructed” suggested the specialists were taking instructions from Milošević and clearly impugned their integrity. As for “unsolicited” recommendations, well, Milošević had solicited them, as he was entitled to do in accordance with the ICTY’s own rules of detention. Rule 31 says, “Detainees may consult a doctor or dentist of their choice at their own expense…. The Commanding Officer shall not refuse a request for such consultations without reasonable grounds.”

It was all part of Milošević’s strategy, Nice explained, “aimed at preventing the trial from being brought to a timely conclusion.” Therefore, “control of these proceedings needs to be taken on the basis that this underlying strategy may or does lie behind every application of a procedural nature.” The court should, first, “find out what the true medical position is….There has been no definitive findings as to the Accused’s true medical condition, what treatment he requires and what the outcome of any treatment may be.” Second, the court “should proceed on the basis that this trial must go ahead as scheduled…with or without the Accused present in court.” Without the Accused present in court? When you are serving humanity, protecting human rights is the least of your concerns.

Amusingly, Nice berated Milošević for relying “upon his own medical experts, who have second-guessed the court’s appointed specialists and provided reports of their own.” Nice made this complaint in the same motion in which he demanded “full access” to Milošević’s medical records as well as “facilities to allow examination of the Accused by the Prosecution’s own medical experts.” Nice justified this request by saying that Milošević had “attempted to take this matter out of the Chamber’s hands. His medical condition is now being presented as an adversarial issue.” But it was Nice himself who had made Milošević’s health as an “adversarial issue.” It was Nice who had alleged that Milošević was faking ill health in order to derail the trial. Already back in Sept. 30, 2003, Nice had demanded access to Milošević’s medical reports. Back then, the presiding judge, Richard May, had rejected his request, saying, “We cannot have a party second guessing the Court’s doctors. It’s quite out of—quite out of all proportion and propriety.”

In his new motion, Nice made the pitch that eventually was to form the basis of the court’s rejection of the release request. “There is no evidence to support a finding that the Accused requires medical treatment that cannot be provided in The Hague. 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.” Nice cited no medical or scientific opinion to support this claim. And, he continued,

 

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….The Accused has done all he can to thwart the proper functioning of this trial. He does not recognize or respect this court in any legal or substantive way. He has repeatedly refused to recognize the legitimacy of this Tribunal….The Accused’s attitude has stretched, not infrequently, to offensiveness to officials in the courtroom, well evinced by his referring to the Trial Chamber as part of a joint criminal enterprise.

 

Now, Milošević, unlike Nice or the judges, had been nothing if not polite to his courtroom adversaries. What Nice referred to as offensiveness was clearly a matter of serious difference of opinion on international law and was a key part of Milošević’s defense: that his trial by a NATO-financed, NATO-staffed and NATO-run court served to provide a post facto justification for NATO’s unprovoked aggression against Yugoslavia.

 

Then Nice declared, “No application for provisional release should even be entertained by the Trial Chamber unless the Accused first provides a personal guarantee recognizing the legality and legitimacy of the Tribunal, agreeing to submit to its jurisdiction, and undertaking to return. No such personal guarantee from this Accused could now ever be credible.” This was mind-boggling. Milošević had to renounce his beliefs, and essentially the basis of his defense, in order for the ICTY to permit him to receive medical treatment. However, even that would be no good because nothing Milošević said could possibly be believed.

 

A personal guarantee from Milošević wouldn’t be worth the paper it was written on. And a guarantee from Russia wouldn’t be worth much more:

 

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.

 

It was clear that the prosecution would oppose Milošević’s application for provisional release, no matter what medical diagnosis was proffered or what guarantees issued. Significantly, despite Nice and del Ponte’s demands for more and more documentation about Milošević’s condition, they had singularly failed to challenge the diagnoses either of the independent specialists or of the Russian doctors. This didn’t stop del Ponte on Jan. 20, 2006, from asserting that the Russian Bokeria had failed to show that Miloševic could only “undergo the diagnostic treatments recommended, or any other treatment, in the Bakoulev Scientific Centre.” And, in any case, even if he did, he had failed to show that the center was “in a position to provide any security to the Accused to prevent his absconding.” Moreover, while the Russian Federation may have guaranteed that it would “provide security for Mr. Slobodan Milošević” at the Bakoulev center, it had not offered “any guarantees as to what security may be provided at the centre.”

 

Much as Nice had done, del Ponte disputed that any deterioration in Milošević’s condition had taken place. Del Ponte said that the application for provisional release failed to offer any evidence “to support a conclusive finding as to: 1) What alternative treatment may be required, if any, for the cardiovascular or any other condition. 2) Any link between the Accused’s hearing disorder and cardiovascular condition. 3) Any deterioration in the Accused’s cardiovascular condition.”

 

Finally, she declared,

 

the relief sought (release to a medical centre in Moscow) is manifestly disproportionate to its target (an amelioration in the Accused’s medical condition). There is no evidence to support a finding that treatment in Moscow as opposed to The Hague is necessary. There is no evidence to support a finding that the recommended diagnostic treatment, at the very least, may not be provided in The Hague, and that diagnoses may not be made, by the Accused’s own medical experts if necessary, with the Accused in detention in The Hague….There is…insufficient evidence to support a conclusion that the Accused’s present treatment is anything other than appropriate.

 

Del Ponte concluded by asserting, “the guarantees provided by the Russian Federation 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.” As for Milošević’s signed guarantee that he would return, it was not credible since Milošević “does not recognize the legitimacy of this Tribunal. 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”

 

On Feb. 1, 2006, the prosecutors upped the ante, and revived a charge they had made before, though without having provided much in the way of evidence, namely, that Milošević was self-medicating. He was doing so, moreover, with the supposed connivance of the medical experts who had examined him on Nov. 4. The experts may have “advised the Accused on how to defeat his medical regime, or alternatively that they have all been misled by him.” Prosecutor Nice suggested that the Russian Federation be told of Milošević’s manipulation of his health, because it

 

may lead the Federation to review and revoke its guarantees….How could any state offer guarantees about its ability to care for, or supervise the custody of a man against whom there is evidence of a determination to act contrary to medical advice?….The Russian Federation would…be horrified at the prospect of having the Accused in its custody and for him so to abuse his medical regime as to lose his life whilst in their custody, or to render himself so ill as to make return to The Hague impossible.

 

Rather menacingly, Nice asserted that “the Accused’s willful manipulation of his health provides further grounds for refusing the application for provisional release in that the Chamber will not be in a position to monitor what is now a stated and obvious risk: that the Accused may take his own life.” So there we have it: Nice was warning, a little more than a month before Milošević’s death, that he may commit suicide.

 

ICTY REJECTS PRESCRIBED COURSE OF TREATMENT

 

The ICTY’s Feb. 23, 2006, rejection of the assigned counsel’s provisional release request was no surprise. What was a surprise was the feebleness of the ICTY’s reasoning. As was often the case at the ICTY, the judges’ arguments amounted to little more than a regurgitation of the prosecutors’ arguments. Why it had taken the judges more than two months to reach their decision remained inexplicable.

 

The ICTY’s reasoning was as follows: First, Milošević had failed to show that he couldn’t receive in Holland the treatment that he would receive in Russia. According to the court,

 

Assigned Counsel have made no real attempt to demonstrate that the Accused’s medical needs cannot be met in the Netherlands. The Chamber considers that an application for provisional release on medical grounds cannot be granted unless such a showing is made. In this regard, the Trial Chamber accepts the submission of the Prosecution, that if the Accused wishes to be treated by specialists who are not from the Netherlands, such physicians may come here to treat him.[20]

 

Second, the ICTY couldn’t accept either Milošević’s written undertaking to return to The Hague after treatment or the Russian government’s commitment to deliver him there. Menacingly, not to say sadistically, the judges wrote:

 

The Chamber notes that the Accused is currently in the latter stages of a very lengthy trial, in which he is charged with many serious crimes, and at the end of which, if convicted, he may face the possibility of life imprisonment. In these circumstances, and notwithstanding the guarantees of the Russian Federation and the personal undertaking of the Accused, the Trial Chamber is not satisfied that…the Accused, if released, would return for the continuation of his trial.[21]  

 

Both of the grounds proffered were legally outrageous. How does one prove that one can’t receive medical treatment in one place as good as the one somewhere else? As is its wont, the ICTY had shifted the burden of proof onto Milošević.  It was a burden inherently impossible to meet. How can one prove there isn’t a hospital or a clinic somewhere in Holland that could treat Milošević? It was surely up to the prosecutors to show that Milošević could—and, more important, would—receive treatment in The Hague as good and as timely as the one on offer in Moscow. It was up to the prosecutors and the court to demonstrate that the Bakulev Center specialists would be able to travel to Holland, spend an extensive period of time there, take time away from their other patients, bring the requisite supporting staff with them, have all the necessary medical equipment at their disposal, have the resources to pay for all of this and count on the full cooperation of Dutch hospitals and doctors.

 

Moreover, if the ICTY judges had really wanted to know what kind of treatment the Moscow doctors proposed, and whether it would be available in The Hague, they could at any time have asked the doctors to come to The Hague and testify about this. Or they could have asked for written submissions. Then the judges could have asked the ICTY doctors or other Dutch medical experts to respond. Instead, the court dawdled for two months, doing very little other than entertaining various dark prosecutorial claims that Milošević was undermining his health and requesting to see more and more of Milošević’s medical records. 

 

As for the ICTY’s second reason for rejecting Milošević’s request, its outrageous and entirely inappropriate reference to Milošević’s facing the “possibility of life imprisonment,” it was no reason at all, merely typical ICTY arrogant bluster. The ICTY never felt it had any obligations toward anyone, not even the obligation of courtesy. The ICTY was openly calling the government of the Russian Federation untrustworthy. It had forgotten that, without the support of Russia, a permanent member of the U.N. Security Council, there would have been no ICTY. In addition, the ICTY was being profoundly dishonest. It had insisted on written pledges from Milošević and the Russian government that he would return to The Hague after treatment. Then, when the written pledges duly arrived, the judges announced that they didn’t believe them. It was hard to avoid the conclusion that, in requesting these written commitments, the ICTY was simply cynically running out the clock.

 

The same trial chamber that, 18 months earlier, had invoked Milošević’s poor health to justify its decision to take away his right to represent himself just as he was about to begin presenting his defense, now made light of his health condition to justify its decision to deny him the medical treatment he sought.

 

The ICTY’s decision, though cruel and cynical, was not without lawyerly cunning. The court could have ruled that it suspected that Milošević was a hypochondriac and that he was using his health in order to evade justice. However, such a claim should not have been too hard to prove. The judges could have rounded up a few medical specialists, ordered a fresh examination and asked them point-blank: Was Milošević a malingerer? Armed with the doctors’ determination, the court would then have been able to speed up the trial or, once again, to impose an attorney. But this option was fraught with so much risk that it was a non-starter. After all, the ICTY’s own doctors had diagnosed Milošević to be very sick. It was the ICTY’s doctors who, a little more than a year earlier, had advised that Milošević was too sick to conduct his own defense. If the ICTY were now to empanel another set of doctors, there was a real possibility that they might come back and say, yes, Milošević needs intensive treatment and a long rest. The doctors might even recommend that the trial be postponed indefinitely.

 

The alternative was also perilous. The judges could have granted Milošević’s request to go to the Bakulev clinic in Moscow. The ICTY didn’t seriously believe that the Russian government would renege on its commitments to return Milošević to The Hague. The ICTY was concerned about something else. Delaying the trial and thus delaying the much-anticipated guilty verdict risked provoking a massive outpouring of indignation in the media and from well-connected NATO political figures that the Milošević trial was taking too long and that the former president was receiving too many favors from a U.N. court. The ICTY had already become visibly uncomfortable in the face of growing criticism that the Milošević case appeared to be dragging on forever.

 

For some time now, the Milošević trial judges had been itching to move things along and to bring in their verdict. On Nov. 22, 2005, just one week after Milošević alerted the judges to the independent physicians’ report about his deteriorating health, the judges suggested that the Kosovo indictment be severed from the other indictments and that that part of the trial be concluded right away. A speedy (guilty) verdict on the Kosovo charges could then have been brought in to give the ICTY, NATO and, above all, the governments of the United States and the United Kingdom—then embroiled in the growing carnage in Iraq—a much-needed boost. However, both Milošević and the prosecution (for very different reasons) protested vigorously and, on Dec. 12, the judges were forced to abandon the idea.

 

Facing unappealing choices, the Milošević judges decided to do nothing, and dressed this up in a lot of lawyerly obfuscation. They neither claimed that Milošević was a faker, nor ordered a new medical examination, nor permitted him to be treated by the Russian specialists nor asserted, as Carla del Ponte claimed they did, that “everything that Milošević needed was being offered to him in the prison in The Hague.” Instead, they asked Milošević to try to prove the unprovable—namely, that he couldn’t get the treatment he needed in the Netherlands, as if he had ever been offered such treatment. By doing so, the court shifted responsibility for his worsening condition, not to mention possible death, onto its prisoner.

 

THE STRANGE RIFAMPICIN TALE

 

Worse was yet to come for the ICTY. Within days of his death, it emerged that Milošević had written a letter to the Russian foreign ministry, voicing his suspicion that the ICTY was poisoning him. In the letter dated March 8 (three days before his death), Milošević disclosed that a day earlier he had been notified

 

that on January 12th (i.e. two months ago), an extremely strong drug was found in my blood, which is used, as they themselves say, for the treatment of tuberculosis and leprosy, although I never used any kind of antibiotic during this 5 years that I’m in their prison. Throughout this whole period, neither have I had any kind of infectious illness (apart from flu). Also the fact that doctors needed 2 months (to report to me) can’t have any other explanation than we are facing manipulation. In any case, those who foist on me a drug against leprosy surely can’t treat my illness; likewise those from which I defended my country in times of war and who have an interest to silence me.

 

Subsequent news reports identified the “extremely strong drug” to which Milošević had referred as Rifampicin. Milošević’s letter raised two very tricky issues for the ICTY. Why was there Rifampicin in his blood? And—even more mysterious—if the tests were conducted on Jan. 12, why was Milošević not apprised of the Rifampicin discovery until March 7? Why had the ICTY allowed two months to elapse before disclosing its finding?

 

(Incidentally, this was not the first time that the ICTY had been accused of tampering with Milošević’s medication and endangering his health. In November 2002, a Reuters report revealed, “Wrong medicines given to Slobodan Milošević in prison sent his blood pressure shooting up earlier this month, forcing a halt to his trial, a Dutch newspaper reported yesterday. The paper quoted sources in the U.N. war crimes tribunal as saying administering the wrong medication caused blood pressure problems.”[22])

Now, the ICTY needed to go into serious damage control. It went into action and did what it does best: it threw out baseless accusations against others. Relying on its usual cast of media mouthpieces, the ICTY turned the tables on the dead Milošević. It was not the ICTY that had administered the Rifampicin to Milošević; rather, it was Milošević who had done so. And it was the ICTY that had found out about his medication abuse and it was the ICTY that had blown the whistle on him.

“Did Milošević take illicit drug in high-risk plot to beat justice?” asked the headline of a story in the Times (London). The ICTY, the story opened breathlessly, has “begun an urgent investigation into how Slobodan Milošević had access to unprescribed drugs inside his prison cell before he died at the weekend.” Quoting an ICTY “source,” the Times went on, “It is thought to have been an escape plan, the idea being that he went off for treatment to Russia, but was then too ill to be returned to the trial.”[23] The story then referred to one Donald Uges, described as a professor of clinical and forensic toxicology at the University of Groningen. The strange Donald Uges was to feature prominently in the coming days during the bizarre Rifampicin saga. 

 

Uges had a theory he was eager to share with the media. According to the Times, Uges thought that Milošević

 

had taken the drugs to improve his case for getting medical treatment in Russia, where his wife, son and brother live: “I don’t think he took his medicines for suicide, only for his trip to Moscow…I think that was his last possibility to escape The Hague. I am sure there is no murder.”…The Hague court became suspicious that Mr Milošević was secretly taking unprescribed drugs after his official medicine failed to work. On January 12 doctors suggested the most likely reason was that he was secretly taking unofficial drugs for a second time. In 2003 he was found to have been taking drugs supplied by his Belgrade doctor rather than those prescribed by the prison doctor, and since then had to take medication under supervision.

 

So Milošević was taking medicine on a regular basis that he wasn’t supposed to be taking. And, according to Uges, Milošević did this in order to book his passage to Moscow. It was not explained how Uges—a forensic toxicologist, not a doctor, a psychologist, a psychiatrist or a police investigator—could rule out suicide or murder. How could Uges, who had never even met Milošević, know what was going in the former Yugoslav president’s mind? The Times also quoted the ubiquitous Richard Dicker, director of the International Justice Program at Human Rights Watch, who, just like Uges, inexplicably seemed to be in no doubt that Milošević was helping himself to non-prescribed medication: “What measures were in place to ensure unprescribed medicines were not passed to him?” he demanded to know. “If the tribunal knew about it and was negligent, then that is bad.”

 

The facts, as recited by Uges, were almost entirely incorrect. It was Milošević himself who had volunteered to undergo the Jan. 12 blood tests under controlled conditions. There was no finding that he was taking drugs supplied by his Belgrade doctor in 2003. Milošević was taking medication under ICTY supervision because all ICTY detainees took medication under supervision. Uges’s wild inaccuracies didn’t stop him from giving innumerable interviews and, more important, from later offering expert advice to the ICTY’s “internal” investigation into Milošević’s death.

 

The Associated Press was also happy to serve as an ICTY intermediary: “Slobodan Milošević had regular access to unprescribed drugs and alcohol smuggled into his prison cell, yet the U.N. war crimes tribunal failed to take immediate action despite warnings.”[24] According to AP, Milošević

 

self-medicated in order to slow the pace of his war crimes trial by taking advantage of his heart condition….The officials told the AP that two doctors had concluded the former Serb leader intentionally was taking drugs that undermined medication prescribed for his heart ailments…. [Milošević] was allowed to work in a private office where he could meet with witnesses and legal advisers unsupervised, making it impossible to monitor material they may have smuggled in to him, one of the officials told the AP.

 

Another AP story asserted, “[P]rison authorities repeatedly found banned material in his cell, including alcohol and unprescribed drugs.”

 

The AP story was a little different from the one in the Times. First, alcohol had suddenly made an appearance. Second, Milošević was now alleged to be taking the non-prescribed medication so as to undermine his prescribed medication and thus slow the pace of the trial. Third, a new theme had emerged: If the ICTY was guilty of anything, it was of excessive laxity and tolerance.

 

Agence France-Presse came up with another variation on the story. “The office of the prosecutor,” the AFP story declared,

 

recalled that in 2003 during the prosecution presentation of the trial, it had “proved” that he was not taking his prescription medicine and took other non-prescription drugs as well. Milošević seemed to suffer a rise in blood pressure requiring rest days when ever a star prosecution witness testified. The trial was interrupted over a dozen times during the prosecution case because Milošević fell ill. “The overall and unanimous opinion of the experts is that the accused is not fit to conduct the trial himself, that he is not taking the drugs in the manner prescribed” prosecutor Geoffrey Nice said in September 2003. Last December the prosecution told the judges that Milošević’s request to be sent to Moscow should be denied because “the medical condition is and has been to an extent a fraud.” [25]

 

According to AFP then, Milošević was only getting sick because the prosecutors were doing such a superb job. Milošević was taking non-prescribed medication, including presumably Rifampicin, “when ever a star prosecution witness testified” so that he could get extra rest days. In fact, Milošević wasn’t sick at all; his medical condition was a “fraud.” Yet, confusingly, he was “not fit to conduct the trial himself.” Even more confusingly, if Milošević’s medical condition was indeed a “fraud,” why was he now dead?

 

On March 16, AFP reported that

 

prosecutors said the medical reports supported their belief that Milošević made himself too ill to appear in court by skipping his heart medication….Two weeks ago, after the court asked for blood tests to find out why Milošević was not responding to treatment for high blood pressure, toxicologist Donald Uges suspected and found the presence of the antibiotic rifampicin, which is known to counter the effects of other medication.[26]

 

So now, it was supposedly the ICTY that had ordered the blood tests—and a mere “two weeks ago,” not in January. And now Uges had apparently found in Milošević’s blood what he had suspected all along! But why would Uges have suspected the presence of a rare and difficult to obtain antibiotic?

The Los Angeles Times added more details about Milošević’s alleged subterfuge. Milošević had allegedly been “allowed access in detention to some visitors with only minimal surveillance and searches…. The limited scrutiny of those visits could have provided an opportunity for Milošević to obtain the drug rifampicin, which was found in his blood and may have contributed to his death.”[27] The report went on, “Because Milošević chose to represent himself before the tribunal, he was given the right to meet with his legal advisors, diplomatic officials or prospective trial witnesses in a work space that was only lightly monitored.” So now we have the suggestion that Milošević’s “legal advisors, diplomatic officials or prospective trial witnesses” were colluding with him in the smuggling operation while a lackadaisical, benevolent ICTY looked on, paying little attention to prison security.

 

The most detailed account of Uges’s allegations appeared in the New York Times under Marlise Simons’s byline. On March 12, Simons reported that Milošević “had been taking medicine not prescribed by his physicians, including an antibiotic known to diminish or blunt the effect of the medicines he had been taking for heart and blood-pressure problems.” The next day, her report led off with the statement,

 

A top toxicologist in the Netherlands said…that he believed that [Milošević] had been manipulating medication to fake a medical condition, a ploy that contributed to his ill heath and may have played a role in the heart attack that caused his death. That theory was advanced by Dr. Donald Uges…who suggested that Mr. Milošević had been seeking to demonstrate that Dutch doctors could not cure him and that he should therefore be allowed to seek treatment, and freedom, in Moscow.[28]

 

Yet another variation on the story: We now have Milošević’s faking his medical condition and, in doing so, causing his own death. That of course would tie things up nicely for the ICTY, which badly needed to explain away the sudden death of a prisoner who, a few days before his demise, had accused it of poisoning him. Simons, a long-standing ICTY sycophant (note her ingratiating “top toxicologist in the Netherlands” comment), could be relied on to get out whatever message the ICTY wanted to get out. The ICTY message of the day was that Milošević was a faker, that he caused his own death and that the Dutch doctors assigned by the ICTY had provided first-rate treatment.

 

According to Simons, Uges

was first contacted in January by a senior toxicologist in The Hague, Dr. Daan Touw, who had been consulted by the court about Mr. Milošević recurrent health problems. “Milošević had constant high blood pressure, and the cocktail that always works was having no effect,” Dr. Uges said. “So Touw had concluded that another medicine was being used to stimulate the liver and to neutralize this cocktail. He asked me for a report, a counter-expertise, because his own report had been dismissed by Milošević’s lawyers. We both had the idea there was an unknown drug which broke down his own medication, and we got the idea that the most efficient was rifampicin,” he said. “I wrote a report about this in January, which was sent to the court. In late February, I was asked to check a blood sample for rifampicin and found it,” he said, adding that he was told only later that it belonged to Mr. Milošević. Dr. Uges said it was an unusual test. “Normally when you screen for toxic drugs you never screen for rifampicin because it is specific for tuberculosis and leprosy, so unless you have a reason, you don’t look for it,” he said.

 

It’s worth quoting Simons at length because the tale she spun, under the influence of Uges, had more than a few peculiarities to it. First, we have the by-now familiar story that the reason the prescribed medication wasn’t working was that Milošević was taking some other medication to mitigate its effects. Simons didn’t bother to ask how Uges was able to rule out alternative explanations. Maybe the prescription was wrong? Maybe the dosage was wrong? Maybe Milošević was not taking the medication he had been prescribed?  On the basis of no tests and no forensic examination, Uges reaches the extraordinary conclusion that Milošević’s blood probably contained Rifampicin, a highly unusual drug. Then, we are told, in late February, Uges was handed an unidentified blood sample, which, amazingly enough, contained Rifampicin! And then, Uges was told that the unidentified blood sample belonged to Milošević.

 

This of course was head dizzying in its wild implausibility. On the basis of no evidence, a toxicologist concludes that a patient whom he had not seen was taking non-prescribed medication to mitigate the effects of prescribed medication—exactly in accord with the suspicions and unsubstantiated allegations of ICTY prosecutors. He speculates that the non-prescribed medication was Rifampicin, and writes a report obviously intended for the Milošević prosecutors. He is then handed a blood sample to check. He checks it and find that it contains Rifampicin. He is then told the blood sample belonged to Milošević. All of this is supposedly happening at the very time the ICTY judges are desperately looking to find some justification to deny Milošević’s request to receive medical treatment in Moscow. Uges then rushes to the media to recount this fantastical tale  

 

Simons, like other reporters, had no doubts as to Uges’s veracity even as he engaged in wild speculations:

 

Discussing the case with colleagues, Dr. Uges said he had concluded: “There was one escape for Milošević out of prison, and that was to Moscow where his wife and son, and friends were. He wanted to go to Moscow on a one-way trip. The only way he could do that was to accuse us, to say that Dutch doctors were not treating him well.” 

 

It was clear that Uges’s claims were key to the tale the ICTY was eager to spin. Milošević was undermining the first-rate medical care the ICTY was providing him with by taking a medication that would threaten his health to such an extent that the ICTY would have no choice but to allow him to go to Moscow.

 

What’s important to keep in mind here is that it was Milošević himself who had brought attention to the Rifampicin and had accused the ICTY of poisoning him. In any police investigation of Milošević’s sudden death, the ICTY would be under suspicion. Instead, the media were happy to present the ICTY as the disinterested party doing the investigating and, Milošević, the possible victim of a crime, as the party under suspicion.

 

Needless to say, the media did not ask how Uges, a toxicologist with no medical or psychiatric training, someone who had never met or treated Milošević, could speak with such confidence about Milošević’s motives and thought-processes.

 

The media were even more credulous when it came to the nonsensical nature of the story. Consider this: According to Uges, Milošević had to be “getting sophisticated advice.” Whoever was providing him with the drug “had to know what dose to give, sufficient for it to be effective, but not too high because you get a so-called red sweat: your saliva becomes red. And someone would have to know how to get it to the patient…because you have to take a capsule of it every day to keep your blood pressure high.” In other words, as Uges himself revealed, taking Rifampicin is an enterprise full of pitfalls. There are many, much easier ways to undermine the effectiveness of prescribed medication than Rifampicin—a rare drug that is difficult to obtain and that would more than likely be detected in the blood tests Milošević regularly underwent and that he himself had proposed. Wouldn’t it have been much simpler not to take one’s medication at all? Every child knows the trick of pretending to swallow a pill, while hiding it under one’s tongue.

 

The media didn’t wonder how Uges could be so certain that someone else did not administer the Rifampicin to Milošević. A toxicologist presumably is only able to detect the presence of a toxin, not how it got there. And even if Uges were right, and Milošević did administer the medication to himself, how could he dismiss the possibility that Milošević had intended to commit suicide? Obviously Uges’s story fitted the needs of the tribunal very neatly. First, it answered the question as to why the ICTY had refused to allow Milošević to go to Moscow. Since he was manipulating his health to secure this trip, then the ICTY was surely right to refuse to be played for a sucker. Second, the story addressed the issue of the ICTY’s possibly negligent medical treatment. No, there was no negligence: Milošević was deliberately undermining the treatment; hence the deterioration of health. Third, the cause of death had now been identified: Milošević himself, not the ICTY, had caused his death. Fourth, the dread possibility that Milošević had committed suicide could now be ruled out. (Obviously, another suicide coming just a few days after that of Milan Babić would have been horribly embarrassing for the ICTY.) Fifth, Milošević, in order to get his hands on the illicit drugs, would have had to make use of friends, legal advisors or defense witnesses. They had taken advantage of the ICTY’s leniency. The ICTY would thus be justified in imposing tighter restrictions on its prisoners, in particular on those, such as Milošević, who elect to represent themselves.

 

DUTCH PROSECUTORS SERVE AS ICTY ENABLERS

 

After the spate of stories about Rifampicin, the Dutch autopsy results, delivered on March 17, were a bit of a disappointment. The Dutch Public Prosecutor’s Office announced that provisional autopsy results indicated that Milošević had not been poisoned, that a number of medicines prescribed for Milošević were found in the body material, but not in toxic concentrations, and that no traces of Rifampicin had been detected in his body. But, the Dutch prosecutor’s office rushed to add, “The NFI /Dutch Forensic Institute/ has informed us that rifampicine disappears from the body quickly, and the fact that no traces were found implies only that it is not likely that rifampicine had been ingested or administered in the last few days before death.”[29]

 

So Milošević had not been poisoned; yet the absence of Rifampicin in his blood was no proof that he had not taken Rifampicin. There was a certain lack of logic here. If the absence of Rifampicin was no proof that Milošević hadn’t taken Rifampicin, then why was the absence of toxins taken as proof that he wasn’t poisoned? Wasn’t it at least possible that a lethal toxin had been administered to Milošević, one that, like Rifampicin, disappears from the body rapidly, leaving no traces? Moreover, if the Dutch prosecutors refused to rule out the possibility that Rifampicin had been ingested, how could they be sure that someone had not administered the Rifampicin to Milošević with a view to inducing a heart attack? The Dutch prosecutors’ claims made no sense, but they demonstrated their eagerness to serve as handmaidens or enablers of the ICTY. Their illogical findings accorded neatly with ICTY needs. Milošević was not poisoned, but may still have taken the Rifampicin.

 

Interestingly, Uges stuck by his claims. According to the New York Times, Uges

 

suggested that even if the drug was absent at the time of his death, it might still have played a role. He said Mr. Milošević could have precipitated a heart attack by stopping rifampicin a few days before his death, for fear that court officials suspected his illicit use of the drug. If he had abruptly stopped taking rifampicin after using it to keep his blood pressure high, it could have caused his blood pressure to plummet abruptly and brought on a heart attack.[30]

 

But this argument cut both ways. If somebody else was administering the Rifampicin to Milošević and then stopped a few days before his death—it was Milošević himself, after all, who disclosed the Rifampicin finding in his March 7 letter—that too could have “precipitated” the heart attack. That person or persons would then have been responsible for his death.

Not too much reliance should be placed on any Dutch investigation of death at the ICTY. According to the 1994 headquarters agreement between the United Nations and the Netherlands, “The competent authorities shall not enter the premises of the Tribunal to perform any official duty, except with the express consent, or at the request of, the Registrar or an official designated by him. Judicial actions and the service or execution of legal process, including the seizure of private property, cannot be enforced on the premises of the Tribunal except with the consent of and in accordance with conditions approved by the Registrar.” In addition,

The Tribunal, its funds, assets and other property, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process, except insofar as in any particular case the Tribunal has expressly waived its immunity….The Judges, the Prosecutor and the Registrar shall, together with members of their families…shall enjoy: a) personal inviolability, including immunity from arrest or detention; b) immunity from criminal, civil and administrative jurisdiction in conformity with the Vienna Convention; c) inviolability for all papers and documents

In other words, the Dutch authorities had no jurisdiction over anything that went on at the ICTY. The ICTY could cooperate with any outside investigation or not cooperate, and there was nothing that anyone could do about it. The ICTY enjoyed total immunity for any possible criminal acts committed within its portals—a privilege that police, prosecutors and prison officials around the world could only wonder at with envy. 

In 2001, when Milošević sought to challenge in a Hague district court the legality of his abduction from Belgrade and his subsequent imprisonment in The Hague, the Dutch court said it had no jurisdiction to hear his claim. The 1994 agreement, it said, had “transferred the jurisdiction to hear an application for release from detention from the Dutch courts to the ICTY.” The court cited the ICTY’s 1995 decision, Prosecutor v. Tadić, which dismissed the challenge to the ICTY’s legality. (Since the ICTY was not accountable to anyone, it could act as a judge in its own case and hear and dismiss challenges to its legality.) Finally, the court cited the European Court of Human Rights’ 2000 decision, Naletilić v. Croatia, which held that courts have no business second-guessing the ICTY because it is an “international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence.” When Milošević subsequently made the same application to the European Court of Human Rights, the court dismissed it, ruling that Milošević “had failed to exhaust the available domestic remedies” in the Netherlands.

Let us return to the Rifampicin: It was striking that, despite the Dutch authorities’ failure to find any Rifampicin in Milošević’s blood, the media chose to believe the ICTY story: Milošević had administered Rifampicin to himself. According to the AP story that reported the Dutch autopsy results, Hans Holthuis, the ICTY registrar had “ordered an external investigation to find out how Milošević obtained drugs he was not supposed to have. Tribunal officials earlier said he also had regular access to alcohol.”[31] According to AFP, Holthuis had discovered non-prescribed medication in Milošević’s cell in late 2005 and early 2006. Holthuis was quoted as saying, “We did take the necessary action when this contraband was found in a regular search. (Warden Timothy McFadden) took action immediately, but I do not want to go into details.” Holthuis added that Milošević had been “under constant and very effective scrutiny.” As for the Rifampicin discovery, “Holthuis insisted the information was passed to the trial chamber ‘immediately.’ ” Ah, so the ICTY had now corrected the one last bit of bad news. The ICTY was not lackadaisical about security in its prison. To the contrary: It engaged in “constant and very effective scrutiny.”

 

This was apparently too much even for the AFP reporter to swallow. Didn’t the blood test supposedly take place in January? So how come no one knew about the result until March? Holthuis, according to the AFP reporter, “added that it ‘took some time’ for it to be brought to the attention of the chamber overseeing the Milošević trial.” Holthuis, the AFP reporter noted, was “apparently contradicting his earlier statement that action was taken immediately.”[32]

 

 

 

THE ICTY’S REPORT ON MILOŠEVIĆ’S DEATH

 

In due course, on May 31, the ICTY released the report of its internal inquiry, written by its vice president, Judge Kevin Parker. As expected, the tribunal absolved itself—its judges, prison staff, administrators and doctors—of any blame for Milošević’s death. About as much credibility should attach to this report as to the internal report of any police department, which, following the sudden death of a high-profile prisoner in its custody, tells the world that not one police officer, not one corrections officer, not one medical attendant, had done anything for which he or she should be ashamed. However, given the uncritical adulation that the willfully gullible media bestowed on the ICTY and the phalanx of so-called non-governmental organizations such as Human Rights Watch and Institute for War & Peace Reporting that lobbied fiercely on its behalf, the ICTY had every reason to be confident that its self-serving explanations would soon be accepted as unquestioned fact.

 

Nonetheless, the ICTY’s account of Milošević’s death was a self-serving work of deception, in which almost every assertion was untrue. 

 

At the outset, Parker realized that the Milošević judges’ refusal to allow Milošević to receive treatment in Moscow and, above all, their justification for that decision, namely, that Milošević had failed to show that he couldn’t get the same treatment in the Netherlands wouldn’t suffice. It sounded too lawyerly and heartless. So Parker set out to show that the judges had acted on the best medical advice. To do that, Parker had to address head-on the November 2005 independent specialists’ report on Milošević’s health. Parker juxtaposed the views of the Western doctors against those of the Russian and Serbian counterparts. On one side, we had van Dijkman and Tavernier. On the other side, the Russians, Margaret Shumilina and Leo Bokeria, and the Serb, Vukasin Andrić. Working on the assumption that the Western public would deem Western doctors more credible than Russian and Serb doctors, Parker proceeded to denigrate and belittle the expertise of the latter.

 

Shumilina barely got a mention. Andrić was dismissed because a Dutch specialist had rejected his diagnosis. According to Parker,

 

“Dr J. de Laat, a physicist-audiologist expressed quite different opinions from those of Professor Andrić as to the cause and nature of the concerns raised by Mr. Milošević. He agreed there was a perceptive hearing loss, more so in the right ear, but considered that with different technical arrangements Mr. Milošević could continue with the trial.”

 

Typically, what Parker said here was untrue. Back in November 2005, the trial chamber had turned to an outside expert for a diagnosis on Milošević’s hearing problems. That expert, De Laat said that, based on tests of Milošević’s hearing, “observed perceptive hearing loss on both sides” had taken place. In his view, “it was probable that the two current medical conditions of the Accused were ‘connected,’ but he could not be sure.” De Laat said that it was “probable that the cardiovascular situation is…connected to the hearing loss. We cannot be sure of this.” This was a bit of a problem for the tribunal, since its man, N.J.M. Aarts—a Dutch ear, nose and throat specialist who had been treating Milošević for two months—had dismissed Milošević’s hearing problems as merely something to be expected for a man of his age.

 

Parker made no mention of what de Laat actually said—for obvious reasons. As for Bokeria’s diagnosis, Parker solemnly declared, “Nor can it be concluded that surgery as identified by Professor Bockeria in his letter of 5 April 2006 would have prevented the death of Mr. Milošević.” The passive voice, the use of the subjunctive and the double negative serve to obscure the arrogance and dishonesty of Parker’s claim. There is no medical procedure in the world that is guaranteed to save the life of a very ill person. But that has nothing whatever to do with whether it should be attempted or not. Significantly, both doctor and patient wanted to undertake the procedure, and the ICTY could cite no doctor who advised against it.

 

The French cardiologist, Florence Leclercq, the third of the three experts who examined Milošević in November, was clearly the swing vote. Unlike the other two experts, Leclercq, a Westerner, received respectful treatment from Parker who, understandably, was anxious to prove that her diagnosis was in full accord with those of van Dijkman, Tavernier and the ICTY doctors. According to Parker,

 

There is a difference of expert opinion whether surgical intervention was appropriate and would have prevented Mr. Milošević’s death. Professor Bockeria of Moscow has indicated this view to the Inquiry since the death of Mr. Milošević. This was not advised by Dr van Dijkman. Other cardiologists, Professor Leclercq from France and Professor Tavernier from Belgium, who are independent of the treating doctors, agree with the treatment provided to Mr. Milošević at UNDU. They do not agree that surgery was necessary or that it would have prevented the death of Mr. Milošević. In these circumstances it cannot be concluded that there was a failure to provide proper care by those treating Mr. Milošević at UNDU.

 

However, Tavernier and van Dijkman were severely compromised. Van Dijkman had treated Milošević for a number of years to no great effect. Tavernier had all too easily fallen in with ICTY political desiderata over the attorney-imposition issue. They had every incentive to insist that the ICTY-provided treatment was first-class. Rather than attend to an increasingly ailing patient, they had chosen to make a variety of unfounded and damaging accusations against him.

 

Parker applied all of his ingenuity to suggest—dishonestly—that Leclercq had endorsed the treatment the ICTY had provided Milošević. Both Tavernier and Leclercq, according to Parker, “were of the opinion that the treatment regime prescribed for Mr. Milošević at UNDU was appropriate.” According to Tavernier, Parker reported, “there is no test that if carried out would have helped detect or prevent the cause of death. When you have a heart hypertrophy and a high blood pressure you have to change your life-style and take your medications. Having taken additional tests would not have resulted in new recommendations or changing the prescribed medications.” And, according to Leclercq, Parker reported, “unfortunately, the possibilities of preventive treatment are almost nil.”

 

But Parker was seriously mischaracterizing what Leclercq had actually said. In fact, she had said nothing of the sort. In her Nov. 4 report, Leclercq said that Milošević “is a patient with a cardiovascular risk and the left ventricular hypertrophy increases this risk. The disorders the patient is now complaining of could have developed from an atherosclerosis of the neck or intracranial vessels as a consequence of the risk factors which have developed over several years.” She recommended additional tests. In subsequent newspaper interviews, she said, “His medical condition was not good, so we asked for additional tests to evaluate his cardiac situation. But these investigations were never performed, and now that’s a problem.”[33] She added, “Prison officials assured her that some cardiac tests, like an ultrasound, had been done and were ‘normal,’ but they could not show her the actual test results, leaving her to conclude that more was needed.”[34]

 

To be sure, Leclercq recommend no change in the anti-hypertension treatment and other cardiovascular therapy. However, this was a far cry from her claiming that the “treatment regime prescribed for Mr. Milošević at UNDU was appropriate.”

 

Interestingly, while Parker swore by Tavernier and Leclercq when it came to their supposedly recommending no change to Milošević’s treatment, Parker admitted, without comment, that neither cardiologist seemed to agree with the pathologist’s report as to the cause of death.

 

Both Professor Leclercq and Professor Tavernier noted the wording of the pathological report in its use of the term “hartinfarct,” which they understood as “myocardial infarction.” In Professor’s Leclercq’s opinion, “I do not think that that the description in the pathology report suggests a myocardial infarction in the sense in which I would use that term as a cardiologist.” Professor Tavernier did not consider that the report was demonstrating what he, as a cardiologist, would describe as an acute myocardial infarction.

 

Parker seemed to attach little significance to this. However, it undermined his entire thesis. Myocardial infarction is the medical term for heart attack. The two cardiologists, with whose diagnoses Parker purported to associate himself, were telling him that they didn’t think Milošević had died of a heart attack. The two cardiologists’ doubts raised serious questions about the rushed Dutch autopsy. The pathologists’ report was inconsistent with heart attack being the cause of death. That’s not an insignificant issue!

 

REPORT OFFERS DEARTH OF NEW INFORMATION

 

Parker’s report added few new details to the story the ICTY had put out to the media through its not-for-attribution quotes in the immediate aftermath of Milošević’s death: Milošević was not murdered; he did not commit suicide; he had been self-medicating for years; he had administered the Rifampicin to himself; he received first-rate medical care in the ICTY prison, which he chose to sabotage; nothing could have been done to prevent his death; he sought to conceal his medical records from the ICTY; the decision not to allow him to go to Moscow was based on sound medical advice and solid legal reasoning and, in any case, had no bearing on his sudden death; and he obtained the non-prescribed medication by exploiting the “privileges” the ICTY had been forced to grant him because of his insistence on acting as his own counsel.

 

The cause of death, Parker concluded, was neither murder nor suicide. Milošević died from a heart attack and there was “no poison or other chemical substance found in his body that contributed to the death.” The autopsy report, according to the ICTY,

 

establishes that Mr. Milošević’s death was caused by natural causes and excluded any toxicologically identified factors which could have contributed to his death….[The] results indicated that no poisons had been found in Mr. Milošević’s body, that a number of medicines, which had been prescribed for Mr. Milošević had been found.

 

So Milošević died of “natural” causes? Not really. For the greatest part of the report was given over to the accusation that, during his four years in detention at the ICTY, Milošević was “self-medicating”: He was allegedly not taking his prescribed medication while taking all manner of non-prescribed medication.

 

So why go on about this at such length unless to suggest that Milošević did indeed kill himself? But no, the ICTY insisted: “Mr. Milošević’s non-compliance with his therapeutic plan and his tendency to self-medicate…cannot reasonably be interpreted as a sign of suicidal intent.”

 

Was this alleged self-medication then the cause of the heart attack? The ICTY didn’t say so, and offered no evidence to support such a claim. Was Milošević self-medicating in order to feign illness? No, for Parker insisted that the ICTY provided Milošević with the best treatment imaginable and that nothing could have been done to prevent the heart attack.

 

The ICTY report was confusing, and meant to be so. In truth, the self-medication charges were a gigantic smokescreen to conceal ICTY culpability for, at best, negligence toward its most famous detainee and, at worst, something more sinister.

 

The ICTY relied heavily on Professor Uges’s various claims and suggestions. However, unlike Uges, and the reporters who based their stories on his speculations about dreams of escape to Moscow, the ICTY offered no explanation as to why Milošević would have been self-medicating and taking Rifampicin. If Milošević wasn’t suicidal, then why was he ignoring the ICTY doctors’ advice?

 

Revealingly, despite all of the ICTY rumblings and threats about uncovering the method by which Milošević had supposedly obtained the illicit drugs, the ICTY’s report came up with nothing: not one episode of Milošević’s being caught not taking his medication; not one episode of Milošević’s being caught taking non-prescribed medication; no mention of a single incident in which anyone was observed smuggling drugs into the prison; no name of any person who may be a plausible smuggling suspect; no account of any test having been undertaken to demonstrate how drugs could have been brought into the prison; no evidence indeed that any of the medication Milošević was supposedly ingesting illicitly had had any harmful effect on his health, let alone been the cause of his death. Most shocking of all, Parker’s report made clear that the ICTY’s basis for making the self-medicating charges was amazingly threadbare.

 

The ICTY helpfully released a number of internal documents to go together with this report. Doubtless, tribunal officials believed that these documents, consisting mainly of claims by prison officials and doctors that Milošević was not following his prescribed medical regimen and was carrying on in a way that undermined prison order, would either not be read or be complacently accepted as solid proof vindicating ICTY allegations. Yet, despite their highly selective and tendentious nature, the documents, time and again, show Parker to be at best confused and at worst deliberately lying. In fact, the documents not only reveal the extraordinary level of collusion between the Dutch doctors and the ICTY prosecutors, but also show the Dutch doctors to be acting as tribunal spies and prison enforcers rather than as medical professionals. The reckless charges the doctors throw around against their own patients and their repeated violations of doctor-patient confidentiality show that their chief priority was facilitation of the ICTY’s work, not their patients’ well-being.

 

To absolve the ICTY of any responsibility for Milošević’s death, Parker conceded at once that the tribunal had been aware since 2001 that Milošević was seriously ill:

 

Some time after his admission…reports of a detailed medical examination, including of a coronary angiogram, conducted on Mr. Milošević between 11 April and 13 April 2001 in the Military Medical Academy in Belgrade were made available to Dr Falke. These reports indicated that Mr. Milošević had a heart hypertrophy and a myocardial bridge, and that he suffered from unregulated hypertension with probable presence of angina pectoris.

 

Parker quoted Dr Zdravko Mijailović, chief of the clinic of cardiology at the Military Medical Academy in Belgrade, who had been Milošević’s treating cardiologist in Belgrade, who wrote to the detention unit’s resident doctor, Paulus Falke, sometime in 2001 that Milošević “was at a high risk of a stroke, a heart attack, a sudden cardiac death, or sudden malignant heart rhythm disorder.”[35]

But this concession only compounded the ICTY’s difficulties. If the ICTY had known for years about Milošević’s dire health, why had it chosen repeatedly to accuse him of faking ill-health, manipulating his health, self-medicating and colluding with outside specialists to thwart his trial?

Milošević’s most important health issue was his heart condition. Yet it was this problem that the ICTY had left unattended, rejecting Milošević’s application for treatment in Moscow. Parker also revealed that yet another doctor from the Bakulev Center had examined Milošević as far back as January 2004. Professor Elena Golukhova had

found that Mr. Milošević had high blood pressure, which was poorly controlled by beta-blockers and ACE inhibitors, significant ECG abnormalities, namely signs of left ventricular hypertrophy, T-wave abnormalities and ventricular beats, borderline cholesterol level…. She recommended that T1 scintigraphy, coronary angiography, electrophysiology study and some other investigations be conducted on Mr. Milošević. She indicated that, according to the European guidelines relevant to his condition, Mr. Milošević had a high risk of fatal arrhythmias and sudden cardiac death.

However, Parker claimed, “no report from her appears ever to have been disclosed to the Tribunal or the medical officer at UNDU [United Nations Detention Unit, better known as Scheveningen] by Mr. Milošević.” That was certainly strange, for it is hard to see what advantage Milošević could have gained through sitting on her report. Nor is it clear how her visit could have escaped the ICTY’s attention. Rule 31(A) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal states, “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….The medical officer shall be informed of the outcome of all consultations of doctors or dentists.”[36]

There was no way that Milošević, under continual surveillance as he was, could have kept her visit a secret. Parker evidently had no choice but to come clean about this consultation since the Bakulev Clinic obviously had a record of Golukhova’s visit and diagnosis and had handed it to the inquiry.

HOW THE ICTY JUSTIFIED IMPOSITION OF AN ATTORNEY

 

Most of Parker’s report was taken up with the self-medicating charges—an ICTY refrain since at least 2004. Prosecutor Geoffrey Nice had first raised these charges in September 2004 when he sought (successfully) to pressure the ICTY to impose an attorney on Milošević. Prosecutors had sought to impose an attorney on Milošević back in 2001. The court rejected the prosecution requests, invoking Article 21(4) of the ICTY statute, which said that a defendant is entitled to “to defend himself in person.”

 

During the prosecution phase of the trial, the ICTY had kept things under control through presiding judge Richard May’s continually interrupting Milošević’s often-effective cross-examination of witnesses. However, in March 2004, May was forced to step down on ground of ill health, and by July he was dead. With Milošević set to begin presenting his defense and calling witnesses in August 2004, panic was starting to set in within the ICTY and without. During the summer of 2004, the campaign to impose an attorney on Milošević went into high gear. Outside pressure was brought to bear on the ICTY. In July, David Scheffer, U.S. ambassador at large for war crimes issues during the Clinton administration, wrote in the International Herald Tribune:

 

Justice for the people and for the defendant simply is not well served when the right of self-representation is abused. Surely “the interests of justice” now require that the Hague tribunal impose courtroom lawyers on Milošević over his objections…. If Milošević cannot tolerate such common sense, then perhaps the time has come to force-feed the proceedings by video to his jail cell while competent counsel defend him.[37]

 

Scheffer’s call for imposition of counsel on Milošević was followed by one in the Washington Post by Michael Scharf, professor of law at Case Western Reserve University and one of the architects of the ICTY:

 

In creating the Yugoslavia tribunal statute, the U.N. Security Council set three objectives: first, to educate the Serbian people, who were long misled by Milošević’s propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milošević and other top leaders and disclosing the ways in which the Milošević regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia’s newly elected leaders to distance themselves from the repressive policies of the past. May’s decision to allow Milošević to represent himself has seriously undercut these aims.

 

Scharf’s explanation had at least the merit of honesty. In countering NATO propaganda Milošević was undermining the purposes of NATO’s court. However, that wasn’t the reason for imposing an attorney on him. No, “Milošević’s antics and poor health have repeatedly disrupted the trial, justifying appointment of counsel to represent him in court for the remainder of the proceedings.”[38] Just what were these “antics”? “In addition to regularly making disparaging remarks about the court and browbeating witnesses, Milošević pontificates at length during cross-examination of every witness, despite repeated warnings from the bench.” Shocking!

 

As the summer wore on, the ICTY moved inexorably toward its decision to impose counsel. On July 6, the Milošević trial court issued an order, instructing the ICTY registrar to “identify a cardiologist, with no prior involvement in the treatment of the Accused, and instruct that cardiologist to carry out an examination of the Accused and consider all relevant information pertaining to his health in the context that he represents himself and report quam primum to the Trial Chamber on the fitness of the Accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so.”[39]

 

In due course, a cardiologist was identified—one Dr. Rene Tavernier, chief of clinic in the Department of Cardiology of the University Hospital in Ghent and a professor of cardiology at the Medical School of the University of Ghent. Tavernier’s diagnosis: Milošević was too ill to represent himself, but not too ill to stand trial. In the words of Parker’s report, Tavernier concluded that

 

despite treatment with five antihypertensive drugs in adequate doses [Milošević’s] blood pressure remained high, a phenomenon known as resistant hypertension. In his view, this was due to a combination of severe pre-existing essential hypertension, Mr. Milošević’s lifestyle involving three-day a week work on his defence, and his poor adherence to his therapeutic plan. He concluded that Mr. Milošević was not fit to represent himself and that resumption of trial under these conditions would result in early recurrence of very high blood pressure.

 

Needless to say, Tavernier’s opinion had no medical value. Tavernier was in no position to determine which would be more stressful, and hence deleterious to Milošević’s health: Milošević’s continuing to organize his defense and preparing witnesses or his being denied the right to organize his defense and being forced to watch a defense campaign in which he played no part. Tavernier’s opining on matters of which he had no knowledge showed him to be an ICTY flack, not a medical professional.

 

According to Parker’s report, Tavernier’s view was endorsed by Paul van Dijkman, the cardiologist who had treated Milošević in prison. Suspecting, Parker recounted, that Milošević wasn’t “adhering to his therapeutic plan,” van Dijkman arranged to have samples of Milošević’s blood sent to Daan Touw, chief of the Clinical Pharmaceutical and Toxicology Laboratory of the Pharmacy of The Hague Hospital. Touw

 

found that the serum concentrations of metoprolol, one of Mr. Milošević’s antihypertensive drugs, were lower than norms stated in literature for ingestion of his prescribed doses, and that nordazepam, a benzodiazepine derivative used in the case of anxiety, which Mr. Milošević had refused to take from UNDU medical staff when it was prescribed, was detected in the two blood samples taken from Mr. Milošević. On the basis of specific testing of samples Dr Touw was also able to dismiss the possibility that the low concentrations of Mr. Milošević’s antihypertensive medications in his blood may be due to a rare condition known as rapid metabolism.

 

And, Parker added, “this coincides in time with the finding of non-prescribed medications, including nordazepam, in the ‘privileged’ office in UNDU which was used by Mr. Milošević for his defence preparation.”

However, Parker was engaging in serious deception here. There had never been any allegation of Nordazepam being found in Milošević’s cell or office. The Nordazepam issue had been raised by van Dijkman in his Aug. 18, 2004, report. He claimed, “Nordazepam was repeatedly found” in Milošević’s blood.

Geoffrey Nice had seized on the Nordazepam issue in his Feb. 1, 2006, motion opposing Milošević’s provisional release to receive treatment in Moscow. In this motion, Nice charged,

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 UNDU some time in August, and during a routine cell inspection in the week starting 29 November 2004).

According to Nice, van Dijkman in his report had claimed that medication seized during a search of Milošević’s cell in August had been examined by Touw and found to be Midalozam (“a powerful sleeping pill”) and Prazepam (an “anxyolitic”). The two drugs “were contained in an envelope labelled ‘Misa.’ ” Milošević had explained to the prison authorities at the time of the discovery that the drugs were brought into the prison and put into a drawer in the office by their owner, Dragoslav Ogjanović (whose nickname is “Mischa” or “Misa” in Serbian), who was one of Milošević’s legal associates.

Actually, though the documents and Parker’s report referred to something going by the name Midalozam, such a drug doesn’t exist. The ICTY probably meant Midazolam. Both Prazepam and Midazolam are benzodiazepines; they belong to a group of medicines that slow down the central nervous system. Their chief side-effect is hypotension or low blood pressure.

 

However, neither Midazolam nor Prazepam had ever been found in Milošević’s blood, and Milošević had always denied taking these drugs. What Van Dijkman had actually said was that “Nordazepam was repeatedly found in the Accused’s blood,” not that Nordazepam had been found in Milošević’s cell. The distinction is crucial for, as Touw himself pointed out, “Diazepam is transformed into nordazepam inside the body.” And Milošević had been prescribed Diazepam on a regular basis. Diazepam, a member of the benzodiazepine family (like Nordazepam), is better known under its trade name of Valium. It is a sedative that causes depression of the central nervous system and is used in treating anxiety, insomnia, seizures and muscle spasms. In other words, there was nothing surprising about the presence of Nordazepam in Milošević’s blood.

 

As Milošević’s assigned counsel would subsequently point out, “There is no evidence that the Nordazepam…came from the ingestion of Prazepam.” In addition, they wrote, Milošević’s “treating doctors have not asserted that the presence of Nordazepam…may have a harmful or detrimental effect upon his health.” In fact, they quote van Dijkman as claiming that “benzodiazepines” should not “have a direct effect on the patient’s blood pressure. This medication is not at all expected to cause a rise in the blood pressure, on the contrary, it would be expected indirectly to lower it.” Whether out of ignorance or deceptiveness, Parker was both maligning Milošević and talking nonsense.

 

Incidentally, as we have already noted, van Dijkman’s purported concern that Milošević wasn’t “adhering to the therapeutic plan” was, to say the least, at odds with the equanimity about Milošević’s condition that he expressed a year later in his Nov. 23, 2005, response to the diagnosis of the independent experts. Then, he declared that Milošević’s

 

blood pressure is acceptable, and even the strain in the ECG is somewhat less pronounced. Clearly, the trial sessions are so stressful that the blood pressure increases, together with the heart rate….In view of the current work schedule, it is understandable that the patient feels fatigued. He has three court sessions per week, and spends the rest of the time preparing for them, including interviewing witnesses. There is not much time for rest. It is predictable that the blood pressure will increase again during stressful trial sessions.

 

No mention here of self-medication or willful sabotage of his prescribed treatment.

 

Yet, none of this stopped Parker from claiming that Milošević “was prepared to put his own life and health at risk by using nonprescribed medications.” Parker’s claim that the authorities had uncovered Milošević’s secretly hoarding Nordazepam—medication that had not been prescribed but the presence of which in Milošević’s blood was entirely explicable—was sheer deception. Parker made the claim in order to buttress the false self-medication charge.

 

Later in his report, Parker went further. He asserted,

 

blood samples had been taken from Mr. Milošević on 15 July and 29 July 2004. Nordazepam and prazepam were detected in both samples. Neither of these had been prescribed for Mr. Milošević. As confirmed to the Inquiry by a consultant toxicologist, Professor Uges, these results indicated that Mr. Milošević was in fact taking prazepam in July 2004 and are consistent with him having been doing so on 9 July 2004.

 

But not one document released by the ICTY disclosed any finding of Prazepam in Milošević’s blood. In his Feb. 14, 2006, submission to the court, John Hocking, deputy registrar of the ICTY, wrote that “ ‘Prazepam’…[had] arrived with the Accused’s belongings when he was originally admitted to the UNDU.” He made no mention of any finding of Prazepam in Milošević’s blood. Hocking’s disclosure cast an odd light on Parker’s claim that Milošević “always had refused to take similar drugs to prazepam when these were prescribed for him by his treating doctors at UNDU.” He had supposedly arrived with Prazepam, but refused to accept Prazepam when prescribed by the ICTY. And Uges’s role became ever more peculiar. He had no involvement in the case until January 2006. Yet he pronounced on blood tests carried out in the summer of 2004.

 

On Aug. 31, 2004, Milošević made his opening statement to begin the defense phase of the trial. On Sept. 1, Nice alleged that Milošević was not taking his medication while taking non-prescribed medication and thereby manipulating the trial schedule. Nice based these claims on Tavernier’s and van Dijkman’s reports, neither of which has ever been disclosed to the public. Nice said,

 

[Tavernier] picked up on an earlier suggestion that the accused was not following the drug regime prescribed in his best interests and in order to enable him to be fit for trial with this observation: “All these observations suggest that the accused is not taking his medication in a strict manner.” Further down that page, the doctor expressed the opinion that based upon the presented clinical condition, the then-lifestyle and poor adherence to proposed therapeutic plan, the accused was not fit, in the opinion of Dr. Tavernier, to represent himself.[40]

 

Nice then quoted from van Dijkman’s report: “We may conclude that there must be serious doubt over the patient’s adherence to this therapy. From the clinical point of view, we have suspected this for some time given the repeated occurrences of sinus tachycardia, which is odd with the continuous and correct taking of a particular drug that he identifies…. [In addition] another drug was repeatedly found in the blood, which is odd given the patient’s refusals to take benzodiazepines from the United Nations unit’s staff.”

 

According to Nice, van Dijkman had contended “that the accused must have obtained and be taking drugs other than those prescribed in some other way. Dr. Dijkman ended this paragraph by saying that, in his opinion, the patient is not fit to defend himself.”

 

Rather confusingly, however, Nice disclosed that in van Dijkman’s opinion,

 

even if Milošević was taking some other medication, this wouldn’t cause an increase of blood pressure: The medication is not at all expected to cause a rise in blood pressure. On the contrary. It would be expected indirectly to lower it when this medication has achieved a reduction in stress. This was the reason why I offered it to him in the past. I am at a loss to explain why he has refused it in the past but has now taken it. The drug that was being taken without supervision and prescription would have been of benefit if taken in a controlled way, but apparently was not being so taken.

 

In other words, even if Milošević were taking non-prescribed medication, that would not explain the high blood pressure. The medication was designed to lower blood pressure. So Milošević was supposedly taking a drug that he should always have been taking but that he had allegedly refused to take; yet he was suffering symptoms that he would be suffering were he not taking the medication that he should have been taking, but that he in fact was taking.

Nice not surprisingly concluded that the “overall and unanimous opinion of the experts is that the accused is not fit to conduct the trial himself, that he has not been taking the drugs in the manner prescribed.” Counsel had to be imposed on Milošević because of his “underlying health condition itself, which will be aggravated to the point of intolerability if he is allowed to continue seeing, preparing witnesses, which is clear on the evidence to be the hard work, but also because the Court might be quite satisfied he has been manipulating this Tribunal.” So Milošević was ill and at the same time not ill; either way, it justified imposition of an attorney.

The very next day, the court announced that it would indeed impose counsel on Milošević.

Though the trial chamber had imposed counsel on Milošević, it wasn’t until three weeks later, Sept. 22, 2004, that it was able to come up with any kind of reasoning to justify its decision. In their ruling, the judges argued that, in light of their obligation “to ensure that the trial is fair and expeditious” and of “the risk to the health, and indeed the life, of the Accused” it would be “irresponsible to allow the Accused to continue to represent himself.”[41] According to the trial court’s order, the imposed counsel would take over the running of his case in its entirety: the trial strategy, the choice of witnesses, the conduct of the examination-in-chief.

Unable to find a judicial precedent anywhere for the denial of self-representation, particularly on ground of ill-health, the ICTY came up with the peculiar argument that since the “right to defend oneself in person is not absolute” “there may be circumstances where it is in the interests of justice to appoint counsel.” Furthermore, the ICTY asserted, there exists “no authority from domestic jurisdictions which indicates any reason in principle why counsel should not be assigned.” From that, judges leapt to the happy conclusion that the “overarching right to a fair trial…may, where appropriate, lead to the assignment of counsel for the Accused to conduct his defence.”

 

In typical ICTY fashion, this momentous decision became precedential and, in November 2008, the ICTY amended its Rules of Procedure and Evidence, decreeing, “The Trial Chamber may, if it decides that it is in the interests of justice…assign a counsel to represent the interests of the accused.” Yet the words in the ICTY’s statute, stipulating that a defendant had the right to represent himself in person, have remained unaltered.

Interestingly, though the Milošević trial court had cited the prosecution’s allegation of health manipulation by Milošević, the court declared that it wasn’t basing its decision on that, but on the defendant’s poor health. So, the prosecution demands an attorney be imposed on Milošević because he’s faking ill health; the court accepts the prosecution’s recommendation—but announces that it is doing so on the basis of Milošević’s genuine ill health.

The documents the ICTY released in the aftermath of Milošević’s death revealed that Prosecutor Nice’s Sept. 1, 2004, accusation that Milošević was self-medicating in order to disrupt the trial schedule was the culmination of weeks of intense collaboration and exchange of memoranda between prosecutors and detention unit officials, including Milošević’s treating doctors, during which time the self-medication case against Milošević was constructed. As became apparent, this case was laughably flimsy.

 

On Aug. 31, 2004, one day before Nice’s incendiary charge, Timothy McFadden, warden of the ICTY prison, wrote a memo to John Hocking, acting deputy registrar, charging Milošević with non-compliance with his treatment. According to McFadden, “Each detainee is required to take the medicine in the presence of the guard…this procedure is closely supervised and all guards are regularly reminded of the importance of adhering to the instruction at the fortnightly team meetings and in the course of their duties.”

 

However, McFadden went on: “Whilst the guard can say that he ensured that the detainee put the medicine in his mouth and took a drink of water, he cannot say for certain that the detainee swallowed the medicine.” True enough, but does the guard have any reason to believe that the detainee had not swallowed the medicine? Almost certainly not, otherwise McFadden would surely have mentioned it.

 

But McFadden’s wasn’t done yet:

 

In the case of Mr. Milošević, if a detainee does not take the medicine then he is interfering with our ability to maintain his physical welfare. If it became certain that a detainee was not following the prescribed regime then I would ensure that he sign a document stating that we were no longer in a position to take responsibility for his health condition and that any consequences will be the result of his actions. This is a standard procedure in custodial institutions….In the case of Mr. Milošević, 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.

 

Let’s see then. The prison authorities admitted they had no evidence that Milošević was either taking non-prescribed medication or not taking prescribed medication. They had no evidence that the medication they accused him of taking would have any negative health consequences. However, the authorities were already announcing that should anything befall Milošević (like sudden, inexplicable death, say), responsibility for it would be entirely his. It is not too much to say that signing such a disclaimer is tantamount to signing one’s own death warrant.

 

McFadden’s threat became more menacing as he continued. Milošević’s

 

legal advisors were granted legal privilege which reduced the level of control we could exercise in relation to the import of assorted documents…which are brought in under the guise of them being legal material necessary for the preparation of his defense. Secondly the office which was set up for him to facilitate the preparation of his defense…further exacerbates the problem. We do not have access to this office and do not supervise the activities therein. Also potential defence witnesses are brought to this office without us screening them in the normal way for visitors to the Detention Unit….I became uneasy and suspicious about the use of this office…and ordered one of the supervisors to conduct a search of the office in the presence of Mr. Milošević to ensure that no contraband had been imported. During this search the drug mentioned in the report of Dr. van Dijkman was found among other items….I confronted Mr. Milošević with this and he told me that it was medicine that one of his legal associates was taking….Additionally, I am aware that the unmonitored phone provided to him for legal business is being abused for personal communication but my hands are tied in relation to proving this emphatically without breaching the privilege. I have no doubt that the procedures in relation to the privilege and exception granted in this case are being abused, but in order to prove it I would have to breach the order granting privilege.[42]

 

As with every ICTY document, the head spins amid the contradictions and the unproven accusations. First McFadden said “We do not have access to this office and do not supervise the activities therein.”  Then, he says, “I became uneasy and suspicious about the use of this office…and ordered one of the supervisors to conduct a search of the office.” So, the authorities did have access to this office, could conduct searches whenever they wanted and could confiscate whatever they chose. McFadden cited “abuse of the privilege.” But the best he could come up with was that one of Milošević’s legal associates had allegedly left medication behind. ICTY officials, including McFadden, offered no evidence to disprove Milošević’s explanation that the medication had been prescribed to his associate. McFadden asserted that the “unmonitored phone provided to him for legal business is being abused for personal communication but my hands are tied in relation to proving this emphatically without breaching the privilege.” So, Milošević’s phone conversations were supposed to be unmonitored. Yet McFadden was obviously monitoring them.  

 

Incidentally, as we have learned from the Wikileaks disclosures, McFadden was not only monitoring Milošević’s phone conversations but relaying their content to the U.S. embassy in The Hague. In fact, throughout the Milošević trial, McFadden kept the embassy apprised of the details of Milošević’s health, as well as of his legal strategy. A Nov. 12, 2003, cable disclosed that McFadden had

 

provided Embassy legal officers and USG [U.S. Government] physician with details of Slobodan Milosevic’s health status, daily regimen, legal and financial network, frame of mind, and contacts outside the Tribunal. Among many revealing details, this official—who sees and speaks with Milosevic more regularly and closely than nearly anybody else—provided information indicating that Milosevic’s heart condition, while manageable on a day-to-day basis, is serious and not readily controlled by medication.[43]

 

McFadden, according to the cable, was “privy to the contents of Milosevic’s monitored telephone conversations and visits as well as the reports of the physicians that have examined him.” And McFadden was happy to relay juicy tidbits from Milošević’s eavesdropped calls:

 

Milosevic could manipulate a nation…but struggled to manage his wife who, on the contrary, seemed to exert just such a pull on him….When he [Milošević] failed to heed her advice, she was not beyond telling him that bad outcomes could have been avoided had he listened to her.

 

Revealingly, McFadden—already in 2003!—was assuring his American interlocutors that Milošević was receiving superb medical treatment at the ICTY:

 

McFadden said that his Belgrade contacts organized, and the Registry consented to, an evaluation of Milosevic’s medical records by a group of physicians partial to him. The group concluded, following the review about 19 months ago, that his medical treatment…met the requisite standard of care.

 

McFadden, an ICTY prison administrator, saw nothing untoward about disclosing to U.S. embassy staff the intimate medical details of a prisoner in his care. Significantly, however, McFadden gave no indication that he had seen any evidence to suggest that Milošević was faking his illness. Nor did he allege any misconduct on Milošević’s part in the prison. To the contrary: McFadden described Milošević, as “cooperative,” who “always accepts McFadden’s decisions.” As for his illness, McFadden explained that Milošević had had “a long history of hypertension (high blood pressure) that was difficult to control especially when Milosevic was stressed or excessively fatigued.” According to McFadden,

 

Milosevic’s hypertensive episodes have not correlated with adverse events at the trial or with the appearance of certain witnesses. They have seen no evidence that he is using his blood pressure problems as an issue to slow or otherwise affect the trial. Moreover, Milsoevic understands that he has potentially lethal health problems and is a compliant patient.

 

THE ICTY’S SELF-MEDICATION CHARGES FALL APART

 

The ICTY documents made clear that the Milošević prosecutors had made their incendiary self-medication charges in order to force the judges to impose counsel on Milošević. Those charges in turn were based on the claims of the detention unit administrators. However, McFadden, Holthuis and the rest of them were unable to produce any evidence to substantiate their claims.

 

No wonder Milošević’s assigned counsel pointed out in Feb. 6, 2006—18 months after Nice’s Sept. 1, 2004, presentation—in response to one of the prosecution’s motions, that “it is noteworthy that not a single instance of non-compliance has been cited by Mr. McFadden during the entire period of Mr. Milošević’s detention.” Also, given that Milošević had cooperated with all of the requests for blood tests, “if he was engaged in manipulating the outcome of the tests, he had an opportunity in advance to obtain satisfactory readings by merely ingesting the medication as prescribed.” The assigned counsel concluded that the accusation that Milošević was “intentionally not following the prescribed medical regime, cannot be substantiated in circumstances where controlled tests have taken place and medical investigation into other possible causes have not been conducted.”

 

Sensing the weakness of the ICTY’s self-medication charges, Parker in his report conceded that Milošević had indeed been “prescribed diazepam for a pain in his back,” and that Diazepam does indeed turn into Nordazepam in the body, and that this would explain the presence of Nordazepam in Milošević’s blood. However, Parker went on triumphantly, citing “Professor Uges,”

 

after two weeks neither diazepam nor nordazepam would be found in the blood. The last regular dosage of the prescribed diazepam was taken by Mr. Milošević on 17 October 2005, but at his request he had a further capsule on 7 November 2005. The presence of diazepam and nordazepam in the tests commencing on 21 November 2005 cannot be explained, therefore, by the diazepam provided to him at UNDU. It is to be noted that these tests concentrations were low and Professor Uges in a report of 24 January 2006 recommended more specific testing to confirm the presence of diazepam and nordazepam in the percentages originally found by Dr Touw.

 

Let’s see. The last prescribed dosage of Diazepam was taken on Oct. 17. But it was known that Milošević had asked for, and received, the medication on Nov. 7. The medication should leave no trace “after two weeks” (my italics). However, the time from Nov. 7 and Nov. 21 is exactly two weeks. Consequently, even according to Uges’s timetable, the presence of Nordazepam in the blood would be explicable. More important, Parker didn’t know, and didn’t even claim to know, whether Milošević had received more Diazepam after Nov. 7.

 

Moreover—and damagingly for Parker—he had to concede that Uges in his Jan. 24, 2006, report had been unsure about the presence of Nordazepam and Diazepam as the “tests concentrations were low” and that Uges had “recommended more specific testing to confirm the presence of diazepam and nordazepam in the percentages originally found by Dr Touw.”

 

Parker in his report was merely regurgitating the accusations of the prosecutors, apparently unaware that they had by then withdrawn a number of their key charges, particularly on the Nordazepam issue.

 

Moreover, Parker had been cherry-picking the evidence and presenting a false account of the Diazepam/Nordazepam issue. In their Feb. 20, 2006, submission to the court, the assigned counsel disclosed that the deputy registrar had informed them that it was “routine for the nurse to remove ‘on demand’ medication once a week has elapsed after the last intake.” However, the assigned counsel pointed out, neither the deputy registrar nor Falke was able to “clarify whether in fact the medication was removed, and if so, the date of its removal.” Nor was it disclosed how much Diazepam was administered to Milošević on Nov. 7. “In an attempt to clarify this matter, the Assigned Counsel sought to take a statement from the nurse responsible for providing the ‘on demand’ medication….This request was denied by [Fraser] Gilmour [deputy chief] at the UNDU.”

 

Yet, having acknowledged that Milošević had taken Diazepam on Nov. 7, 2005, Parker deceitfully repeated the deliberately misleading claim that in November and December 2005 in “two of the blood samples diazepam was found. Nordazepam was detected in three of these samples. Neither diazepam nor nordazepam had been prescribed at the time by treating doctors at UNDU.” Parker’s sly use of the word “prescribed” ensured that what he said was technically correct; his intent though was to mislead. It is true that Milošević had been prescribed Diazepam in October, not in November or December. However, the medication was kept “on demand” by the nurses for some time afterward. The presence of Diazepam and Nordazepam in Milošević’s blood was thus perfectly explicable, and Parker had been deliberately dishonest in suggesting that Milošević had engaged in subterfuge and contraband smuggling.

 

Strangely enough, Parker—clearly not the sharpest knife in the drawer—chose to resuscitate charges about Nordazepam that the prosecutors had by then already abandoned. On Feb. 28, 2006, less than a week after the judges had refused to release Milošević, prosecutor Nice made a very peculiar submission. He started off by disclosing that he had sent “medical information relating to the Accused” to a medical expert of the prosecution’s choosing. The expert was Professor Kingma, professor of clinical cardiovascular pharmacology, and former inspector-general of health and chief medical officer in the Netherlands.

 

Stunningly, Nice announced, “The Prosecution now takes the view that there is insufficient evidence upon which to make a finding that the Accused has used the drug diazepam other than as prescribed.”[44] This admission was remarkable enough. But there was more to follow. In Kingma’s opinion, Nice disclosed, “from a medical point of view, the ingestion of diazepam is unimportant. The drug is relatively harmless, and it is not unusual to use it on demand.”

 

Nice then announced that Kingma “considers that a further specialist might be instructed to advise lead specialist Dr. van Dijkman in his treatment of the Accused. An ‘internist’ could be the appropriate specialist to offer advice at this stage because the Accused’s problem is high blood pressure which is of significance for all organs, not just the heart.” It was striking that Nice had waited until after the court had denied Milošević’s request for treatment in Moscow to disclose that his numerous very damaging accusations about self-medication had been entirely without foundation.

 

None of this should have come as a surprise. It was obvious from the start that Diazepam or Nordazepam are sedatives and tend to lower blood pressure. Since the issue the ICTY had raised, in an adversarial way, was Milošević’s high blood pressure that was not responding to ICTY-prescribed treatment, his ingestion of either medication would have had no bearing on the alleged persistence of this condition.

Kingma’s role in all of this has remained a mystery. Nice suggested that he had become involved in the Milošević case only recently. (His involvement was unsolicited by the patient or by any of his physicians.) However, Kingma, in an interview after Milošević’s death, disclosed that he had been surreptitiously receiving Milošević’s medical files and offering his diagnoses since February 2002. That made it all the more baffling why he had not explained much earlier to the prosecutors that Milošević’s alleged self-medication with Diazepam or Nordazepam would not have raised his blood pressure. Of course, he may well have done, and Nice had for years simply been misleading the court.

ICTY DOES SHERLOCK HOLMES

 

Parker had gone on and on about the Diazepam/Nordazepam issue in his report, and it had led him nowhere. So, he dug up another supposedly sinister event. On Feb. 1, 2006, Parker disclosed, detention unit authorities found “a small phial of tablets…during a routine cell inspection.” The tablets, according to Fraser Gilmour, the detention unit deputy chief, were from Serbia. “The Cyrillic label on the medication appears to indicate that the 21 remaining tablets from a quantity of 30 are Prilazid Plus,” he wrote to Hocking and Holthuis. “[The medication] is an anti-hypertensive drug used for the treatment of hypertension.” Gilmour helpfully added that the

 

discovery appears to corroborate our belief that Mr Milošević is self-medicating and therefore making it impossible for us to take responsibility for his health….[A]ny non-prescribed medication found in the Detention Unit has been imported by improper means. The fact that further medication has been smuggled into the Unit would appear to reinforce Mr McFadden’s belief that the exceptions being made in this case are compromising the overall level of safety and security of the whole unit.

 

This “discovery” turned out to be very peculiar indeed. The label on the bottle said the medication had expired in March 2003. Milošević’s doctor in Belgrade had prescribed the Prilazid Plus before his arrest and transfer to The Hague in June 2001. However, this medication was confiscated upon his arrival at the detention unit. As the assigned counsel pointed out, Milošević’s cell had been cleaned the day before this miraculous discovery, and whoever cleaned it had failed to notice the phial. “Neither was it found when Mr. Milošević’s office was closed down and moved in December 2005. Mr. Milošević’s cell is regularly searched and this item has not been found on previous occasions….If Mr. Milošević had been ingesting Prilazid Plus, it would have been evident from the regular blood tests and toxicological analyses.”

 

Much like Diazepam, Prilazid Plus is an ACE inhibitor used to treat high blood pressure. So, even if Milošević were using Prilazid Plus, this could in no way have caused his blood pressure to be unresponsive to the ICTY-prescribed blood-pressure medication.

 

Parker triumphantly announced the Feb. 1 “discovery” but, typically, made no mention of the medication’s expiration date, its having been prescribed to Milošević in Belgrade or its confiscation upon his arrival in 2001.

 

When the assigned counsel pointed out these facts to Gilmour in February 2006, the latter responded belligerently, arguing, “The composition of the tablets cannot be confirmed without laboratory analysis, the results of which are awaited. Consequently it is impossible to verify the relationship between the tablets and the label on an opened container.” As for the medication having been confiscated upon Milošević’s arrival at The Hague:

 

The fact that it was Mr. Milošević who was responsible for the packing and unpacking of his possessions from his “office” and cell during the move in December 2005 would explain the failure to find the failure to find them during that procedure and in fact increases the likelihood of them being exposed in the new situation due to the re-organization of all his possessions….Bearing this in mind, plus the large quantity of possessions held by Mr. Milošević and Mr. McFadden’s repeatedly voiced concerns regarding the difficulty in effectively managing the security and safety of the “office” due to its “privileged setting” and the level of access permitted to his Legal Advisers, there have been more than adequate opportunities for Mr. Milošević to introduce a small item such as this.

 

So, since it could not be ruled out that Milošević had introduced the contraband, he must have done so. Interestingly, by the time Parker got around to writing his report, four months had elapsed since the dramatic Prilazid “discovery.” The test results must surely have come back from the lab, yet Parker made no mention of what they showed. One must assume that had the tests shown the medication to be anything other than what the label said, Parker would have trumpeted this as vindication of ICTY vigilance. Parker’s silence on the matter must mean that the medication was exactly what the label said it was.

 

There was yet a further sinister event that Parker pointed to. During a Dec. 3, 2004, “routine cell inspection,” he revealed, “medications were found in Mr. Milošević’s cell. He explained that they were for his throat and threw them into a garbage container.” However, the ICTY’s Sherlock Holmes reported ominously, “the tablets were retrieved.” They turned out to be…yet again antihypertensive medication that originated from Yugoslavia. In other words, their effect also would have been to lower Milošević’s blood pressure. Recall, the ICTY prosecutors’ claim had been was that Milošević was seeking to keep his blood pressure high in order to escape “justice” at the ICTY. Yet the medication the ICTY authorities continually claimed to be “discovering” among Milošević’s possessions all served to lower his blood pressure.

 

Interestingly, ICTY officials had deemed this discovery so unimportant that they kept it to themselves and failed even to confront Milošević about it though, typically, they made sure to include it in Parker’s report.

 

Parker, incidentally, also lamely trotted out a claim that Milošević had smuggled alcohol into the prison. According to Parker, a July 9, 2004, inspection of Milošević’s “privileged office” had uncovered a bottle of whiskey.  It should be noted, Parker observed darkly, “that the normal metal cap on the bottle had been replaced by a plastic cap which would not register on the metal detection equipment at the entrance.”

 

What was interesting was that this was the first time anyone at the ICTY had made any mention of whiskey. Among all of the documents released, among all of the irate memoranda that detention unit officials sent to one another, not one referred to whiskey. It’s hard to believe that one or other of Hocking, Gilmour, McFadden or Holthuis would not have made some mention of the whiskey, particularly of that fiendish subterfuge with the bottle cap. The memoranda did mention a number of times a bottle of ouzo. In his Oct.14, 2004, memorandum to Hocking, McFadden complained about the discovery of a bottle of ouzo “in the possession of a prospective witness in advance of a meeting.” The witness was former Greek President Karolos Papoulias who brought the bottle of ouzo to present to Milošević as “a traditional gift,” in the words of the assigned counsel. “It was declared by Mr. Papoulias to the prison guards and removed.”

 

MILOŠEVIĆ VOLUNTEERS TO UNDERGO BLOOD TEST

 

Tired of the accusations that he either wasn’t taking his medication or was taking non-prescribed medication, Milošević volunteered to undergo blood tests under controlled conditions. This test took place on Jan. 12, 2006. The goal was to ensure that the levels of prescribed medication could be accurately recorded both before and after ingestion. Falke and the detention unit staff carried out the tests. Afterwards, Falke informed Milošević that the level of prescribed medication was “lower than expected.” This finding was consistent with previous low findings. The test results were sent to Daan Touw, chief of the Clinical Pharmaceutical and Toxicology Laboratory of the Pharmacy of The Hague Hospital.

 

Touw, according to Parker, reported on Jan. 20, that

 

the persistently high blood pressure being experienced by Mr. Milošević might be explained by the failure to achieve adequate concentrations of amlodipine and metoprolol, in spite of the prescribed adequate or even high dosages. One theoretical explanation considered in Dr Touw’s report was interaction with another medication. Dr Touw identified rifampicin as such a medication.

 

(Amlodipine is a calcium-channel blocker used to treat high blood pressure; Metroprolol is a beta-blocker that is also used to treat high blood pressure.)

 

Once again Parker engaged in serious deception. Touw had in fact advanced five possibilities, only one of which was “interaction with another medication,” of which Rifampicin was an example. He listed a number of possibilities:

 

1. poor absorption from the gastrointestinal tract, 2. insufficient compliance with the therapy, 3. interaction with for example a substance binding with drugs such as activated carbon, 4. decreased absorption by induction of enzymes, for example, rifampicine, and 5. a fast metabolism for CYP2D6. [CYP2D6 is an enzyme that catalyzes the metabolism of ingested drugs.]

 

Touw said that there was no way of knowing what was causing Milošević’s low ingestion of metoprolol readings. Nonetheless, the ICTY’s Falke (himself nothing more than a general practitioner) took it upon himself to write to Milošević on Jan. 31, saying he had “strong doubts” about his “ingestion of medication.” According to Falke, “lab reports indicated that the levels of prescribed medication were far too low…and that non-prescribed drugs were found as well.”

 

Falke told Milošević that his concerns were “not conclusive. Therefore, it was decided that a second toxicologist should look at all the lab results…to see whether my findings and those of the initial toxicologist could support or allay those concerns.” Falke did not explain who “decided” to consult a “second toxicologist.”

 

This second toxicologist turned out to be none other than Uges of the Laboratory for Clinical and Forensic Toxicology in Groningen. Uges was instructed to examine all of the Milošević’s medical and pharmacological results and to produce a report “analysing the data and expressing an expert opinion on its significance.”

 

Uges duly provided a report on Jan. 24, in which he said, “The diazepam and nordazepam levels are too low for any pharmacodynamic effect…In conclusion, there are very strong indications for no, or a not regularly intake of the prescribed medication.” This of course was extremely baffling, since the issue hitherto had been the presence of Nordazepam in Milošević’s blood, even though he had not been prescribed Nordazepam. Recall that the presence of Nordazepam had been touted as proof that Milošević was taking non-prescribed medication. So now Uges was arguing the exact opposite: The issue was insufficient amounts of Diazepam and Nordazepam!

 

Incidentally, contrary to Uges’s insistence to the media that he had no idea whose blood he was examining, it is clear that he knew perfectly well that the medical information in his hands pertained to Milošević. In his Jan. 24, 2006, letter, Uges stated “The information we received in Groningen by fax on 23 January 2006 was said to refer Mr. S. Milošević, born 20 August 1941, mentioned in this report as ‘the accused’.” Also, contrary to his claims, he made no mention in his Jan. 24 report of his suspicions about Rifampicin. In fact, he made no mention of Milošević’s supposed taking of any non-prescribed medication. He only said, “The patient compliance for taking medication regularly is very doubtful.” The only further tests Uges suggested was to confirm the presence of Diazepam and Nordazepam.

 

As Parker told his tale, the vigilant ICTY detention unit staff, suspecting Milošević of subterfuge, had sent some of the remaining blood samples taken on Jan. 12 and forwarded them—for some strange reason—to Uges. “His laboratory at Groningen was equipped to conduct the specialised testing necessary to detect rifampicin. Rifampicin had never been prescribed for Mr. Milošević.”

 

In other words, it was the ICTY that had come up with the Rifampicin story—following Touw’s mention of it as a possible enzyme inducer that might be affecting Milošević’s ingestion of anti-hypertensive medication. And it was the ICTY that had provided the blood sample that—serendipitously—had Rifampicin in it. “Uges detected rifampicin and its metabolite desacetylrifampicin in concentrations of 0.8 mg/l and 1.1 mg/l, respectively, in the blood sample taken from Mr. Milošević on 12 January 2006.”

 

So, this was it. The ICTY supposedly had the proof it wanted. “The presence of rifampicin offers an explanation for the failure to achieve adequate levels of the prescribed antihypertensive drugs in Mr. Milošević’s blood, despite adequate, even high prescribed dosages,” Parker explained. The blood pressure medication wasn’t working because Milošević was taking another medication that undermined it.

 

Parker delivered his conclusion:

 

[T]he circumstances point to the conclusion that throughout his detention Mr. Milošević failed to act on advice to adjust his lifestyle to lessen the cardiovascular risk which he presented, and that on occasions he refused to accept advice to take medications, or varied the prescribed dosage, refused to undergo recommended tests, and administered to himself medications which had not been prescribed by his treating doctors. The conclusion may also be drawn from the known circumstances, despite denial by Mr. Milošević, that he administered rifampicin to himself, this being a medication that could significantly countervail the effectiveness of medications prescribed to lower his blood pressure. If this were the case the circumstances would also support a conclusion that he was manipulating the effectiveness of his prescribed treatment for other purposes, at obvious risk to himself.

 

However, Parker’s Rifampicin tale was full of loose ends. First, why had it taken the ICTY such a long time to disclose the Rifampicin finding? Let’s recall: it was Milošević himself who disclosed the alleged Rifampicin discovery, not the ICTY. Parker suggested that this was merely a pre-emptive strike on Milošević’s part once he had realized that his ruse was about to be exposed. “It is apparent that events before the Trial Chamber concerning Mr. Milošević’s health were approaching something of a watershed. The presence of rifampicin in Mr. Milošević’s blood had just been reported to the Trial Chamber….The death of Mr. Milošević…intervened so that none of these issues were able to be resolved by the Trial Chamber.”

 

The ICTY was on the brink of exposing Milošević’s plot, but his death intervened and got him off the hook. Or so the ICTY would have us believe.

 

Parker’s account of Milošević’s would-be sinister manipulations still didn’t explain the ICTY’s leisurely pace in disclosing—or rather not disclosing—Uges’s Rifampicin finding. Uges had supposedly sent the test results to Touw on Feb. 17. On Feb. 23, Touw sent the results to Falke. Upon receiving the results, “Dr Falke consulted with medical colleagues and then with a lawyer,” Parker wrote.

 

His concern was whether under Dutch law he could disclose these results to the Trial Chamber without Mr. Milošević’s consent. He also discussed the problem he faced informally with the Commanding Officer of UNDU and his deputy, and then with the Registrar and the Deputy Registrar. He then confronted Mr. Milošević with the test results on Friday, 3 March 2006 and told him he would disclose these results. On 3 March 2006 he sent a letter to the Registrar informing him of the results and of the effect of this drug. The President was informed on Monday, 6 March 2006 and at his direction the Trial Chamber was informed on Tuesday, 7 March.

 

It is hard to understand why Falke needed to get yet more legal advice. Since there had already been a number of court orders requiring the disclosure of all medical information about Milošević, with or without Milošević’s consent, and since detention unit officials had happily shared medical information with ICTY prosecutors (not to mention U.S. embassy officials), and since ICTY rules permitted the disclosure of medical information about detainees without their consent, Parker’s explanation for the Feb. 17 to March 6 delay in disclosing this extraordinarily significant information was laughably implausible.

 

Parker had already admitted that “On 3 January 2006 the Chamber directed the Registrar to provide immediately to the Trial Chamber, copies of all of the medical and pharmacological data that formed the basis for these memoranda, and to identify an appropriate expert to produce a report for the Trial Chamber analysing the data and expressing an expert opinion on its significance.”

 

Indeed, Rule 34 of the ICTY’s rules governing detention, to which the Milošević court had resorted with some frequency, is unambiguous on the matter: “Information contained in the detainee’s medical records may be consulted or disclosed for medical reasons…in the interest of justice and the good administration of trial, by order of a Judge or Chamber of the Tribunal, after consultation with the medical officer.”

 

Be that as it may—and leaving aside the issue of disclosure of medical information to the ICTY trial chamber—why was Milošević himself not told of the test results until March 3 (according to Parker) or March 7 (according to Milošević)? Parker would have us believe that there was a vexing legal problem at issue:

 

Mr. Milošević was not told of the results until 3 March 2006 because of the difficult legal position in which Dr Falke found himself by virtue of the Dutch legal provisions concerning medical confidentiality.

 

Tellingly, Parker didn’t offer a citation for this unusual legal provision. It is hard to understand how any doctor anywhere could be prohibited from revealing to his patient the results of blood tests the patient himself had volunteered to undergo. It is even more absurd given that the ICTY, as it had often reminded us, was not bound by Dutch law, or by any national law.

 

Moreover—and again, damagingly for the ICTY—if Falke’s concerns were so serious that he felt he needed to consult a lawyer before he released the toxicological results, then it is more than likely that it was his own—and the ICTY’s—legal liability that he was most concerned with. The Rifampicin discovery could well have led to the opening of a Dutch police investigation of the ICTY and, in particular, of its treating staff such as Falke.

 

There may however been something else worrying Falke. Amidst all of its numerous accusations, Parker’s report made a very interesting disclosure. Parker mentioned in passing that the Dutch autopsy results had been sent to the Institut für Rechtsmedizin, Universitätsklinikum in Bonn, Germany, for further toxicological investigation. According to the institute’s findings, there was “indication of a possible but unconfirmed presence of a conversion product of droperidol, an antipsychotic, in the urine.”[45] But, Parker hastily added, “the result could not be definitely demonstrated by that laboratory.”

 

Droperidol, needless to say, had never been prescribed to Milošević, and it is unavailable in the Netherlands. Bizarrely, Parker attached little significance to the finding. While Parker went on at inordinate length about Rifampicin, even though the Dutch autopsy had found no trace of it Milošević’s body, he dismissed the Droperidol finding in a couple of sentences. “Even if there had been a trace of droperidol in Mr. Milošević’s urine, which the Inquiry is advised is extremely unlikely given these circumstances,” he wrote, “the toxicological report confirms that this could have no relevance to his death.”

 

“No relevance to his death”? That would seem to be a strangely complacent conclusion for Parker to draw. Droperidol is a powerful drug that provides tranquilization and sedation. It is used to treat psychotic disorders such as extreme agitation; it is also used to treat post-surgery nausea. The drug has serious side-effects: It is known to cause serious arrhythmias and other cardiac problems. Indeed, Droperidol used to carry a warning from the U.S. Food and Drug Administration regarding the potential for sudden cardiac death at high doses.[46] So, if there was Droperidol in Milošević’s body, how had it got there?

 

If Falke had got wind of a possible Droperidol finding, on top of a Rifampicin finding, during the January 2006 blood test his concerns about possible legal liability would have been amply justified. It bears repeating: It was the ICTY that oversaw Milošević’s medication intake; and it was the ICTY, unlike Milošević, that had access to unusual and exotic drugs.

 

However, let us return to Parker’s Rifampicin tale: Even if every one of Parker’s assertions about the Uges-Touw-Falke Rifampicin mutual messaging were true, Parker would still have failed to address the one obvious problem with the entire “Milošević administered the Rifampicin himself” thesis. The Rifampicin was allegedly found during a blood test carried out at the suggestion of Milošević himself. Why would Milošević be foolish enough to submit to a blood test while he’s taking a powerful antibiotic? Why would he do so given that discovery would lead to draconian consequences for him such as re-imposition of counsel or enforced absence from the trial? Why would Milošević, who during his nearly five years in custody had proved to be more than a match for the ICTY judges and prosecutors, now risk humiliation and exposure to the world as a liar and a manipulator?

 

Parker explained away this little difficulty away by arguing that Milošević hadn’t counted on ICTY resourcefulness. “This was the first time that a blood test of Mr. Milošević had undergone the additional specific testing for rifampicin. Normal testing would not have disclosed the presence of rifampicin. Mr. Milošević was not aware that the sample he gave would be tested for rifampicin.”

 

This of course was ludicrous. Why would Milošević, a layman in medical matters, assume that his blood would not be tested for Rifampicin? Moreover, if he were taking Rifampicin in order to “manipulate” his health, would it not have been much easier simply not to volunteer to undergo the blood tests? And, if Milošević were taking Rifampicin, and since Rifampicin apparently disappears from the blood within a few days, and since Milošević was supposedly so well informed about medical matters, would it not have made sense for him to stop taking this drug a few days before his blood test?

 

Parker’s argument, incidentally, casts more suspicion on the ICTY than it does on Milošević. If Milošević’s blood had never before been tested for Rifampicin, then it is quite possible that someone in the ICTY detention unit had been secretly plying Milošević with Rifampicin for a long time, counting on it not to be ever detected. It was only now discovered because the blood-work specialists were specifically looking for Rifampicin. Milošević’s volunteering to undergo the blood test would surely suggest that he had no idea about the Rifampicin.

 

In the end, however, the Dutch autopsy found no Rifampicin in Milošević’s body. Parker attempted to explain this away by suggesting that Milošević must have stopped taking the Rifampicin a few days before his death. But why would he have done that, yet not stopped taking the Rifampicin a few days before his blood test? In particular, why would he have stopped taking the Rifampicin, given that he had just written to the Russian foreign ministry accusing the ICTY of poisoning him with Rifampicin? Perhaps he was so fiendish that he had figured out that he would be dead within a few days and wanted to stick it to the ICTY one last time by making sure that no Rifampicin would show up in the autopsy? Doubtless, it was all part of his plan to throw “down the final gauntlet in our faces,” to quote del Ponte’s stirring words. As with all conspiracy theories of this type, the master manipulator is at one and the same time devilishly clever and staggeringly stupid.

 

To prove that it was Milošević who administered the Rifampicin to himself, Parker exercised considerable ingenuity. Milošević must have done it, Parker reasoned, because Uges had claimed

 

that an effect of taking rifampicin is a marked reddish discolouration of the urine. Such discolouration would have been obvious to Mr. Milošević on 12 January 2006, yet he made no mention of this to Dr Falke or the nurse at UNDU. Were rifampicin being administered without his knowledge it is highly likely he would have reported such abnormal discolouration of his urine.

 

Let’s see. There exists no evidence that Milošević’s urine had ever been discolored; no sample had been taken and he had never mentioned it to anyone on the detention unit’s medical staff. However, Parker concluded on the basis of claims made by Uges—the same Uges who claimed to have suspected Milošević was taking Rifampicin before he had conducted any tests, the same Uges who miraculously discovered Rifampicin in Milošević’s blood—that Milošević’s urine must have been discolored because he must have been taking Rifampicin! Moreover, because it’s “highly likely”—the ICTY used this expression a lot long before it came into vogue—that Milošević would have mentioned the discoloration, and because he didn’t do so he must have wanted to keep quiet about this. And that was Parker’s definitive proof that Milošević must have administered the Rifampicin himself.

 

It was alarming enough that a man described as a judge assigned culpability based entirely on speculation piling up on speculation, but his reasoning was transparently fallacious. Somebody else could easily have administered the Rifampicin surreptitiously to Milošević, and there may have been any number of reasons why Milošević would have kept quiet about the sudden appearance of discolored urine. Milošević, like many people, might have felt uncomfortable discussing such things; he might have thought the matter not terribly significant, a side effect of the medication he was taking; he might have lost all faith in Falke, given his churlish response to previous complaints; he might have thought, with good reason, that the judges would be very unsympathetic to yet another health complaint; he might have had more urgent health issues to worry about. Alternatively, he might well have mentioned it to a nurse or to Falke and they either forgot or lied about it to cover themselves. In typical ICTY fashion, out of a large number of possible explanations, Parker plumped for the one that most conveniently confirmed the official ICTY narrative.

 

Alternatively still—and this is where it got very tricky for the ICTY—Milošević’s urine may never have been discolored at all because there may never have been any Rifampicin in Milošević’s blood to begin with. Uges’s uncorroborated claim on that score was all the ICTY was going with. Uges had made no mention of Rifampicin in his Jan. 24 report. The ICTY detention unit authorities found no Rifampicin in Milošević’s cell; the autopsy showed no Rifampicin. Indeed, according to the autopsy, “a number of medicines prescribed for Mr. Milošević were found in the body material, but not in toxic concentrations.” The only person who claimed to have found Rifampicin was…Uges. Yet, amid all of the documents the ICTY released, notably absent are any reports of lab work that Uges had supposedly preformed. To be sure, his Jan. 24 report is there. But there he was simply reviewing Touw’s findings and reports. He made no claim of having undertaken any tests himself.

 

The first mention of discovery of Rifampicin came in Touw’s Feb. 23 letter to Falke. The subject was “Addition to the report of Mr. Zomer, dob 20 August 1941.” Touw began,

 

At your request materials of Mr. Zomer (dob 20 August 1941) have been further examined and in addition to my report of 20 January 2006 I can provide you with the following additional findings. In the blood sample which was taken on 12 January 2006 in order to examine the presence of metoprolol we found rifampicine and desacetyl rifampicine in concentrations of 0.8 mg/l and 1.1 mg/l respectively. The lowest common concentrations when taking 600 mg/day are 0.5-1 mg/l for the sum of both components.…The combination of rifampicine and metoprolol has been known to considerably decrease the bio-availability of metoprolol, resulting in ineffective concentrations.

 

But there is no report or letter from Uges, the man who supposedly found the Rifampcicin. Touw made no mention of Uges in his letter to Falke.

 

From his letter, it was quite clear that Touw was referring to Milošević and knew that he was referring to Milošević. In much the same way, Uges also knew about whom he was writing in his Jan. 24 report. Yet for some reason the pair of them insisted on pretending that they did not know whose blood they were discussing. It was also strange that Touw in his letter made no mention of his having already speculated about the possible presence of Rifampicin in his Jan. 20 report. Above all, it was very strange that Touw didn’t find it bewildering that the alleged concentrations of Rifampicin were so high.

 

THE ICTY’S DRUG-SMUGGLING CLAIMS

 

Having concluded that Milošević was self-medicating—and thereby undermining the ICTY doctors’ treatment—and that his heart condition was untreatable, all that remained for Parker and the ICTY to do was to assert—without presenting any evidence, needless to say—that Milošević together with his legal associates were breaching detention unit rules in order to smuggle in medication and alcohol. “The unique arrangements established at UNDU to enable Mr. Milošević to conduct his own defence compromised the security at UNDU,” Parker declared. “Because of these arrangements Mr. Milošević was able to obtain medications not prescribed for him by treating doctors at UNDU.” Parker’s evidence for this was as well founded and as convincing as his evidence for the self-medication.

 

To be fair, Parker cheerfully admitted that he had as little evidence to back up his drug-smuggling claims as he had to back up his self-medication claims. He announced

 

that without knowledge of the content of conversations, which was precluded because the telephone was “privileged”, it could not be established that frequent telephone calls to members of his family, to former political colleagues, to journalists, and to friends, were not for the purposes of his defence. While the presence of unauthorised medication was clear, there was no clear proof of how this medication came to be in the privileged room.

 

Leave aside the wildly unwarranted “the presence of unauthorized medication was clear” claim, as well as the double-, if not triple-, negatives, an obvious question arose: How did Parker know Milošević was making frequent calls to family and associates, unless the ICTY was listening in on the “privileged” calls? In one of his memoranda, Hocking, the acting ICTY deputy registrar, claimed that Milošević had to have been making those calls because Milošević had stopped using the public payphone for that purpose. For Parker this was all the proof he needed: Milošević was obviously making calls to family and friends from his “privileged” office, outrageously seeking to evade the ICTY snoops who were trying to listen in on payphone calls. As for the “clear proof of how this medication came to be in the privileged room,” Parker deliberately ignored the most obvious explanation, namely, the one that Milošević had offered: The medication belonged to one of his associates. Lack of “clear proof” didn’t stop Parker from asserting that Milošević was able to “persuade visitors to smuggle [medication] into UNDU.”

 

To reassure his NATO paymasters that the ICTY was on to Milošević’s trickery and that it had taken appropriate action, Parker disclosed that,

 

[O]n 15 December 2004, in a memorandum to the Commanding Officer of UNDU, the Deputy Registrar set out measures to be taken to curb further abuse of the privileged setting by Mr. Milošević. The measures in question included…increasing security measures to ensure that legal associates are searched (while respecting privileged material) as thoroughly and frequently as possible, installing a one way viewing window and posting security to observe Mr. Milošević at all times whilst he is in the privileged office.

 

That was Dec. 15, 2004. Yet, even with all this added security, searching, observing and spying, the ICTY still came up with nothing, not one instance of any act of abuse. Not to worry: as usual, absence of proof isn’t proof of absence. Parker explained,

 

While the UNDU procedures accord with best current practices standards, it would be naïve to consider that even these measures will always ensure that no unauthorised objects can be smuggled into UNDU. In the case of Mr. Milošević, however, this matter was more complicated. First, in addition to personal visitors, Mr. Milošević had a large number of visitors in connection with the preparation and conduct of his defence. These have typically included persons presently or previously involved in political, governmental and military activities, journalists and potential witnesses, as well as a number of legal associates. Secondly, because of his trial schedule visits were often beyond normal visiting hours and for long periods. Thirdly, it was quite usual for these visitors to have with them a variety of documents, books and other papers, which were carried in brief cases, bags, folders, bundles or boxes, and variety of other materials such as videos, films, tapes, maps, etc. Fourthly, as such visitors were for the purpose of his defence, it was necessary that UNDU guards respect the confidentiality or “privilege” attached to such working materials. This was so not only for his legal associates but also for others whom Mr. Milošević said were visiting in connection with his defence preparation. Fifthly, having entered UNDU, these visitors then met with Mr. Milošević in his privileged office so that the visits could not be conducted in the physical presence or hearing of a guard.

 

In other words, the fact that things went on not within the eyeshot or earshot of the ICTY was proof that something untoward had to have been going on. No proof that Milošević wasn’t taking his medication? It would be naïve to think he didn’t know some trick to fool the guards. No proof that Milošević was taking non-prescribed medication? It would be naïve to think that he and his associates didn’t figure out a way to smuggle in contraband. No Rifampicin in Milošević’s blood? It only meant that he had stopped taking it a few days before he died. Not using the public payphone to call his family? It only meant he was using his privileged phone to organize his drug-smuggling operation. (“The availability of a privileged telephone in the office may well have facilitated arrangements to obtain medications.”)

 

CONCLUSION

 

So that was it. Milošević was dead, and the ICTY, through Parker’s report, had rendered its verdict: the cause of death was a heart attack. The ICTY had provided the best care imaginable, and nothing could have been done to avert Milošević’s death, not even the proposed treatment in Moscow. 

 

That might have been it: The ICTY could have gone with the myocardial infarction story, and could have determined that Milošević had a serious heart condition that no amount of treatment could ameliorate. Of course, that would still have left unanswered such questions as why the ICTY had done so little over five years to address this heart condition, why it had refused the proposed the treatment in Moscow, why it had focused instead almost obsessively on Milošević’s blood pressure, and why it had accused him—without much in the way of evidence—of manipulating it.

 

Predictably, most of the world accepted Parker’s report. The Russian Federation however did not. Vitaly Churkin, Russia’s permanent representative to the United Nations, made his country’s feelings clear both about the treatment the ICTY had accorded to Milošević during his years of detention and about the quality of Parker’s report. At a meeting of the U.N. Security Council on June 7, 2006, Churkin, after expressing astonishment that the ICTY had not sought to provide Milošević with proper cardiac treatment at a clinic in the Netherlands when the dramatic deterioration in his health had become apparent, declared that the ICTY had “committed a grave error in not releasing him for treatment in Moscow, where routine medical procedures would have been carried out.” Churkin went further:

 

The upshot here is that medical assistance was denied to a man who needed it. Does the ICTY not recall the presumption of innocence? Having proven nothing, the Tribunal is left without its primary indictee, whose case had consumed some three years and vast amounts of money. What lessons has the Tribunal drawn from all of this? “We did everything correctly.”[47]

 

“We did everything correctly”—that has indeed been the familiar ICTY mantra.

 

However, there was one issue that the ICTY could not dismiss, and that was the strange Rifampicin story that the world had learned about in the immediate aftermath of Milošević’s death. Troublingly for the ICTY, the world had learned about the Rifampicin only because of the letter Milošević had sent to the Russian foreign ministry a few days before his death more or less accusing the tribunal of poisoning him.

 

The ICTY was forced to address the issue, and did so by resuscitating its old self-medication accusations. For years, as we have seen, the ICTY had alleged that Milošević was manipulating his health in order to evade justice. However, as we have also seen, the ICTY’s claims that Milošević was sabotaging his blood-pressure treatment by taking non-prescribed medication were so patently absurd that even its own prosecutors were eventually forced to drop them. The presence of Nordazepam in his blood was easily explained as the natural product of the breakdown of diazepams that he had been prescribed. And, as the prosecutors finally acknowledged, even if Milošević were taking the non-prescribed medication that he was alleged to have been taking, it would have had no negative effects on his health.

 

Thus the bizarre Rifampicin story: A highly unusual, very powerful antibiotic is allegedly discovered during a blood test that Milošević had volunteered to undergo. The ICTY pounces, and proclaims that finally it had found something in Milošević’s blood that would affect his blood pressure adversely. It wasn’t the ICTY that had surreptitiously slipped Rifampicin in among Milošević’s medication, as he had alleged in his letter. No, Parker asserts, it was Milošević himself who surreptitiously obtained the Rifampicin from somewhere and was secretly ingesting it. His playing around with the drug, the ICTY’s report alleged, was of a piece with his habitual refusal to follow the ICTY doctors’ directives and his habitual practice of self-medication. His goal, as always, was to thwart the ICTY’s noble project of dispensing justice.

 

However, as we have seen, the Rifampicin story that the ICTY put out in the days following Milošević’s death and then in its final report was full of holes. The ICTY was unable to answer any of the obvious questions. How could an imprisoned Milošević get hold of this drug? Why would he start experimenting with a drug that might have all manner of side-effects and long- and short-term health consequences? Why would he volunteer to undergo a blood test at the very time he was taking this drug? Why would he risk damage to his reputation, not to mention loss of all of his prison privileges and his right to represent himself? What possible objective would be worth such a risk? Above all, why did the ICTY keep the news of the alleged Rifampicin discovery to itself for such a long time? And what about the Bonn toxicologists’ Droperidol finding? Why was the ICTY taking such a dismissive attitude toward it?

 

The truth is that it was the ICTY, and the ICTY alone, that concocted the self-medication/Rifampicin story. The ICTY based its Rifampicin allegations solely on the claims of toxicologist Donald Uges, who had supposedly found it in an anonymous blood sample that he had been given. However, it was the ICTY that was ultimately responsible for whatever Milošević ingested while he was in its custody. The ICTY, and particularly toxicologist Uges, would have far easier access to such an unusual drug than Milośević would.

 

Moreover, it is hard to see what possible motive Milošević would have to take such a powerful drug. He would be jeopardizing his already failing health without any serious prospect of gaining any benefits. Uges’s claims to the media that Milošević was trying to book a passage to Moscow by making himself ill were ludicrous. There was no way in the world the ICTY would have agreed to allow Milošević to go to Moscow even if he were on death’s door. It had already ruled definitively on the matter. To the ICTY’s credit, unlike the willfully gullible media, it made no attempt to subscribe to Uges’s nonsense.

 

The ICTY, on the other hand, would have every incentive either to administer the Rifampicin (or indeed the Droperidol) in secret to Milošević, or to fake a sudden Rifampicin discovery in the laboratory.

 

Rifampicin was at the heart of the story the ICTY wanted to relay to the world in its final report—despite the fact that the Dutch autopsy had found no trace of Rifampicin in his body. The ICTY was very insistent on this point: The former Yugoslav president had ingested Rifampicin himself, and had put his life in danger. The ICTY had laid the groundwork for its claim by detailing its largely unsubstantiated claims that Milošević was self-medicating throughout his stay in its prison.

 

However, if the ICTY were right, and Rifampicin played a crucial role in Milošević’s death, then it is vital to find the culprit. Who administered the Rifampicin? The ICTY had accused Milošević, but failed to produce any evidence. It failed also to come up with means, motive or opportunity. When it comes to a possible culprit, the ICTY is much the likelier suspect.

 

Thus, we have a sudden death; a rushed and inadequate autopsy report that outside specialists brought into question; a cause of death that cardiologists disputed; a sloppy, poorly-argued, incoherent ICTY report, filled with absurdities, contradictions, wild accusations and patent falsehoods; a long record of perfunctory, negligent treatment at the ICTY; and Dutch physicians and legal authorities more interested in saving the ICTY from embarrassment than in ensuring that the rights of its detainees are protected.

 

The U.N. Security Council should long ago have ordered a full audit of the ICTY: its obvious political biases; its jurisprudence that was not based on any common understanding of international criminal law; its unfair and selective prosecutions; its outrageous sentencing practices; and its prison, in which so many defendants have died. Above all, the U.N. Security Council should never have accepted so blithely the strange death within the ICTY’s portals of Serbia and Yugoslavia’s former long-time head of state.

 

George Szamuely, PhD

 

(Contribution to the International Conference MILOSEVIC – AGAINST NATO CRIMES, FOR A NEW WORLD)

 

 

 

[1] Ibid., para. 18.

[2] Update from the President on the Death of Slobodan Milošević. https://www.icty.org/en/press/update-president-death-slobodan-milosevic

 

[3] “Provisional findings concerning the death of S. Milošević,” Public Prosecutor’s Office, The Hague, March 17, 2006. http://www.un.org/icty/Milošević/report-english.htm.

 

[4] “Former Yugoslav President Milošević dies in UN cell,” AFP, March 11.

[5] “Hague prosecutor moots Milošević suicide, dismisses poison allegations,” BBC Worldwide Monitoring March 13, 2006.

[6] Prosecutor v. Vojislav Seselj, IT-03-67-PT, Oct. 29, 2003, p. 150.

[7] “Controversy Over the Death Of a Serb War Crime Suspect,” New York Times, Aug. 18, 1998.

[8] http://www.slobodan-Milošević.org/news/mm071706.htm.

[9] “Milošević Jail Under Scrutiny” by Chris Stephen, BBC, March 13, 2006. http://news.bbc.co.uk/2/hi/europe/4801626.stm.

[10] Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, http://www.un.org/icty/pressreal/2006/DU-audit.htm

[11] “Hague prosecutor moots Milošević suicide, dismisses poison allegations,” BBC Worldwide Monitoring March 13, 2006.

[12] Milošević Trial Transcript, June 3, 2002, pp. 6045-6048.

[13] Prosecutor v. Slobodan Miloševič, Appeal Against the Trial Chamber’s Decision on Assignment of Defense Counsel, Sept. 29, 2004, paragraph 16, http://bjoerna.dk/dokumentation/ICTY-Appeal-040929.pdf

[14] Prosecutor v. Slobodan Miloševič, Appeal Against the Trial Chamber’s Decision on Assignment of Defense Counsel, paragraph 20, Sept. 29, 2004, http://bjoerna.dk/dokumentation/ICTY-Appeal-040929.pdf

[15] “Dutch autopsy on Milošević finds no evidence of unusual drugs,” New York Times, March 18.

[16] “Prosecutors long suspected Milošević of juggling his meds, documents show,” AFP, March 16.

[17] “Some Milošević doctors call care by tribunal inadequate,” New York Times, March 16.

[18] “Some Milošević doctors call care by tribunal inadequate,” New York Times, March 16.

[19] Milošević Trial Transcript, Dec. 12, 2005, p. 47258.

[20] Prosecutor v. Slobodan Milošević, Decision on Assigned Counsel Request for Provisional Release, Feb. 23, 2006, para. 17.

[21] Ibid., para. 18.

[22] “Slobo Gets Wrong Drug,” Calgary Sun, Nov. 24, 2002.

[23] “Did Milošević take illicit drug in high-risk plot to beat justice?” Times (London), March 14.

[24] The Associated Press, March 14.

[25] “Milošević and his medications were a constant factor in the trial,” AFP, March 13.

[26] “Prosecutors long suspected Milošević of juggling his meds, documents show,” AFP, March 16.

[27] “Drugs could have been sneaked in to Milošević; some visits were not closely monitored, offering opportunities to pass along medicine that could have contributed to his death,” Los Angeles Times, March 15, 2006.

[28] “Expert suggests Milošević died in a drug ploy,” New York Times, March 13.

[29] “Provisional findings concerning the death of S. Milošević.”

[30] “Dutch Autopsy on Milošević Finds No Evidence of Unusual Drugs,” New York Times, March 18, 2006.

[31] “No poison or toxic medicine found in Milošević’s body, war crimes tribunal says,” The Associated Press, March 17.

[32] “UN court has ‘no ready answer’ for Milošević drug doubts,” AFP, March 17.

[33] “Some Milošević doctors call care by tribunal inadequate,” New York Times, March 16.

[34] New York Times, op. cit.

[35] “Report to the President: Death of Slobodan Milošević,” paras. 41 and 42.

[36] https://www.icty.org/x/file/Legal%20Library/Detention/161115-it38-rev10-rules-of-detention.pdf

[37] “Enough of Milošević’s Antics,” International Herald Tribune, July 13, 2004.

[38] “Making a Spectacle of Himself; Milošević Wants a Stage, Not the Right to Provide His Own Defense,” Washington Post, Aug. 29, 2004.

[39] Prosecutor v. Milošević, “Order on Future Conduct of the Trial,” July 6, 2004.

[40] Milošević Trial Transcript, Sept. 1, 2004. p. 32317.

[41] “Reasons for Decision on Assignment of Defence Counsel,” Prosecutor v. Milošević, IT-02-54-T, Sept. 22, 2004, paragraphs 50 and 51.

[42] “Explanation of Medication Regime and Import Export Procedures at UNDU in Connection With Medical Reports Filed in the Milošević Case,” Aug. 31, 2004.

[43] https://wikileaks.org/plusd/cables/03THEHAGUE2835_a.html

[44] Prosecutor v. Milošević, “Confidential Submissions on Accused’s Medical Condition,” Feb. 28, 2006.

[45] “Report to the President: Death of Slobodan Milošević,” paragraph 35.

[46] https://pubs.asahq.org/anesthesiology/article/97/1/287/40047/FDA-Black-Box-Warning-Regarding-Use-of-Droperidol

[47] U.N. Security Council, 5453^rd Meeting, June 7, 2006, S/PV. 5453.

 

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