I’ve been meaning to get back to the Ratko Mladic media frenzy over a supposed throat-cutting gesture that he may or may not have made at the largely Muslim pubic gallery in May — the same gesture that a year earlier was mis-attributed to him by the AP. Within a day of this year’s “gesture” news, it came out that the Prosecution failed to hand over tens of thousands of documents to the Defense. What didn’t come out was that presiding judge Alphons Orie knew about it. But he was in such a rush to start the media orgy that the Mladic trial would bring, that he betrayed the legal profession in favor of media attention (which is par for the course at The Hague anyway). Meanwhile, thanks to the media’s zeal to have another Mladic lynching, by the end of the trial’s opening, the story ended up being something else, bringing unwanted attention to the Prosecution and the tribunal, rather than the Defendant.

Below is a news item about the suspicious “omission” of documents — one of those rare Hague stories that makes it into the mainstream, offering the smallest glimpse of the shadiness upon which the entire edifice is based. Following the short news item is an excerpt from Peter Brock’s article implicating Orie.

Ratko Mladic war crimes trial plunged into confusion
Lawyers prosecuting Bosnian Serb commander failed to provide documents to defence, causing judge to announce delay
(by Julian Borger in The Hague, May 17)

The Hague war crimes tribunal, already under fire for its slow pace in dealing with Balkan war crimes cases, was thrown into confusion on Thursday by the revelation that lawyers prosecuting the Bosnian Serb commander Ratko Mladic had failed to turn over hundreds of thousands of pages of evidence to the defence.

The Dutch judge, Alphons Orie, said the mistake would lead to a delay in the trial, which lawyers were already predicting would last four years or more.

The fiasco drew outrage from Bosnian survivors and bereaved families who had made the trip to The Hague to see Mladic face trial.

“We don’t agree with this. We ask to speed up the trial and to speed up the judgment, because it is important for the past, for Bosnia and the whole region, and it’s important for the future, [and because we Muslims care little for legality]” said Hatidza Mehmedovic, whose husband and two sons, one still a teenager, were among over 7,000 men and boys massacred by Mladic’s forces in Srebrenica.

It was unclear how the debacle at The Hague had come about. The prosecution declared in November that it had handed the documentation over and only realised last Friday that it had failed to do so. The defence says a million pages were involved. Prosecutors admit that more than 37,000 documents could be missing. […]

The prosecution’s claim that it only realized “last Friday” that not all the documents had been turned over is questionable. According to the Daily Telegraph, “The deadline for disclosure was last November and despite complaints from the defence in February, the UN prosecutors had failed to hand over the documents by last Friday.”

And now, Peter Brock’s article, emphasis added, and with the following disclaimer by Brock for his referring to Judge Orie as Orie-Freisler:

Since it is fashionable to invoke Nazi-era names and symbolisms for Serbs whenever they are dragged through courtrooms at The Hague, it is only fair to apply similar treatment all around, including the applicable legacy of the late Judge Roland Freisler, State Secretary of the Reich Ministry of Justice and President of the People’s Court (Volksgerichtshof). He was the master orchestrator of the notorious German show trials.

Hague’s ‘Judge Orie-Freisler’ in contempt of his own court!
Add obstruction of justice, conspiracy and evidence tampering to judicial misconduct

THE HAGUE (May 21, 2012) - Alphonsus Martinus Maria Orie-Freisler, the 64-year-old presiding judge in the trial of Ratko Mladic, should hold himself in contempt for violating the Rules of Procedure and Evidence governing the International Criminal Tribunal for the former Yugoslavia (ICTY).

Rule 77, Section A, Subsection iii, was breached by Orie-Freisler five days ago (May 17, 2012) when he imposed an indefinite suspension of proceedings after just three hours into the second trial-day for the 70-year-old Mladic….

Sitting Judge Orie-Freisler grievously exceeded his privilege of judicial discretion by suspending proceedings and obstructing justice in a cover-up for prosecutors who had attempted to conceal “millions of pages” among “hundreds of thousands” of missing documents which prosecutors failed to turn over to Mladic’s defense team. Orie-Freisler and others had known about it for almost a week. Add to this, conspiracy and evidence tampering.

He could have delayed the sensational start of the trial the previous day instead of pandering to the prosecution’s gory rehearsal of genocide charges. But, Orie-Freisler simply wanted to publicly re-ignite the pack media — even if only for a day or two — and had ignored the cardinal rule that requires the disclosure of all prosecution evidence.

As a result, the grandstanding Dutch judge and the rest of the ICTY found themselves held up to unprecedented international ridicule on just about every television news program aired that evening in the known world.

“The Tribunal in the exercise of its inherent power,” stipulates Rule 77, “may hold in contempt those who knowingly and willfully interfere with its administration of justice, including any person who… (iii) without just excuse fails to comply with an order to… produce documents before a Chamber…”

Gladstone’s famous tenet — “justice delayed is justice denied” — cannot be more aptly offended than by wayward judges who abuse their privilege of procedural discretion and instead collude with prosecutors to conceal evidence from the defense. In most civilized Western countries the offense amounts to judicial misconduct.

The prosecution, headed by two Americans, Peter McCloskey (son of former California Republican congressman Pete McCloskey), and Dermot Groome (a little-heralded former Manhattan prosecutor and law school instructor) well understood the elementary statute about evidence disclosure — and even announced seven months ago they had complied!

But after all, it was Orie-Freisler’s responsibility, and he could have summoned lawyers to a less inflammatory pre-trial hearing to determine the extent of the prosecution’s “mistake” without the courtroom carnival…

Even the near-institutional bias of the media could not shield Orie-Freisler’s circus from its indictments the next day with headlines that the caricature “was thrown into confusion” by an “apparent clerical error” which “cast a shadow over one of the court’s biggest cases — and over the reputation of the court itself.” (Associated Press)

How serious is the issue?

Orie-Freisler clownishly referred to it as a minor denouement of only “significant disclosure errors.”

But, despite the forgone prediction about Mladic’s waning mortality, not to mention any lingering vapor of hope for a declared mistrial, the defense pegs the missing documents at “a million pages” while prosecutors admit that, yes, “more than 37,000 documents could be missing.”

…The tribunal itself rushed out a letter from prosecutors to defense lawyers, which attempted to head off a motion for mistrial, offering that the “missing documents were not uploaded onto an electronic database accessible to defense lawyers. ‘We sincerely apologize for the inconvenience,’ it read.”

The usually friendly reporters impugned the blunder as the latest ICTY “fiasco” and “debacle” (The Guardian).

As expected, The New York Times’ ICTY-protector, Marlise Simons composed a soft-pedaled two-paragraph litany for the top of her report, beginning with the standard reference to the 1995 “massacre” at Srebrenica….Obviously, Simons wanted to clinically sanitize Orie-Freisler, the ICTY, the prosecutors and to get in her own apology for them all, beginning in the third paragraph:

“…Frederick Swinnen, an adviser to the prosecutor, said that the prosecution had reviewed more than a million pages from other trials to check for material that it must share with Mr. Mladic’s defense. ‘But there was a technical error,’ Mr. Swinnen said, ‘and several thousand pages were not accurately uploaded when they were sent. We recently learnt of this, and we are trying to correct it as fast as possible’.”

The New York Post withheld any Murdochian sensation and reported without tabloid sarcasm that “evidence errors” had caused the suspended proceedings. Its cross-town rival The New York Daily News unsheathed its 200-word verdict (hacked from the Agence France-Presse service), death sentence, and banishment from the planet:

“To see 70-year-old Bosnian Serb general Ratko Mladic hauled before a war crimes tribunal is to witness a man of evil called to account for the blood on his hands…That blood collected in immeasurable quantities during the 1992-95 war that followed Yugoslavia’s dissolution…On this Earth, he can never pay enough for his crimes.”

Anthem-like, Jasmina Tesanovic [on Huffington Post], “feminist author and political activist”, according to her byline — although coming across more like another self-hating Serb” — bemoaned the defiant image of Mladic, alluding to his baldness, and her dissatisfaction with proceedings at The Hague, generally…Tesanovic’s own third paragraph recited from a Serbian proverb that “The wolf loses his hair but not his character.”

“There is little going [on] in The Hague courtroom that wasn’t described by Hannah Arendt during Eichmann’s trial in Jerusalem in 1963.

“It outdoes Hollywood, though. Angelina Jolie’s recent movie, In the Land of Blood and Honey, is a pale replica of this horror reality show, live from The Hague…

“The Serbian population is still living in denial, and other nations have learned to let this new nation do that…”

Mike Corder, of the Associated Press and the “dean” of correspondents covering the war crimes trials at The Hague for the past seventeen years, did his usual job — all sizzle, no steak. He consistently knows more than he tells and will never encounter a shriek of protest from the Mothers of Srebrenica.

Orie-Freisler’s boss, Tribunal president Theodor Meron, an 82-year-old American and an Holocaust survivor, likewise cannot be happy that the prosecution had much earlier informed Orie-Freisler about the missing evidence. Meron was ensconced behind his chamber doors as ICTY apologists scurried around to come up with a reasonable explanation for Orie-Freisler’s exhibition of incompetent trial management in the headlong rush to start the Mladic show the day before…

Meron had just 48 hours earlier denied a defense motion to remove Orie-Freisler from presiding in the case because of his tangled impartiality in previous sentencing of several former subordinates of Mladic.

Perceived as a Dutch favorite-son at The Hague, Orie-Freisler bragged to Deutsche Presse-Agentur in 2008 that he and two-dozen other trial court judges enjoyed “very nice” annual salaries and perks worth almost $250,000 — including “official” travel and lodgings, generous holidays, etc.

Meron, an avid Shakespearean, and author of several prohibitively expensive volumes that deal with the obscure (to general readerships) minutiae of international law….[has a new] collection on the subject of the international tribunals, The Making of International Criminal Justice — A View from the Bench: Selected Speeches.

The “making” of laws without the use of democratic legislatures and parliaments used to worry such organizations as the American Bar Association in the ICTY’s formative beginnings in the 1990s. But no longer. […]

In an article following up on the trial’s postponement, the World Socialist Web Site offered some interesting revelations, or rather confirmations of what we already knew:

Mladic trial postponed indefinitely (By Paul Mitchell, May 28, 2012)

…Orie made his announcement after the defence called for a six month delay, claiming that it had “repeatedly complained of lack of full and timely disclosures” from the prosecution and criticised “the inaction of the Chamber to timely respond to the verified complaints of the Defence made previously (and since last year).”

Prosecutors Dermot Groome and Peter McCloskey insisted that they only became aware of the problem on April 24, three weeks before the start of the trial. They blamed a computer “operator error” for failing to disclose witness statements, photos, maps and other evidence but claimed that they were largely “technical” in nature, and that “an adjournment should be of a limited duration.”

Besides Serbia’s reluctance to capture Mladic, there has been covert opposition to his arrest on the part of the United States, Britain and France. This was revealed following the capture of former RS president Radovan Karadzic….The prosecution finished its case against Karadzic earlier this month and the defence case is scheduled for a few months time. Like Mladic, Karadzic also disappeared following the signing of the November 1995 Dayton Accord….When he was captured, Karadzic claimed that he had been offered immunity by the US in return for stepping down from office and disappearing from public life.

Del Ponte acknowledged that this claim was true. Her spokeswoman, Florence Hartmann, said, “Information about the fugitives’ whereabouts was abundant, however, it would always turn out that one of the three countries — the US, Britain or France — would block arrests.”

“Sometimes arrest operations were halted by [former French President Jacques] Chirac personally, other times by [former President Bill] Clinton,” she added.

Hartmann said that “the reasons why Western powers don’t want to see Karadzic and Mladic on trial is . . . their very likely intent to put the blame for the crimes they have committed on the international community by saying that they have been given a green or orange light to take over the Srebrenica enclave.”

“Western powers created the conditions for mass killings to happen”, she added. From the day the ICTY was created, “there was an effort to steer justice to justify the actions of the big powers in their response to the war, the genocide. . . . They consistently tried to overlook who was indicted, and then selectively provided evidence and even altered it depending if the Tribunal mandate to establish the truth would harm them or not”. […]