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

Part IV

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.[i]

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.”[ii] 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.[iii]

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.[iv]

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.” 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.”[v] 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.”

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

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

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

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

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