nytimes.com
| February 22, 2004 | MARLISE
SIMONS
THE HAGUE, Feb. 21 — Richard May, the British judge who presides over the war crimes trial of Slobodan Milosevic, has fallen ill, adding a new setback to the two-year-old process, which has been plagued with difficulties from the start.
Officials at the United Nations tribunal here say that the nature of the judge's illness is a private matter and decline to discuss it. But because of its seriousness, some said, officials are bracing for the possibility that the judge may not be able to return to his duties any time soon and may have to be replaced.
The 65-year old judge, who has a reputation for keeping tight control over his courtroom, has headed the three-judge panel trying Mr. Milosevic, the former president of Yugoslavia, since the trial began in February 2002. The others are Patrick Robinson from Jamaica and O-Gon Kwon from South Korea.
Judge May has been absent from the court since late January. No official announcement has been made, except that he was unwell. But the looming disruption in the trial of Mr. Milosevic has already caused much consternation at the tribunal and intense discussions behind the scenes on how to proceed.
Naming a new judge, lawyers at the court said, at the very least would add further delays to a trial that has been regularly slowed or halted by the frequent bouts of illness of Mr. Milosevic, who suffers from high blood pressure and heart disease. A new judge would require time to plow through the transcripts of almost 300 court days, including the testimony of as many witnesses.
But other complications may arise. Mr. Milosevic, who acts as his own defense counsel, under the rules would have to consent to naming a substitute judge. If he objected, the judges could overrule him, legal experts said, but even then he would have a right to appeal their decision. A greater worry, they said, is that Mr. Milosevic could seek a ruling of a mistrial. Whatever his response might be, Mr. Milosevic has in the past used many occasions to challenge the proceedings of a court he has frequently called illegal.
The complex war crimes trial, the first of its kind for a modern head of state, is just now reaching its halfway point as the prosecution prepares to rest its case in the coming days. Prosecutors had hoped to close their case last Thursday, but the final hearings have been postponed several times on orders of Mr. Milosevic' doctors, who reported as they have in the past that his blood pressure was too high for him to attend court. Since the start, the trial has been postponed more than a dozen times because the defendant suffered from flu, exhaustion or heart problems, causing him to miss 65 days in court.
Mr. Milosevic's ill health has always dogged the trial, raising the question of whether it could be completed. At one point, as Mr. Milosevic's blood pressure problems seemed to get worse, and witnesses coming from abroad had to be rescheduled repeatedly. Geoffrey Nice, the lead prosecutor, even requested that the judges order Mr. Milosevic to stop smoking to alleviate his condition. The judges said it would be good if he did, but did not intervene.
Even now, Mr. Milosevic's trial is the longest before an international court. He faces multiple charges of war crimes and crimes against humanity linked to three wars — in Bosnia, Croatia and Kosovo in the 1990's. He is facing separate charges of genocide, the gravest of all crimes, for the war in Bosnia.
If the trial has been a "scheduling nightmare" for the prosecution, as one official called it, it has also been a management problem for the three judges, who have had to deal with an unruly defendant. Judge May, who long practiced in Britain, is one of the most unperturbable and experienced trial judges at the tribunal. An English barrister who joined the tribunal in 1967, he is considered an expert on evidence and criminal procedure.
"I think anybody running that trial would have to lose his temper, taking that abuse day after day," said one former judge, referring to the disdainful tone with which Mr. Milosevic addresses "Mister May" as the defendant calls the judge. "You have to make a huge effort to be seen to be fair and in the middle. I believe he has been fair and polite, but also very dismissive of the defendant when he keeps complaining."
Jim Landale, the tribunal spokesman, declined to discuss the judge's illness. "It's a private matter," Mr. Landale said. "He is continuing to receive treatment. At the moment we are continuing the trial with two judges. He has not resigned."
Under court rules, a chamber may hold hearings for five consecutive days with only two out of the three judges present. After five days, it can only deal with simple decisions. Judge May has missed three court days since late January, which means that the final two days of hearings set aside for the prosecution may continue without him.
After the prosecution rests its case, Mr. Milosevic will have three months to prepare his defense. Although no lawyer assists him in court, he does have a large legal team, some of whom were present in The Hague this week and said they were preparing his case.
Several of the lawyers, who are based in Belgrade, have visited Mr. Milosevic at the United Nations detention center in recent days. Among them was Zdenko Tomanovic, who heads the Milosevic team. Mr. Tomanovic said he knew little about judge May's illness, but he suggested a likely strategy for Mr. Milosevic.
"If a judge is ill, we can wait till his health is better," Mr. Tomanovic said. "But if a judge has to leave, then the accused has the right to ask for the proceedings to start all over again." Mr. Tomanovic, who noted he had spent several hours with Mr. Milosevic on Friday, said he was more worried about his client's illness. "Mr. Milosevic is in very bad health at this point," he said. "His blood pressure is high, his heart problem is bad. I'm not sure if he can appear in court in the coming days."
The court schedule calls for Mr. Milosevic to appear
on Tuesday and Wednesday for the hearings of the final four or five witnesses
for the prosecution, before it closes its case.
