(Updated 29 September)
On 16 August 2011, the ICTY Prosecutor filed a motion to sever indictment against 70-year-old Mladic and to conduct separate trials, starting with Srebrenica charges.Among the factors taken into account, the Prosecution referred to “the need to plan for the contingency that Mladic’s health could deteriorate.”
In the Prosecution’s view, such an approach will “best allow the proceedings to be adapted in case of unforeseen contingencies.”
Apparently, the Prosecution learn from the mistakes made in the Milosevic case.
In the Milosevic case, in December 2001, the Trial Chamber denied Prosecution motion to join three indictments (Bosnia, Croatia, and Kosovo) and ordered the Kosovo indictment tried separately before the other two.
The Prosecution insisted on the single “mega-trial”, and the Appeals Chamber granted its appeal.
At the same time, the Appeals Chamber cautioned that “if ... it becomes apparent to the Trial Chamber that the trial has developed in such a way as to become unmanageable ... it will still be open to the Trial Chamber at that stage to order a severance of the charges arising out of one or more of the three areas of the former Yugoslavia.”
Indeed, after two years of trial, in July 2004, the Trial Chamber, considering the poor health of the 60-year-old accused, again raised the issue of severance and separating the Kosovo part.
Once again, the Prosecution strongly opposed to the severance.
After another two years, in 2006, the accused died. The four-year trial was terminated with no judgment.
Mladić,
Consolidated Prosecution Motion to Sever Indictment, to Conduct
Separate Trials and to Amend Resulting Srebrenica Indictment, Case No.
IT-09-92-PT, Prosecutor, 16 August 2011.
Update: Unlike ICTY Rules, which do not contain a specific Rule which would govern such situation, the ECCC Rule 89 ter, adopted in February 2011, does allow the Trial Chamber to severe the proceedings.
In accordance with this Rule, on 22 September 2011, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges and relevant factual allegations described in the indictment.