Ratko Mladic in the courtroom

As soon as the prosecution rested its case at the trial of Ratko Mladic, his defense filed a motion to disqualify two judges from the Trial Chamber: presiding judge Alfons Orie and Christoph Flugge. The bias purportedly evinced by Judge Orie was described in no less than 15 paragraphs in the motion. Most of them are a copy-paste from the motion for Orie’s disqualification filed before the beginning of the trial. There is only one ground for Flugge’s purported bias.

In the first set of reasons for the disqualification of Judge Orie for his bias, the defense brought up his decision to read out the entire indictment in court despite the accused’s opposition. When the accused made loud objections and tried to prevent the reading of the indictment, Judge Orie had him removed from the courtroom. The defense notes that Judge Orie continued with his ‘irregular procedures’ when he prevented Mladic from communicating with his defense and by removing him from the courtroom. The accused has repeatedly been excluded from the proceedings for making loud comments to the witnesses or for addressing his defense lawyers. This, in the view of the Trial Chamber, was a threat to the integrity of the trial.

According to the defense, Mladic’s right to ‘privileged communication’ with his defense has also been jeopardized. During the prosecution’s case, the testimony of two OTP employees was admitted into evidence: in their testimonies the witnesses stated that they had heard improper comments made by the accused about a protected witness. The defense maintains that the accused was addressing his lawyers, albeit in a loud voice because of his health problems, but those comments were in the domain of ‘privileged communication’ and couldn’t be used against the accused.

The defense notes that Judge Orie was biased because he has failed to comply with the medical doctors’ proposal to cut down the trial schedule because of Mladic’s ill health. The Appeals Chamber has recently granted the defense’s request, and the trial now proceeds for four instead of five working days per week. As the defense says, presiding judge Orie in general has not shown any respect to the health problems of the accused during the trial.

Judge Orie has ‘a personal interest’ in ‘preserving the findings’ of the judgments reached at five trials as he either presided over or was a member of the trial chambers and Mladic was mentioned as one of culprits in those judgments. The potential bias could stem from the fact that Alfons Orie defended Dusko Tadic, a reserve police officer from Prijedor, and in the course of the case Orie saw confidential and other materials that might have influenced his attitudes about Mladic’s responsibility.

The defense objects to Orie’s purported partiality in his conduct in court and claims he prejudiced the defense with his decisions allotting time for the examination-in-chief and cross-examination of the witnesses. Finally, Orie’s nationality also caused him to be bias, the defense argues. Orie is Dutch and as such is in a ‘conflict of interest’ because his fellow countrymen from UNPROFOR were involved in the events in Srebrenica in 1995 of which Mladic stands accused. When Judge Orie interrupted witnesses speaking about the role of the Netherlands in Srebrenica on two occasions, this was clear evidence of his bias. Under the pretext of “requesting a more focused answer”, Judge Orie in fact prevented them from speaking their mind.

In the second disqualification motion, Judge Flugge fared better because the defense presented only one ground for his purported bias. Flugge’s impartiality was called into question because of his alleged interest in ‘preserving the findings’ of the judgment in the trial of General Zdravko Tolimir, the Main Staff officer subordinated to Ratko Mladic, for the Srebrenica genocide.

For these reasons, the defense wants to see the two judges disqualified and new ‘impartial’ judges appointed in their stead.

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