Meanwhile, in The Hague…

Meanwhile, in the ICTY branch of the venture of international “justice”, the Serbs’ wily and venal former President, Slobodan Milosevic, has been declared physically not “fit” to stand trial. (He has heart problems.)
This concept of the necessity that a defendant be “fit to stand trial” is an intriguing but little-noted aspect of western criminal procedure. It is not just a byway of medico-legal arcana, but is central to the whole theory of the criminal trial and punishment within the western legal system. (Actually, I’m not sure how it works within a civil-law system, and would love to be elucidated. I’m more familiar with the philosophical underpinnings of common-law systems.)
My favorite punishment guru, the Scottish philosopher R.A. (Tony) Duff, has a whole chapter in his 1986 book Trials and Punishments that explores the theories of fitness to stand trial, fitness to be sentenced, and–this is a particuarly interesting one–“fitness to be executed”. I don’t, however, have that book to hand. All I have is his 2001 book, Punishment, Communication, and Community.
Here, on p.80, he writes:

The criminal law of a liberal polity, and the criminal process of trial and conviction to which offenders are subjected, are communicative enterprises that address the citizens, as rational moral agents, in the normative language of the community’s values… It seeks not just (as might a soveriegn) their obedience to its demands, but their understanding and acceptance of what is required of them as citizens… ”

All fine and interesting stuff. And it just underlines even further the degree to which the creation of ICTY (and ICTR) were acts of amazing boldness, in that they asserted, merely by Security Council fiat, that the whole world does indeed constitute a single such normative community, within which Judge Patrick Robinson and the two other red-robed judges in the courtroom could address Milosevic or anyone else they cared to address as fellow-citizens, bound by the same normative code.
Ah would that this were so. But assertion of such a fact does, I think, require a degree of consent from those who are–presto! just like that! by fiat of the Security Council!–to be included within the bounds of such a community.
Slobo has notably never given his consent…

It’s interesting, though, that he did not press his contest to the competency of the court as far as he might have. I guess he made the judgment soon after he was sent to The Hague that he might as well as the bully pulpit provided to him there to speak to his fellow-countrymen, since he had lost the bully pulpit he’d previously enjoyed so long as he was President at home.
(And Saddam? I hear a little voice inside my head asking. How will he seek to “use” his trial?)
What Slobo has now done, though, is to hoist the court on the petard of its own liberal insistence that he should be not just physically present in the courtroom at the time of his trial, but also–both mentally and physically–be “fit to be tried”.
The question of fitness has, in his case, an added aspect to it since he has so stubbornly continued to insist on mounting his own defense rather than relying on hired help to do the job. Of course, this means more work for him– and puts added strain on his cardiovascular system. The judges, in a paternalistic way, have urged him to eschew the option of self-representation, and to take on a hired legal team. (For them, this would have the added benefit that he wouldn’t be featured so prominently in the videotapes of the court’s proceedings that it has so valiantly been trying to distribute inside the former Yugoslavia.)
But he has waved away their concern. He will struggle valiantly on, he says, and do what he can… His insistence on self-representation has already slowed the court down to working only 3 days a week. Now, his further cardio problems may slow it even further, thus d-r-a-g-g-i-n-g out the proceedings even longer. And time is mucho mucho dinares in the work of these UN courts!
It seems almost like a game of chicken. Slobo has already seen into his grave the first judge who presided over his case, the very decent British judge Sir Richard May, who died last week. And under the procedural rules under which both ICTY and ICTR operate, at least two of the judges hearing any single case have to sit on that case for its whole duration, or else the whole case has to be re-tried…
Well, if Slobo carries on not being “fit to be tried”, I guess the people who’ve been running the court system there will soon be “fit to be tied.” (Sorry, I couldn’t resist that cheap and rather second-rate pun.)