The integrity of President Milosevic’s consistent refusal to recognize the ICTY as a judicial body, and his determination to demonstrate the West’s active destruction of Yugoslavia– and this despite his own constant efforts, largely successful, to negotiate peace in the face of a concerted campaign to increase hostilities, divisions, unrest, and violence, unto months of bombing, in stunning violation of international law– has succeeded in showing the dead end of the institution’s imposition of counsel, and, ultimately, of the institution itself.
And, as President Milosevic argued in his opening statement, just before counsel was imposed:
“I am aware, gentlemen, that it is illusory to look for logic in a show trial. There were such processes before, the one of Dreyfuss or of Dimitrov – regarding the Reichstag fire, but this process exceeds those by the depth of the tragic consequences that it entails. I do not even wish to say anything on a personal note in this, but I would like to stress the depth of the tragic consequences for the whole world since the universal legal order has been destroyed.
In the past, there were honourable authors who have carved the truth into history so that coming generations would be ashamed and would not repeat the mistakes. In the true history of this era, your ad hoc “justice” will be listed as an illustration of monstrous events on the toggle between the two centuries.
You, gentlemen, cannot imagine how big privilege it is, even in these conditions that you have imposed on me, to have truth and justice as allies.
You certainly, I am sure about that, cannot even conceive this.”
Counsel to resign, ICTY to shut down?
On Tuesday, October 26th, Steven Kay, QC, and his colleague, Gillian Higgins, filed a request to withdraw as imposed lawyers for President Milosevic, arguing that they could not ethically carry out their functions as defense counsel in absence of instructions from him, or cooperation from his witnesses. This comes at a significant moment in the ICTY’s now clearly threatened existence.
Despite a subsequent denial from Washington, US media last weekend published comments by undersecretary for arms control John Bolton, stating that the current administration was dissatisfied with proceedings at the ICTY, and wished to see its “completion strategy” accelerated. In other words, close it down, transfer cases back to domestic courts, and even grant amnesty. Last June, the ICTY adopted an amendment to its rules of procedure and evidence permitting just such deferrals. Undersecretary Bolton and other senior State Department officials are said to believe that the “ICTY has degenerated into a politicized tribunal”, but their complaints are aimed solely at Carla Del Ponte, and not at any of the other equally politicized organs of the institution.Washington also clearly stated its frustration with the pace of the Milosevic case, which has as of yet failed to produce a conviction. From Bolton’s comments, it is obvious that President Milosevic would not be a suitable candidate for transfer to the jurisdiction of Serbia and Montenegro, unlike, for example, Operation Storm’s Ante Gotovina, whose indictment– described as “bogus”– could conveniently be deferred to Croatia. Mere days after this article was published in the Washington Times, ICTY President Theodor Meron traveled to Zagreb, to discuss the “completion strategy” with the Croatian government, according to an ICTY press release.
An institution whose birth– keeping in mind that former ICTY President Gabrielle Kirk-MacDonald described Madeleine Albright as the “mother of the Tribunal”– and death are the result of political decisions cannot be said to be judicial. This has been President Milosevic’s argument from the start, and it is becoming increasingly apparent that he has been correct all along. Imposition of counsel immediately before defense witnesses are called was therefore required to put a stop to a presentation that would have embarrassed the institution far more than an illegitimate conviction. For the past two months, President Milosevic has demanded his right to self-representation be restored. The Trial Chamber’s president, Patrick Robinson, has called these requests “petulant” and “puerile”. Prosecutor Nice has called Milosevic “irrational”.
Imposition of counsel to prevent a political defense before a political body
Imposed counsel appealed the September 2nd ruling assigning them to represent Slobodan Milosevic. Steven Kay told the Appeals Chamber that President Milosevic’s objection to imposition, as well as his choice to present his own case– derided by the Prosecutor, of all people, as “political” and “irrational”– was “a rational demonstration of his position rather than anything irrational.”
Indeed, President Milosevic demonstrated during this hearing how imposition of counsel was the result of a campaign to silence him, (as well as his witnesses) and set out the sequence of events that led to imposition. He first pointed out that Madeleine Albright had attended the ICTY the very day it expressed its intention to “radically” reform the process last July, which visit was soon followed by that of US War Crimes Ambassador Pierre-Richard Prosper. Then came a blatantly political attempt to have counsel imposed in the Washington Post by Michael Scharf, a former high-level employee of Albright’s. Professor Scharf clearly stated that the very objectives of the ICTY, at the moment of its creation in 1993, were already to “pin responsibility on Milosevic”, to “educate Serbs” about the crimes committed by his “regime”, and, oddly, already in 1993, “promote catharsis”, by permitting “newly-elected” leaders to distance themselves from the policies of the past.
Those most intimately connected with the creation of this Security Council institution advocate imposition of counsel, in the media, for political reasons. Imposition violates international law, and is at odds with the right to self-representation granted by such dubious examples of fairness as Apartheid South Africa and Nazi Germany in the Mandela and Dimitrov trials, respectively. Furthermore, they have no hesitation candidly demonstrating that this process is fundamentally political, and a tool of Western foreign policy. At the very least, the principle of equality of arms and basic concepts of fairness and equity should support President Milosevic’s right to represent himself, and to present his case without interference from those who would have the surprising gall to call it “political”.
As President Milosevic informed the court, a petition signed by 100 lawyers from the world over, establishing the basis under international law for the right to self-representation, was sent to the Security Council, the Secretary-General of the United Nations, and to the ICTY. The Belgrade Bar Association has similarly published a considered and well-argued statement objecting to the violation of Mr. Milosevic’s rights under international human rights instruments and the ICTY’s own rules.
Imposed Counsel and “non-cooperation”
Slobodan Milosevic’s witnesses have acted with integrity in pointing out that they had agreed to testify for his defense, and not an ICTY-appointed defense, designed by lawyers who had been acting on behalf of another party for years, and in particular as “friends of the court”, this “court” which Mr. Milosevic still refuses to recognize. That conflict of interest, known in Great Britain as “professional embarrassment”, is a cause for removal from a brief under the British Code of conduct to which the two imposed counsel are subject. Mr. Kay and Ms. Higgins had already in August indicated that they would be professionally embarrassed if imposed against the will of President Milosevic. Yet, when imposed as counsel for Milosevic on September 2nd, they accepted their assignments without question. And as they began their presentation of witnesses, without even requesting a minimal period of preparation, — this after having themselves stated, in their August 13th motion opposing imposition of counsel, that witnesses would likely not cooperate with them– the issue of professional embarassment, conflict of interest, or absence of instructions from President Milosevic were not raised. A mere five witnesses were called over a period of 2 months, punctuated by interruptions, and increasingly public opposition, by the witnesses, to any participation in the violation of President Milosevic’s rights. And despite their “client’s” consistent objection to their representation, the realization that it is impossible ethically to present his defense only just occurs?
Yet the imposed counsel, while acting as amici curiae, argued last August that: “To impose counsel against the will of an accused is to contravene his right to self-representation,” and added that imposition could also cause its own delays as the defense counsel would need a long time to familiarize themselves with the case. These delays– the avoidance of which had been the Chamber’s stated preoccupation mere months before– have indeed been caused by imposition itself, and not because imposed counsel requested time to prepare. Delays no longer seem such a central concern. Imposed counsels simply do not have what they describe as the “cooperation” of the defendant, or of his witnesses, and therefore frequently had nothing to present.
In contrast, former amicus curiae Branislav Tapuskovic had been approached over the summer months by the ICTY Registry and been asked whether he would consider acting as imposed counsel for Slobodan Milosevic. He flatly refused, and in an interview with the German daily Junge Welt, argued that defendants have a right to self-representation that cannot be defeated by their ill health. He further stated: “If the physicians conclude that Slobodan Milosevic is ill, unfit to defend himself, and cannot be present in the court, then there can be no trial at all.” His former colleagues Kay and Higgins did not articulate that position.
Endgame
There is little or no chance that the Appeals Chamber will overturn the decision to impose counsel on President Milosevic. Too much is at stake, and it is obvious the clock is winding down. Trial Chamber President Robinson has repeatedly admonished President Milosevic that he himself was responsible for the fact that a defense was not being presented, and that “assignment” (the Chamber prefers this to “imposition”, which perhaps gives the wrong impression) was made in the interests of a fair trial. These interests apparently supercede an accused person’s right to present his own defense. And since President Milosevic is described by assigned counsel as the source of their ethical inability to further act, and that the Chamber has told him that he must cooperate with assigned counsel, which he will not do, as it violates his rights, it could be absurdly suggested that it is he, Slobodan Milosevic who is violating the ICTY’s right to a fair trial.
Perhaps he has not violated the ICTY’s “right” to a fair trial, at least as envisaged by international law. It is, however, quite likely that he has succeeded in derailing a process which was meant to attain the political aims set out by Professor Scharf: to educate “Serbs”, pin responsibility on Milosevic, and to permit newly-elected leaders to distance themselves from him– and presumably move much closer to the West, in particular to those countries who bombed Yugoslavia precisely when Milosevic was indicted. He has simply inflicted collateral damage to their completion strategy.
If President Milosevic is deemed responsible for the deadlock, there is little to be done but to wrap up the matter, and return the judgment. This has been Prosecutor Nice’s position, and it is ultimately supported by Mr. Kay’s submissions to the effect that it is Mr. Milosevic’s non-cooperation which prevents him– and indeed any other lawyer put in a similar position– from representing him without violating several provisions of the ICTY’s own Code of professional conduct. If no lawyer can represent him, as Kay argues, without infringing professional ethics, then there are only two possibilities:
(a) restore the right to self-representation, in accordance with the provisions of the International Covenant on Civil and Political Rights, or (b) persist in misguided, illegal imposition, and create a deadlock that President Milosevic can conveniently be blamed for. The latter “solution” would speed up pending matters before the ICTY considerably, and certainly contribute to an acceleration of the “completion strategy”, setting the stage for a deferral of cases to domestic jurisdictions such as Croatia and Bosnia, and the granting of amnesty to select indictees. Such a decision would not be consistent with the requirements of legality, nor would it have any legitimacy, no matter how forcefully the ICTY, its media cheerleaders, or academic apologists would argue that “Milosevic brought it onto himself”.
If the ICTY were not a political construct, it could and would simply restore President Milosevic’s right to self-representation. Judicial institutions are independent bodies who suffer no interference from the executive branch; they do not rewrite their own rules in mid-trial, they do not emerge from the ether, survive for a few years, then hurry to shut down their operations. Criminal courts are committed to an unwavering respect for the Rule of law, which in adversary proceedings means that people can only be tried “in an ordinary manner, before the ordinary courts of the land”. Courts do not engage in public relations activities, “outreach programs”, nor do they attempt to influence the policies of foreign governments.
And so, since Mr. Kay argues compellingly that no lawyer can meaningfully represent President Milosevic, as assigned counsel, or even as “stand-by counsel”, nor can he or she do so without violating professional ethics, we see that there can be no defense at all unless the right to self-representation is restored.
But as Steven Kay told the Appeals Chamber: ” in terms of a solution, it may be that he undertakes his own consequences rather than us wasting resources believing, and people kidding themselves, making believe that what is happening here is a proper Defense.”
“His own consequences”. A familiar phrase. Could it be that we are witnessing the ICTY’s sequel to Rambouillet? Let us endeavor to learn from history, this time.
