Remarks at the 21 October 2004 ICTY Appeals Chamber hearing
[Appeal Proceedings]
[Open session]
Basic Remarks
PRESIDENT SLOBODAN MILOSEVIC: In my deep conviction concerning this decision to take away my right to represent myself, this was not prompted by health reasons nor legal reasons but by political reasons.
Health reasons were taken exclusively as an excuse or pretext.
I would like to turn your attention to the fact that there was a campaign conducted not to permit me to speak. On the 29th of August, one of the drafters of your Statute, Michael Scharf published in the Washington Post an article as part of this campaign in which he said, amongst other things — I’m not going to quote the entire article, I would just like to point to a few things or excepts from it.
“At the start of the trial in February 2002, the original presiding judge, Britain’s Richard May, ruled that ‘under international law, the defendant has a right to counsel but he also has a right not to have counsel.’ Virtually everything that has gone wrong with the Milosevic trial can be traced back to that erroneous ruling.”
As part of that campaign, therefore, things set out from insisting that the Chamber, which was presided by Judge May, wrongly decided to enable me to speak, and then this is explained by stating:
“By acting as his own counsel, Milosevic was able to begin the trial with an 18-hour long opening argument, which included Hollywood-quality video and slide-show presentations showing the destruction wrought by the 1999 NATO bombing campaign.”
That is what disturbed all those who do not wish to hear the truth from this place, because for three years now, the other side has been explaining crimes that I did not commit, ascribing to me intentions which I never had. We’re talking about legal alchemy here, which is jeopardized by the possibility that truth be spoken here and that what really happened be talked about here.
In his article, Scharf explains that or provides an explanation from which it can be seen that we’re not talking about law here but politics. I will quote just one more excerpt:
“In creating the Yugoslavia tribunal statute, the UN Security Council set three objectives: First, to educate the Serbian people, who were long misled by Milosevic propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime …”
As you can see, he is citing a political reason which only a twisted mind can use in view of the fact that there was no war in Serbia and that Serbia was the only one that maintained the structure of population as it was before and that there was no discrimination at all. This is part of the propaganda which is being affirmed here.
Secondly, “to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the way in which the Milosevic regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia’s newly elected leaders to distance themselves from the repressive policies of the past. May’s decision to allow Milosevic to represent himself has seriously undercut these aims.”
He also explains that this is also very wrong because this trial is being followed, because the majority of the citizens in Serbia give their support to me, which is not a surprise, because everybody had the opportunity to hear what is being said here.
For example, this statement of mine of the 31st of August and the 1st of September was published in newspapers with the broadest circulation. It was also broadcast on television. It was published in hundreds of thousands of copies. So I can expose myself to the trial of the — or to the scrutiny of the public, whereas the other side cannot. And that is the main reason why it is not being permitted here, the truth, or arguments be brought out in favour of the truth and that this truth be proved by facts.
I would like to also draw your attention, gentlemen, because you are all experts in the legal profession, that in relation to this question of assigning counsel, denying me my right, taking away my right, about 100 prominent legal scholars, professors, experts in international and criminal law from Serbia, Russia, Greece, Italy, Ireland, Germany, the United States, Canada, India, Belgium, Denmark, Bulgaria, Hungary, Netherlands, Czech Republic, Great Britain, France, submitted a petition to the General Secretary and to the United Nations Security Council.
You probably did not pay attention to this, but many arguments were stated there against this decision which was adopted by the Trial Chamber.
They say that this imposition of counsel, “This apparently punitive measure is contrary to international law, incompatible with the adversarial system of criminal justice adopted by the Security Council in Resolution 808, and ignores the Court’s obligation to provide adequate medical care and provisional release to the defendant. … The ICTY has ignored repeated requests for provisional release, to which everyone presumed innocent is entitled, has imposed unrealistically short preparation periods …”
I warned you, Mr. Meron, the last time that we had a discussion here and when we were talking about me being granted three months for preparations compared to several years that the other side had, I drew your attention specifically to the existing decision of doctors that I can only work for three days a week and that that time is very short. At the time, you said that you would review all of these things. There has been no subsequent review of these issues.
I would also like to remind you that in the decision of the Appeals Chamber of the 18th of April, 2002, comprising of Claude Jorda, David Hunt, Mehmet Guney, Fausto Pocar and Theodor Meron – that’s what it states here on the cover page – in paragraph 27 it was stated since the reasons for decision on Prosecution interlocutory appeal from refusal to order joinder was being discussed at the time,
“As has been shown to be necessary in all long trials before this Tribunal, the Trial Chamber will from time to time have to take a break in the hearing of evidence to enable the parties to marshal their forces and, if need be, to unrepresented accused to rest from the work involved.”
This was not respected either. And in connection with that, I would like to say that when the three-day work rule was being respected, these three workdays are not only days spent in court but three workdays in general. This was not taken into account. But there were no problems at the time. I will come back to that later.
In the petition, it says: “The envisaged imposition of counsel constitutes an egregious violation of internationally recognised judicial rights, and will serve to only aggravate Mr. Milosevic’s life-threatening illness and will further discredit these proceedings.
“The fundamental, minimum rights provided to a defendant under the Rome Statute of the International Criminal Court, as well as under the Statutes of the Internation Criminal Tribunals for Rwanda and Yugoslavia include the right to defend oneself in person.”
I will skip over. “As stated by the US Supreme Court, with respect to the Sixth Amendment of the Bill of Rights, which bears a striking similarity to Article 21 of the ICTY Statute.”
And then there is a quote from the Faretta versus California case, from which they –
“It speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defence tools guaranteed by the Amendment, shall be an aid to a willing defendant – not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master, and the right to make a defence is stripped of the personal character upon which the Amendment exists.”
And then it goes on to say:
“The essence of the right to represent oneself is defeated when the right to counsel becomes an obligation. As stated in Faretta, supra:
“An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction.”
Then Faretta case. There’s another quote from that case.
“In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceedings. The Tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character and characteristically departed from common law traditions. For those reasons, and because it specialised in trying ‘political’ offences, the Star Chamber has for centuries symbolized disregard of basic individual rights.”
Gentlemen, we are facing a practice here which, as you can see, is being dealt with in a way which is not a — which does not serve as a compliment. In this case, it says:
“Imposition of counsel, even ‘standby counsel’, as appears to be presently envisaged by the ICTY, will not alleviate any of the difficulties facing the process: it will not treat, much less cure, Slobodan Milosevic’s malignant hypertension; it will not provide the defendant with the time and conditions to prepare his case; it will not redress the gross imbalance in the resources accorded the Prosecutor and the Defence,” et cetera.
“If Slobodan Milosevic’s medical condition does not permit him to attend the proceedings, and he does not waive his right to be present, the ICTY does not have the jurisdiction to hold hearings in his absence.
Adjournments will continue as long as measures are not taken to treat Mr. Milosevic’s malignant hypertension, a condition that cannot be treated by further violating his rights, threatening to remove him from the process, or by transferring his Defence to a complete stranger.
“By imposing counsel, the ICTY would not only violate his right to self-representation, but his right to present relevant evidence demonstrating the repeated violations of Yugoslavia’s sovereignty over a decade.
“The right to defend oneself in person is at the heart of the International Covenant for Civil and Political Rights. The United Nations should not tolerate these continuing violations of international law in the name of expediency. Using a detained person’s inappropriately treated illness as an excuse to infringe upon his rights and silence him and embark on a ‘radical reform’ of the proceedings – as the Chamber is now considering, by changing the rules in the mid-trial, and to the defendant’s detriment- is a perversion of both the letter and the spirit of international law.”
That is about 100 legal scholars and professionals said on this matter. I mentioned them before.
Mr. Meron, we are talking here about the cogent norms of international law, ius cogens, imperative norms which do not allow a restrictive interpretation and which in my deep conviction and according to the conviction of many lawyers throughout the world say that I cannot be denied of my right to represent myself. Therefore, the fact that you question my surprise at all that the Trial Chamber could have adopted such a decision at all is something that does not surprise me but astonishes even many people throughout the world, especially when we keep in mind that we’re talking here about the denial of the minimum rights which I should enjoy here.
So I would like to be very brief. I would like for my right to be restored to me.
As far as arguments that were utilised which say that because of my hypertension many sittings had to be suspended, I would like to say that it is my deep conviction that the doctors on this matter have also been manipulated, because some elements were stated in a context in which they cannot be considered to hold.
As you can see here, I have a letter from Dr. van Dijkman to the Detention Unit physician, Dr. Falke, where he says — this letter is dated on the 10th of June, 2004, and it says that on the 9th and 10th of June I was monitored for 24 hours, my blood pressure was monitored for 24 hours, and it explains ” … blood pressure during daytime 164/103.” Et cetera. And he goes on to say, “I do not consider the blood pressure to be so high — … cease his activities.” Therefore, when it was high, he believed it did not justify a cessation of my activities. On the 26th of July, the date when I was examined the last time in order to agree in the future with Dr. Tavernier’s findings, my pressure was 150/95. Therefore, it was better. And then when it was better, it served as a basis for concluding that I was medically unfit to defend myself.
And furthermore, they manipulated the information about a loss of ten days, allegedly because of my health situation. And you will agree, gentlemen, that when this piece of information is used, it is in relation to days when my blood pressure was high. That’s what it seems. However, that is not accurate. I have an official document stamped and signed by the authorised officer of the Detention Unit, the only one who is in charge of medical records, which states in view of the fact that on several occasions I had a very severe case of flu with high fever, and it says “Dates of flu.” In 2001, it was one week. In 2002, it was one week. In early 2003, it was ten days. In May 2003, two weeks. And finally in 2004, in February, two weeks. In total, that amounts to six and a half weeks of flu involving high fever in various periods.
What happened then, gentlemen, then back in February 2004, when I was running a high fever and having flu and was bedridden, I received notification that the appeal — that the Prosecution case had been completed and that I was to prepare my list of witnesses. I therefore asked the liaison officer from the Registry, who is sitting here, whether, being ill, I was allowed to have an extension of that deadline because the task involves a huge amount of work. In those six and a half weeks, I was supposed to prepare a list of witnesses and was not able to start immediately.
I was informed by a Trial Chamber, through their legal assistant or whatever they call it, that the deadline cannot be moved. Therefore, I practically had to work from my bed at a very high intensity and to work very hard to comply with the deadline and submit that list within the six weeks given me from the time when I was informed of the completion of the Prosecution case.
That is what caused stress, shortage of sleep, and other problems.
And this complete disregard for the rule that I was allowed to work for only three days a week drove my tension and blood pressure up. In other words, it was the Trial Chamber who caused it with their decision and the fact that they set unreasonable deadlines. And then the resulting problems were used as an excuse to impose counsel on me with the explanation that I was unable to handle the preparations required myself. That is what happened.
I can give you this paper which shows exactly how many weeks were in issue, with appropriate dates and signatures. The loss of days caused by this was completely unrelated to the problems I was experiencing. It is, therefore, abundantly clear that this is a manipulation of findings and facts.
It is, as a consequence, abundantly clear that all talk of obstructionism is malicious, because if you say that about somebody who spent 300 days examining the witnesses of the other side, calling him an obstructionist, which he had never been in any of the 300 days of dealing with the case of the opposing side. It is nonsense, to say the least.
Even Mr. Nice putting forward his arguments before the Trial Chamber, trying to deny me an extension, said that I was working very efficiently and did not need an extension of the deadline. Therefore, in my then-health situation, I experienced additional pressure which caused a deterioration of my health, which was then used as a pretext for assigning counsel on me.
When I did not have any other health problems, I worked quite efficiently indeed, except for the times when I had flu with high fever, which nobody is immune from, and nobody can guarantee that it would not happen to them.
You asked me a number of questions that I will attempt to answer.
What is the best solution? The best and the only solution, in my opinion, is for you to give me back my rights. Your stand-by counsel is of no interest to me whatsoever.
Mr. Kay used to be an amicus curiae. He, as well as his colleague, upon leave of the Trial Chamber, put questions to witnesses when he deemed fit. As far as I am concerned, I have no objection to such practice at all. As far as I’m concerned, in that capacity he can continue if you think that necessary. He can continue to put questions to witnesses or perform any other tasks.
But it is indubitable that the only solution, the only one I see as just, fair, logical and reasonable is to give me back my right to represent myself, to call witnesses, to examine them, and to lead evidence in my Defence case.
That amounts, practically, to the guarantees I enjoy under every international covenant, agreement, treaty, and finally your own Statute.
And I cannot agree to anything less because that is my principled position, one from which I do not intend to retreat. So much, Mr. Meron. Thank you for your attention.
THEODOR MERON: Thank you, Mr. Milosevic. Mr. Milosevic, what would you suggest to the Court? How should it act if you would have to reduce your presence in the courtroom even beyond the three days that you have been able to cope with in the past? Imagine for a moment that you could be in the court, bearing also — taking into account also the time you would need in the detention centre to prepare, only one day a week. Would you — do you believe that the Court can go on if the situation would arise in that context? Do give us some practical suggestions to try and, in fairness, to remedy the situation that has arisen.
PRESIDENT SLOBODAN MILOSEVIC: Mr. Meron, your question is completely logical. I believe, however, that one should take into account the history of the accumulation of the present problems. Namely, several times – and this is known to everybody sitting here and it can be seen from the transcript – at the moment when this so-called trial began with charges from the Kosovo indictments, indictments on Croatia and Bosnia were issued. At that time, I received over half a million pages of material from the other side in connection with the charges raised then.
On several occasions, I asked them, “When do you gentlemen suppose that I can read this? Will you give me time to review this material, to familiarise myself with it and to respond?” The answer I constantly received was that the Trial Chamber would consider it.
And finally we ended up in this situation where I have not been given time to talk to my potential witnesses. In fact, I talked to as many witnesses as I had time to talk with. And during the summer recess and preparation, I was allowed to receive witnesses three days a week.
I assume you know that the opposite side spends sometimes several days speaking to one witness. I speak to one witness a day, sometimes two witnesses per day. I cannot be any more expedient than that. I believe, therefore, you should bear in mind that if it is true, and it is written in para 10 of the reasoned decision of the Trial Chamber on the assignment of counsel, since on the 30th of September it heard the arguments of sides to the proceedings, the Trial Chamber made its decision on the basis of the medical report concerning the accused’s health that the Chamber would sit three days each week.
That decision was made back then, and I believe that coupled with observation of this rule, a three-day work rule for the courtroom, and in view of the fact that I had not been given the opportunity in a timely manner to talk to my witnesses, a compromise is being made now between this and the decision made as a result. You should see what is fair in this situation. I believe that we can keep up the dynamics of three workdays per week with the proviso that weeks off should be taken occasionally so that I can proof witnesses I intend to call. And that would be a perfectly reasonable timetable enabling us to conduct these proceedings in a perfectly normal manner, achieving all that we have to achieve.
Those are my practical suggestions.
THEODOR MERON: Thank you, Mr. Milosevic. Of course, some of the difficulties that you have alluded to in terms of pressure on you, in terms of tension, are a result of the fact that you chose not to have a counsel. You have your legal advisors. Had you named them as your counsel, they would have borne some of the burden that you — that you took upon yourself. And from the perspective of the Court, shouldn’t a person accept the consequences of his decision? You chose to go this way, and you made things so much more difficult for yourself. Mr. Milosevic.
PRESIDENT SLOBODAN MILOSEVIC: Mr. Meron, in support and in favour of Mr. Kay, who very correctly put forward his position, because I really have nothing personal against him, and he is doubtlessly a very capable lawyer, nevertheless, no lawyer, Mr. Kay or any other lawyer, is able to replace me in this job. It is simply because of the nature of these charges.
This is a political trial. What is at issue here is not at all whether I committed a crime. What is at issue is that certain intentions are ascribed to me from which consequences are later derived that are beyond the expertise of any conceivable lawyer.
The point here is that the truth about the events in the former Yugoslavia has to be told here. It is that which is at issue, not the procedural questions, because I’m not sitting here because I was accused of a specific crime. I’m sitting here because I am accused of conducting a policy against the interests of this or another party. The nature of the proceedings here is such that a lawyer cannot deal with it. In fact, even that is not the issue. The issue is whether I have the right to represent myself under the Statute, and the Statute says I do.
Additional Remarks (after the presentation of the ‘Prosecution’)
PRESIDENT SLOBODAN MILOSEVIC: You should be clear on this mystification regarding the alleged failure to comply with my therapy.
You can find out the truth from the authorised medical personnel at the Detention Unit. I’m going to explain.
There is no mystification whatsoever. I was told one day that the next day a test would be made to ascertain how much of the medication I’m taking is actually absorbed by my body, and that I would receive medication at 7.00 a.m. in order to take a blood sample five hours later at 2.00 p.m. and the concentration of the medication would be measured in my blood. There is a record of this. At 7.00 a.m. exactly I took the medication, and two hours later a blood sample was taken. The analysis, however, showed that the concentration in my blood was not sufficient.
What business of that is mine? Please tell me. I don’t know what was wrong, whether there was enough of the concentration of the medication in the pill itself or not or something else was the problem. In any case, I complied with the procedure fully. Everything was done properly. And to base a theory on the allegation that I’m refusing to take my medicine is absolutely senseless. The procedure could have been checked. Another method could have been chosen, because no method is absolutely foolproof, but to take such conclusions is absolutely uncalled for, especially by laymen such as Mr. Nice. I will not waste any more time on this.
Second, regarding the campaign, you intervened, Mr. Meron, when I used the word “campaign” and when I mentioned Michael Scharf. Michael Scharf used to be the legal advisor of Madeleine Albright, as you know, I suppose. You also know that I was brought here on the 5th of July, being ill when the Trial Chamber ignored the fact that I’m ill, and the press came here to hear my opening statement although they were not notified that there would be no opening statement on that day.
You know, Madeleine Albright was here and that she personally is anxious, in view of her own responsibility for the bombing of my country and her own participation in aiding Croatian forces in the Operation Storm when several hundred thousand Serbs were expelled from Croatia.
And the next day, Mr. Prosper, the ambassador of your country, a person in charge of these issues, arrived.
Mrs. Albright is often referred to as the mother of this Tribunal and her personal interest, vested interest, is indubitable. It is doubtless that she has a role in this campaign, and you can see this argumentation that she shares in the transcript of Mr. Nice’s speech.
Mr. Nice spoke here, and I wish to respond to several of the things he said. He said it was up to me whether I would accept what has been offered. This is not a situation of offering or accepting. We are not at the bazaar where people are offering and taking. We have a completely different situation here. We are discussing the minimum of my rights, on which I insist. It is not a case of offering and accepting or not accepting wherein I am to take the consequences of my own refusal.
What is at issue here is to observe the minimum of my guaranteed rights.
Second, isn’t it absolutely clear that I have the right to appoint counsel, but I also have the right not to appoint counsel? I am exercising my right not to appoint counsel; in other words, my right to represent myself. Therefore, I am acting in full conformity with the spirit of the right given me.
Furthermore, Mr. Nice says that a judgement can be taken even without a Defence case, because several witnesses have been here, none of which have provided any evidence. So a judgement can be taken without a Defence. That is precisely their aim, because a Defence put forward by an imposed counsel is not my defence. That, I hope, need not be proven.
Defence through an imposed counsel is a legal fiction.
Furthermore, Mr. Nice says that I gave a list of witnesses to Mr. Kay. That is not true. I disclosed my witness list through the liaison officer answerable to the Trial Chamber. Mr. Kay, in his official capacity, has access to that list of witnesses, and through no fault of his, he has — he doesn’t know what to do with it, as he doesn’t know what to do with the list of thousands of exhibits that I made available, because if we keep this limit of 150 days, Mr. Kay does not know what selection I personally would have made out of the 1.600 witnesses to fit into the 150 days. And you will admit, gentlemen, that a bad use of witnesses and exhibits is worse than a complete failure to use witnesses and exhibits.
Then Mr. Nice asked the question, Who is running this court? That is not the question here. The question here is, Who is running my Defence, me or Mr. Nice?
For the duration of their half time, I didn’t show a shadow of intention to interfere with their business, whereas they have wanted all the time to organise my Defence and to dictate the terms and conditions of my exercise of my own rights. That is absolutely inappropriate. I didn’t take away my own right to self-representation; it was taken away from me by the Trial Chamber.
I therefore demand my right to represent myself back. I believe that my legal position cannot be changed in the middle of the trial, or my capacity to defend myself, and I demand my right back. Thank you.
