THREE MONTHS TO PREPARE THE DEFENCE IN THE “TRIAL OF THE CENTURY”: AN ATTEMPT TO SILENCE THE TRUTH
The Québec and Canada sections of the International Committee for the Defence of Slobodan Milosevic (ICDSM) wish to register our outrage at the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) to grant President Slobodan Milosevic only three months’ preparation time for the presentation of his defence against a “case” built only on the cynical distortion of the ten most turbulent years of Yugoslavia’s history.
This decision is yet another illustration of the ICTY’s contempt for the most basic international norms of jurisprudence and prisoners’ rights. This decision is also a clear signal that this institution, born of political pressure from the US administration – which has institutionalized legal impunity for its own, ongoing crimes – was not designed for and does not intend to conduct a trial. This process merely seeks to divert scrutiny from the West’s responsibility for the destruction of a nation. Faced with President Milosevic’s refusal to accept the political manipulations of The Hague, his principled defence of his people and their history, and successful courtroom performance, the ICTY is now attempting to prevent him from presenting his case.
This is, as the renowned Canadian criminal lawyer Edward Greenspan put it, a lynching.
Imposition of counsel?
On April 4th 2003, the ICTY acknowledged Slobodan Milosevic’s right to defend himself in person, and denied a Prosecution motion to impose counsel against his will. This fundamental right to self-representation without the imposition of counsel over the will of an accused is paramount. The United States Supreme Court has held that imposition of counsel on an unwilling accused is unprecedented with the exception of the Star Chamber, which carried out political trials. The Prosecutor now seeks to revisit this issue, and will petition for the imposition of counsel against President Milosevic’s wishes, despite the fact that this very applicartion betrays the political nature of this process.
The ICTY’s decision to permit Slobodan Milosevic to represent himself held, in reference to Article 21 of the ICTY Statute, that it “has indeed an obligation to ensure that a trial is fair and expeditious; moreover, where the health of the Accused is in issue, that obligation takes on special significance.” Article 21 states that the Chamber must exercise this obligation “with full respect for the rights of the accused.”
More expeditious than fair!
The Chamber’s decision to grant Mr. Milosevic three months to prepare his defence flies completely in the face of its stated concern to ensure a fair trial and respect for the rights of the accused. It is a wholly unrealistic preparation time for a trial of this magnitude, especially so since Mr. Milosevic is defending himself while detained. The Chamber has visited an additional hardship upon Mr. Milosevic by ordering him to provide, within six weeks of the close of the Prosecution’s case, a detailed list of witnesses he intends to call, including a summary of the facts on which each witness will testify, and an indication of whether the witness will testify in person or by way of written statement or use of a transcript of testimony from other proceedings before the Tribunal. He must also list the exhibits he intends to offer in his case, and serve the Prosecutor copies of same. The Chamber cannot even guarantee that Mr. Milosevic will have “permission” to call any witness he chooses, as the decision states it will hold a “Pre-Defence Conference” to review the witness list for approval and determine the time allowed to him to present his case.
Equality of arms?
Numerous international conventions affirm the right of anyone accused of a criminal offence to adequate time and facilities to prepare their defence. This right is an important aspect of the fundamental principle of “equality of arms,” which holds that the defence and the prosecution must be treated in a manner that ensures that both parties have an equal opportunity to prepare and present their case during the course of the proceedings. The Tribunal has claimed recognition of this principle in its Statute which states that the accused has the right to “examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.”
The Tribunal’s stated respect for “equality of arms” is belied by the absence of any restraints on the Prosecution remotely analogous to those operating on Mr. Milosevic, who has had to face almost 300 witnesses over 250 days of trial proceedings during the presentation of the Prosecution’s case, and received over 500,000 pages of disclosure to review. Just the burden of preparing the cross-examination of so many witnesses every night in a jail cell is mind-boggling. And now he has a mere three months to review this mass of testimony and documentation, and review transcripts generated so far. He has six weeks to identify, meet, and interview defence witnesses, as well as to select and tender key defence documents. Taking just for example the half-million pages of disclosure to review, and assuming each page is read only once, at a rate of one page a minute, it would take 347 24-hour days to read it all. That’s over ten months, not three. By contrast, the ICTY filed its “Kosovo indictment” four and half years ago, and enjoyed a two-year preparation period for their additional indictments in 2001 related to the Croatian and Bosnian conflicts. The Prosecutor has had eight years to collect evidence on Srebrenica.
President Milosevic’s life is in danger!
The decision to permit only three months’ preparation, and only six weeks to produce a list of witnesses along with a summary of their statements fails to take into account President Milosevic’s health. The court as been obliged to acknowledge, again and again, by adjourning the proceedings, that the UN doctors were right when they reported that President Milosevic’s life was at risk because of the intensity of the proceedings. Affording three months increases his stress and could lead to increased blood pressure, leading to stroke, or death.
In November of last year, the ICDSM requested standing before the Chamber to argue that Slobodan Milosevic’s medical condition required immediate specialized medical attention, and that his state of health required he be released from custody, given adequate time for his convalescence, and be allowed to prepare his defence in a non-custodial setting. The ICTY has not granted this request, nor has it denied it. The “Tribunal” has simply ignored it.
Appalling conditions
In addition to having only three months to prepare his defence, Mr. Milosevic must do so from a jail cell under appalling limitations. At the present time, Mr. Milosevic cannot meet with his wife and family. His closest associates and friends are inaccessible, as the Registrar has banned him from contact with members of his party, the SPS, and “associated entities”. Sloboda, the leading association in defence of President Milosevic has been listed as a banned group. The Registrar applied this measure based on the suspicion that two SPS members had spoken to the press. President Milosevic’s preparation of his defence requires that he meet witnesses and resource persons, many of whom are now unable to meet with him because they are banned. “Associated entities” could be anyone, it is for the Registrar’s discretion. Sloboda has challenged the ban on legal grounds. It has yet to hear from the ICTY.
In addition to having severely curtailed President Milosevic’s contact with his closest advisors, and the Registrar has provided inadequate facilities to prepare his defence. He has been permitted a controlled access to a few basic rudiments of electronic and print communication (phone, fax, a computer in his cell, a VCR for reviewing trial footage), but the frequency and duration of his visits with his legal associatesare tightly circumscribed, usually amounting to no more than a few hours a week if at all, and effectively limited to days when the trial finishes early.
Again, it is telling to contrast these conditions and facilities “permitted” a man who is defending himself alone against the most serious charges known to humanity in what has been called the “trial of the century,” with the vast resources available to the Office of the Prosecutor, and the unlimited prerogatives the Prosecution enjoys for meeting with its investigators, assistants, researchers and various other members of its much larger team. The Prosecutor‘s spokeswoman attends joint press conferences with the ICTY spokesman, while Slobodan Milosevic cannot meet with members of his party, Sloboda, or undefined “associated entities” because two individuals are suspected of having spoken to the media about meeting with him.
A public trial?
Article 11 of the UN Universal Declaration of Human Rights affirms the presumption of innocence and the right of the accused to a public trial. But the “trial” of Slobodan Milosevic is often not public, and shielded from international public scrutiny. Security concerns are systematically invoked to justify the numerous closed sessions, pseudonym witnesses, and ex parte motions filed by the Prosecutor, motions whose content Mr. Milosevic is not entitled to review. In the past six months, the Chamber has handed down seven decisions following ex parte motions. Another fundamental right is to be present for one’s own trial. If Mr. Milosevic cannot read Prosecution submissions to the judges, let alone respond to them, can it be said that he is actually present at his trial?
Release President Milosevic!
These developments bespeak a process which is much more expeditious than it is fair, and compel the Québec and Canada Sections of the ICDSM to reiterate the ICDSM’s call for a two-year recess in the trial in order for Slobodan Milosevic to prepare his defence, to end the ban on his visitation rights, and to have his medical condition treated by a medical professional of his choice. He must be released from custody. To proceed otherwise is only to continue the shameful mockery of justice at The Hague. Indeed, the most enduring remedy to this judicial circus – and one which we support – is the complete disbandment of this incurably politicized “court” and the release of all its prisoners.
Montréal – Toronto, September 29, 2003
