Illegal, Illogical and Strictly Political
On December 12th, the ICTY suspended all visits and telephone communications to Slobodan Milosevic, with the exception of members of his immediate family, diplomatic representation and legal counsel, based on the claim that he has communicated with the media in the context of upcoming elections in Serbia.
The ban on visits and telephone communications is a punitive measure undertaken to prevent the exercise of Mr. Milosevic’s right to freedom of expression, and his right, pursuant to Serbian law, to stand as a candidate in the electoral process. The ICTY disregards and debases the cornerstone of criminal law: the presumption of innocence, and appears to be meddling in the political affairs of Serbia, by gagging the President of a legally constituted and legitimate political party—the Socialist Party of Serbia— thereby crippling the SPS’s parliamentary campaign.
This unprecedented decision follows the US government’s imposition of conditions to which Wesley Clark’s upcoming testimony will be subjected. Clark’s testimony will be delivered behind closed doors, and will be the object of review and subsequent censorship by the US. It should be noted that General Clark is a candidate for the US Presidency— just as Slobodan Milosevic is a candidate for the Serbian Parliamentary elections.
The ICTY’s press release announcing General Clark’s “retransmitted”– and US-approved– testimony provides the press with the phone number of the US Presidential candidate’s public relations firm. Clearly, the ICTY—a creation of the UN Security Council—has preoccupations visibly unrelated to those of courts as generally envisaged: that is, to dispense justice independently and impartially, by carrying out fair and public trials.
The decision to ban communications and visits constitutes an extraordinary violation of international law and the basic principles of legality. The ICTY has justified this draconian measure by stating concerns that the press might somehow interfere with the institution’s mandate, as stated in the Deputy-Registrar’s decision:
“the particular circumstances of the detainee necessitates (sic) the imposition of measures which are imperative for the avoidance of potentially deleterious media coverage resulting from unrestricted communication entitlements and visits for the time being.”
What “potentially deleterious media coverage”? Of whom or what, precisely? Which “particular circumstances”? Is Mr. Milosevic presumed guilty? It appears so, as the gag order specifies that:
“…the Accused has, as noted above, previously either directly contacted the media or has used his privilege to communicate with others who have in turn provided messages through the media in contradiction of the Rules of Detention, which have resulted in a widespread media attention and coverage of the fact that an indictee for genocide, crimes against humanity and war-crimes such as the Accused is facilitating, with ease, the ongoing Serbian parliamentary elections campaign”
This unsubstantiated allegation is designed to suggest that Slobodan Milosevic is guilty of the crimes he is “alleged” to have committed, and therefore should not have the right to “facilitate”—one does not easily grasp the meaning of the expression– the Serbian electoral campaign. The ICTY may very well disapprove of the fact that Slobodan Milosevic is participating in the democratic process of his country—as is his right, as a Serbian citizen, President of the Socialist Party, and former President of his country—three times elected by his people. However, an institution that proclaims to carry out a judicial function, under international law, no less, must act according to the law. The gag order imposed on President Milosevic is contrary to legal principle and international human rights instruments. Its political justification raises concerns that the ICTY does not possess the independence required to be a court of law.
Equality of Arms
The Registrar’s decision violates the basic principle of equality of arms. “Equality of arms” is an international legal concept equivalent to “due process”, and a fundamental fair trial guarantee.
At the ICTY, the Registry permits, finances and otherwise aids and encourages unrestrained access to the media by the Prosecutor, while denying any such contact on the part of an accused person. The Registry facilitates, finances and otherwise supports joint press briefings of the ICTY’s Spokesman for Registry and Chambers with Office of the Prosecutor’s spokeswoman. Summaries of these press conferences are made available on the ICTY’s website at http://www.un.org/icty/latest/index.htm .
Article 21 of the ICTY Statute sets out the minimum rights of accused persons. These rights encompass the principle of the equality of arms.
The principle of equality of arms, in the context of a trial, is to be interpreted as meaning that each party must be afforded a reasonable opportunity to present its case, under conditions that do not place it at a substantial disadvantage vis à vis the opposing party.
The Registrar’s ban puts President Milosevic at “a substantial disadvantage vis-à-vis the opposing party” as, simply put, the “opposing party” maintains a channel of communication with the media, which it uses to present its case, and does so with the assistance and support of the Registry.
Equality of arms is violated when the Registrar simultaneously bans visits to an accused, based on the prohibition on contact with the media, while facilitating joint press briefings of the Tribunal and Prosecutor’s spokespeople. The imbalance is striking.
That the Registrar would seek to impair the Socialist Party of Serbia’s electoral campaign and would punish Slobodan Milosevic by depriving him of visits and telephone communications immediately before the testimony of a US Presidential candidate– whose public relations contacts have been provided to the press by the same Registrar—is so outrageously foreign to judicial practice that it reveals the ICTY’s inability to perform a judicial function in accordance to international legal standards.
The Registrar’s decision violates freedom of expression and interferes with the Serbian democratic process
Some security considerations can legitimately justify the non-disclosure of certain information to the media by visitors such as the details of floor plans of Detention Unit, for instance. Security considerations are a pattern throughout legislation governing visits to detention units under international and domestic law.
In contrast, the Registrar’s decision constitutes a blanket prohibition of contact with the media. No security considerations have been asserted in support of the ban, which is tantamount to a gag order.
The ICTY is held to apply and respect the provisions of the International Covenant for Civil and Political Rights.
The accused is presumed innocent by Article 21 of the ICTY Statute until proof has established his guilt beyond a reasonable doubt. The accused preserves his freedom of expression.
Visitors to the accused also enjoy the right to freedom of expression, a fundamental right set out in Article 19 of the Universal Declaration of Human Rights:
“Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The Appeals Chamber of the ICTY has recognized the public’s right to receive information from the press as a component of freedom of expression. On interlocutory appeal in Prosecutor v. Brdjanin, the Appeals Chamber overturned the Trial Chamber’s decision to issue a subpoena to journalist Jonathan Randall. The Appeals Chamber held:
As has been noted, the right to freedom of expression includes not merely the right of journalists and media organizations freely to communicate information. It also incorporates a right of members of the public to receive information. As the European Court of Human Rights put it in its decision in Fresso and Roire v. France: “Not only does the press have the task of imparting information and ideas on matters of public interest: the public also has a right to receive them.”
Brdjanin described the vital role of war correspondents in the work of the Tribunal, and concluded:
The Appeals Chamber will not unnecessarily hamper the work of professions that perform a public interest.
The British House of Lords, in Regina v. Secretary of State for the Home Department Ex Parte Simms (A.P.) Secretary of State for the Home Department Ex Parte O’Brien overturned the British Home Secretary’s ban on verbal interviews between convicted prisoners serving sentences and the media.
The O’Brien case establishes that convicted prisoners have the right to conduct interviews with the media and discuss the unfairness of their trials. Lord Steyn stated:
The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil.
O’Brien acknowledged the reality of miscarriages of justice, and the crucial role of the media in exposing them.
President Slobodan Milosevic asserts his innocence, and steadfastly refuses to recognize the ICTY as a court. He is innocent, until proven otherwise, and has every right to deny the legitimacy of this institution. By banning contact with the media, the Registrar has violated the rights of Mr. Milosevic, of his visitors, and of the public at large. Serbian democracy is also the target of this measure. The Socialist Party of Serbia has legally elected Slobodan Milosevic as President of the party and can, in full conformity with Serbian law, present him as a candidate. The ICTY has inexplicably decided to obstruct the Socialist party, and has demonstrated its political—not judicial—preoccupations. This measure has been carried out in the name of the Tribunal’s mandate to “restore peace in the former Yugoslavia”. The measure is unconscionable, and the consequences for Serbia—and for the future of international law—are catastrophic.
The ICTY may not enjoy President Milosevic’s criticism. Nonetheless, the public benefits of permitting him to communicate with the media far outweigh whatever embarrassment might be visited upon the ICTY. As Lord Steyn stated it:
Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Mr. Justice Holmes (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”: Abraham v. United States 250 U.S. 616, at 630 (1919), per Holmes J. (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnett, Constitutional Law, 3rd ed., (1996), 1078-1086
The House of Lords contemplated the right of convicted criminals to conduct interviews with the media. Neither Mr. Milosevic nor his visitors have been convicted of any crimes, yet the Registrar’s decision strips them of rights enjoyed by convicted persons in the United Kingdom.
Freedom of expression before the ICTY
In the matter of Brdjanin, the Appeals Chamber recognized freedom of expression as a fundamental right which could be restricted only for the protection of a public interest.
The Registrar justifies the gag order by suggesting that the press coverage of President Milosevic’s participation in the Serbian election campaign would frustrate the ICTY’s mandate:
CONSIDERING that the facilities provided by the Detention Unit are intended for the well- being of the Accused and not for purposes that frustrate the Tribunal’s function to assist in establishing peace and security in the former Yugoslavia and that the fact that a detainee at the Detention Unit has communicated with the aid of facilities provided by the Detention Unit to participate in an ongoing Serbian parliamentary elections campaign is such an occasion that is likely to frustrate the Tribunal’s mandate;
The public can be forgiven for assuming that a tribunal’s function is to render justice and hold fair trials, not to “assist in establishing peace and security”. And even if it were not entirely inappropriate and frankly dangerous for a judicial institution to carry out the function of a gendarme, one still cannot follow the Registrar’s reasoning. How is it that Slobodan Milosevic’s participation in the Serbian elections—or rather the fact that his participation may produce “deleterious coverage” by the media—“is likely to frustrate the Tribunal’s mandate”?
The gag order obviously violates Mr. Milosevic’s rights, the rights of his party, and the rights of the people of Serbia. But the rights of the media and general public are being violated as well.
Transparency is required of any judicial institution. The law is further perverted and debased when employed to obstruct the internal political affairs of a sovereign nation– in particular when the justification for such an intervention is based on the promotion of “peace and security”.
The gag order violates the fundamental, universally recognized principle of presumption of innocence
Only a blatant disregard for the presumption of innocence can justify the violation of President Milosevic’s fundamental right to freedom of expression, in addition to the violation of the rights of his potential visitors.
In effect, a ban on visits and telephone conversations following alleged communication with the media for political purposes supposes that President Milosevic is guilty and that his visitors are guilty by association. The ban assumes that Mr. Milosevic will tell his visitors bad things—political things– which in turn will be reported in the media.
The ban also appears to prevent information favorable to Mr. Milosevic from being published in the media, which could only be justified if his guilt were assumed.
In any event, the Registrar’s decision suggests that the public cannot be trusted with any information that could be received in the course of a visit with Mr. Milosevic.
The Registrar’s decision violates Rule 5 of the Rules of Detention, which states:
All detainees, other than those who have been convicted by the Tribunal, are presumed to be innocent until found guilty and are to be treated as such at all times.
The gag order is tantamount to ordering the isolation of President Milosevic
The governing principle with respect to detention has been set out above: All detainees, other than those who have been convicted by the Tribunal, are presumed to be innocent until found guilty and are to be treated as such at all times.
This principle is at the heart of the rule providing for detainees right to visitors of their choice, subject to security considerations. This general rule is consistent with UN protocols on detention.
Amnesty International provides the following justification for the principle of free access to visitors:
The rights of detainees to communicate with others and to receive visits are fundamental safeguards against human rights abuses such as torture, ill-treatment and “disappearances”.
Detained and imprisoned people must be allowed to communicate with the outside world, subject only to reasonable conditions and restrictions.
Mr. Milosevic has been deprived of visits from his wife and immediate family since March 2003. In August, the Registrar banned visits from members of the Serbian Socialist Party and “associated entities”. The present order constitues a wide ranging ban on all visits, with very limited exceptions: legal counsel, and consular representation.
The Registrar’s decision is tantamount to imposing isolation on Mr. Milosevic. It is unwarranted, arbitrary and capricious. Its effect—the violation of a candidate’s right to political expression—which candidate was legally named by a legitimate political party—in the context of democratic elections—is a blow to the idea of international justice, as envisaged by the framers of the UN Charter, for whom the sovereignty of states, the right of peoples to self-determination, and the refusal to carry out international relations by the use of force or the threat of force were to be valued above all else. That those ideals be perverted in the name of justice itself can only emperil international law.
Tiphaine Dickson, Attorney
