Shutting Down the Milosevic Defense at The Hague
by Tiphaine Dickson
On February 14th, The Trial Chamber of the International
Criminal Tribunal for the former Yugoslavia (ICTY) hearing the Milosevic
case resumed proceedings after having adjourned the week before following a
UN physician’s opinion that Slobodan Milosevic would require some days to
recover after having been affected by influenza in early February. Media
coverage had again complained of “delays in the trial”, and of
illness—generally described as “bouts of flu”—as the cause of “lost time”.
The Chamber faulted President Milosevic for “wasting time” in his
examination of the former Foreign Minister of Yugoslavia with respect to the
secession of the former republics and of foreign involvement in the
conflicts that ensued as a result. Mr. Milosevic was told the questions—of
obvious relevance, and, indeed, of crucial importance—were “pointless”. The
Prosecutor has asked that the proceedings continue in the absence of Mr.
Milosevic. The situation is ominous and there is evidence that the ICTY is
poised to take radical measures, including the interruption, and,
ultimately, the premature conclusion of Slobodan Milosevic’s defense.
Indeed, the ICTY, a UN Security Council institution, has set the stage to
justify ending these proceedings, —while holding President Milosevic
responsible for the result—, in four rulings, two of which were handed down
in the last two weeks. First, counsel was imposed against the defendant’s
will. Second, in absentia proceedings were approved. Third, imposed counsel
was not allowed to withdraw from the case for ethical reasons. And finally,
the duration of the Prosecution’s case was artificially reduced, while the
time afforded to Slobodan Milosevic was inflated by counting his
cross-examination of Prosecution witnesses as time devoted to his defense,
in an unusual order devoted to statistics. Slobodan Milosevic is either
directly or indirectly made responsible for the unfortunate state of affairs
in all four decisions. All is in place to wrap things up.
In September, the Trial Chamber imposed counsel against the clear wishes of
the defendant, a practice described by the United States Supreme Court as
having been largely abandoned since the unlamented demise in the late 16th
and early 17th centuries of the Star Chamber, an executive entity infamous
for trying political cases. The Trial Chamber’s decision to impose counsel
with broad powers to determine the strategy of the defense created a crisis,
as defense witnesses refused to cooperate with imposed counsel Steven Kay
and Gillian Higgins, previously ICTY-appointed amici curiae (friends of the
court), thrust upon Slobodan Milosevic as defense advocates, seemingly
oblivious to the fact that they’d been parties to the proceedings for over
two years, and that this created—at minimum—an apparent conflict of
interest. Mr. Kay complained bitterly, and publicly, about the
non-cooperation of defense witnesses (the Chamber had already received
Slobodan Milosevic’s list of witnesses when they imposed counsel), and
complained of Milosevic’s lack of cooperation as well, bringing the
proceedings to a virtual standstill with a mere trickle of witnesses making
the trip to testify in The Hague.
The imposition of counsel upon an unwilling accused—in clear violation of
the International Covenant on Civil and Political Rights, which provides for
the minimum fundamental right to defend oneself in person—was approved, as a
matter of law, by the Appeals Chamber (the initial imposition of counsel was
appealed again by Mr. Kay and Ms. Higgins) last November. The ruling reduced
this right—which is guaranteed by the ICTY’s own Statute as a minimum
fundamental right—to the rank of a mere “presumption”. In so doing, the
ICTY’s President, American Theodor Meron, stated that all the “minimum”
fundamental rights afforded to the accused by the ICTY’s Statute (which were
imported, almost verbatim, from the International Covenant on Civil and
Political Rights, leaving out only—inexplicably—the Covenant’s provision of
the right to be tried by an independent, impartial, and competent court)
were “on a par” with the right to represent oneself in person. In other
words, the right for a defendant to represent himself is just a
“presumption”, as are all the other basic, fundamental, internationally
recognized, minimal trial rights provided by the ICTY’s Statute: such as the
right to know the nature of the charge, the right to remain silent, the
right to present evidence in the same conditions as the Prosecutor, the
right to an interpreter, and the right to be tried in one’s own presence. In
fact, they are all stripped of their essence as rights. The ad hoc
international legal order holds them to be mere “presumptions” that can be
violated at the discretion of a trial chamber when expedient, or
“justified”. And as they are no longer really rights, it then follows that
they cannot even really be violated. And if they can’t be violated, there is
not much incentive to respect them, much less to guarantee them, as “minimal
rights”, nor to sanction or remedy their breach.
President Meron’s decision was almost universally understood as having
handed a victory to President Milosevic, as it overturned, not the legality,
nor even the propriety, of the imposition of counsel, but rather the
modalities set out by the Trial Chamber for such “assignment” of
counsel—that term, ‘assignment’, is the ICTY’s delicate formulation—. Hence,
President Meron directed that Mr. Milosevic be allowed to present his
defense and question his own witnesses, with imposed counsel on standby in
case of illness. Elsewhere in the Appeals Chamber ruling, however, President
Meron made a startlingly ominous claim: the right to be tried in one’s
presence is not absolute (it seems this right, too, is but a “presumption”)
and can be obviated by “substantial disruption” of the proceedings. This
disruption need not be deliberate or even intended by the accused, and can
be caused merely by illness. The possibility of holding in absentia
proceedings in the Milosevic case as a result of illness (as had been
forcefully advocated by the former US Ambassador for War Crimes Issues,
David Scheffer, in the International Herald Tribune last summer), had just
been approved by the Appeals Chamber.
In early February, President Meron denied a request by imposed counsel to
resign from the proceedings, citing ethical incapacity to continue in the
absence of cooperation from their “client”, and complaining of his public
criticism of their work. The British barristers directly blamed President
Milosevic—the very person whose rights are being violated by this
imposition—for their ethical predicament: “[T]he accused has made a
relationship of ‘candid exchange and trust’ impossible”. President Meron
accordingly took Kay and Higgins’ word for it, and laid responsibility for
their inability to act for an unwilling accused squarely at the feet of the
very victim of the measure: “an accused does not have the right to
unilaterally destroy the trust between himself and his counsel.” (Although,
as President Milosevic had pointed out at a previous hearing, it is
impossible to destroy, unilaterally or otherwise, something that never
existed in the first place.) Thus, citing the Appeals Chambers’ previous
ruling in the equally astonishing (and dismal, from a legal and human rights
perspective) –the case of General Vidoje Blagojevic, President Meron
resolved any and all ethical issues—including such questions of interest to
lawyers everywhere as: how do you represent a client who refuses your
services[?], who will not speak to you[?], whose witnesses do not trust you,
who will not communicate facts to you, (such as those relevant to a defense,
including alibi), and how does one act for an unwilling accused when one has
acted for another party in the very same proceedings?—Meron resolved these
questions by insisting on counsel’s obligations towards the ICTY, an
institution not recognized as a legitimate legal body by Slobodan Milosevic.
President Meron held that: “In such circumstances, where an Appellant
unjustifiably resists legal representation from assigned Counsel, Counsel’s
professional obligations to continue to represent the accused remain.”
It is unfortunate that President Meron’s decision does not reveal whether
the British Bar Council provided an opinion with respect to the ethical
issues raised, or whether one was in fact sought by imposed counsel.
Whatever the position of the UK Bar, a venerable institution whose opinion
might well have been of assistance in this debate; as far as the ICTY is
concerned, Mr. Kay and Ms. Higgins must continue to act, since President
Meron held that President Milosevic cannot be allowed to “manufacture” a
reason for counsels’ withdrawal by refusing to cooperate. To “permit” him to
do so, wrote Theodor Meron, would be to “render nugatory” the Appeals
Chamber’s decision to approve imposition of counsel! One can only admire the
perfection of that argument’s circularity.
As a final indication that these proceedings may well (soon) be derailed,
late last week, the Trial Chamber issued an odd calculation of the time
devoted by both sides, the Prosecutor and Mr. Milosevic, to the presentation
of their respective cases. The ruling goes so far as to count the minutes
the institution has apparently suffered through in what was once billed as
“The Trial of the Century”. This bizarre accounting of time, unheard of in
normal trials, and glaringly at odds with known practice in the adversarial
system, is meant to suggest that these proceedings have gone on for a
tediously long time and that in “bending over backwards” the International
Criminal Tribunal for Yugoslavia now risks violating the “integrity” of
international justice if it continues to afford such overwhelming fairness
to the accused. Such a suggestion stands in sharp contrast to the reality of
a skewed process which has from the moment the defendant was indicted—that
being at the height of an illegal bombing campaign, in the course of a war
of aggression against the nation of which he was the legitimate President,
by a Prosecutor who diligently informed the media that President Milosevic’s
new status would disqualify him from negotiating peace in Kosovo—has not
been characterized by fairness at all, but by the steady violation of
President Milosevic’s rights and of international law, itself.
These proceedings have, indeed, on occasion, been excruciatingly slow, but
the main victim has been President Milosevic, who was “transferred” to The
Hague—that is to say, he was snatched from a Belgrade detention facility
without recourse to common law courts and in violation of the Yugoslav
constitution, according to the (then) Yugoslav constitutional court—and
detained under UN authority since June 28th, 2001. It is astonishing to note
that international justice, or what attempts to portray itself as such,
would tolerate the four and a half year detention of a man suffering from
malignant hypertension, and worse yet, employ his illness as a justification
for imposing counsel, ONLY AFTER his defense had begun, in a display of
medical concern much less apparent during Ms. Del Ponte’s inexplicably
historical/political marathon presentation of evidence, much of which was
not immediately relevant, to put it mildly, to the charges contained in the
indictments. That the ICTY would attempt to blame Slobodan Milosevic for
this interminable trial is absurd. Indeed, the Prosecution’s case, presented
while investigations were ongoing, was for many observers unintelligible,
and meandering.
His surprisingly underreported defense, however, threatens to shed some
light on what he (and increasingly, his witnesses) have described, not as
the “Balkan Wars”, but as a single war against Yugoslavia, a state no longer
in existence, whose last days were punctuated by aerial bombardments not
seen in Belgrade since those carried out by the Allies at the end of WWII
and Nazi Germany in 1941. THAT is the war President Milosevic is beginning
to investigate in his defense, and that may well be the reason why suddenly
“time is being wasted”, the “trial has drawn on long enough”, and that the
“integrity” of the proceedings is now at stake. Indeed, this defense could
well present the very “substantial disturbance” required to bring it—and
perhaps the whole institution—to a untimely end.
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