| International Committee to Defend Slobodan Milosevic*ICDSM |
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THE
ICTY RAMBOUILLET
JOINT
STATEMENT OF THE INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC AND
OF THE SLOBODA/FREEDOM ASSOCIATION
Issued:
31 October 2004 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.
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