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The Milosevic Trial I


The trial of Slobodan Milosevic resumes Tuesday, August 31, after a six-month recess, with various failed attempts to resume the proceedings along the way. Most notably on July 6, when Presiding Judge Patrick Robinson decided instead that “it is now necessary to carry out a radical review of the future conduct of the trial,” the fear being that Milosevic’s cardiovascular disease might claim this prize trophy before the neocolonial community’s instrument in The Hague finishes its job on him. (“Order on Future Conduct of the Trial,” July 6, 2004.)


If all goes according to schedule (i.e., Scheduling Order Concerning Recommencement of the Trial, Aug. 25):

1. The trial will recommence on 31 August 2004, the trial schedule being as follows:

a. the Accused will make his opening statement;
b. following the opening statement of the Accused, there will be a procedural hearing at which the parties and Amici Curiae may make further submissions concerning the content of the medical reports and assignment of defence counsel, and raise, with leave of the Trial Chamber, any other urgent procedural issues;
c. the Trial Chamber will thereafter issue a further order concerning these matters; and
d. no evidence will be heard until Tuesday, 7 September 2004; and

2. Whilst severance of one or more of the indictments remains an option, the Trial Chamber will not give further consideration to it at this time.

The procedural part of this order is the most important right now. Since early July, the Trial Chamber has been consumed with deliberations—though existential angst would be the better phrase—whether it should impose a defense counsel on Milosevic (see Further Order on Future Conduct of the Trial, July 19); and, second, whether it should order the “severance” of the three indictments for Kosovo, Croatia, and Bosnia-Herzegovina that the same court had ordered “joined” in early 2002. (On the question of “severance,” Further Order on Future Conduct of the Trial Relating to Severance of One or More Indictments (July 21). On the decision to merge these three originally separate indictments into one for the sake of the trial (for the sake of the Office of the Prosecutor’s hopes of a conviction, the truth be told), dating all the way back to early 2002, see Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, Feb. 1, 2002; and, more important, Decision on Prosecution Request for Agreement of Trial Chamber to Amended Schedule of Filings, April 18, 2002.)

The “severance” question is very much still up in the air. The prosecution has filed arguments against it—the prosecution having been the one to file motions in favor of joining all three indictments together, back in 2001. But the decision, ultimately, belongs to the powers that joined the three indictments in the first place: The Yugoslavia Tribunal’s appellate body. And beyond.

Not so the other procedural point. Clearly, the imposition of a defense counsel would be undertaken in the interests of the Trial Chamber, the Office of the Prosecutor, and, indeed, the whole Yugoslavia Tribunal process, including a lot of (Mind if I say?) Western ideologues who have staked a considerable part of their prestige on the institutionalization of a certain historical account of the wars over the breakup of Yugoslavia in which American Power saved the day (though too little, too late)—and woe unto anyone who’d shake this foundation. “The prosecution has presented Mr. Milosevic as the instigator of the wars, the unscrupulous nationalist who, while Yugoslavia was breaking up, wanted more land for ethnic Serbs,” the New York Times reported the day before the resumption of the trial (Marlise Simons, “Milosevic to Open Defense Armed With Piles of Documents,” Aug. 30). Here, the Times was echoing one version or another of what I like to call the Wars of Greater Serb Aggression propaganda frame. Namely, the wars over the breakup of Yugoslavia are to be explained as the result of an effort by ethnic Serbs—with Slobodan Milosevic as the fountainhead of it all—to create a Greater Serbia, destroying Yugoslavia and an untold number of lives and material property in the process. By this stage, we’ve heard this repeated almost without interruption since the early 1990s. Hence, for example, the prosecution’s serial indictments of Milosevic as the leader of a “joint criminal enterprise” the purpose of which was the “forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina,” a “joint criminal enterprise” hatched no later than “1 August 1991 and continued until at least 31 December 1995,” in the words of the indictment for Bosnia-Herzegovina, the most grandiose and Western-moralizing of them all. (The Prosecutor of the Tribunal Against Slobodan Milosevic, Bosnia: Amended Indictment, April 21, 2004.) But echoing, also, a vast and ever-growing body of literature that purports to be about the breakup of Yugoslavia—and almost always winds up striking exactly the same chord.

The imposition of a defense counsel would not be in the defendant’s interests, please note well, to judge by what both the defendant and the Amici Curiae lawyers have stated repeatedly over the course of the summer. (For the merest hint that I’ve been able to find by searching the ICTY’s website of the Amici lawyers’ firm “No” to the question, see CC/PIS/884e, Aug. 16, 2004.—But, rest assured, their answer was indeed “No.”)

More important, as the defendant himself has stated unrelentingly since his initial appearance before the Yugoslavia Tribunal on July 3, 2001 (IT-99-37-1):

18 JUDGE MAY: Mr. Milosevic, I see that you’re not represented by counsel
19 today. We understand that this is of your own choice. You do have the
20 right, of course, to defend yourself. You also have a right to counsel,
21 and you should consider carefully whether it’s in your own best interests
22 not to be represented. These proceedings will be long and complex and you
23 may wish to reconsider the position.
24 In these circumstances, if you wish to have time to consider
25 whether you want to have counsel or not, we would be prepared to give it

—-Page 2—-

1 to you. Now, do you want some time to consider now whether you wish to be
2 represented?
3 THE ACCUSED: I consider this Tribunal a false Tribunal and the
4 indictment a false indictment. It is illegal being not appointed by the
5 UN General Assembly, so I have no need to appoint counsel to illegal
6 organ.

But this last caveat is largely irrelevant, it goes without saying. Writing in this past Sunday’s Washington Post, Michael Scharf, a professor of international law and former State Department insider who had considerable input into the creation of the Yugoslavia Tribunal (UNSC Res. 808, Feb. 22, 1993; as well as the May 3 Report of the Secretary-General (S/25704)), and has defended its virtues ever since, argued that the Trial Chamber was wrong to have allowed Milosevic to represent himself in court—a defense counsel ought to be imposed upon him. “Milosevic’s antics and poor health have repeatedly disrupted the trial, justifying appointment of counsel to represent him in court for the remainder of the proceedings,” Scharf wrote. “It would be a small step to transform the amicus counsel into a full-blown defense team, and instruct it to represent Milosevic for the rest of the trial. The lawyers are already intimately familiar with the case and are willing to take on such a role. And unlike Milosevic, they will be bound to play by the rules.”

He continued (“Making a Spectacle of Himself; Milosevic Wants a Stage, Not the Right to Provide His Own Defense,” Aug. 29):

If, on the other hand, the tribunal rules that Milosevic still has a right to represent himself, the precedent will affect other international cases. Saddam Hussein, whose war crimes trial is set to begin later this year, will be able to argue that he, too, has a right to represent himself before the Iraqi Special Tribunal.

If Hussein were allowed to follow Milosevic’s playbook—using the unique opportunity of self-representation to launch daily attacks against the legitimacy of the proceedings and the U.S. invasion of Iraq—this would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shiites and Sunnis. The historic record developed by such a trial would forever be questioned. And the trial would transform Hussein and his subordinates into martyrs, potentially fueling violent opposition to the new Iraqi government.

Notice exactly where Scharf is coming from: Politics, not justice. The larger, peremptory affairs of the world’s reigning Great Power, in two regions of the world where it has intervened decisively and militarily; but not truth, not the historical record, not anything remotely related to them.

To quote Scharf once again:

In creating the Yugoslavia tribunal statute, the U.N. Security Council set three objectives: first, to educate the Serbian people, who were long misled by Milosevic’s propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the ways 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. [Judge Richard] May’s decision to allow Milosevic to represent himself has seriously undercut these aims.

So with the trial of Slobodan Milosevic, the neocolonial community has taken upon itself the task of instructing the very same people against whom it launched a war in the spring of 1999 about their evil past and criminal conduct, as a way of facilitating “national reconciliation,” promoting “political catharsis,” and helping Serbia’s newest class of leaders put this past behind them and turn westward. (To paraphrase sardonically, I’m afraid. Because this Scharf stuff really makes me sick to my stomach.)

In his new book, How America Gets Away With Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press, 2004), York University professor of international law Michael Mandel has a section devoted to garbage such as this. You know. The “Advocates [of tribunals who] see themselves as bulwarks against the Holocaust deniers of the future,” as Mandel calls them. But truth is not their objective. Only a convenient fiction.

As with all trials generally:

Their point is to determine whether a particular person is going to be punished, and carriage of that task is assigned to parties having a huge stake in the outcome….If there is a ‘truth’ that criminal trials are meant to establish, it must be kept firmly within quotation marks, because it is a very different one from the actual, historical truth—it is an ideological truth. Criminal law always means to teach us something, to ‘make a point’. Part of the point is the deterrent one: this is the kind of thing that can get you in trouble….The ‘truth’ criminal law seeks to teach is one about who is to blame for what has happened; and that person is the person found guilty. That person is not only to be blamed, but to be hated. And that means the crime has to be detached from its social and political context and located squarely within the heart of the accused as an inexplicable evil, so that the natural, indeed the only possible solution is punishment. (239-241)

Mandel even quotes Scharf here—an academic study of the trial and conviction of the ethnic Serb Dusan Tadic, a sadistic individual liberated during wartime conditions to ply his trade on the captive population in and around the camps of Prijedor (Sound like official U.S. Government accounts of Abu Ghraib?): “The record of the trial,” Scharf intoned, “provides an authoritative and impartial account to which future historians may turn for truth, and future leaders for warning….[T]he Tadic trial produced a definitive account that can endure the test of time and resist the forces of revisionism.” (239-240)

Pure neocolonial torture. In other words: Dusan Tadic on an international scale—such is the work of the International Criminal Tribunal for the Former Yugoslavia. To think that monsters such as this have derived their sense of “moral” superiority and advanced their careers by forcibly rubbing the noses of other people against the ground, and forcing them to smell the stench of the corpses buried beneath, while successfully labeling it “reconciliation,” “catharsis,” and “truth.”

Sort of makes me wonder how the Diagnostic and Statistical Manual of Mental Disorders might categorize this symptom of the neocolonial project? (If the American Psychiatric Association even had a clue, that is.) But (a) there is an underlying disorder; and (b) this disorder is shared. Indeed. Widely shared. And not only widely shared. But widely cultivated. Widely encouraged. And widely rewarded. Lavishly rewarded, in fact.

A show trial is a show trial because it belongs to somebody else and is conducted to further their political projects and ends. In the case of the former Yugoslavia, and the now two-and-one-half-year-long trial of the former Serbian political leader Slobodan Milosevic, all we have is a show trial.

Show trials, that is.

Slobodan MIlosevic: Speeches and Interviews

Marlise Simons on the Yugoslavia Tribunal: A Study in Total Propaganda Service,” Edward S. Herman and David Peterson, ZNet, 2004

The Milosevic Trial,” ZNet Blog, July 25, 2004
The Milosevic Trial II,” Znet Blogs, September 7, 2005

FYA (“For your archives”): Am depositing here a copy of Michael Scharf’s recent commentary in the Washington Post.

The Washington Post
August 29, 2004 Sunday
Final Edition
SECTION: Outlook; B02
HEADLINE: Making a Spectacle of Himself;
Milosevic Wants a Stage, Not the Right to Provide His Own Defense
BYLINE: Michael P. Scharf

Almost everyone knows the old legal saying: “He who represents himself has a fool for a client and an idiot for a lawyer.” The trial of former Serbian leader Slobodan Milosevic suggests a related adage: “A judge who permits a rogue leader to represent himself in an international war crimes trial is just as misguided.”

On Tuesday, Milosevic’s trial — more than two years old and counting — is scheduled to resume before the International Criminal Tribunal in The Hague. The opening act of the trial’s new phase will be the judges’ announcement of their decision on whether to allow Milosevic to continue acting as his own lawyer.

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.

The decision has caused the trial to drag on twice as long as anticipated. Because of concerns about Milosevic’s high blood pressure (240 over 120), the judges have had to scale back the length and frequency of the proceedings to ensure that the former leader is not “tried to death.” As a result, the trial takes place only three times a week as opposed to the standard five; the number of hours per day has been reduced from eight to four; and there are frequent lengthy recesses to allow the defendant-lawyer to regain his strength. These delays have taken their toll on justice. Judge May recently died of cancer and a replacement had to be found; witness memories are fading; and the international community is losing interest.

The judges have given Milosevic wider latitude than an ordinary defendant or lawyer. Normally, the accused addresses the court only when he takes the stand to give testimony, and he must take an oath to tell the truth. Moreover, he is limited to offering evidence that is relevant to the charges, and is subject to cross-examination by the prosecution. 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.

As his own defense counsel, Milosevic has been able to treat the witnesses, prosecutors and judges in a manner that would earn ordinary defense counsel a citation or incarceration for contempt of court. In addition to regularly making disparaging remarks about the court and browbeating witnesses, Milosevic pontificates at length during cross-examination of every witness, despite repeated warnings from the bench. Milosevic, who spends his nights at the tribunal’s detention center, has no incentive to heed the judges’ admonitions.

Milosevic’s caustic defense strategy is unlikely to win him an acquittal, but it isn’t aimed at the court of law in The Hague. His audience is the court of public opinion back home in Serbia, where the trial is a top-rated TV show and Milosevic’s standing continues to rise.

Opinion polls have reported that 75 percent of Serbs do not feel that Milosevic is getting a fair trial, and 67 percent think that he is not responsible for any war crimes. “Sloba Hero!” graffiti is omnipresent on Belgrade buses and buildings. Last December, he easily won a seat in the Serbian parliament in a national election.

In creating the Yugoslavia tribunal statute, the U.N. Security Council set three objectives: first, to educate the Serbian people, who were long misled by Milosevic’s propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the ways 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.

May felt he had no choice in the matter because the tribunal’s legal charter stated that the defendant has the right “to defend himself in person or through legal assistance of his own choosing.” But some experts — and I’m including myself — are now arguing that May got the law wrong.

The language from the Yugoslavia tribunal statute originally comes from a human rights treaty known as the International Covenant on Civil and Political Rights. The negotiating record of the International Covenant indicates that the drafters’ concern was with effective representation, not self-representation. In other words, the drafters felt that a defendant should have a right to either be represented by a lawyer or to represent himself; they did not state that each defendant must be asked to choose between the two. Unlike Britain and the United States, most countries of the world do not allow criminal defendants to represent themselves under any circumstances, and this has been deemed consistent with international law by the European Court of Human Rights.

Even if May was correct in his reading of the law as providing a right to self-representation, he was wrong to treat that right as absolute. As authority for his position, May cited the U.S. Supreme Court’s 1975 ruling in Feratta v. California, which held that there was a fundamental right to self-representation in U.S. courts. But the high court also added a caveat, which May overlooked, stating that “a right of self-representation is not a license to abuse the dignity of the courtroom.” U.S. appellate courts have subsequently held that the right of self-representation is subject to exceptions — such as when the defendant acts in a disruptive manner, when self-representation interferes with the dignity of the proceedings or when the issues in the case are too complex for a defendant to represent himself adequately.

Milosevic’s antics and poor health have repeatedly disrupted the trial, justifying appointment of counsel to represent him in court for the remainder of the proceedings. There’s precedent for taking such a step: In the trial of former Serbian paramilitary leader Vojislav Seselj, the Yugoslavia tribunal required Seselj — over his objection — to accept “stand-by counsel,” ready to step in as soon as the defendant became disruptive or the issues became too complex.

In a sense, the tribunal has already appointed standby counsel for Milosevic in the guise of Stephen Kay and the other amicus (“friends of the court”) counsel. While not bound to follow the defendant’s directives, their job has been to ensure that legal arguments favoring the defense are presented to the judges. It would be a small step to transform the amicus counsel into a full-blown defense team, and instruct it to represent Milosevic for the rest of the trial. The lawyers are already intimately familiar with the case and are willing to take on such a role. And unlike Milosevic, they will be bound to play by the rules.

If, on the other hand, the tribunal rules that Milosevic still has a right to represent himself, the precedent will affect other international cases. Saddam Hussein, whose war crimes trial is set to begin later this year, will be able to argue that he, too, has a right to represent himself before the Iraqi Special Tribunal.

If Hussein were allowed to follow Milosevic’s playbook — using the unique opportunity of self-representation to launch daily attacks against the legitimacy of the proceedings and the U.S. invasion of Iraq — this would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shiites and Sunnis. The historic record developed by such a trial would forever be questioned. And the trial would transform Hussein and his subordinates into martyrs, potentially fueling violent opposition to the new Iraqi government.

Justice demands that Milosevic and Hussein be given fair trials. That can best be guaranteed by appointing distinguished counsel to defend them, not by permitting them to act as their own lawyers.

Author’s e-mail: [email protected]

Michael Scharf is professor of law and director of the Frederick K. Cox International Law Center at Case Western Reserve University in Cleveland. His latest book is “Slobodan Milosevic on Trial” (Continuum).

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