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The Milosevic Trial IV


Get this! In the latest twist to the Milosevic saga, the defendant’s newly-imposed (Oops! I mean newly “assigned“) counsels, Steven Kay and Gillian Higgins—who, until September 3, used to work as two-thirds of the trial’s “friends of the court,” the other-third, Timothy McCormack, still working at his—”have filed a request with the judges to be allowed to appeal their appointment,” Agence France Presse reports (Sept. 9).


The AFP report elaborates (“Milosevic’s lawyers move to appeal decision imposing them”):

In order to file an appeal with the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) the judges trying the case have to grant permission.
…………
“It is the accused’s position that assigned counsel will not be in a position to present his case as well as he can or put his defence,” the request reads.
The lawyers argue that the correctness of the decision depriving Milosevic of his right to defend himself affects “the overall fairness of the trial.”
They warn that if Milosevic is convicted and he appeals and the appeals chamber then agrees with his arguments “the possible outcome could be a retrial, constituting a waste to tribunal resources.”

Did you catch that? Milosevic’s so-called lawyers didn’t refuse to accept their appointments. Nor did they resign their appointments, once having accepted them (way, way back on this past Friday, the 3rd). Instead (and presuming AFP reported this accurately), they are appealing their appointments.—

Can anybody explain to me the logic behind this particular appeal? I mean, either you are skating on ice or the ice beneath you has cracked, given way, and you’ve fallen through. But not both. Not simultaneously. Right? But, the defendant’s assigned counsels are appealing the fact that they have been thusly assigned? Is this what in certain academic fields is known as postmodern legal theory? Or what?

Nor is this all. The imposition of counsel isn’t a violation of the defendant’s basic rights. Not a threat to the overall fairness of the trial or the interests of justice. Just a potential “waste to tribunal resources”—and then only if the defendant one day prevails on appeal. Pretty frank admissions on the part of the “assigned” defense counsels that the whole proceedings are a charade, and that they themselves are playing no small part in upholding it. If such a state of legal limbo even is conceivable. Wouldn’t you say?

Because in appealing their appointments, rather than rejecting them outright, the counsels have adopted a position that contradicts the expressed belief of the defendant that the imposition of counsel is a violation of his basic right to forgo counsel, and to defend himself.

This is really beautiful stuff here, if you think about it. Milosevic contends (correctly, in my opinion) that the Trial Chamber’s order of September 2-3 to impose counsel upon him was an incorrect and indeed unjust one. But, according to AFP, his counsels are arguing that this order was a correct one. It just complicates matters. Thus:

The lawyers argue that the correctness of the decision depriving Milosevic of his right to defend himself affects “the overall fairness of the trial.”

You see what I mean? The order depriving the defendant of his right to defend himself was a correct one, the assigned defense counsels argue. Though it may cause problems later on, if Milosevic one day manages to file an appeal, and wins. And on top of this, Tribunal rules permit the newly-imposed counsels to file their motion-for-an-appeal-manqué with the Trial Chamber only, requesting that the Trial Chamber grant them the power to reach over its head and file an actual appeal with the Tribunal’s Appellate body.—How’s this for the dilution and defilement—not only of the defense, but of the totality of everything the Trial Chamber in the Milosevic case touches?

What’s more, it appears that the defendant’s list of witnesses is growing shorter and shorter with every passing day. Since the defense counsels were imposed last Friday, at least four witnesses who had been scheduled to testify for the defense have withdrawn their consent, citing the imposition of the counsels as their reasons. Namely: The Russian Nikolai Ryzhkov, the Canadians Rollie Keith and Michel Chossudovsky, and the American George Kenney.

As Kenney, who once worked on the former Yugoslavia for the State Department during the first Bush Administration, explained in a message addressed directly to Milosevic (September 8):

Given…that the Tribunal has seen fit to take away your fundamental right to represent yourself in your own defense the proceedings have become inherently unfair, amounting to no more than a political show trial with no authentic legal legitimacy. Your defense, the defense for which I had consulted with you in The Hague, does not now exist.
Consequently I cannot in good conscience act as a “defense witness” under the Tribunal’s current rules. Should the Tribunal reverse itself and allow you to conduct your own defense once more then I would again willingly agree to be your witness.

How many other defense witnesses either have, or soon enough will, respond in a similar manner to the Tribunal’s radical restructuring of the Milosevic trial? A whole bunch of them, is my guess. It seems that only employees of the Tribunal—the Amici Curiae-cum-Assigned Defense Counsels, for example—lack such basic scruples.

The Milosevic case reminds me of nothing so much as an egg shell that keeps cracking, and cracking, and cracking some more. First one crack. Then another crack across the first crack. Then cracks across these cracks. Then cracks across these. Cracks across cracks across cracks. Until what is left is cracks but no shell.

Of course, I’d like to predict that it’ll all crumble to pieces one day soon. But I am equally confident in the capacity of the powerful to go right on pretending that the shell is intact.

Slobodan Milosevic: Speeches and Interviews (Homepage)

Imposition of Counsel on Slobodan Milosevic Threatens the Future of International Law and the Life of the Defendant (a.k.a., Open Letter), International Committee to Defend Slobodan Milosevic, July 29, 2004

The Hague ICTY Tribunal: Star Chamber it Is!” Tiphaine Dickson, September 6

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

The Milosevic Trial I, ZNet Blogs, August 31

The Milosevic Trial II, ZNet Blogs, September 7

The Milosevic Trial III, ZNet Blogs, September 9

FYA (“For your archives”): Am depositing here (a) the entirety of George Kenney’s September 8 message to Milosevic, along with (b) copies of what little I’ve been able to find by way of wire-service reports coming out of Trial Chamber III at the Yugoslavia Tribunal today. Note that the Tribunal does maintain a comprehensive website. Unfortunately, it seldom updates its website as quickly as wire services reports get into circulation. Otherwise, I would have posted the relevant links to the Tribunal’s documents here. (Perhaps another time.)

(A)

September 8, 2004
Washington DC

Mr. Milosevic,

After due consideration I had agreed willingly to be one of your defense witnesses at the ICTY. I believed then and still believe that you are innocent of all the charges in the Tribunal’s indictments. Given, however, that the Tribunal has seen fit to take away your fundamental right to represent yourself in your own defense the proceedings have become inherently unfair, amounting to no more than a political show trial with no authentic legal legitimacy. Your defense, the defense for which I had consulted with you in The Hague, does not now exist.
Consequently I cannot in good conscience act as a “defense witness” under the Tribunal’s current rules. Should the Tribunal reverse itself and allow you to conduct your own defense once more then I would again
willingly agree to be your witness.

Sincerely,
George Kenney

(B)

Agence France Presse — English
September 9, 2004 Thursday 10:06 AM GMT
HEADLINE: Milosevic’s lawyers move to appeal decision imposing them
DATELINE: THE HAGUE Sept 9

The lawyers appointed to defend Slobodan Milosevic last week after doctors said the former Yugoslav president was not fit enough to act as his own lawyer have filed a request with the judges to be allowed appeal their appointment, documents released Thursday showed.

In order to file an appeal with the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) the judges trying the case have to grant permission.

British lawyers Steven Kay and Gillian Higgins, appointed as defence lawyers against Milosevic’s will, said they filed they motion on behalf of the former president.

“It is the accused’s position that assigned counsel will not be in a position to present his case as well as he can or put his defence,” the request reads.

The lawyers argue that the correctness of the decision depriving Milosevic of his right to defend himself affects “the overall fairness of the trial”.

They warn that if Milosevic is convicted and he appeals and the appeals chamber then agrees with his arguments “the possible outcome could be a retrial, constituting a waste to tribunal resources”.

On Thursday, as the trial continued with the questioning of former US Senate foreign policy analyst James Jatras, Milosevic again protested the judges’ decision to force lawyers on him.

“I demand that you restore my right to self defence,” he told the judges, as he did Tuesday and Wednesday.

Kay, apparently frustrated by Milosevic’s persistent refusal to cooperate, replied: “We did not volunteer for this”.

Milosevic, who started presenting his defence last week, faces more than 60 counts of war crimes and crimes against humanity for allegedly masterminding the wars in Croatia and Bosnia in the first half of the 1990s and the Serb crackdown on Kosovo in 1998-99.

He has also been charged with genocide and complicity in genocide, the gravest of war crimes, for the war in Bosnia that left 200,000 people dead.

He could get a life sentence if convicted.

Agence France Presse — English
September 9, 2004 Thursday 1:26 PM GMT
HEADLINE: Imposed defence lawyer says witnesses refuse to appear in Milosevic case
DATELINE: THE HAGUE Sept 9

At least two defence witnesses called by former Yugoslav president Slobodan Milosevic have refused to testify since judges forced him to take on a lawyer, defending counsel Steven Kay said Thursday.

The judges condemned Milosevic’s refusal to cooperate with Kay — with whom he has had no contact, according to the court — and called on all witnesses to appear “to ensure that the defence case is fully presented”.

“Should the failure of (Milosevic) to cooperate with counsel result in material which is actually relevant to his case not being presented to the trial chamber then he must bear responsibility for that,” presiding judge Patrick Robinson warned.

“If the opportunity for the accused to participate in the presentation of his defence is not grasped by him, the trial will nonetheless proceed and none can say there was injustice.”

Kay told the judges that at least two defence witnesses slated to appear in the first two weeks of the defence case had said they would not do so if Kay called them because they objected to the fact that Milosevic was no longer allowed to defend himself.

Kay called on all defence witnesses to cooperate with him.

“Not attending will not do the defence case any good whereas attendance will,” he stressed.

Russian deputy Nikolai Ryjkov has publicly said that he has refused to testify in protest at the court’s decision to impose a lawyer. Ryjkov said he had been scheduled to appear next week.

A Serbian legal advisor to the former president also said a third witness had refused to come.

Milosevic said again Thursday that he wanted his right to defend himself restored.

“I would like to draw your attention to the fact that you spent three days on two witnesses and I have 1,600 (witnesses). This is obviously an attempt to dilute and maim my defence,” he said.

Kay retorted that he did not spend more time with the witnesses than Milosevic had said he would need when he filed a list of witnesses.

While calling on witnesses to cooperate with him in court, Kay nonetheless filed a request on behalf of Milosevic appealing against his appointment.

“It is the accused’s position that assigned counsel will not be in a position to present his case as well as he can put his defence,” the request read.

The judges trying the case have yet to grant permission for the application to proceed to the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY).

Milosevic, who started presenting his defence last week, faces more than 60 counts of war crimes and crimes against humanity for allegedly masterminding the wars in Croatia and Bosnia in the first half of the 1990s and the Serb crackdown on Kosovo in 1998-99.

He has also been charged with genocide and complicity in genocide, the gravest of war crimes, for the war in Bosnia that left 200,000 people dead.

He could get a life sentence if convicted.

The trial was adjourned Thursday and will resume next week Tuesday with the third defence witness. It is not yet known who will take the stand.

Associated Press Worldstream
September 9, 2004 Thursday 10:34 AM Eastern Time
HEADLINE: Witnesses refusing to testify in Slobodan Milosevic war crimes defense
BYLINE: ANTHONY DEUTSCH; Associated Press Writer
DATELINE: THE HAGUE, Netherlands

Just two days into their attempts to defend Slobodan Milosevic, lawyers appointed to represent the former president said Thursday that witnesses are refusing to testify because the court will not let him present his own case.

Milosevic, on trial for alleged genocide and other war crimes during the breakup of Yugoslavia in the 1990s, also has refused to work with – or even meet – the lawyers assigned to his defense.

Calling the imposition of defense attorneys “an obvious effort to dilute and maim my defense,” Milosevic has sat sullenly during the three days of defense testimony, and has refused the judges’ offers to let him ask the witnesses follow-up questions.

In a public hearing, British attorney Steven Kay appealed to the witnesses chosen by Milosevic to come to the Netherlands and testify in support of his case.

“We welcome all Milosevic’s witnesses to give evidence and indeed to cooperate. Not attending will not do the defense case any good at all,” he said. Milosevic submitted a list of 1,600 potential witnesses before he was told he could no longer present his own case.

After months of delays due Milosevic’s heart trouble, Kay and another British lawyer, Gillian Higgins, were appointed last Friday to take over the case. Milosevic, who represented himself during the two-year presentation of the prosecution case, insists that he be given back his right to self defense.

Kay took the first legal steps on Milosevic’s behalf to appeal his own appointment as defense counsel by filing documents with the appeals chamber.

Milosevic could face life imprisonment if convicted of any of the 66 counts in his indictment.

The panel of thee U.N. judges warned Milosevic on Thursday that he will “bear responsibility” if important evidence isn’t presented due to his obstruction.

“If the opportunity for the accused to participate in the presentation of his defense is not grasped by him, the trial will nonetheless proceed and no one can say there was injustice,” presiding Judge Patrick Robinson said.

“The steps we have taken are designed to help you by protecting your health, securing the presentation of your case in the most effective way, and ensuring that the trial is conducted fairly,” he said.

They once again asked Milosevic to “think carefully over the next few days about those matters and to meet with assigned counsel.”

Kay, who questioned the first two witnesses this week, said a Canadian and a Russian witness had not shown up for meetings and said they would not appear because of the court’s ruling against Milosevic’s right to defend himself.

The judges canceled a hearing set for Monday in response to Kay’s request for more time to try to persuade thee witnesses to testify.

“It’s in his interests that they attend. To cite reasons of a ruling of this court for not coming to give evidence at the tribunal we do not find impressive,” he said.

One witnesses refusing to come is former Soviet premier Nikolai Ryzhkov. Other reluctant witnesses are Canadian historian Roly Keith, and Michel Chossudovsky, a critic of the NATO intervention in Kosovo in 1999. NATO bombed Serbian forces and installations in a 78-day campaign to force troops out of the southern Serbian province, where Milosevic says his forces were battling terrorists, not independence fighters.

“He (Chossudovsky) did not want to come specifically at my request because he felt the issue of the representation of the accused was an issue that somehow prevented him in giving evidence in the defense of Mr. Milosevic,” Kay said.

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