The Milosevic Trial V

Today, Presiding Judge Patrick Robinson issued an Order on Request for Certification To Appeal the Decision of the Trial Chamber on Court Assigned Counsel—he gave the court’s okay to the recently-imposed and wholly non-autonomous defense counsels for Slobodan Milosevic to appeal their imposition upon him by the same court just one week earlier (CC/ P.I.S./889-e, Sept. 2; and CC/ P.I.S./890-e, Sept. 3.)

For once, the New York Times found the right words to sum up Thursday’s and Friday’s proceedings: “This puts the new defense team in the peculiar position of appealing against its own presence,” Tribunal watcher Marlise Simons reported (“Witnesses Pull Out of Trial After Judges Refuse to Let Milosevic Act as His Own Lawyer,” Sept. 10). Another way to characterize this very peculiar institution at The Hague would be to say that in Trial Chamber III of the International Criminal Tribunal for the Former Yugoslavia, the Milosevic case is well on its way to becoming like the mythological snake that, unable to satisfy its ravenous appetite, starts swallowing itself from the tail up. At this point in time, there is no telling how far it’ll go.

Yesterday (The Milosevic Trial IV), I wrote that at least four witnesses who had been scheduled to testify for the defense have withdrawn their consent, citing the imposition of the counsels as their reasons. Today’s New York Times reports as many as 12, including “four German, two Russian, and five French witnesses,” the 12th being the American George Kenney. Two additional names that also come to mind as of this moment are the Canadians Rollie Keith and Michel Chossudovsky. This makes at least 14. And counting.

Note that the Tribunal’s decision to impose defense counsel serves several related purposes, and critics of the Tribunal can argue the various weights which ought to be assigned to each of them—including giving the Registrar a cameo role to play in this high-stakes drama. But all of these purposes boil down to two, I think. Indeed. Ultimately, they all boil down to one.

(Quick aside. Clearly the imposition of counsel upon Milosevic is producing serious unintended consequences, too. Not the least of which has been to throw “Europe’s biggest war crimes trial since Nuremberg” into a tizzy. But this is not the kind of purpose to which I just referred.)

Most immediately, the order removes Milosevic from his own courtroom defense, effectively gagging him and making his interaction with critical witnesses impossible, such as the retired Belgrade professor of law Smilja Avramov, the first defense witness called. (By the way, Transcripts of the opening rounds of the defense have yet to be posted to the Tribunal’s website. So we can’t tell what sort of comments have been made in court yet. The last update remains the session of March 25, informing Milosevic of the resignation of the original Presiding Judge Richard May for health reasons (he is now deceased). It closes at page 32,079, to be precise.)

And the order destroys something else that the Tribunal had managed to maintain throughout the entirety of the prosecution’s case and its aftermath: The appearance (or rather the ruse, to use a word more to my taste—the “legal fiction,” to steal one of Milosevic’s phrases) of a check on the probity of the proceedings—the whole amicus curiae apparatus which the Tribunal established as early as the first week of September, 2001. (See Order Inviting Designation of Amicus Curiae, Aug. 30, 2001, wherein the Tribunal stated that it was “desirable and in the interests of securing a fair trial that an amicus curiae be appointed as permitted by the Rules of Procedure and Evidence, not to represent the accused but to assist in the proper determination of the case, and pursuant to Rule 74,” and instructed the Registrar to take care of it. The Registrar did, on September 6, appointing Steven Kay, Branislav Tapuskovic, and Michael Wladimiroff to act as the original Amici Curiae for the Milosevic case (CC/ P.I.S./ 617-e.))

But these are just the two most immediate or palpable purposes behind the Tribunal’s imposition of defense counsel. (Though it’s always good to remember that the Tribunal swears it has merely ordered the “assignment” of counsels, not imposed them, with the former amici Steven Kay and Gillian Higgins (yes, the roster has changed over the years) now trading-in their old briefs for new briefs to become (as if such a transformation even were possible) the official “Court Assigned Counsels” for the Milosevic defense (CC/ P.I.S./890-e).)

But something far more enduring is at stake. The ICTY’s whole reason-for-being, actually. Its existence as a political-historical regime. Ultimately, Trial Chamber III’s purpose behind imposing counsel upon Milosevic is to salvage both the Milosevic trial and the Tribunal itself as the institutional settler of scores from the wars over the breakup of Yugoslavia, and everything they meant to the Great Powers that were involved therein.

Think about it. When Trial Chamber III took the decision to impose defense counsel upon Milosevic, the Tribunal itself dropped all pretenses (appearances, ruses, legal fictions, and the like) that the Milosevic trial is anything other than a political show trial—a platform or stage from which the official history of the wars over the breakup of Yugoslavia are to be written, assigned a certain set of dramatis personae, a certain series of causes and effects, a certain historical explanation, and, in the final analysis (i.e., the Tribunal’s place in all of this), a final accounting. A certain morality tale. Including Evildoers and Righteous Avengers. (Like the ones who smote the Evildoers from the skies over Bosnia-Herzegovina in the summer of 1995, and smote them again from the skies over the Republic of Serbia in the spring of 1999. Righteous Avengers who not only gave birth to the Tribunal years before. But against whom no charges for crimes will ever be filed. No matter how catastrophic the deed or trivial the charge. This not being the Tribunal’s purpose, after all. Heavens no.)

This is what the court’s quite desperate order to deny to Milosevic his right to defend himself betrays. True, it may have taken the court less than one week’s time to recognize that it has placed the appearance (not the reality—just the ruse) of the probity of its proceedings at risk. True, the newly-assigned counsels for the defense are now trying to find some way of undoing what political damage their re-assignment from “friends of the court” to hostile counsels for the defendant has wrought. And, equally true, they may devise some scheme to pull this off just yet. (Between ourselves, I have a very high degree of confidence in the capacity of the powerful to get their way in all things as worldly and as fleshy—indeed, as downright dirty—as law and the affairs of states.—This Tribunal business being no exception.) Still. The Tribunal’s ultimate purpose as a show trial never has been more clearly on display than of late. Nor has there been anything less than sheer delight watching this political-historical regime stumble and trip over its own many feet.

But we can look elsewhere for corroboration of the political nature of the Tribunal, if you like. Thus, to quote once again a recent commentary by Michael Scharf, an American law professor and former State Department insider who played an important role in the creation of the Tribunal so many years ago (“Making a Spectacle of Himself; Milosevic Wants a Stage, Not the Right to Provide His Own Defense,” Washington Post, August 29—for a copy, see below):

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.

Might anyone care to parse this paragraph? Nevermind. Here all dissimulation melts away: Scharf himself has done it for us. Leaving aside the actual text of the Tribunal’s Statute (1993), and leaving even further aside the putative role of the Security Council in its creation (UNSC Res. 808—which in this case, as in so many others, was the result of a lot of different states with a lot of different objectives just trying to endure pressures and threats from the Americans to shove their objectives down the other 14 Security Council members’ throats), between the spring of 1993 and the month of September, 2004, the Yugoslavia Tribunal has had one overarching objective, and one only:

To establish an historical record which states (to oversimplify a bit) that, by their use of ethnic cleansing and territorial expansion to secure the living space required for an ethnically-pure “Greater Serbia” (i.e., the laughable “joint criminal enterprise” that rings out in every one of the Milosevic indictments), the former Yugoslav Republic of Serbia—or Belgrade, or Milosevic as the “mastermind” of it all—plunged this part of Europe not just into a series of four wars of aggression, but four theaters of crime, compelling outside powers to intervene after the fact, working among themselves and through the United Nations to establish certain precedents wedding state-violence (i.e., war) with humanitarian and international law to forge the UN protectorate of Bosnia-Herzegovina and, later, the UN protectorate of Kosovo—and, last but not least, the Tribunal itself.

This last passage (please feel free to re-phrase and clarify it at will) states what are bedrock articles of faith, as far as the Tribunal’s entire historical frame of reference is concerned. They run up and down its Indictments and Proceedings website, for example, like a monk’s fingers along a rosary. When someone from the Office of the Prosecutor or Trial Chamber III, or the dozens of reporters who have filed from the stage of this political show trial at The Hague accuse Milosevic of exploiting his time on the same stage but for a different show, this is all they mean: His defense consists of contesting what to them are Articles of Faith. He and he alone is guilty of raising irrelevant matters and using the Trial Chamber as a political platform.

As the final report of the truly magnificent Dewey Commission of Inquiry Into the Charges Made Against Leon Trotsky in the Moscow Trials (1938) concluded, “we find that the trials have served not juridical but political ends,” their verdicts “frame-ups,” the defendants (Trotsky and his son) “not guilty” (p. 394).

Still. I remain confident the Yugoslavia Tribunal will find Milosevic guilty many times over.

If he lives long enough.

Postscript. For three of the clearer examples of commentary intended to deny that the Yugoslavia Tribunal—and the Milosevic trial in particular—is a political-historical regime the express purpose of which is to carry out “political persecution in juridical form,” as the Dewey Commission described the purpose of an earlier political-historical regime, I direct your attention to the following:

The Trial of Former Serbian President Slobodan Milosevic,” Human Rights Watch. This is HRW’s general webpage devoted to the Milosevic trial and to matters of international and humanitarian law related to it. To quote HRW’s researcher on the former Yugoslavia, Bogdan Ivanisevic, “The court could have appointed a lawyer for Milosevic, who chooses to represent himself, to enable the trial to continue in his absence. But, considerations of fairness made them decide otherwise. The trial’s slowness is evidence of its fairness, not its failure.” (“The Milosevic Trial Is Doing Its Job,” International Herald Tribune, Aug. 31.) An accompanying “Q & A: Milosevic Trial (ICTY)” makes the same point at greater length. (See esp. Point 4.) One can only conjecture at this point what Human Rights Watch—whose Richard Dicker for years has provided a ream of comments to the American news media attesting to the probity of the Tribunal and its handling of the Milosevic case—is going to say next, now that Trial Chamber III just reversed a 30-month-old policy and imposed defense counsel upon Milosevic, causing the proceedings to grind to a halt because of it. But I’m confident that Human Rights Watch will fabricate something sufficiently flattering to say about Trial Chamber III’s quest for justice.

The Milosevic Trial,” specifically the material bylined by Judith Armatta. This particular website is the work of the Coalition For International Justice, whose “About CIJ” webpage explains that the CIJ “supports the international war crimes tribunals for Rwanda and the former Yugoslavia, and justice initiatives in East Timor, Sierra Leone, and Cambodia. CIJ initiates and conducts advocacy and public education campaigns, targeting decision-makers in Washington and other capitals, media, and the public.” The CIJ’s work on the International Criminal Tribunal for the Former Yugoslavia is “in the bag,” as the saying goes. Judith Armatta might as well be working for the Office of the Prosecutor.

The Institute for War and Peace Reporting‘s Tribunal Project. The IWPR website explains that this “long-standing programme provides uniquely informed reporting on the war crimes tribunal in The Hague, to support local understanding of the process and to strengthen support for war crimes proceedings within the former Yugoslavia.”—But, why strengthen support for a regime that engages in political persecution in judicial form—and then on behalf of the very states that are powerful enough not only to impose their wills militarily upon the world, but also in this instance to resort to the UN Security Council to place its seal of approval on it?

Order on Request for Certification To Appeal the Decision of the Trial Chamber on Court Assigned Counsel (Case No.: IT-02-54-T), Judge Patrick Robinson, September 10, 2004

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

Slobodan MIlosevic: Speeches and Interviews (Homepage)

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
The Milosevic Trial IV, ZNet Blogs, September 9

FYA (“For your archives”): Once again I’m depositing in these blogs a copy of Michael Scharf’s recent admission (confession, betrayal, call it what you will) that the Yugoslavia Tribunal is a political organ and, in fact, was established for this purpose from the very start. (See par. 9 especially.)

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: michael.scharf@case.edu

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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