The Imposition of Counsel on Milosevic: Marlise Simons continues her exemplary propaganda service

an earlier study of Marlise Simons’s coverage of the Yugoslavia
Tribunal in the New
York Times
, David Peterson and I described how she framed the
issues, rewrote history, and suppressed inconvenient evidence to
support the prosecution. We concluded that the Soviet media covering
the Moscow trial of Leon Trotsky (et al.) in 1936-1937 could not
have done a better job of apologetics for the state agenda than
Simons did for the U.S.-NATO agenda channeled through the Tribunal. 

summer Simons returned to the Tribunal to deal with the Milosevic
defense, after a lengthy Tribunal delay following the conclusion
of the prosecution’s case, the withdrawal and death of the
trial judge Richard May, and the time allowed Milosevic to organize
his defense. In her eight articles on the renewal of the trial published
between August 30 and September 19, Simons comes very close to matching
her earlier performance. In her use of words, she continues to use
derogatory language solely in reference to Milosevic. The “former
strongman” “filibusters,” makes unreasonable “demands”
on the court; the “often outspoken and obstinate” defendant
offers a “meandering history” of the Balkan wars in his
“five-and-a-half-hour discourse.” He “ostentatiously”
put his pen in his coat pocket in refusing to cooperate with the
court-imposed counsel, as he “once again managed to derail
the complex war crimes case.” 

our earlier account, we noted that, according to Simons, the former
judge, Richard May, was “sober, polite and tough,” and
“patiently repeated questions,” although the noted Toronto
lawyer Edward L. Greenspan was immediately impressed with the fact
that May “doesn’t even feign impartiality.” The current
presiding judge, Patrick Robinson, is cited by Simons without the
use of any adjectives, but the tone suggests judicial impartiality,
with Robinson justifying his imposition of counsel on Milosevic
and relegating him to the background in his “defense”
by claiming, “The prestige, reputation and integrity of the
court [is] at stake” in its actions. For Simons, Robinson and
his colleagues did not “derail the complex war crimes case”
by imposing counsel, although this violated what Robinson himself
had earlier found to be required by Tribunal rules and customary
law, which gave a defendant “a right not to have counsel,”
and which predictably caused Milosevic to refuse cooperation and
led to a steady exodus of defense witnesses. 

finds Milosevic’s account of Balkan history too personal, wordy,
and politically biased. In contrast, in the earlier 120 articles,
as well as the current eight, Simons has no criticism of the prosecution’s
version of history, which she repeats here: “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” (August 30, 2004). This is a biased and mythical
history that any reader of Lord David Owen’s Balkan Odyssey,
Susan Woodward’s Balkan Tragedy, Lenard Cohen’s
Broken Bonds and Serpent in the Bosom, Robert M. Hayden’s
Blueprints for a House Divided, or Diana Johnstone’s
Fools Crusade would quickly recognize as twisted for political
ends. But Simons has never allowed a contesting voice on this history
in 128 articles, except for general statements by Milosevic, about
which she is contemptuously dismissive.

she now and earlier mentions and criticizes Milosevic’s lengthy
speeches, detailed questioning of witnesses, and alleged stalling
tactics, she has had no word of criticism at the prosecution’s
bringing in a stream of 296 witnesses, a large fraction testifying
to abuses that are common in any brutal civil war and that have
no bearing on the charges against Milosevic for a planned and controlled
joint enterprise to commit genocide. Furthermore, a Tribunal supporter
and former State Department official, Michael Scharf, has estimated
that 90 percent of the witnesses for the prosecution gave hearsay
evidence. The use of numerous accounts of human suffering—many
of which were not even directly witnessed—to help demonize
the defendant, and the deliberate prosecution exploitation of this
testimony via publicity, didn’t trouble Simons, and in fact
she was part of the team using this testimony for that very purpose. 

the earlier study we found that Marlise Simons not only relied extremely
heavily on official sources, she never once tapped an outside expert
who might criticize the official party line. In the recent set of
articles on the Milosevic defense, Simons does cite a Milosevic
aide, Bayana Jaksic (a member of the Milosevic legal team), Milosevic
aide Zdenko Tomanovic, former State Department official George Kenny
(who has withdrawn his offer to testify given the imposition of
counsel), and a serious critical expert, Canadian lawyer Tiphaine
Dickson. But the first two are cited only to describe the logistics
of the Milosevic defense effort. Kenny is quoted on substance—that
his withdrawal is based on the fact that with imposition of counsel
Milosevic’s defense “does not now exist.” Tiphaine
Dickson is quoted as saying that “What is going on is unseemly,”
but Simons carefully avoids the details and substantive arguments
that Dickson puts forward in support of her position (summarized
more fully in her article “The Hague ICTY Tribunal: Star Chamber
It Is!,” 

the latest phase of the Milosevic trial, supposedly turning to Milosevic’s
defense against the prosecution charges, Simons retains her old
frame of the bad man charged with major crimes and under trial by
an honest and non-political Tribunal merely seeking justice. But
the major new development in which the Tribunal has imposed (“assigned”)
counsel on (to) Milosevic, and stripped him of control and a lead
role in his defense, has called for a further apologetic frame,
and the dependable Simons has provided it: his medical condition,
which he has exacerbated by not taking his medicines as required
and which threatens unreasonable and costly delays in the trial,
call for assigning a counsel to take over his defense. Simons quotes
presiding judge Robinson’s statements defending this course
and quotes the language of the Tribunal’s rules that allow
assignment “where the interests of justice so require.” 

is an alternative frame for explaining the imposition of counsel,
namely, that with the case already going very badly for the prosecution,
which failed to produce evidence of a “joint criminal enterprise”
to commit genocide with Milosevic issuing the decisive commands,
it is possible that Milosevic would be able not only to put the
finishing touches on the prosecution case but also to show how responsible
the NATO powers and the Tribunal itself were for the killings and
ethnic cleansing of the 1990s. 

is precisely this threat that causes Michael Scharf to urge the
imposition of counsel—he notes how Milosevic had been able
to begin his trial with an 18-hour presentation “showing the
devastation wrought by the 1999 NATO bombing campaign,” and
how this precedent might be used by Saddam to “launch daily
attacks against the legitimacy of the proceedings and the U.S. invasion
of Iraq” (“Making a Spectacle of Himself,” Washington
, August 29, 2004). Obviously this will not do—only
one side is allowed to show death and destruction and use the Tribunal
for political ends. Scharf openly states that the “goal”
of a legal proceeding against Saddam in Iraq would be “fostering
reconciliation between the Iraqi Kurds, Shiites and Sunnis,”
so we couldn’t allow the “historical record” to be
messed up by the defense showing that the West supported Saddam,
sold out the Kurds, and played off these various factions against
one another. 

1999 Scharf had explained that from the very beginning the function
of the Yugoslav Tribunal was to service NATO’s political goals:
“The Tribunal was widely perceived within the government as
little more than a public relations device and as a potentially
useful policy tool…[that would] fortify the international political
will to employ economic sanctions or use force” (“Indicted
For War Crimes, Then What?” Washington Post, October
3, 1999). Marlise Simons has never quoted Scharf on this subject
nor allowed expression of the political role of the Yugoslav Tribunal,
so Milosevic’s challenge to that political role is for her,
as for the Tribunal authorities, illegitimate. He should just answer
the charges against him. 

Simons’s numerous evasions and suppressions help her support
the new frame justifying the imposition of counsel and allow her
to ignore the alternative frame. Here are a few more evasions and

  • Simons
    quotes the part of the Tribunal statute that theoretically allows
    the imposition of counsel, but she fails to quote the last phrase:
    “and without payment by him in any such case if he does not
    have sufficient means to pay for it.” As the British Helsinki
    Human Rights Group points out, “it is quite clear that this
    article does not mean the court has a right to impose counsel,
    but instead that the accused has a right to a lawyer if he needs
    one. This interpretation is itself used by the ICTY’s own
    Directive on the Assignment of Defense Counsel…which makes
    it clear that the assignment of counsel is a right enjoyed by
    the accused, not a right of the court to assign one if the accused
    wishes to defend himself” (“International Tribunal or
    Star Chamber? The ICTY’s decision to impose counsel on Slobodan
    Milosevic,” September 13, 2004, 
  • Simons fails
    to note that Judge May repeatedly turned down prosecution requests
    for assignment of counsel and repeatedly said, “The accused
    is entitled to represent himself.” 
  • She fails to
    note that the now presiding judge, Patrick Robinson, also turned
    down a prosecution request for assignment, stating, “We have
    to act in accordance with the Statute and our Rules which, in
    any event, reflect the position under customary law, which is
    that the accused has a right to counsel, but he also has a right
    not to have counsel.” 
  • Simons fails
    to note that on April 4, 2003, in refusing to impose counsel,
    the Trial Chamber argued that the imposition of counsel was a
    feature only of inquisitorial systems, not of adversarial systems
    such as that used by the ICTY. It cited the 1975 U.S. Supreme
    Court decision in Faretta v. California, saying that the
    court had “pointed out that only the sixteenth century Star
    Chamber in the long history of English legal history adopted a
    practice of forcing counsel upon an unwilling defendant…” 
  • Tiphaine Dickson
    points out that Nelson Mandela had been allowed to defend himself
    in the Rivona trials of the 1960s, so that “Slobodan Milosevic
    will not enjoy the right of self-representation afforded to Nelson
    Mandela by the apartheid judiciary.” It goes almost without
    saying that Simons does not mention this interesting point of
  • Both the British
    Helsinki Human Rights Group and Tiphaine Dickson point out that
    while Milosevic’s health had been problematic from the start
    of the trial, it had not been allowed to interfere with his participation,
    and in its lengthy statement on imposing counsel on April 4, 2003,
    the Trial Chamber never mentioned this as a possible reason for
    such intervention. Tiphaine Dickson says that, “Only now,
    as he is about to call his own witnesses, the concern for his
    health is taken as a pretext to deprive him of his fundamental
  • There is reason
    to believe that being forced to listen to a purported defense
    by imposed counsel, with his own life and reputation at stake,
    and the frustrations that this would entail, would be at least
    as damaging to Milosevic’s health as active involvement in
    the defense. There is no indication that this consideration entered
    into the Tribunal calculus. 
  • Milosevic and
    his team had put in a huge effort readying the defense and had
    a plan based on the defendant’s view of the case as essentially
    political, the Tribunal hostile and biased, but with charges still
    needing to be disputed. The two imposed lawyers had to begin from
    scratch and were thus relatively unprepared and handicapped. They
    are also friends of the court and hence unable to view the case
    as political and the Tribunal as fundamentally biased. In fact,
    one of the newly assigned counsel, Steven Kay, had worked for
    the Tribunal as amicus curiae and clearly accepts the Tribunal
    court and this trial as legitimate, which puts him into a basic
    conflict of interest with the defendant. Arguably, also, he and
    his colleague violated basic judicial ethics in accepting an assignment
    to represent a client who does not want their services, is competent
    to carry out his own defense, and has been doing so throughout
    the prosecution case. Accepting the assignment was collaboration
    in the violation of Tribunal and many other rulings and laws protecting
    the right of a defendant to represent himself. They also did this
    despite the likelihood that many valuable defense witnesses would
    refuse to cooperate with such a procedure. Marlise Simons never
    discussed these problems or allowed discussion of such issues,
    readily addressed within the alternative frame.
  • The British
    Helsinki Human Rights Group points out that in its decision imposing
    counsel on Milosevic on September 10, 2004, the Trial Chamber
    “offered no legal argument, i.e., by citing precedent or
    law, for using the health of the accused as a reason for imposing
    counsel. It simply rescinded all its earlier decisions, which
    had been grounded in law and precedent; it stated that international
    and domestic law provided precedents for imposing counsel, without
    quoting a single one; and it said that it was ‘in the interests
    of justice’ to impose counsel. No definition was given of
    these interests. The Trial Chamber concluded, ‘The fundamental
    duty of the Trial Chamber is to ensure that the trial is fair
    and expeditious,’ but in fact based on its decision to impose
    counsel was grounded solely in expediency, at the expense of fairness.
    It should also be remembered that the bench in the Milosevic trial
    permitted the prosecution to ramble on for months with irrelevant
    ‘expert’ [and hearsay evidence] consuming sessions far
    beyond its original allotted time while the prosecutors tried
    to induce someone—anyone—from Serbia, to plead direct
    incrimination of Milosevic—all without success.” These
    notions are outside Marlise Simons’s orbit of thought, in
    which prosecution virtue in its fishing expedition was unchallengeable.
    “Interests of justice” means finding the accused guilty,
    by hook or by crookery. 
  • The British
    Helsinki Human Rights Group concludes as follows: “Even by
    the appalling standards of the ICTY, the one-sidedness of this
    decision to impose defense counsel (after reducing the time available
    to the defendant’s case to about half that granted to the
    prosecution) is shocking. By going against all of its own previous
    rulings on the matter, the Tribunal’s decision is a pure
    example of arbitrary rule. As such the ICTY has demonstrated itself
    to be in contempt of the rule of law. It suggests that achieving
    a verdict is the overriding concern of the Tribunal, and given
    that it was the Prosecution which demanded the imposition of counsel
    on Mr. Milosevic, it is difficult to avoid the conclusion that
    conviction at all costs has become the guiding principle of the

The Tribunal has already been embarrassed by the withdrawal from
the case of a steady stream of frequently prominent witnesses who,
like George Kenny, have expressed the view that any possibility
of a legitimate defense and fair trial have been removed by this
official Tribunal action in imposing counsel. It remains to be seen
whether the Tribunal will go ahead on this basis, with the façade
of a fair trial and pursuit of justice suffering another grievous
blow. However, that façade remains intact in the mainstream
U.S. media and for Marlise Simons and the New York Times.
There is little doubt that even an aborted trial that finds the
bad man guilty—as it surely will—will be taken as a triumph
of Western justice. Simons has never once found any problem with
the work of the Tribunal, even when it gave NATO crucial propaganda
support for its bombing war against civilian facilities in Serbia
in the Spring of 1999 by hastily indicting Milosevic just at a point
when criticism of NATO actions was mounting. Today, she blames Milosevic
for “once again…derailing the complex war crimes case”
by not accepting the imposition of counsel and removal of any control
of his own defense. So it will be his fault if the defense does
a poor job and justice remains intact—its main and perhaps
sole requirement being that he be found guilty as charged. 

For Marlise Simons the issues were and remain simply good against
evil. The means by which the good conquers evil continues to be
unworthy of the slightest concern. But it was never simple, the
ends were not “justice,” the good guys were not good or
better than the bad guys, and it is widely acknowledged that abusive
means corrupt—and even throw light on the nature of—the
ends. If the alternative models are closer to the truth than the
NATO-supportive frames that Simons adheres to, as I firmly believe,
then Simons is not merely a bad journalist and de facto propagandist,
she is an opponent of the rule of law and a supporter of illicit
violence. Of course, her work reflects the choices of the New
York Times
and her crimes are the paper’s crimes. We should
recognize that “bad journalist” assumes that truth, understanding,
and substantive objectivity are the journalist’s and paper’s
objectives, whereas in fact their aim may be to support a state
agenda that requires substantively bad journalism.

S. Herman is a regular contributor to
Z and author
of numerous books.