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The Imposition of Counsel on Milosevic: Marlise Simons continues her exemplary propaganda service
In an earlier study of Marlise Simonss 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.
This summer Simons returned to the Tribunal to deal with the Milosevic defense, after a lengthy Tribunal delay following the conclusion of the prosecutions 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.
In 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 doesnt 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 Milosevics 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 prosecutions
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 Owens Balkan Odyssey,
Susan Woodwards Balkan Tragedy, Lenard Cohens
Broken Bonds and Serpent in the Bosom, Robert M. Haydens
Blueprints for a House Divided, or Diana Johnstones
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.
While she now and earlier mentions and criticizes Milosevics lengthy speeches, detailed questioning of witnesses, and alleged stalling tactics, she has had no word of criticism at the prosecutions 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 sufferingmany of which were not even directly witnessedto help demonize the defendant, and the deliberate prosecution exploitation of this testimony via publicity, didnt trouble Simons, and in fact she was part of the team using this testimony for that very purpose.
In 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 substancethat his withdrawal is based on the fact that with imposition of counsel Milosevics 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!, globalresearch.ca).
In the latest phase of the Milosevic trial, supposedly turning to Milosevics 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 Robinsons statements defending this course and quotes the language of the Tribunals rules that allow assignment where the interests of justice so require.
There 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.
It is precisely this threat that causes Michael Scharf to urge the imposition of counselhe 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 Post, August 29, 2004). Obviously this will not doonly 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 couldnt 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.
In 1999 Scharf had explained that from the very beginning the function of the Yugoslav Tribunal was to service NATOs 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 Milosevics challenge to that political role is for her, as for the Tribunal authorities, illegitimate. He should just answer the charges against him.
Marlise Simonss 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 suppressions:
- 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 ICTYs 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 ICTYs decision to impose counsel on Slobodan Milosevic, September 13, 2004, bhhrg.org).
- 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 comparison.
- Both the British Helsinki Human Rights Group and Tiphaine Dickson point out that while Milosevics 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 rights.
- 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 Milosevics 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 defendants 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 someoneanyonefrom Serbia, to plead direct incrimination of Milosevicall without success. These notions are outside Marlise Simonss 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 defendants case to about half that granted to the prosecution) is shocking. By going against all of its own previous rulings on the matter, the Tribunals 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 Tribunal.
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