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

In 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. 

This 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.” 

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 “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. 

Simons 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.

In 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. 

Marlise 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 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 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, 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 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 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 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 Tribunal.” 

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.