The Milosevic Trial II
By David Peterson at Sep 08, 2004
NOTING the confidential "Prosecution's Submissions in Response to the Trial Chamber's 19 July 2004 Further Order on Future Conduct of the Trial," filed on 26 July 2004....Notice that I could provide a weblink to one of these two documents (the one dated July 19, embedded within the document with the longer title), but not the other ("filed on 26 July").---So where is the prosecution's apparently quite extensive document arguing for the imposition (though assignment is the term they prefer to use) of counsel to represent the defendant, anyway? And why is it confidential? Why can't everyone see it? What does it say? We don't know.---It is (to say it once again) confidential. Under lock and key. Classified. For Soandso's Eyes Only. Its contents to be leaked, and then only selectively, by the Office of the Prosecutor when such leaks are tactically judicious and advance the prosecution's cause. Not the defendant's. Nor do we know the actual content of the three medical reports (maybe even more) on the state of Milosevic's cardiovascular disease and hypertension, which the court alleges form the basis of its decision of just a few days ago to impose counsel upon him. I am aware of two medical reports from early July---Dr. van Dijkman's (July 2) and Dr. Sedney's (July 12), in fact. ("Scheduling Order and Order To Registrar Concerning Medical Report," July 12.) And one subsequent report---the killer report, it would appear. ("Further Order on Medical Examination of the Accused," July 15.) But as for their actual contents? Forget it. Nothing more than hearsay. Even if repeated thousands of times. They don't publish these reports. Though they certainly do like to leak certain parts of them. Prosecutor Geoffrey Nice knows their contents, of course. As when, addressing the Court on September 1, he stated that "The overall and unanimous opinion of the experts is that the accused is not fit to conduct the trial himself, that he is not taking the drugs in the manner prescribed." ("Prosecutors accuse Milosevic of failing to take his medicine properly," Agence France Presse, Sept. 1.) Strange. But Human Rights Watch's ICTY Cheerleader in Residence Richard Dicker also seems to know them, telling the same AFP reporter: "I found the medical reports quite damning because it states that the accused is not following the medical regime. I would find that to be obstruction." (Dicker didn't explain how it is that he knows what he claims to know. Only that he knows it.) Stranger yet, the Coalition For International Justice's Judith Armatta apparently knows them, too. (Or at least she knows what the prosecution is claiming---which is as good as gold for this outfit's scribe at the ICTY.) As when she reported from the trial that ("OTP Urges Court to Take Charge," Sept. 1):
The medical reports also showed that Milosevic has been manipulating the Court by manipulating his medical condition, lead Prosecutor Geoffrey Nice argued. Drug testing disclosed that he has refused to take the medications prescribed for his condition, and has substituted another medication on his own without proper medical supervision. This suggests that the Accused intentionally elevated his blood pressure to secure more time to prepare his defence, which was due to begin in May after a 3 month recess. Nice reminded the Court that Milosevic insisted he could not be ready before September at the earliest -- and it is now September. Milosevic heatedly denied the findings of the medical experts that he had refused to take prescribed medication. The lead Prosecutor also argued that the Court should impose counsel not only because the medical experts have found Milosevic unfit to continue representing himself based on his underlying condition and the effects on it of 2 years in trial, but also because Milosevic has and will continue to obstruct the proceedings and, more importantly, to use them for his own nonforensic purposes, i.e. as a platform to present his political views. The Court should not lend itself to that misuse, the Prosecutor seemed to be saying. The third reason Nice offered for imposing counsel was what he called a matter of "etiquette." "The time has come when the Court is entitled to be approached appropriately and should not tolerate the manner in which the case is being presented." Nice referred to Milosevic's manner of addressing the Court as "this illegal Court" and the Prosecutor as "the so-called prosecution." When Milosevic calls witnesses and addresses the Court in this manner, it will encourage the witnesses to disrespect the Court as well, which could affect their truthfulness. Judge Bonomy later interrupted the Amicus' submission to note his objection to Milosevic's reference to the Court during his opening statement as part of a joint criminal enterprise. "It was a flagrant insult to the Court," he said, explaining that he did not intervene at the time because an accused is generally allowed to give his opening statement without interruption. Regardless, Judge Bonomy announced his opinion that the Court should usually deal with such comments as they arise. Such comments may not support the assignment of counsel, he said. Nice began his oral submission by gently offering the Court some advice: "Where a rational and reasonable person finds himself pitted in conflict against someone irrational and unreasonable, there is sometimes an irresistible temptation to believe the other will behave reasonably. This derives from the reasonable person's belief that there will be no chance of progress without movement by one or the other and that the unreasonable person won't budge." Nice continued, "This Bench, rational and reasonable in the extreme, has faced obduracy and obstinacy by the Accused over and over again." Nevertheless, Milosevic continues to use his time on irrelevant issues, then demand more, just as he did yesterday, the Prosecutor pointed out. The Court's continued accommodation has done nothing to change his behavior. Indeed, he has taken full advantage of it. Asking the Court to bear this in mind, Nice outlined the law which provides that the right to represent oneself is not absolute....Apologies for quoting Armatta at such length here. But, observing how Armatta places the Coalition For International Justice's meticulous gloss on the prosecution's case, one might come away with the impression that Milosevic's courtroom antics include something like dropping his pants and "mooning" the three judges, the prosecutors, the guards, the gallery, and the spider in the corner. Hardly. Instead, the one thing Milosevic's courtroom conduct is truly guilty of is telling the court that before all else, it is a political organ (though you can take your pick as to an organ for whom), and that his trial is a political trial. This, in turn, winds up reported back to much of the rest of the English-speaking world by people such as Judith Armatta and Chris Stephen and Marlise Simons and Adam LeBor (etc.) as a "typically bombastic appearance" and "verbal onslaught" (LeBor), a "meandering history lesson," "not a coherent set of arguments" (Simons), a "diatribe" (Stephen), "predictably" no more than his pressing a "political case against the West rather than outlining a defense for himself" (Armatta). (All four reporting on Milosevic's statement the opening day of his defense, Aug. 31.) (Human Rights Watch carries this line of derogation and attack to lower levels still, as when one of its officially designated “researchers on the former Yugoslavia,” Bogdan Ivanisevic, fills out the HRW “Milosevic on Trial” website with what he believes to be the scandalous finding that Milosevic has “used the ICTY courtroom to claim that Serbs are the victims of a broad international conspiracy,” and “has openly expressed his intent to use the trial as a platform from which to express his broader views about what happened during the 1990s.” Drop the word ‘conspiracy'---it's a frame of mind habitually imputed to the defendant by reporters, not by the defendant himself---and this basic line of criticism becomes clear: Milosevic stands accused of turning a political show trial against itself.---Now, it ought to be impossible to so much as dip one's toe into the ocean of documents, indictments, evidence, witnesses, orders, judgments, press conferences, and the like, that the ICTY and its adjuncts generate without end, without recognizing that what the ICTY exists to do is to establish a certain version of breakup of Yugoslavia. In other words, that it is history, ultimately, that is being contested here, and that when Milosevic's courtroom conduct is slammed for his use of the court as a platform to contest politics, it is his critics who are trying to hide theirs. How else might he defend himself against the charge that he was the “mastermind” of four Balkan wars, with 200,000 dead (sometimes the estimates run 50,000 to 60,000 higher), millions displaced, and serial war crimes, serial crimes against humanity, and a genocide to show for it? The ICTY is a political-historical engine, through-and-through. Let us never pretend otherwise.) What we do know is that the show trial of Slobodan Milosevic---"Europe's biggest war crimes trial since Nuremberg," to cite the template to which the really disciplined English-language media resort without failure---indeed, resort to systematically, to use one of their favorite phrases for describing the nature of Serb war-criminality---resumed last Tuesday, August 31, in Chamber III of the (to at least once in my lifetime cite this resplendent body's name in full) International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. (ICTY, to the rest of us.) Prior to the end of the third day of proceedings, Presiding Judge Patrick Robinson instructed the ICTY's Registrar to "appoint counsel for the accused," and to "endeavour in the first instance to secure the appointment of Mr. Kay and Ms. Higgins" to perform this role. ("Registrar Instructed To Appoint Counsel For the Accused," CC/ P.I.S./889-e, Sept. 2.) The Registrar did exactly this. And on the very next day, the court elaborated its order as follows (Order On the Modalities To Be Followed By Court Assigned Counsel, Sept. 3):
1. It is the duty of court assigned counsel to determine how to present the case for the Accused, and in particular it is their duty to:However you parse these several points of instruction, they have two major consequences for the future conduct of the trial:a. represent the Accused by preparing and examining those witnesses court assigned counsel deem it appropriate to call; b. make all submissions on fact and law that they deem it appropriate to make; c. seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused's case properly, including the issuance of subpoenas; d. discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and e. act throughout in the best interests of the Accused;2. The Accused may, with the leave of the Trial Chamber, continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses, following examination by court assigned counsel; 3. The Accused has the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel; and 4. Court assigned counsel is authorised to seek from the Trial Chamber such further orders as they deem necessary to enable them to conduct the case for the Accused.
One, they place an effective gag over Milosevic's mouth. As Milosevic noted earlier today, during the newly appointed defense counsel Steven Kay's examination of the first witness, the Belgrade law professor Smilja Avramov, “I have no intention of exercising any rights as Mr. Kay's assistant. I'm not going to accept that.” (Anthony Deutsch, “Slobodan Milosevic's former law professor called as first defense witness,” Associated Press, Sept. 7.) But it appears that the court will not undo what it has just done. Two, the decision to impose defense counsels on Milosevic drawn from the ranks of the court's now 36-month-old amicus curiae apparatus negates (as in wipes out) two-thirds of the apparatus (Kay and Higgins), effectively doing likewise to the entire apparatus. There is simply nothing left of the amicus curiae except the name. What now? Will the court appoint a second set of Amici Curiae to look out for the overall probity of the proceedings, the first set having been re-assigned?So the court robs from Milosevic (i.e., imposes a decision contrary to his expressed will) the ability to conduct his own defense in court. And it negates the whole amicus curiae apparatus---a component of the entire Milosevic case since the court first directed the Registrar to designate one back on August 30, 2001. (Order Inviting Designation of Amicus Curiae, Judge Richard May.) Pretty darn good, for a couple of days work. And they're just getting started. The Milosevic case's original amici from September 6, 2001, on, were Steven Kay, Branislav Tapuskovic, and Michael Wladimiroff. (The Belgrade lawyer Zdenko Tomanovic also has been present from the start of the actual trial. Though on Milosevic's behalf. Never among the three amici.) As The Independent's (U.K.) Stephen Castle set the scene just before the start of the actual trial (“Milosevic Shuns British Lawyer Brought in To Ensure Trial Is Fair,” Feb. 10, 2002):
Not since the victors of the Second World War imposed justice on the vanquished has there been such an important war crimes trial. Mr Milosevic is the first ever former head of state to face an international criminal trial and the first serving leader to be indicted. The charges include genocide---the most serious accusation in the UN tribunal's locker---and carry a life sentence. By conducting his own defence, Mr Milosevic has ensured he will have ample time to make his views known. He is likely to spend the whole of the second day of this week's trial speaking. The tribunal's answer to the inevitable accusation of a show trial was to appoint Mr Kay, along with lawyers from the Netherlands and Serbia, as amici curiae (friends of the court)---neutral observers who can challenge the prosecution and cross-examine witnesses. They do not take instructions from the defendant, but may develop lines of argument from things he says. And if Mr Milosevic argues (as sources in Belgrade suggest) that Messrs Blair and Clinton should be called, the amici curiae say they are ready to try to persuade the judges to agree.Note the high degree of confidence expressed over the probity of the process, with the Trial Chamber undertaking whatever measures are necessary to ensure a fair trial. But Wladimiroff bowed out long ago, in October, 2002. He was replaced by Timothy McCormack---who's still around, having survived the re-assignment of Kay and Higgins. At least for now. Gillian Higgins moved in to assist Kay some time around June, 2003 (though not officially designated among the amici until June, 2004). Both McCormack and Tapuskovic endured through the end of the prosecution's case, and were among the three signatories to the important (and probably never even glanced at) Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis (March 3, 2004)---a very comprehensive document rejected three months later by the court's Decision on Motion for Judgement of Acquittal (June 16, 2004---for the PDF version of the same). Only Kay ‘s and McCormack's names were listed among the remaining amici on this judgment, Tapuskovic having resigned with the close of the prosecution's case. Now, the list of amici has been shortened again: From Kay, McCormack, and Higgins---down to McCormack alone. By this point, all three of them ought to resign their respective positions with the ICTY to dramatize the fact that nothing the court has done in the way imposing defense counsel and juggling the three-year-old amicus curiae apparatus can possibly serve the "interests of securing a fair trial" (to quote the words of the original Order of August 30, 2001). But something tells me that resignations en masse are not in the cards. In a July 29 Open Letter to the principal bodies and member-states of the United Nations, as well as to the offices of the ICTY, some 90 legal-types from as many as 17 different countries stated their case against the imposition of counsel on Milosevic. Outraged that the court would consider “changing the rules in mid-trial, and to the defendant's detriment,” the signatories noted that a defendant's “right to represent himself supercedes a court's or prosecutor's preference for assigning defense counsel,” and they anticipated that, with respect to Milosevic's case, the defendant is “set to present essential and potentially embarrassing evidence”---which, they added, is the “Chamber's apparently overwhelming concern.” Well. I for one have always been partial to an observation from the second month of the trial in March, 2002, by the Canadian lawyer Edward Greenspan, who recognized that “Those giving [Milosevic] high marks are creating the illusion of a fair trial. Anybody can say, ‘Answer the question yes or no', but when the witness refuses, Milosevic doesn't know what to do.” (For a copy, see below.) Greenspan continued (“'This is a lynching',” National Post, March 13, 2002):
For example, after pressing the first witness, Mahmut Bakalli, for a yes or no answer, the witness says: "I can't answer your question. But what I know is you killed civilians, children. Twelve thousand civilians, including old people, women, children, pregnant women, saying all the time that you were fighting terrorism. That I know." Milosevic had no idea what to say. The witness won. Milosevic's questions are lengthy, argumentative and often aren't questions. He doesn't know how to develop a point. Simply put, how ever bad Milosevic was as a leader, he is even worse as a trial lawyer.But the Sloboda merry-go-round aside, the Open Letter of July 29 cited two powerful passages from the 1975 U.S. Supreme Court decision in Faretta v. California, wherein the Supreme Court found that Article Six of the American Bill of Rights speaks of
the “assistance” of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant---not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.The Open Letter quotes another important passage from the Supreme Court's 1975 decision:
In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law traditions. For those reasons, and because it specialized in trying "political" offenses, the Star Chamber has for centuries symbolized disregard of basic individual rights.A curious institution indeed. Even more in our day. Just when you hoped you had every problem of the past licked. Once and for all.
Further Order On Future Conduct of the Trial, Judge Patrick Robinson (Case No.: IT-02-54-T, July 19, 2004) Further Order On Future Conduct of the Trial Concerning Assignment of Defense Counsel, Judge Patrick Robinson (Case No.: IT-02-54-T, August 6, 2004) "Milosevic Case: The Amici Curiae Have Filed Their Submissions on the Role of Possible Assigned Defense Counsel" (Press Release CC/P.I.S./884-e, August 16, 2004) Order On the Modalities To Be Followed By Court Assigned Counsel, Judge Patrick Robinson (Case No.: IT-02-54-T, September 3, 2004) Prosecutor v. Slobodan Miloševi? (Case No. IT-02-54-T, September 3, 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, 2004 (Note that Dickson is the lawyer who drafted the Open Letter of July 29.) FindLaw (homepage) Faretta v. California, U.S. Supreme Court (422 U.S. 806) (1975) Slobodan MIlosevic: Speeches and Interviews (Homepage) The Milosevic Trial I, ZNet Blog, August 31FYA ("For your archives"): The Edward Greenspan commentary I promised above. National Post (Canada) March 13, 2002 Wednesday National Edition SECTION: Comment; Pg. A20 HEADLINE: Edward L. Greenspan has been reading transcripts of Slobodan Milosevic's war crimes trial. He's come to one conclusion: 'This is a lynching' SOURCE: National Post BYLINE: Edward L. Greenspan Less than two minutes into her opening statement, Carla Del Ponte, prosecutor at the International War Crimes Tribunal, said: "I bring the accused, Milosevic, before you to face the charges against him. I do so on behalf of the international community and in the name of all the member states of the United Nations, including the states of the former Yugoslavia." In effect, Del Ponte's opening told the judges: "I have the weight and force of the world behind me. The world has seen fit to prosecute Slobodan Milosevic and the world can't be wrong." Her calculated pronouncement was designed to give her a badge of legitimacy. But rules of fairness require that no prosecutor take advantage of their important role in the administration of justice. The judge's response spoke even louder than Del Ponte's words. Justice Richard May, who is definitely not a shy man when it comes to Milosevic, didn't say a single word to the "Prosecutor for the Universe" when she uttered these words. May had a responsibility to interrupt her and say: "You're not impressing me one bit. You're just the prosecutor. You don't represent the world. Don't try to intimidate me with what the world expects me to do." I believe the reason he didn't object to her outrageous comment is that he actually believes her. May knows what the world expects of him and this trial. Milosevic may be a thug, but even a thug is entitled to a fair trial. A justice system that is not completely free from political influence undermines all notions of justice. To treat a political court as if it were a real court is to give it a cloak of undeserved legitimacy. Perception is nine-tenths of the law. The opening statement of Del Ponte and May's silence show that the result is a foregone conclusion. There is a famous maxim: "Justice should not only be done but should manifestly and undoubtedly be seen to be done." In the Hague, justice is manifestly and undoubtedly seen to be not done. Of all the judges in the world, why select Richard May from Britain? Why does the Tribunal need a judge from a NATO country at all, let alone as the president of the court? How can justice be seen to be done by such a court? Does Milosevic make a valid point when he says the court is nothing more than NATO aggression? When the deck is stacked or appears to be stacked from the outset, how does one obtain the appearance of justice? Fair trials are essential to civilization. The place of justice is a hallowed place, not a hollow place. In democratic legal systems where there is an unrepresented accused, the court has a duty to extend its helping hand to guide an accused in such a way that any defences are brought out with its full force and effect. Milosevic is without counsel. Whether he chose to do it on his own, whether he has a law degree (but no experience in a courtroom), the fact remains that a trial judge cannot treat an inexperienced accused as if he had counsel. If I were charged with a criminal offence, the last lawyer I would hire is Milosevic. For some reason, court watchers are giving him rave reviews as an advocate. "I give him an A"; "He's an old pro"; "He's a competent first-time lawyer." I was a competent first-time lawyer in 1970, but no sane person would have hired me on a murder case! Those giving him high marks are creating the illusion of a fair trial. Anybody can say, "Answer the question yes or no," but when the witness refuses, Milosevic doesn't know what to do. For example, after pressing the first witness, Mahmut Bakalli, for a yes or no answer, the witness says: "I can't answer your question. But what I know is you killed civilians, children. Twelve thousand civilians, including old people, women, children, pregnant women, saying all the time that you were fighting terrorism. That I know." Milosevic had no idea what to say. The witness won. Milosevic's questions are lengthy, argumentative and often aren't questions. He doesn't know how to develop a point. Simply put, how ever bad Milosevic was as a leader, he is even worse as a trial lawyer. The judge's duty is to see that an unrepresented accused is not denied a fair trial. This duty does not extend to his providing to the accused the kind of advice that counsel would provide. If he did, the judge would find himself in the difficult position of both being an advocate and impartial arbitrator at one and the same time. I am not suggesting that a trial judge is expected to become an advocate for the accused, but no judge should become the captain of the prosecution's ship, especially where the accused is without counsel. May seems to be inadvertently proving Milosevic's point about the trial being a charade. It is a well known principle that no judge can arbitrarily set a time limit on, or interfere with, a cross-examination. That kind of judicial interference would render the right of cross-examination an empty right. The great American jurist Learned Hand said: "Thou shalt not ration justice." Cross-examination is a right to a full, detailed, careful and complete cross-examination, if it is to have any meaning at all. To cut off a cross-examiner deprives an accused of the right to full answer and defence. Counsel has a duty to cross-examine with freedom and care and sometimes at length. Occasionally, it is a tiresome, difficult and painful task and the last thing any accused person needs is intervention by a trial judge who prevents the kind of searching inquiry which sometimes is called for. Here's an example. One and a half hours into Milosevic's first cross-examination, May impatiently asks: "How much longer do you think you're going to be with this witness?" (Why would he ask this, unless he's got a squash game to get to?) When Milosevic replies: "Probably one or two hours. My questions have to do with what the witness said yesterday. So many lies. That many lies demands a lot of questions, and that is why the court is here." May admonishes him not to make speeches and to finish the witness today. What's the rush? It looks like May has forgotten that Milosevic is entitled to due process. Later that morning, the court says, "Mr. Milosevic, if you would get through your cross-examination by half past one, we'd be grateful." Where does the judge have to go? A trial takes as long as it takes. Later, May says, "It is now half past one. You have now been cross-examining this witness for three and a half hours. Do you have any further questions for him?" Imagine! Milosevic took up three and a half hours of May's precious time. One would have thought May's job is to sit and listen and not rush the unrepresented accused. May seems bored. The first witness of what is to be a lengthy trial, and the judge is putting time limits on the accused. May doesn't even feign impartiality or, indeed, interest. He clearly reviles Milosevic. On the second day of the trial, before Milosevic began his first cross-examination of a member of the Kosovo parliament, May said: "I want to tell you about the limitations of cross-examination. ... It must not be used as a way of harassing or intimidating witnesses." Surely May has to know that in the famous trial of Oscar Wilde, Sir Edward Carson cross-examined Wilde for more than three days and did not strike oil until well into the third day. The destruction of Wilde is regarded as probably the greatest cross-examination that has ever occurred in an English-speaking courtroom. The cross-examination was rude, repetitive, offensive and unrelenting. It was an attack with no holds barred. When Carson embarked on this course, he knew that he had to succeed; if he failed, he would be forever discredited in the eyes of the jury. May must know that from time to time the value of the bullying technique cannot be denied. I don't know why May thinks cross-examination should be free from any kind of brutality. Brutality is calculated to unnerve, confuse but ultimately to expose. Cross-examination is a duel between counsel and the witness. The only weapon the defence has is the right to ask questions. I recognize that the tribunal may get the impression the witness is being unfairly treated. But it is the cross-examiner's right to take that risk, fatal as it may be. The first two minutes of the Milosevic trial told me all I needed to know. This is a lynching. Normally, lynchings are done outdoors. Here, the lynching has been brought indoors. Instead of a tree and a rope, there are May and Del Ponte. The problem with lynching is that it's fatally flawed as a process, whether the man who gets hanged is innocent or guilty. The result is certain. A kangaroo court is one in which legal procedures are largely a show, and the action "jumps" from accusation to sentencing without due process. No matter how long a trial takes, if the result is inevitable, then it's a show trial. The accusers might as well shoot Milosevic. At least, it doesn't soil the process.