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Blog PostsThe Milosevic Trial V
By David Peterson at Sep 10, 2004 |
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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 9FYA ("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).
By Peterson, David at Sep 11, 2004 02:09 AM
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