The Limits of Self-Representation

In June this year, Judge Patrick Robinson, the presiding judge in the trial of Slobodan Milosevic, finally lost his temper with the petulant ex-president, exclaiming, “You are in flagrant violation of the rules and not for the first time. You are seeking to make a mockery of the proceedings, Mr Milosevic.”

By this point, two days into the examination of retired Yugoslav army general Bozidar Delic, Milosevic had only got through 27 of 630 exhibits he wished to consider.

The questioning looked set to last far longer than the assigned three days’ worth of court time, but still Milosevic insisted on dwelling on apparently irrelevant background. Despite repeated requests that he should speed up his examination, Milosevic continued unhurriedly.

As any observer of the Milosevic trial knows, this is not an isolated incident.

The trial judges have frequently found Milosevic’s lengthy and impassioned self-defence difficult to bear, as they struggle to balance the accused’s right to self-representation – enshrined in the statute of the tribunal and the European Convention of Human Rights – against the need for a fair and expedient trial.

Last month, the tribunal finally said “no” to two other indictees who have been arguing their right to represent themselves.

Some observers believe these decisions show that the tribunal has embraced a new pragmatism – in recognition that it cannot afford to have its time further wasted, particularly as it enters its final stages before the planned closure in 2010.

Heikelina Verrijn Stuart, an international humanitarian and criminal lawyer, told IWPR she believes Milosevic’s antics in the courtroom have “definitely” informed the latest rulings.

On August 18, the trial chamber refused to allow former Bosnian Serb politician Momcilo Krajisnik - who is alleged to have implemented a campaign of ethnic cleansing against Muslims and Croats during the early stages of the war in Bosnia - to defend himself in person.

The judges said that not only did the accused seem unclear about whether he really wanted to conduct his own defence, but his case “would certainly collapse” if he led it.

Only one day later, Radovan Stankovic, a Serb soldier who is charged with beating and raping Muslim women during an attack on the eastern Bosnian town of Foca, was denied permission to defend himself because he had “deliberately obstructed” court proceedings on numerous occasions.

It was also decided that it would be inappropriate for Stankovic to cross-examine trial witnesses who were alleged victims of sexual crimes he is said to be responsible for.

Despite the general acknowledgement of the right to self-representation, there are established legal precedents limiting that right.

In a United States’ Supreme Court landmark ruling in 1975, Faretta v California, the judges decided that although forcing the accused to accept a defence lawyer “could only lead him to believe that the law contrived against him”, it was also admissible for the trial judge to stop self-representation if the accused “deliberately engaged in serious and obstructionist misconduct”.

“Obstruction” as a political tool has been a particular problem at the tribunal.

While presenting his defence, Milosevic has displayed an open contempt for the tribunal and those who preside over it. He is often rude and inflammatory, and many observers claim he uses the stand as a soapbox for making political speeches.

When questioning defence witness Vojislav Seselj, a nationalist Serb politician, earlier this month, Milosevic asked why the Hague prosecutors had not investigated those responsible for the ethnic cleansing of Serbs in Croatia.

He then told prosecutor Geoffrey Nice that he would be called to account for his own “crimes” in the courtroom.

Seselj, who faces a separate indictment at the tribunal, applied to defend himself in February 2003 but was denied permission in May of the same year.

He, too, is notorious for commandeering the courtroom and turning it into an impromptu political rally.

While testifying as Milosevic’s defence witness, he reiterated earlier claims that tribunal president Judge Theodor Meron was a “genocidal Israeli diplomat”.

But should this petty abuse and political banter, however wearing, be used to limit the fundamental right of the accused to represent themselves?

Verrijn Stuart believes the defendant has the right to politicise a trial. And while she acknowledges that this could be frustrating for the judges, she points out that “some defence counsels have been known to act in the same way as Milosevic”.

One of those in line to represent Milosevic was the notorious left-wing French lawyer Jacques Verges, who stated before the trial had even begun that he did not believe the UN Security Council had the legal legitimacy to create a court such as the tribunal.

The danger, however, is that the Milosevic trial is being turned into a circus.

Avril McDonald, head of International Humanitarian and International Criminal Law at the Asser Institute in The Hague, believes that the current judges could have been much stricter with Milosevic.

“He comes dangerously close to contempt, and he’s been given more [leeway] than regular defendants because of the high profile of the trial,” she told IWPR.

But McDonald is careful not to directly blame the judges, who come from different national legal systems, and are faced in the Milosevic case with a “recalcitrant, belligerent defendant”.

“I have always said that judges need specific training in courtroom management,” she said.

If the judges need extra tuition, this is nothing in comparison to the training needed to become a good defence lawyer.

Perhaps one of the most convincing arguments against self-representation is the potential damage that the accused can do to their case by taking on a job that even the professionals struggle with.

Milosevic, who has found the task difficult and stressful enough, has at least had some legal training.

Krajisnik, however, was judged in danger of harming his case with what the court imagined would be a “very poor defence” if allowed to represent himself.

There were warning signs in January this year, when Krajisnik was allowed to cross-examine a prosecution witness while his self-representation request was being considered.

During the questioning, Krajisnik inadvertently allowed Milorad Davidovic, head of security for the Bosnian Serb government, to describe how Muslims were expelled from Serbian control.

Following this mishap, the accused was forced to admit, “The task that [defence] counsel has to perform is very difficult.” The prosecution merely observed that the former politician did not display an “obvious mastery” of the art of cross-examination.

In June 2005, Judge Alphonse Orie went on to warn Krajisnik, “Your lack of legal experience means that there is a serious risk that you’ll damage your position.”

Stankovic’s frustration with the legal system was evident when he threatened to disclose the identities and addresses of prosecution witnesses, and in March 2004, went on a four- day hunger strike when prevented from reading out a letter which he claimed deserved at least an hour of court time.

In pre-trial hearings, he called his assigned counsel, Victor Koppe, a “notorious scumbag” and dismissed Chief Prosecutor Carla Del Ponte and her colleagues as “fascist spies and complete bastards”.

Whether he is legally inept or just intentionally disruptive, Stankovic’s unorthodox defence methods have done him no favours in the trial chamber. But should that prevent him from conducting his own defence - considering that Milosevic’s right to self-representation has been maintained under the most extreme conditions.

Judge Richard May, the Milosevic trial’s first presiding judge, ruled in February 2002 that “under international law, the defendant has a right to counsel, but he also has a right not to have counsel”. Less than six weeks later, Milosevic was suffering a debilitating virus, and his ability to defend himself was already called into question.

In November that year, the prosecution submitted that the defendant’s illness warranted the assignment of defence counsel, but Milosevic still insisted that he would manage alone.

The resulting delays have been significant. In the two years it took for the prosecution to present their case, the trial was suspended 13 times because of the ex-president’s high blood pressure and heart problems.

When doctors confirmed that the accused’s symptoms were exacerbated by the stress of preparing his own defence, the trial was cut so that it now runs for only three days a week instead of five, and lasts for four hours each day, as opposed to the usual eight.

The trial chamber finally ruled on September 2, 2004 that Milosevic must accept assigned counsel, and British lawyers Stephen Kay and Gillian Higgins were appointed to take over legal control.

The decision provoked international uproar. Two high profile witnesses, Canada’s former Belgrade Ambassador James Bisset and US State Department official George Kenney, even refused to appear unless the accused was allowed to conduct his own defence.

On November 1, 2004, the appeals chamber duly reasserted the former president’s right to self- representation. They ruled, “When he is physically capable of doing so, Milosevic will take the lead in presenting his case.”

Michael Scharf, professor of law and director of the Frederick K Cox International Law Centre, has long been a critic of the courts’ decisions to allow Milosevic to represent himself. In August 2004, Scharf wrote that the delays in the trial “have taken their toll on justice” because “witness memories are fading, and the international community is losing interest”.

But even defence lawyers passionately argue that self-representation should be preserved as a fundamental right.

Stephane Bourgon, former president of the Association of Defence Counsels, the grouping which represents the tribunal’s defence lawyers, insists that the rights of the accused should not be compromised by the tribunal’s need to speed up trials.

“The rule of law is the rule of law. The judiciary should only impose restrictions on a fundamental right in the face of the most exceptional circumstances,” he said.

If the Milosevic trial chamber has continued to uphold the right to self-representation despite the exceptional circumstances – illness, political obstruction – should the same rights have been extended to Krajisnik and Stankovic?

Tribunal spokesperson Jim Landale argues that each decision must be separate. “The judge has to decide the merits of each application, looking carefully at the rights of the accused and balancing these with the interests of justice as appropriate,” he said.

Such an approach has led some observers to point out the tribunal’s lack of consistency. Avril McDonald told IWPR, “I am not very happy about the fact that the tribunal has reached different decisions in different cases.”

At one point, it seemed as if Milosevic’s infamous self-representation was to spur a flurry of copycat self-defenders. Now, however, Milosevic has been confirmed as the exception to a rule which has borne multiple interpretations.

For Yugolsavia’s former president, meanwhile, the show will go on. In September 2004, he told the court, “The right to defend myself is a question of principle. I do not accept any decrease of that right or any renouncing of that right altogether.”

Helen Warrell is an IWPR reporter in The Hague.