ANALYSIS: Milosevic 'Friends' Defeated

The three amici curiae were appointed by the court to help the judges after Slobodan Milosevic refused a defence counsel, as part of his rejection of the tribunal's right to try him. In their "Brief on Jurisdiction", the amici supported Milosevic's arguments and requested a dismissal of charges together with his immediate release. (see Tribunal Update No. 240).

The trial chamber's written explanation of their rejection of all Milosevic's motions contained nothing new, as the tribunal appeals chamber had already considered and judged most of the questions that Milosevic and the amici had raised at the October 30 status conference.

The amici requested that the same issues should be reconsidered on the grounds that the appeals chamber decisions in other cases had only offered "guidance'" rather than a binding ruling.

However, Judges Richard May, Patrick Robinson and Mohammed Fassi Fihri confirmed that appeals chamber decisions were binding, although they still agreed to reconsider the disputed points.

These centre on Milosevic's consistent claim that the tribunal is an "illegal entity" because it was established by the UN Security Council and not by the General Assembly. The core of the challenge lies in the claim that the Security Council had no authority to empower an international criminal court under Chapter VII of the Charter of the United Nations.

Two of the amici, Michail Wladimiroff and Steven Kay, had tested this claim in the tribunal's first case back in 1995, the trial of Dusko Tadic, only to see it rejected.

However, the trial chamber reached the same conclusion in the Milosevic case as the appeals chamber did in the Tadic case.

The chamber said Article 41 of the UN charter clearly empowered the Security Council to adopt wide-ranging measures "to discharge its obligation to maintain or restore international peace and security". It said that although Article 41 listed certain measures the Security Council could take, the list was not to be considered exhaustive.

The chamber insisted that it was "open to the Security Council to adopt any measure other than those specifically listed, provided it is a measure to maintain or restore international peace and security".

Considering the specific case of former Yugoslavia, the chamber said the establishment of the tribunal "with power to prosecute persons responsible for serious violations of international humanitarian law" was "pre-eminently a measure to restore international peace and security".

The chamber also dismissed the lawyers' objection to the tribunal on the grounds of the chief prosecutor's lack of independence, which the trio had based on the fact that a Security Council resolution in late March 1999 "urged" the prosecutor to investigate violence in Kosovo.

The trial chamber said there was "not a scintilla of evidence" to show the prosecutor had abused her powers in issuing an indictment against Milosevic.

It said initiating an investigation into atrocities in Kosovo on the basis of Security Council information was not proof of her bad faith. What could have counted against her, it said, would have been proof that "in assessing that information and making her decision as to the indictment of a particular person, she act[ed]s on the instructions of any government, any institution or any person" .

It concluded there was no suggestion the prosecutor acted upon anyone's instructions, so this ground was also dismissed.

The trial chamber additionally found "no merit" in the submission of the amici that the tribunal needed an external advisory opinion on the question of its competence from the International Court of Justice to avoid the charge that it was judging its own competence.

The chamber said this was unnecessary, as the appeals chamber had already confirmed in the Tadic jurisdiction appeal judgment that a judicial body's right to determine its own jurisdiction was "a necessary component in the exercise of the judicial function".

Considering Milosevic's objection that the tribunal was incapable of providing him with a fair trial or with protecting his basic human rights - and that this constituted evidence of bias - the judges recalled an earlier decision of the appeals chamber, listing three ways in which such bias could be ascertained.

The first was proof of actual bias. The second was proof that the judge has a direct interest in the case. The third was if "a reasonable observer, properly informed, would reasonably apprehend bias".

Remarking that in Milosevic's case only the third criterion could be considered relevant, the chamber said the accused and the amici had advanced nothing on the basis of which an informed reasonable observer would apprehend bias by the chamber.

Athough Milosevic's objection that he has been denied contact with the press cannot be treated as a question on which preliminary motions can be submitted, the judges considered it and turned it down.

The judges said the restrictions on the ex-president, which the amici qualified as a "violation of the accused's right to privacy and freedom of expression", fell into the category of "permissible limitations under the international covenant on civil and political rights".

It said the European Convention on Human Rights provided for similar limitations, such as "are necessary for a number of public interest considerations, including the prevention of disorder or crime".

Although Milosevic did not lodge an objection on the grounds of his immunity as a former head of state, the amici raised this point to dispute Article 7(2) of the tribunal statute.

This states that no official position "whether as head of state or head of government, or as a responsible government official", relieves that person of criminal responsibility or mitigates punishment.

The judges maintained that there was no basis for challenging this article, "which at this time reflects a rule of customary international law".

They traced the history of the rule back to the post-World War II period, when the doctrine of individual criminal responsibility was incorporated into the Nuremberg and the Tokyo war crimes charters.

The judges listed other legal bodies into which this principle had been incorporated subsequently, including the statute for the International Criminal Tribunal for Rwanda, the Rome Statute of the International Criminal Court and the Draft Code of Crimes against the Peace and Security of Mankind.

The chamber attached special significance to the latter two as "evidence of the customary character of the rule that a head of state cannot plead his official position as a bar to criminal liability".

The only objection of the amici which the judges credited as "usefully developed" was the assertion that Milosevic was not surrendered to the tribunal by Yugoslavia but by Serbia, which is not a member of the UN and thus had no obligation to cooperate with the tribunal. Besides that, the Yugoslav constitution expressly outlaws extradition.

The judges did not accept this objection, however. They said Article 29 of the tribunal statute obliged all states "to comply without undue delay with all requests" of the tribunal, while Rule 58 of the rules of procedure ensured Article 29's obligations took precedence "over any legal impediment to the surrender or transfer of the accused or of a witness to the tribunal which may exist under the national law or extradition treaties of the State concerned".

The purpose of Rule 58, they said, was to ensure domestic procedures can never be used as a basis for not complying with a tribunal request.

Brushing aside all questions over Serbian, as opposed to Yugoslav jurisdiction, the chamber ruled that "notwithstanding the fact that the surrender was made by the government of the Republic of Serbia, rather than the Federal Republic of Yugoslavia ... the provisions of Rule 58 apply".

The judges additionally cited Article 27 of the Vienna Convention on the Law of Treaties, which says no party may invoke internal legal provisions to justify failure to perform a treaty.

Interpreting the ICTY statute as a treaty, the judges concluded that Yugoslavia was obliged to comply with the request to arrest and transfer the accused and may not invoke internal law on the division of power between the federal government and its component republics as an excuse.

Thus ended the attempt by the amici to give Milosevic's arguments legal backing. The trio of lawyers had never impressed Milosevic, who always objected to their appointment.

Nor did they impress the judges. They have criticised the lawyers with attempting merely to act as "legal interpreters" of what Milosevic says or wants to say in his tirades against the tribunal he insists is illegal.

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of SENSE News Agency.