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ANALYSIS: The Milosevic Case - What Next?

Tribunal officials appear unperturbed by Milosevic's refusal to recognise them
By Mirko Klarin

Slobodan Milosevic may not have got in everything he wanted to say at his initial appearance before the tribunal on July 3, but, on the whole, he did achieve his aim.


By appearing alone, without a defence lawyer, Milosevic obliged presiding judge Richard May to address questions to him personally, giving himself opportunity to speak. Had the former Yugoslav president employed a counsel, Judge May would have asked the latter whether his client wished the indictment read out. This would have deprived Milosevic of the chance to utter those immortal words, "That's your problem".


Milosevic's decision to refuse defence representation forced the judge show more tolerance and patience than has been typical of him in the past. The defendant succeeded to some extent in turning the court into a political pulpit. Aware that he was addressing an international and Serbian audience, Milosevic got in a few choice sound bites.


Speaking in heavily-accented English, Milosevic said he considered the tribunal "illegal" because it had not been appointed by the United Nations General Assembly. Milosevic said he felt "no need to appoint counsel to [an] illegal organ".


Judge May, who was appointed to that "illegal organ" by the UN General Assembly in 1997 and again in 2001, chose to ignore Milosevic's polemics and persevered with the hearing, giving the accused an opportunity to deliver a prepared statement in Serbian for viewers at home. "The aim of this trial is to justify NATO war crimes committed in Yugoslavia. That is why this is a false tribunal," he said.


Having come to the conclusion the defendant's conduct amounted to "failure to enter a plea", the court entered a "not guilty" plea on Milosevic's behalf. The hearing ended and Milosevic was taken back to the UN detention unit where he will stay until his next scheduled appearance in court on August 27, the date set for the first status conference.


After the hearing, Belgrade lawyers Zdenko Tomanovic and Dragan Krgovic, deprived of the chance to represent Milosevic in court, stepped up as the former president's spokesmen. They said Milosevic not only has no intention of appointing defence lawyers but also does not plan to defend himself from accusations. Rather, Milosevic plans to attack with counter-accusations.


For the moment, tribunal officials appear unperturbed by Milosevic's refusal to recognise them. After the July 3 hearing, Deputy Prosecutor Graham Blewitt told Tribunal Update that Milosevic's behaviour does not affect the prosecution's position in any way. In the coming days, he said, the prosecution will begin the process of disclosure. As Milosevic has failed to appoint defence counsel, the supporting evidence used to secure a confirmation of the indictment from Judge David Hunt in 1999 will be given directly to Milosevic.


From that moment, the clock begins ticking. Milosevic will have 60 days to present written preliminary motions through which he can dispute the legality, legitimacy and jurisdiction of the tribunal and the indictment.


The prosecution says it is "trial ready" on the Kosovo indictment. But it will have to wait as Chief Prosecutor Carla Del Ponte has made clear her team intends to include further indictments for alleged crimes in Bosnia and Croatia. When those are issued, Milosevic will be asked to enter a plea on the new charges. He will also have an opportunity to present a new batch of preliminary motions. All this will inevitably prolong preparations for the trial. According to Blewitt, it cannot realistically get underway before mid-2002.


Tomanovic and Krgovic were delighted to point out that the tribunal "cannot impose a defence counsel on the accused". The two lawyers said the rules of procedure would have to be changed before the court could act in such a way.


Christian Rhode, head of the tribunal's legal aid department, interprets the rules somewhat differently but conceded, "it does not make much sense to impose defence counsel on an accused who does not wish to cooperate on his defence."


With respect to Milosevic's apparent "attack as the best form of defence" strategy, Rhode said this is perhaps a effective tactic when playing football and tennis, less so when on trial for crimes against humanity before an international criminal tribunal.


Rhode said Milosevic would perhaps do better to avail himself of all the advantages afforded defendants in the tribunal statute and rules of procedure, which ensure they have an adequate defencE. But he said it is up to the accused whether they do or not. If the defendant chooses not to, the trial will still go ahead.


In such circumstances, Rhode said, the judges would take it upon themselves to fulfil the role of defence counsel. The entire proceedings would be transformed from the usual "adversarial" contest, with the judges assessing evidence presented by the prosecution and defence, to a more "inquisitorial" trial, in which they play an active role in questioning witnesses and seeking out the facts.


It remains to be seen whether Milosevic sticks to his declared intention to have no defence counsel. He has been known to backtrack in the past.


In October 1998, for example, he said he would "never" allow foreign observers into Kosovo. By the end of that month, he agreed to the Organisation for Security and Cooperation verification mission entering the province. In spring 1999, he said he would "never" accept NATO troops on Yugoslav soil. By June the same year, K-For was rolling into Kosovo.


And most recently, on the night of March 31, 2001, when officials turned up at his residence to place him under arrest, the former president said he would "never be taken alive". But he was in custody by dawn the following day.


Meanwhile, Milosevic is meeting lawyers bidding to represent him. "Yesterday a French attorney was in The Hague...at the moment there are two Canadian lawyers...three large Greek law firms should be coming on Monday ....and I think three large German firms on Tuesday..." said Tomanovic.


The detention unit at Sheveningen could soon resemble a kind of "presidential residence". with an endless procession of advisors trooping in and out to see Yugoslavia's former head of state.


This could present some security headaches for Milosevic's jailers, as each visitor's identity and reason for visiting needs to be verified. But the tribunal may be hoping that at least some of the eminent lawyers visiting the defendant will advise him that it is in his own best interests to appoint as good and as professional a defence as possible.


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


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