Appointed Counsel Seek to Withdraw

Adding to the Tribunal's predicament in the Milosevic case, Steven Kay and Gillian Higgins yesterday requested the Registrar to permit their withdrawal as counsel appointed to represent Mr. Milosevic. The Registrar appointed them on the recommendation of the Trial Chamber following its decision that the Accused was no longer well enough to represent himself and the Accused's refusal to appoint counsel of his choosing. Mr. Kay, on behalf of the Accused, appealed the decision to the Appeals Chamber. Both Mr. Kay and Mr. Milosevic made oral presentations to the Appeals Panel last week. The Panel took the matter under consideration and has not yet issued a decision.

In their letter to the Registrar, Mr. Kay and Ms. Higgins argued that 'continued representation of the Accused by ourselves causes us to be in breach of this Code of Conduct [for Counsel Appearing before the International Tribunal].' Specifically, they maintain that the Code requires them to abide by their client's directions on the objectives of representation. Since the Accused refuses to accept or communicate with assigned counsel, the only instruction communicated is that he wants them off the case and his right of self-representation reinstated.

Appointed counsel also complain that the Trial Chamber's expectations that they can conduct the defence without the Accused's cooperation and instructions constitutes an 'external pressure' that compromises their professional integrity in violation of Article 10 of the Code. The prohibition of submitting to pressure from an outside source, including a Court, is found as well in the Code of Conduct of the Bar of England and Wales, to which both counsel are also subject.

Mr. Kay and Ms. Higgins cite additional Code prescriptions they would be violating if they continued representing the Accused. They cannot protect the client's best interests if he will not communicate what those interests are, they argue. Nor can they fulfill their duty to keep their client informed if he will not communicate with them. Finally, they say, their duty of loyalty to a client conflicts with the Trial Chamber's order that they represent him. In other words, loyalty to Milosevic means withdrawing as counsel.

None of the grounds cited by Appointed Counsel are unknown to the Trial Chamber. The Accused was clear from the beginning that he had no intention of cooperating or communicating with them. The Trial Chamber nonetheless issued its order appointing counsel, directing Mr. Kay and Ms. Higgins to attempt to communicate and obtain instructions, but if the Accused remained intransigent, they were to proceed with his defence in any case. The Trial Chamber was clear from the time it issued its order that it was Mr. Milosevic's responsibility to cooperate or not. If he did not, he -- and no one else -- harmed his case.

Generally, the Registrar decides on the appointment and withdrawal of counsel. In this case, since the Trial Chamber recommended Mr. Kay and Ms. Higgins, the Trial Chamber may make the decision, particularly since it has serious repercussions for the future of the trial. Either institution, however, may refuse to allow Appointed Counsel to withdraw, for the reason that it would jeopardize a fair trial. While Defence Counsel have encountered significant obstacles, particularly the non-cooperation of witnesses, they have not yet exhausted the tools available to secure attendance, i.e. seeking subpoenas from the Court.

In making sense of the Milosevic trial, it is always important to keep in mind what Mr. Milosevic has said from the beginning -- he does not recognize the Tribunal, refuses to answer charges and intends to use the trial as a forum to advance his political agenda. He is not now and never has been interested in defending himself. His objective is to destroy the Tribunal.

There is no denying the unenviable position of Assigned Counsel. Perhaps the only position less enviable is that of the Tribunal itself. If the two attorneys most qualified to provide Mr. Milosevic with a defence are allowed to withdraw, the Court is left with limited options. It can appoint entirely new counsel, which would substantially delay the case. Moreover, they would find themselves in the same position as Mr. Kay and Ms. Higgins. It might order the Accused's legal associates to act as defence counsel, but it is unlikely they would comply over the objections of Mr. Milosevic. Finally, the Tribunal could give in to the Accused and allow him to resume 'representing' himself.

If the Court follows the latter course, it will go against expert medical opinion that continued self-representation would seriously jeopardize Mr. Milosevic's health. More important, Mr. Milosevic will have won a very important round in his attempt to destroy the credibility of the Tribunal and any effort to call him to account for war crimes, crimes against humanity and genocide.