To Assure the Integrity of the Process: Tribunal must appoint counsel for Milosevic

Any suggestion of 'imposing' counsel on Milosevic provokes an outraged reaction from many disparate quarters. To do so, it must bring to mind images of the accused bound and gagged in the courtroom as the prosecution brings witness after witness to testify against him. Yet that is hardly the case.

If the Trial Chamber decides that Milosevic must present his case through a qualified lawyer he will neither be silenced nor muzzled. Indeed, his defense will be vastly improved, not only because he lacks legal skills but also because he refuses to mount a defense. As he says repeatedly, he does not recognize the legitimacy of the Tribunal and is merely using the trial as an opportunity to present his political position. This is an abuse of the process. While the Trial Chamber has allowed it with all the best intentions, it is not 'self-representation' as foreseen by the ICTY statute, any international convention or state constitution.

Milosevic has been using the right of an accused to represent himself to make a mockery of the proceedings against him. Under the guise of cross examination, Milosevic not only seeks to intimidate witnesses against him but also to make political speeches, to repeatedly challenge the court's legitimacy and to present his view of the 'facts.' Subject only to the patience of the Court which allows him far more leeway than it would any lawyer, Milosevic is free to present his version of facts, relevant and irrelevant, without ever being subject to cross examination or required to take an oath to tell the truth, the violation of which would subject him to prosecution. By asserting his right to represent himself, he has significantly lengthened the trial, taking far more hours than the prosecution during the presentation of the prosecution's case, and, apparently, damaged his own health.

It is long past time for the Trial Chamber to assert its authority and its responsibility for seeing that justice is done and turn this into a real trial. Requiring that Milosevic present his case through counsel according to Tribunal rules may limit Milosevic's 'freedom' to choose to represent himself, but subjecting him to the ICTY process at all is a limitation on his freedom. It was imposed following a finding by a judge that the prosecution had presented sufficient evidence of his responsibility for war crimes, crimes against humanity and genocide that he should be arrested, detained and made to answer the charges before the ICTY.

Even though he does not acknowledge the legitimacy of the ICTY, it is the process the international community established to secure some measure of justice for the hundreds of thousands of victims in the former Yugoslavia – and for the larger public which has an interest in holding accountable people who are guilty of egregious crimes that violate our sense of what it is to be human and part of a human community. As attention is focused on Milosevic's health and his demand to represent himself, the victims of these horrible wars have faded into the background. They have a right to demand that Milosevic answer to charges that he was one of those primarily responsible for the destruction of their homes, livelihoods, families, future, peace of mind, trust and belief in humanity and their fellow humans. These victims might choose to confront him directly – but they do not have that choice. They are left to the system of justice the international community has provided. As such, that system has an obligation to them to do everything in its power to see that justice is done. That may or may not be convicting Slobodan Milosevic of the 66 counts for which he is charged. But it does require that he be made to answer them within the confines of the system the international community has established for the purpose.

A strong argument can be made that the Trial Chamber should have taken the route of imposed counsel from the beginning. Now, nine months into the trial, the accused's health has deteriorated to the extent that he has only been able to appear in court a half day out of the last two weeks (a self-imposed deterioration, by all appearances). Indeed, there have only been 22 days of trial since the Croatia phase began on September 26. The Chamber has ordered reports from a cardiologist and a psychiatrist on the prognosis for his further participation in the proceedings. Given this, it seems like a foregone conclusion that Milosevic cannot continue to represent himself as he has been, even within the reduced schedule imposed by the Chamber this fall.

Other than imposing counsel, options the Court could consider include: appointment of standby counsel or a 'McKenzie friend,' further reduction of the trial schedule, a recess for Milosevic to regain his stamina, and a further reduction of the prosecution's case against him. Lead prosecutor Geoffrey Nice adamantly opposed the latter possibility when Judge Kwon raised it in court, stating that the prosecution's case was at an 'irreducible minimum' and the OTP may need a substantial extension of time to present it. Given that the purpose of the prosecution is not solely to put Milosevic behind bars, but to establish a public record of events surrounding the wars in the former Yugoslavia in order to assist peace and reconciliation in the region, as well as meeting victims' needs to make Milosevic answerable for a vast array of crimes committed against them, a drastically reduced indictment would not serve the broader interests of justice as defined by the ICTY statute.

Allowance or imposition of a 'McKenzie friend' is another possibility. The term is derived from the British case, McKenzie v. McKenzie, where a self-represented husband in a divorce trial was denied the in-court assistance of another (who happened to be an attorney). Overturning the trial court's refusal, the appeals court quoted an earlier judicial ruling with approval, 'Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice. . . .' In McKenzie, the court found the following assistance permissible, 'to prompt and to make suggestions to the husband in the conduct of his case, the calling of his witnesses and, perhaps more importantly, on the very critical and difficult questions of fact in this case, to assist him by making suggestions as to the cross-examination of the wife and her witnesses.' The possibility of appointing a 'McKenzie friend' was raised by the prosecution. Standby counsel appears to be a similar concept, though limited to a qualified lawyer. The United State Supreme Court, which recognizes the right to defend oneself as a constitutional right, has also held that a court has the authority to appoint standby counsel 'to steer [the] defendant through the basic procedures of the trial,' regardless of the defendant's objection. (McKaskle v. Wiggins, 465 US 168 (1984)) The purpose is to remove the onus from the court to assure that the accused understands basic trial procedure. It should also be noted that the U.S. Supreme Court's high regard for the right to self-representation is based on the accused's right to present his case to a jury, which is not the situation before the ICTY.

Whatever the Trial Chamber decides at this point will not be ideal. Imposition of counsel may necessitate a delay for counsel to familiarize him or herself with the case and to prepare an adequate defense. The same might be said for appointment of a McKenzie friend or standby counsel, unless Milosevic's associates or the amici curiae are acceptable for and willing to assume the role. Appointment of any of these, but especially full-fledged defense counsel, may well expedite the proceedings in the long run – both by preserving Milosevic's health and by limiting his participation to relevant issues and appropriate procedures. Though an ideal solution may not present itself, the Trial Chamber must devise a way to move forward that protects all interests, those of victims and the public as well as those of the accused. It must assure the integrity of the process, which includes stopping Milosevic from making a mockery of it.