Institute for War and Peace Reporting | Giving Voice, Driving Change
In the request, submitted on December 14, Steven Kay QC and his assistant Gillian Higgins argue that Judge Patrick Robinson, Judge O-Gon Kwon and Judge Iain Bonomy were wrong to reject their argument that the current arrangement risks placing the lawyers in breach of the tribunal’s code of conduct.
They also say the judges should have taken into account opinions expressed by the prosecution lawyers working on the case and by the tribunal’s Association of Defence Counsel, which they say support their position.
And they suggest that the judges failed to give enough weight to the specific circumstances surrounding their request to withdraw from the trial, and applied an inappropriate precedent when making their decision to deny it.
Higgins and Kay – who formerly served in the role of amicus curiae in the Milosevic trial – were first assigned the task of conducting the former Yugoslav president’s defence in September, amid growing concerns that his poor health meant it was no longer practical to allow him to represent himself.
But Milosevic, determined to continue on his own, refused to communicate with them, and a series of witnesses declined to come to court in protest at the decision to impose counsel.
The appeals chamber subsequently ruled that Milosevic should be allowed to play the primary role in conducting his own defence, with assigned counsel on standby should they be needed.
The issue now in hand is whether Kay and Higgins themselves should have to play this role, or whether they can be allowed to resign from their posts.
It is now down to the judges hearing Milosevic’s case to decide whether the two lawyers should be allowed to proceed to the appeals chamber to argue their position.
Defence lawyers for former Bosnian Serb leader Momcilo Krajisnik, currently on trial for genocide at the Hague tribunal, have asked for his trial to be re-started from the beginning following the resignation of Egyptian judge Amin El-Mahdi.
Judge Mahdi announced late last week that, as the only one of the tribunal’s 14 permanent judges not to be re-elected in a recent ballot, he will withdraw from his post on January 15.
According to the tribunal’s Rules of Procedure, if a judge is for any reason unable to continue hearing a case which has already entered into the trial stage, the president of the tribunal “may assign another judge to the case and order either a rehearing or continuation of the proceedings from that point”.
The rules state that the consent of the accused must be sought for proceedings to continue from where they left off. But should he disagree, the chamber may continue hearing his case in its new composition until the final decision of the appeals chamber.
In a hearing on December 15, Krajisnik’s defence counsel Nicholas Stewart said his client would prefer to begin a new trial, on the grounds that “a defendant faced with... serious charges such as genocide faces a clear risk of life in prison” and that “all three judges should hear all [the] evidence and be present at the whole trial”.
Stewart added that he didn’t propose a “total rerun” – his suggestion was that only the 12 most important witnesses, including some of Krajisnik’s close associates from the past, should be recalled.
Krajisnik addressed the court himself to argue for this position.
“Since I... already spent four years in prison,” he said, “it would be only natural to avoid further delays. But I think that re-hearing these witnesses would shed more light on the events that have taken place in Bosnia.”
Prosecutor Mark Harmon accused the defence of opting for a fresh trial out of a desire to have a second run at examining the 12 witnesses in question.
He also cited other cases in which judges have come into proceedings late but have been able to familiarise themselves with the evidence already heard – including the case of the Slobodan Milosevic, where a new judge stepped in just before the end of the defence phase to replace the deceased Presiding Judge Richard May.
“I’m confident that the interest of justice can be served if the trial continues with a new judge,” he said.
Krajisnik’s trial began in February 2003. During 100 days of hearings since, judges have heard the testimony of 41 prosecution witnesses.
A decision on the future of the case will not now be announced until some time after the tribunal returns from its winter break on January 10.
Former Bosnian Croat fighter Miroslav Bralo pleaded not guilty this week to 21 counts of grave breaches of the Geneva conventions and violations of the laws or customs of war, in relation to his involvement in fighting in central Bosnia in 1993.
Prosecutors say that as a member of the “Jokers”, a special forces unit of the Croatian Defence Council, HVO, Bralo submitted a Bosnian Muslim woman to a horrific sexual assault over a two day period in May that year.
He is also accused of forcing Bosnian Muslim civilians to dig trenches at gunpoint to avoid exposing HVO soldiers to sniper fire, making Muslims perform Catholic rituals on pain of death and ordering others to be tortured by having salt and water forced down their throats before taking part in murdering them.
Bralo gave himself up in Bosnia last month, following an October decision by Hague prosecutors to make public an indictment against him which had remained sealed since being issued in 1995.
In July 2000 an appeals chamber upheld a ten year prison sentence for Jokers commander Anto Furundzija for his part in the same rape that is now included in the charges facing Bralo.
Prosecutors have withdrawn contempt charges against Milka Maglov, a lawyer who worked on the defence team of former Bosnian Serb politician Radoslav Brdjanin during his appearances before the Hague tribunal.
Prosecutor Brenda Hollis told judges at a pre-trial conference on December 13 that because of concerns about the need to recall unwilling witnesses who had already testified in earlier hearings, she would now prefer for the matter to be dealt with administratively rather than through criminal proceedings.
On February 6 this year, judges gave the go-ahead for a case against Maglov to proceed, based on charges that she had intimidated a prosecution witness in the Brdjanin trial and had revealed the witness’s identity to a member of the public.
But the adjournment that followed February’s presentation of prosecution evidence was extended because Maglov was ill, and in the meantime the trial chamber hearing the case was dissolved.
At this week’s conference before a new set of judges Hollis said that given the circumstances, she thought it would be better for the case to start afresh rather than continue from where it left off.
She explained, however, that three important witnesses – including the alleged victim of intimidation – were all very reluctant to appear before the tribunal for a second time.
And given this fact, she concluded that it would not be in the interests of justice to pursue the matter as a criminal case any further. The chamber agreed to terminate the proceedings.
Hollis did, however, urge that the registry should consider very carefully any application by Maglov to work for the tribunal in future. And she suggested that the matter has revealed a need for greater guidance from the court as to how lawyers can contact potential witnesses whilst protecting their privacy and security.
A separate United Nations court based in the Hague - the International Court of Justice, or ICJ - ruled on December 15 that it has no jurisdiction over a case filed by Serbia and Montenegro against eight NATO member states for the airstrikes that ended the conflict in Kosovo in 1999.
Judges said the ICJ had no authority to try the case because Serbia and Montenegro was not a member of the United Nations at the time.
The former Yugoslav government had sought unspecified damages, claiming that the bombing campaign constituted genocide and also violated a number of international obligations, including duties to refrain from using force against other states, to respect other states’ sovereignty and to protect civilians.
The 1999 NATO air strikes, which were not authorised by a UN security council resolution, hit targets including military installations, factories, bridges and even a Belgrade television station in support of the ethnic Albanian population in Kosovo, which was at the time being expelled from Kosovo by Serbian security forces.
This week’s ruling by the ICJ comes in response to legal objections to the case that were filed by the eight accused countries in July 2000.
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