Can Appeals' Decision Be Implemented?

After three days of argument, the Milosevic trial chamber adjourned on Friday to try to find a way out of the impossible situation in which the Appeals Chamber left it when it restored Milosevic’s primacy in his defence case.

Counsel appointed by the Trial Chamber to represent Milosevic over his objections appealed that decision on behalf of the Accused. While upholding the Trial Chamber’s decision to appoint counsel against Milosevic’s will, the Appellate Court overturned the manner in which the representation is to be carried out. Essentially, it put Milosevic in the driver’s seat for his defence, with the right to select and examine witnesses, determine strategy and argue legal points. Appointed Counsel is to sit in the wings until Milosevic next becomes too ill to continue, at which point counsel is to take over. At least that is how the Appeals Chamber envisioned it. In practice, however, it may be “unimplementable,” an issue the Presiding Judge raised several times during argument on Appointed Counsel’s request to withdraw.

While the issue before the Trial Chamber this week was whether to allow Appointed Counsel to withdraw, it necessarily involved the issue of how the trial can proceed under the Appeals Court’s decision. Appointed Counsel Steven Kay sought to withdraw because Milosevic refuses to communicate with him and is adamantly opposed to assistance from any court appointed counsel. He also refuses to appoint his own counsel. The Accused intends to maintain absolute control over his “case,” taking assistance only from those off-stage, his associates and allies, who he knows will follow his orders. Ironically, Kay’s complaint is exactly that: he argues he is unable to defend Milosevic without the instructions Milosevic refuses to give him. Kay maintains to do so would violate the code of professional conduct for defence lawyers.

If the Trial Chamber accepts Kay’s argument, it would have to accept his withdrawal and would be precluded from appointing anyone in his place because, without Milosevic’s cooperation, any counsel would violate the code in attempting to represent him against his will. In this way, the Appeals Chamber’s decision would be unimplementable. Effectively, the Accused has a veto over the Trial Chamber’s decision. Under this interpretation, while the Trial Chamber properly exercised its authority to assign counsel against Milosevic’s wishes, assigned counsel cannot perform his or her duties if the Accused won’t cooperate.

Even if the Trial Chamber does not agree with Kay that the code prohibits him from continuing without Milosevic’s instructions, the Appeals Chamber decision may be unimplementable for other practical and legal reasons.

If assigned counsel takes second chair, with nothing to do until Milosevic falls ill and cannot carry on his defence, major stumbling blocks arise when it comes time for assigned counsel to assume the defence. One, Milosevic has declared he won’t cooperate. Therefore, if experience is any indicator, it is foreseeable that his witnesses won’t cooperate either. Two, if Milosevic is so ill that he cannot come to court, it is highly questionable whether the trial can continue in his absence. The Tribunal statute expressly prohibits trials in absentia. However, if this is impossible, then the Appeal Chamber’s order cannot be implemented since it envisions assigned counsel taking over in just this situation.

This dilemma makes appealing the Prosecution’s suggestion that the Court give Milosevic a set time by which to end his presentation. Regardless, that still does not account for Milosevic’s anticipated illnesses or the worsening of his condition due to the stress of conducting all aspects of his defence (something he has so far insisted upon).

This leaves the Trial Chamber in an unenviable position. The Appeals Chamber's only guidance is that it must 'craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice.' With Milosevic conducting his defence and counsel essentially having no role, the Appeals Chamber has assured that the 'practical impact' of assigning counsel has been minimized. The more challenging objective is to address the interests of justice. The Trial Chamber promised to render its decision 'shortly.'