Court Hears of Organized Campaign to Obstruct Justice

Following the testimony of the fourth defence witness, Steven Kay asked the Court for a status conference to discuss the situation of recalcitrant witnesses. Since the Trial Chamber assigned Kay to represent Slobodan Milosevic, the Accused and most of his witnesses have refused to cooperate.

Kay informed the Court that the Defence team has contacted 150 witnesses from Milosevic's list, a large number of whom refuse to testify unless the Accused is allowed to represent himself. Nearly incredulous, Judge Iain Bonomy asked, 'If the case is not conducted in accord with their interpretation of the rules, they're not going to come . . .? Is it as simple as that?' Kay responded, 'It is.' He added, however, that some were surprised to be on Milosevic's list at all and felt they could not help, a position Judge Bonomy called 'rational.' Presiding Judge Patrick Robinson probed further, 'Is it your understanding that they will attend irrespective of the Appeals Chamber decision or only if it goes in a particular way?' Kay was unable to provide an answer.

Kay also told the Trial Court that witness defiance was part of an organized campaign. Potential witnesses hold meetings to discuss their position, where they make the 'most ridiculous and false statements,' Kay said. For example, they claim that witnesses who have testified have been bought, a claim that is 'absolutely false' and 'absolutely ridiculous.' They have also made 'completely erroneous statements about myself, the people working for me and, indeed, the conduct of the case,' Kay concluded. He added, however, that based on the witnesses he has called who have seen the Accused, he could confidently say that '[Milosevic] has not told them not to give evidence through me.'

When the Court asked for his comments, Prosecutor Geoffrey Nice disagreed. 'It may be that the Accused hasn't explicitly asked witnesses not to attend subject to a change in the ruling [on assigned counsel] but the Court will remember he was given an opportunity to answer, 'Do you want witnesses to attend or not?' and he gave a carefully crafted answer' that amounted to a 'nod and a wink,' i.e. encouragement. 'It is entirely open to the Accused to make it absolutely clear he wants witnesses to attend and not use an alibi to avoid attendance.' When Milosevic was given the opportunity to speak, he did not address himself to the defiant witnesses.

Kay advised the Trial Chamber that the Registrar is pursuing diplomatic channels to secure the attendance of 20 witnesses, most of whom are state officials. The Chamber clarified that he need only begin with that procedure for officials who have functional state immunity. For all other noncooperative witnesses, counsel should apply directly to the Trial Chamber for an order compelling their appearances. The Chamber scheduled a hearing for Monday for Kay to make his requests.

Judge Robinson asked if the Accused had any comments, warning him, however, that the Court would not hear anything to do with the matter on appeal (assignment of counsel) and would consider any attempt to address it 'almost contemptuous.' When Milosevic complained that Kay had asked no questions of the last witness relating to facts he considered important, Judge Robinson interrupted him. Speaking with some irritation, the Judge lectured, 'If that is the case, then it is on your head, Mr. Milosevic.' The Court, he reminded, had given the Accused opportunities to question the witness, which he had consistently failed to use. It is 'almost beyond my comprehension,' he said, that Milosevic would reject an opportunity to question a witness, then complain he had not been given it.

The Accused responded that he couldn't question the witness about matters for which Kay had not laid a foundation, adding that Kay doesn't understand events in Yugoslavia. That again provoked the Judge's ire, since Milosevic has refused to give Kay instructions or provide him with information on which to base his examination. He reminded the Accused, 'It is your case that is at issue. We have made it quite clear a decision will be made on the evidence before the Court. You have the responsibility to get the evidence for your defence.' Judge Kwon added that the Accused may still instruct his own lawyers to come into the courtroom to represent him.

Closing the argument, Judge Robinson reminded everyone that until the Appeals Chamber rules, the Trial Chamber's order will be implemented. The Appeals Chamber will hear the parties on the issue of assigned counsel next Thursday, October 21.