Court Holds Firm Against Milosevic Obstructionism

Having appointed counsel to represent Slobodan Milosevic over his objection, Trial Chamber III finds itself in a tug of war with the Accused. Given Milosevic's insistence on his positions rather than accepting the Court's right to manage the trial, assigned counsel find themselves in a predicament.

While the terms of the Court's order -- and appointed counsel Steven Kay's oft-repeated invitations -- allow Milosevic to participate more actively than regular defendants, he has so far refused to do so, insisting on an unfettered right to represent himself. Throughout the first three days of the defence case, Judge Robinson urged Milosevic that, should he ask the Court to examine or re-examine a witness, the Court would be disposed to grant the request. Milosevi'c only answer has been to demand that his right to represent himself be restored, at which point Judge Robinson cuts him off, saying that issue is settled.

Following Milosevic's statement of intent to appeal when the Court decided to appoint counsel, Kay and co-counsel Higgins asked the Court for permission to file an interlocutory appeal rather than wait for the end of the trial to resolve the issue -- with the possibility of having to retry the case should the Appeals Chamber rule appointment of counsel was error. Today, the Trial Chamber granted Counsel's request so the appeal can go forward. There is no timetable for a decision once briefs have been filed by both parties, but the Appeals Chamber attempts to move quickly on interlocutory appeals, the outcome of which may affect an ongoing trial.

Though he objects to the trial proceeding without his acting as his own counsel, Milosevic comes to court daily, sits in the defendant's chair and, except for occasional outbursts, watches his defence unfold. His objections are usually a demand that his right to represent himself be restored.

However, during Kay's examination of James Jatras, he interrupted to complain about Kay's questioning: 'Mr. Robinson, your lawyer has been spending the last two hours wasting time without allowing the witness to broach the main subjects he has direct knowledge of.'

Judge Robinson asserted the Court's authority: 'I've stopped you. We have a procedure we will follow. You do not set procedure here. The Chamber sets it. Mr. Kay is now examining the witness. After that, I will ask you to consider putting questions.'

As for Kay, he had his own complaints: 'I am here and ready to take instructions from the Accused if and when he is ready to do so. I've been put in this position because he's been found unfit to represent himself. Without instructions, I am attempting to put the defence based on his opening statement, witness list, and cross examination [during the Prosecution's case] . . . .'

Judge Robinson sought to reassure him: 'The Chamber finds no problem with the way you are examining. It understands the difficulty. It would have been better if he had instructed you. If he wishes, he can instruct you and at the end he can ask to question the witness.' When invited to question the witness, however, Milosevic stuck to his position. He would not.

At the end of Jatras' examination, Milosevic raised another protest. 'Mr. Robinson, I would like to draw your attention to an obvious fact. We have spent three days on two witnesses and I have a list of 1600. Everything that is going on is to dilute and maim my defence.'

Judge Robinson responded that his comments were improper and showed a need for him to communicate with and instruct appointed counsel. Kay pointed out that he had not exceeded the time Milosevic and his associates anticipated for examination in chief of the first witnesses. Milosevic, of course, was being disingenuous. He knows the Court has given him a maximum 150 days to present his defence case. The witness list will obviously need to be cut.

Kay is receiving some help in whittling down the witness list through witnesses who refuse to attend the trial unless Milosevic is in charge. Kay advised the Court that at least one witness the Defence had approached refused to attend. Another was very reluctant unless he could speak to Milosevic first. 'We welcome all Mr. Milosevic's witnesses to give evidence and to cooperate,' Kay stated. 'Not attending will not do the Accused's case any good at all . . . Attending would . . . To cite rulings of the Court as a means of not coming, we do not find impressive.'

After a ten minute break, the Court returned and made the following statement: 'It is not possible to overemphasize the willingness of the Trial Chamber to adopt a flexible approach to the presentation of the Defence case to assure all relevant issues the Accused wishes to explore [are presented]. . . We have stated on a number of occasions we will permit the Accused to examine and re-examine witnesses in addition to assigned counsel who has made determined attempts to communicate. So far he has refused. The Chamber encourages all witnesses on the list to make themselves available to the Chamber to make sure the case is fully presented. Should the failure of the Accused to cooperate result in material relevant to the case not [being] presented, he must bear responsibility for that.

'Mr. Milosevic, I urge you once more to think carefully over those matters and to meet with counsel, even initially to arrive at a satisfactory arrangement so you can participate within the limits your health places you in. If limits are not grasped by the Accused, the trial will nonetheless proceed and none can say there was injustice. The steps were designed to help you, protect your health, your interests and to insure the trial is conducted fairly and in a reasonable time.'

While Milosevic's stubbornness makes Kay's job more difficult, in the end only Milosevic is hurt. He could find no more qualified legal counsel to defend him. But a sterling defence is not what Milosevic wants. He wants a forum from which he can make his political case to the world. The Trial Chamber has made clear -- it will not be the ICTY.