Fair Trial May Require Appointment of Counsel: The Court must consider Milosevic's health and poor defense

Milosevic's lengthy absences from the courtroom due to ill health led Trial Chamber III to grant the prosecution five more weeks to present its case in chief. Originally, the Chamber ordered the Office of the Prosecutor (OTP) to complete its case no later than April 10, 2003. At today's pretrial conference on the Croatia and Bosnia sections of the indictment, however, the Court set the end date at May 16, 2003.

The accused's physical condition will continue to be a factor for the rest of the trial, according to a medical report made at the Court's request. In it, the doctor concluded that Milosevic was under a 'severe cardio-vascular risk which demands careful future monitoring.' He recommended that his workload be reduced and that he receive additional medical treatment from a cardiologist.

The Court's new deadline does not allow for any reduction in the workload or number of courtroom hours in the case. The OTP's case has been trimmed to its bare bones, the Court cutting the number of witnesses for the Bosnia and Croatia segments to a total 175 from an estimated 277 live witnesses that the prosecution proposed to call. Given that the Tribunal is responsible for the care of the accused -- and that he has taken little or no responsibility himself, stating that he only acceded to the medical examination and absence from court during his illnesses because he is a 'civilized' man -- the Tribunal will be required to make decisions about the conduct of Milosevic's defense. One possibility was suggested by Judge Robinson, directly addressing the accused:

'Your health is a matter of very great concern to me as a member of this Trial Chamber. The doctors have recommended that you be given rest. It is quite clear to me that the whole business of preparing for cross examination and cross examination itself is extremely onerous. It has occurred to me that one way you can have rest is if you appoint counsel. You have expressed your views [against doing this], but it may be we can establish a system where you can share cross examination [with appointed counsel].'

Addressing Judge Robinson as 'an honorable man' with good intentions, Milosevic nevertheless rejected his suggestion of even partial in-court assistance from counsel. He repeated his consistent refrain that he does not recognize the Tribunal and considers it part of a 'New World Order' whose goal is to enslave countries like Judge Robinson's native Jamaica. Judge Robinson responded that it seems inevitable the Court will have to consider measures that take account of Milosevic's health.

The Tribunal statute gives the accused the right 'to defend himself in person or through legal assistance of his own choosing.' (Article 21.4(d)) According to the European Commission on Human Rights which has considered cases under an identical provision, there is no absolute right to represent oneself. The underlying guarantee is the right to an effective defense. It is for the appropriate authority to decide how that can be achieved, including whether appointment of an attorney is required.

While Milosevic is likely to oppose any attempt to appoint counsel to represent him, the Court may overrule him. It is clear by now that he is not capable of nor interested in mounting an effective defense on his own -- even aside from physical limitations. His cross examination is largely focused on irrelevant issues or undertaken merely to harass the witnesses. As lead prosecutor Geoffrey Nice stated, 'The accused may require assistance to save himself.' Nice suggested the Court could identify issues on which the accused should cross examine witnesses. There is no reason to believe Milosevic would follow the Court's advice, since he is not actually mounting a defense and has no intention of doing so.

At the pretrial hearing, Milosevic once again stated that he did not recognize the Tribunal and was merely taking the opportunity it provided to present his views to the public and to history. That is not the purpose of the trial, as the Court has admonished him many times. Nor would the prosecution be permitted to use its case to counter Milosevic's view of history and politics. The purpose of the trial is to determine whether or not Slobodan Milosevic committed crimes that violate international humanitarian law.

An assessment of Milosevic's physical health as well as his ability to mount an effective defense would logically lead the Court to appoint counsel to represent him. Milosevic seems determined to be a victim, refusing to take responsibility for his health or his defense against war crimes. The Tribunal may not avoid responsibility so easily. It is both responsible for Milosevic's physical well-being while he is in custody, and for protection of his legal rights while he is before the Court as an accused. The Court has ordered a medical evaluation by a cardiovascular specialist. The conclusions of that examination as well as Milosevic's inadequate defense to date should be sufficient for the Court to require Milosevic to be represented by counsel. The interests of justice and the right to a fair trial may lead to a very different trial in the near future.