The Interests of Justice Override Milosevic's Wishes

At the heart of the issue whether to impose counsel on Slobodan Milosevic against his will is the Court's primary responsibility to assure a fair and expeditious trial and to preserve the integrity of the judicial process. While an accused has a right to represent himself, the right is subsidiary to the Court's primary responsibilities. Nor can an accused waive his right to a fair trial, for example, by declaring that he will use the trial as a forum to promote his political views.

'[P]ermitting self-representation regardless of the consequences threatens to divert criminal trials from their clearly defined purpose of providing a fair and reliable determination of guilt or innocence,' Trial Chamber II wrote, in its decision to appoint standby counsel for Vojislav Seselj over his objection, citing with approval a US Ninth Circuit Court of Appeals concurring opinion. 'He [the Ninth Circuit concurring judge] also observed that a defendant could not waive his right to a fair trial, a right that implicates not only the interests of the accused but also the institutional interests of the judicial system. Moreover, the government had a compelling interest, related to its own legitimacy, in ensuring both fair procedures and reliable outcomes in criminal trials.'

Two and a half years into the trial, the Milosevic Court is forced by the Accused's deteriorating health to face the crucial issue of the degree to which the right to self-representation may be used to advance a political agenda. Its decision could have far-reaching implications for other courts trying former heads of state, as it can be expected that most such accused, like Milosevic, will object to the legitimacy of the institutions that seek to try them and will seek to use such proceedings to make their political cases.

The Milosevic Trial Court's dilemma arises out of a particular historical development, the use of a trial to deal with former heads of state alleged to have grossly violated humanitarian norms and values, in lieu of summary execution or providing a golden parachute to a villa in some distant land. Given the declared intent of the Accused, the Court must insist on its role. To allow Milosevic to present a political case undermines the legitimacy of the Tribunal. It allows him to control the process and to use it for his own purposes. While the Court struggled to keep Milosevic's cross examination of prosecution witnesses relevant to the charges and non-political, filtering out his political agenda will be far more difficult when Milosevic presents his defence case.

Appointment of counsel (standby or other) will go a long way toward assisting the process, as well as expediting the trial. While a lawyer must take direction from her or his client concerning 'the objectives of representation,' a lawyer also owes a duty to the legal profession and to the Tribunal. He or she is prohibited from perpetrating a fraud on the court and from engaging in any conduct that violates professional or ethical rules, the ICTY Statute and its rules, the Directive for Defence Counsel practicing before the ICTY and any other applicable law. As Trial Chamber I held in denying Vidoje Blagojevic's request to replace his counsel, '[C]ounsel have a duty of loyalty to their clients consistent with their duty to the Tribunal to act with independence in the administration of justice; and counsel shall take all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute.' [emphasis added] The Chamber also noted that counsel may 'take a decision that may be against the wishes of his or her client because that counsel, being competent and under professional obligations, genuinely believes that the decision is in the best interests of the client. . . .' [emphasis in the original]

As Trial Chamber II wrote in its Seselj decision, '[G]ood cause for concern has been shown [to appoint standby counsel over Seselj's objections] following his [Seselj's] declared intention to attempt to use the Tribunal as a vehicle for the furtherance of his political beliefs and aspirations. If this tactic were resorted to, it would not only result in an abuse of the valuable judicial resources of the Tribunal but also hinder an expeditious trial.' The Chamber noted that the right to a fair trial is not only 'a fundamental right of the accused,' but also 'a fundamental interest of the Tribunal related to its own legitimacy.'

In reaching its decision, the Seselj Court cited with approval a case before the European Court of Human Rights (Croissant v. Germany) which found that the goal of insuring that a trial proceed without interruptions or adjournments is 'a relevant interest of justice that may well justify an appointment [of counsel] against the accused's wishes.'

The Court's duty to assure that a trial is fair may override an accused's right to self-representation, just as a lawyer's 'overarching duty to act in the best interests of the client,' (Blagojevic) may override his obligation to represent the wishes of his client. The Court must see that justice is served. Where an accused insists on representing himself but is unable to do so, the Court must step in. Where an accused insists on using the trial as a forum to advance his political agenda to the detriment of his defence against very serious charges, both Court and defence counsel are called upon to override his wishes and see that he receives a professional defence in spite of himself. To do otherwise, is to relinquish the courtroom to those who would use it as an arena to promote their destructive politics.