Lawyers Imposed on Ailing Milosevic

Trial chamber appoints two “friends of the court” as defence counsel, against former Yugoslav president’s express wishes.

The trial of Slobodan Milosevic reached its turning point this week,when the Hague tribunal assigned two British lawyers to defend the former Yugoslav president against his will.

In their ruling - one of the most important decisions in the tribunal’s history - the judges concluded that Milosevic was “not fit enough to defend himself” and appointed Steven Kay and Gillian Higgins, already serving as amici curiae or friends of the court, to defend him.

“There is a danger that the trial may last an unreasonably long time, or worse, not be concluded if the accused continues to represent himself,” said presiding Judge Patrick Robinson on September 2.

Visibly angered, Milosevic accused the court of muzzling him at the very moment when it was his turn to tell his side of the story.

And while some legal observers seemed to support this interpretation, others welcomed the judges’ move to reassert their authority in a trial process which has been criticised for providing the former Yugoslav president with a political forum.

The judges decided not to give Milosevic the opportunity to choose his lawyer at this time, because of his earlier repeated insistence that he would not do so.

Instead, they assigned the two amici to this role, leaving Milosevic the chance to make a request to the trial chamber to be allowed to choose his own counsel, should he change his mind.

Milosevic, who repeated several times that this development was “a breach of his fundamental rights”, reacted to the ruling with defiance.

When the judges announced their decision, they asked Milosevic to present his views on how he would expect his counsel to act. When the defendant tried yet again to question the decision, his microphone was turned off by the presiding judge, who told him that the chamber was now “dealing with a different matter”.

“Well deal with it then,” Milosevic said, throwing his pen on the desk, packing up his notes and his reading glasses, and sulking for the time remaining until the break.

After the break, the former president reappeared in the courtroom, but remained largely silent. His legal advisers declined to comment on what his next move will be and left the public galleries immediately after the end of the hearing.

The decision to assign a lawyer to the Hague tribunal’s most high-profile defendant came after almost three months of deliberation over the many different medical and legal opinions on the matter.

The idea of assigning a lawyer to the 63-year-old defendant was first mooted in June, after his high blood pressure effectively halted the trial. A medical report filed at the time made it clear that such bouts of illness would happen every time he was under stress.

Faced with the prospect of seemingly endless delays in a trial that has already lasted two and a half years and has lost one of its judges - the late Sir Richard May - the trial chamber decided to explore all avenues to ensure the trial did not collapse before a verdict was reached.

A series of medical reports on the state of Milosevic’s health were made by both his appointed cardiologist and an independent heart specialist brought over from Belgium, and parts of these were made public in this week’s hearings.

Besides confirming that the defendant suffered from “severe essential hypertension”, they also revealed that Milosevic was not adhering to his therapy and had refused to take the tranquilisers provided by the appointed cardiologist.

The prosecution seized on this information as evidence that Milosevic was in effect manipulating the tribunal by letting his health deteriorate when it suited his purposes – an allegation the former Yugoslav president firmly denies.

Leading prosecutor Geoffrey Nice told the court that the appointed defence counsel must be given full discretion in conducting the case and deciding which witnesses to call. He argued that this was the only way to deal with Milosevic’s “almost certain manipulation” of the health issue, and with the defendant’s propensity for using the tribunal as a political platform.

On Friday afternoon the judges delivered their ruling on the future counsel’s work, by giving them the obligation to prepare and examine “those witnesses [they] deem it appropriate to call”.

Milosevic has been given the opportunity to “participate in his case” by - among other things - examining the witnesses, but only “following examination by court assigned counsel”.

This would in effect mean that Milosevic would be given only a secondary role in the examination of his witnesses – something he this week already warned was not prepared to do.

“I would not accept additionally questioning my witnesses,” he said. “I insist on examining them myself.”

The judges ordered the continuation of the trial with the first witnesses appearing on September 7, as scheduled.

Before the court reached its decision to assign counsel, Milosevic spent a day and a half delivering his opening statement, in which he outlined his defence strategy.

For the most part, these opening remarks were a simplified version of the initial statement Milosevic delivered when the trial began in February 2002.

In a broad historical sweep, Milosevic set out his version of recent Balkan history, presenting the Serbs as victims of a whole series of plots from the days of the Austro-Hungarian monarchy to modern times, where he believes the former Yugoslavia fell victim to a conspiracy by Germany and the Vatican, later joined by the United States under then-president Bill Clinton.

The speech was so repetitious that the number of visitors in the public gallery dwindled after each break, with just a third of those there at the start making it until the end of the first day.

Only at the very end of his statement did Milosevic address some of the charges he faces, by attacking the legal concept of “joint criminal enterprise”, saying it suggested that the prosecutors lacked any concrete evidence against him.

He also challenged the allegations of command responsibility contained in the Kosovo indictment, stating he would present documents to prove he had done everything in his power to prevent crimes from being committed there, and to punish those responsible.

He ended the speech with a dramatic statement about how “privileged” he felt for “having the truth on his side”.

Just a few hours later he suddenly found himself in a position to denounce the tribunal for “preventing the truth from being told”.

“At a moment when I am supposed to exercise my right to defend [myself], you decided to deprive me of that right,” he thundered.

This sentiment is certain to reverberate strongly back home in Serbia, where recent opinion polls suggest that some 60 per cent of the population still opposes the international court.

But some of the legal experts gathered at the trial praised the chamber for its ruling.

“The alternative to this decision would be judges abdicating their role to manage the trial," said Richard Dicker, head of Human Rights Watch’s international justice programme.

Dicker argues that the right to self-representation is not absolute. “What is absolute is a right to a fair trial. And the two are not equivalent,” he said, adding the tribunal has left enough leeway for Milosevic to stay fully engaged in his case if he wants to.

But opinion within the legal profession remains divided. Human rights scholar William Shabas, co-author of the book Slobodan Milosevic on Trial: A Companion, warned that the assignment of a counsel against the defendant’s wishes “would quite likely contribute to the impression that this was an unfair trial”, adding that the appearance of fairness was essential for the success of the tribunal.

“Yes, he is a difficult defendant and yes, they have to struggle,” said Schabas. “It was inevitable that, given that he was once a powerful political leader, he would use the trial as a political platform and not always play by the rules. And while judges have the duty to limit this, he has to be given a lot of leeway in conducting his defence.”

Tiphaine Dickson, a Canadian lawyer and the legal spokesperson for the International Committee to Defend Slobodan Milosevic, said the former Yugoslav president “would now have a defence, but it would not be his defence”.

Both Dickson and Schabas insisted that the late judge Richard May - who presided over the prosecution part of the trial and who died this summer – had made it a point of principle to guarantee Milosevic’s right to self defence, as a fundamental right embodied both in the court’s statute and in the International Covenant on Civil and Political Rights.

But a former assistant to the late judge told IWPR she didn't think May would necessarily have disapproved of the trial chamber's decision. Marieke Wierda - now a senior associate at the New-York based International Centre for Transitional Justice - said the chamber's decision to assign Milosevic a counsel in a way which would still give him freedom to participate in his defence might well have been "acceptable" to the late presiding judge.

Currently, the biggest unknown is how the former Yugoslav president will choose to proceed.

Analysts agree that he could still significantly disrupt the course of his trial by refusing to cooperate with the assigned lawyer, telling his witnesses not to respond to the counsel’s invitations, or simply by not appearing in court.

Such behaviour could forces the judges to make even more difficult choices than the one they made on September 2.

But others say a decision to move out of the public eye would be completely out of character for the former Yugoslav president.

“He is well aware that this may be his last opportunity to communicate with his constituency,” said Wierda. “I don’t think he’s ready to lose that.”

Ana Uzelac is IWPR’s project manager in The Hague.

Locations Balkans, Serbia, Kosovo