Institute for War and Peace Reporting | Giving Voice, Driving Change
Milosevic Calls for Clinton
Slobodan Milosevic’s first move since regaining control of his defence case has been to ask that some of the world’s most famous politicians be forced to testify in The Hague before Christmas.
The former Yugoslav president this week demanded the presence of former United States president Bill Clinton and his former secretary of state Madeline Albright, British prime minister Tony Blair, ex-German chancellor Gerhard Schroeder – all key players in the 1999 NATO bombing campaign that halted Serb attacks on ethnic Albanians in Kosovo.
Milosevic is facing three indictments – for Bosnia, Croatia and Kosovo – in which he is charged with more than 60 counts of genocide, crimes against humanity and violations of the laws and customs of war.
The defence phase of the trial, which is yet to get fully underway because of the accused’s poor health and non-cooperation with court-appointed counsel, is expected to feature a highly politicised defence in which the international community will be accused of victimising the Serb people.
However, the process of getting these high-profile witnesses to The Hague will require Milosevic to do something that he has so far been unwilling to do – cooperate with a court he refuses to recognise.
“I would ask you to issue an order for them to be heard before the Christmas recess,” Milosevic said.
“You very well know that a subpoena is not issued lightly,” warned presiding judge Patrick Robinson, adding that the defendant must be able to prove that every effort has been made to call the witness, and that the evidence they provide is useful and relevant.
After hearing from the defendant that his efforts to contact potential witnesses through their relevant embassies had failed, Robinson noted that the trial chamber would only consider issuing subpoenas if Milosevic followed procedure – in other words, put his request in writing.
Observers say that this will create a dilemma for the tribunal’s most high-profile accused, who has never recognised the legitimacy of the UN court and refuses to enter into correspondence with it.
Robinson reminded the defendant that, to ensure procedure was followed, he could request assistance from his “associates in Belgrade” – three legal advisers recognised by the tribunal - or ask his court-assigned counsel Steven Kay for help, even though the latter has formally asked to leave the case.
The Coalition for International Justice’s Judith Armatta, a long-term observer of the Milosevic trial, believes that it will be very interesting to see how the former Yugoslav president now chooses to proceed in light of his previous refusal to provide written submissions.
“If you want to [conduct your own defence], you have to behave like a counsel and follow the rules. These state that he will have to establish that he has tried to contact the witnesses, that they refused, and that the evidence they bring will be relevant – and it all has to be in writing,” she said.
Even if Milosevic agrees to do this, it is very unlikely that such prominent witnesses would be able to appear in The Hague with just over a month to go before the court breaks for the festive season.
Whichever way the defendant chooses to proceed, tribunal insiders agree that it is very unlikely that he will ask Steven Kay and Gillian Higgins, the British duo appointed by the trial chamber in September to represent Milosevic, to make the request for him.
The trial effectively ground to a halt last month after the defiant defendant refused to instruct the court-appointed team, and the majority of proposed witnesses refused to travel to The Hague.
Lacking any instruction from the defendant, Kay then appealed his own appointment.
On November 1, the tribunal’s appeals chamber overturned the decision to stop Milosevic from defending himself, and ruled that the modalities – areas of operation – laid down for the assigned counsel by the trial chamber were too strict.
The chamber rejected the trial judges’ ruling allowing Milosevic to question defence witnesses only after the court-assigned counsel had finished the examination in chief.
But, crucially for the trial chamber of Judge Robinson of Nigeria, Judge O-Gon Kwon of Korea and Scotland’s Judge Iain Bonomy, the appeals chamber backed their decision to impose lawyers on the unwilling defendant and ruled that a court-appointed legal team should be on hand to drive the case should Milosevic’s health problems lead to further delays.
However, Kay, in a move criticised by prosecutor Geoffrey Nice, did not wait to hear the chamber’s verdict before submitting a formal request to withdraw from the case.
The arguments this week have concerned Kay’s unhappiness with what he perceives as “hostility” from the defendant and the “complete breakdown” of the situation, all of which had left him in a “tortuous ethical position” of defending an uncommunicative and uncooperative defendant whose best interests he cannot protect.
In a long address to the court, Kay explained that his position was untenable and that withdrawal was the only option available to him. And he warned that even if the trial chamber refused to grant this request, Kay could still walk out on the case and face the consequences at the British Bar Council at a later date.
Bonomy, who described Kay’s argument as “rather weak”, questioned the assigned counsel’s statement that, under the terms of his code of conduct, he could leave the case if the client withdrew instruction or if his professionalism was impugned.
“It says that you may [withdraw], not that you must,” Bonomy pointed out.
“Yes, but I am exercising that option,” Kay replied. “Your honours may not allow [me to do so] – but then I can still withdraw and the judges can refer me to my bar council. But I have confidence in my position.”
When asked by Robinson whether Kay’s position would be strong if he withdrew for “whimsical” reasons, the assigned counsel replied firmly that “these are not whimsical grounds”.
Milosevic, Kay said, had filed a complaint against him at the Dutch Bar, had publicly and continuously criticised his professionalism and conduct, and accused him of “knowing nothing about Yugoslavia” – all of which rendered any working relationship between the two impossible. An “irreconcilable conflict” now existed, he said.
However, Nice described Kay and Higgins’ written request to withdraw from the case as “unfortunate in its content and date”, and argued that the defendant and assigned counsel had never had a relationship to break down in the first place.
In response to Kay’s statements about complaints received from the defendant and the lawyer’s feelings that his professionalism was being impugned, Nice countered, “So what? Criticism goes with the job we do.”
He argued that prosecutors and judges alike - and even the late Sir Richard May, who presided over the prosecution phase of the two-and-a-half-year-long trial - had been subject to criticism. “It doesn’t stop us from doing our work,” he added.
The most important things were that the defendant received a fair trial, that the authority and dignity of the court was protected and that the proceedings were concluded in a timely way, Nice said.
He also called on the court not to “mollycoddle” the defendant, and argued that now that Milosevic had regained the control over the case that he so craved, “he can be trusted to get on with it”.
Robinson reiterated that Milosevic will be given 150 days to present his defence, and stressed that any preparation of witnesses much be done on non-court days. Health specialists monitoring the former Serb leader’s health have insisted that he spend only three days a week in court to avoid aggravating his serious blood pressure and heart problems.
The issue of Milosevic’s health and fitness will be dealt with “if and when it arises”, Robinson added.
The trial chamber brought three days of impassioned debate to an end by announcing that it would “take its time” to consider all the issues raised by Kay’s request to withdraw from the case, and would deliver a decision “shortly”.
The trial is due to reconvene on November 16, when Milosevic will question his first defence witness. It is then expected to adjourn until November 22.
Alison Freebairn is an IWPR editor in The Hague.
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