Milosevic Due Back in Court

Wednesday, 9 November, 2005

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Ana Uzelac

The long and dramatic trial of former Yugoslav president Slobodan Milosevic is scheduled to continue next week, with tribunal judges set to decide whether or not to assign a lawyer to their most high-profile defendant.

After months of delay caused by Milosevic’s worsening health, he is expected to finally deliver his opening statement when the trial resumes on August 31.

But no witnesses will be called for at least one more week after that. Instead, the trial chamber will use this time to hear, once again, views on the issue of assigning Milosevic a defence counsel, and on the content of a medical report filed confidentially at the end of July.

According to public court documents, the report by a consultant cardiologist, identified only as “Prof Dr. R. Tavernier”, states that Milosevic is not fit to represent himself.

The idea to impose a lawyer upon the defendant was seriously addressed for the first time in June, after repeated bouts of high blood pressure slowed Milosevic’s preparations for his defence and resulted in long delays in the trial.

At the time, Paul van Dijkman, the cardiologist treating Milosevic, concluded that his high blood pressure was bound to return every time the defendant experienced stress. In practice, this could mean that Milosevic’s health problems would occur regularly, given the demands of representing himself in the highest profile war crimes trial since Nuremberg.

This report gave the court reason to fear that the already long-running trial would continue at an even slower pace with frequent interruptions, and prompted the judges to announce that a “radical review” of the case was needed.

Since then, the trial chamber has been busy gathering legal and medical opinions to assess whether or not a defence lawyer could be introduced to the trial to speed it up and regain some control over the seemingly never-ending proceedings.

Another option considered before the tribunal broke for its summer recess was the possibility of severing one or more of the three indictments Milosevic is facing. However, this suggestion was criticised harshly by both the prosecution and the amici curiae (friends of the court), and the judges have decided not to give it any further consideration for the time being.

So the only possibility now left for the “radical review” is for the judges to introduce a defence lawyer to the Milosevic trial.

If they do so, it will be against the defendant’s wishes. The former Yugoslav president has warned he would never engage a lawyer voluntarily - or cooperate with one imposed on him by the court.

However, the prosecution is firmly in favour of this option, and has formally asked the court to impose a lawyer to handle Milosevic’s defence completely – preparing the strategy and handling the questioning of witnesses.

Meanwhile, the amici filed a submission during the summer recess urging the judges to delay the imposition of counsel until they establish if Milosevic – who by now has had roughly four and a half months to prepare his defence – could actually cope with the case.

The amici claim that the right to represent oneself is a “fundamental principle” contained in the tribunal’s statute, and its correct interpretation “does not provide the trial chamber with a power to impose counsel upon an unwilling defendant”.

Interpreting the statute in a way which would allow counsel to be imposed would “contravene his right to self-representation, which is … not a right to be compromised”.

The friends of the court also urged the judges to consider once more if Milosevic is fit to be tried at all.

The issue of imposing a lawyer against the defendant’s will has divided the legal community. Some insist that this tactic is the only way to ensure that Milosevic does not hold the tribunal to ransom, while others voice concern that such a move would threaten the fairness of the high-profile trial.

William Schabas, international human rights lawyer and co-author of the book Slobodan Milosevic on Trial: A Companion, believes that imposing a lawyer on the defendant for health reasons would be “illegal”.

The rules give an accused person the right to defend himself, he argued, adding, “I don’t see any way around this, short of changing the tribunal’s statute.”

However, he agreed that the right to self-representation could be restricted in cases where a defendant was “undermining the course of justice”.

The judges have so far avoided raising the issue of Milosevic’s attitude towards the tribunal.

The former Yugoslav president, who does not recognise the legitimacy of the Hague tribunal, has repeatedly used the courtroom to send strong political messages back home. He also refuses to engage in written correspondence with the court, and his behaviour has been described as “falling just short of obstructive” by the prosecutors.

“If it is Milosevic’s behaviour in court that is problematic, the judges will have to bring that issue in the open [before making a decision on imposing a lawyer],” Schabas told IWPR.

Judith Armatta of the Coalition for International Justice, a long-time observer of the Milosevic trial, also said she hoped the judges would highlight the former Yugoslav president’s behaviour as one of the reasons for appointing a counsel for him. But she disagreed that Milosevic’s health problems are insufficient reason.

His health and his behaviour are both part of a bigger picture, she said, in which Milosevic “tries to prevent his trial from happening” by insisting on representing himself “when he obviously does not have the physical capacity to do so.

“Meanwhile, he seems to expect the court to operate on his conditions instead of the other way round.

“Letting him continue without a lawyer will put additional strain on him, which could prolong an already long case - and it could also mean skirting the legal issues and giving him a political platform.

“Taken together, these things are not in the interest of justice.”

But Schabas offers a different opinion. “I agree the trial is not a pretty one, and it is not going as smoothly as it should have,” he told IWPR.

“But I have seen Milosevic operate in the court and he knows his case. He is his own best lawyer,” Schabas said, adding that allowing Milosevic to deliver his own defence would give extra weight to any verdict that the trial chamber eventually delivers. “It is simply better for justice.”

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