Milosevic Lawyer Resigns

Wednesday, 9 November, 2005

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Ana Uzelac

Steven Kay, the court-assigned counsel for the former Yugoslav president Slobodan Milosevic, has asked the Hague tribunal to let him withdraw from the case – throwing the already troubled trial into further disarray.

The tribunal now faces what may be the two most important decisions in its history – and its very legitimacy in the eyes of the legal community and the general public may be at stake.

The trial chamber has to rule on whether to accept Kay’s resignation and that of his assistant Gillian Higgins, which were filed on October 26. And the tribunal’s appeals chamber also has to decide on an appeal launched by Kay the previous week, in which he asked the court to restore Milosevic’s right to conduct his own defence.

It is not clear when and in which order these decisions will be made, but tribunal observers believe that the judges may feel pressured into acting quickly.

The Hague tribunal decided to assign Milosevic a counsel in early September – ruling the former Yugoslav strongman was now too ill to conduct his own defence. Kay and Higgins, British lawyers who had been acting as amicus curiae (friends of the court), accepted the court’s move, but Milosevic - who insists on his right to defend himself - reacted by refusing to instruct or even see his new team.

The refusal was followed by a massive witness boycott, as hundreds of potential defence witnesses refused to testify in protest at the court’s decision.

At last week’s appeal hearing, Kay vehemently defended his client’s right to self-representation and told the court in no uncertain terms that Milosevic’s attitude had made it impossible for the lawyer to conduct a proper defence. However, he stopped just short of tendering his resignation.

But his formal request to withdraw from the case followed only four days later.

In his letter to the court, Kay explained that he and Higgins would find it unethical and “detrimental to the interests of justice” to continue defending Milosevic without his consent. “We believe that continued representation of the accused by ourselves causes us to be in breach of [the Hague tribunal’s] code of conduct,” Kay wrote in his request.

“In adversarial proceedings before this tribunal, it is imperative that counsel receives instructions from his client in order to present his defence,” Kay argued. In the absence of such instructions, he said, he has been put in the situation of ethical conflict. “If we continue to act we will be doing so against [Milosevic’s] express wishes. This would not only be disloyal, but also detrimental to the interests of justice.”

This request will now be sent to the trial chamber, which will then rule on whether to accept it or not.

Formally, the trial chamber has the right to refuse the lawyer’s request to withdraw from the case, in order to defend the interests of justice and the integrity of the trial – and some observers believe this is what the judges will most probably do.

“The judges would be hard pressed to accept the withdrawal,” said Judith Armatta, a long-time observer of the Milosevic trial for the Coalition for International Justice. “Backing down at this point would put the trial in a very precarious position. Kay and Higgins are the only ones who have the skill and the knowledge to see the case through.”

In his role as a friend of the court, Kay has been present through the bulk of the Milosevic trial’s first 30 months. It is generally accepted that nobody apart from Kay and Higgins, and Milosevic’s legal aides in Belgrade, knows the case well enough to represent the former Yugoslav president.

If the court accepts Kay’s resignation while insisting that Milosevic be represented by a lawyer, a new defence team will have to be found. However, it is now clear that no counsel will be able to count on the defendant’s cooperation and in any case a new team would need month to prepare – further delaying the already-troubled trial.

But the alternative - forcing Kay and Higgins to stay on - would result in an unwilling defence team representing an unwilling client, a situation analysts say would undermine public perception of the trial in general.

Marieke Wierda, a legal scholar at the New York-based Center for Transitional Justice and a former aide to the late Judge Richard May, who presided over the prosecution phase of the trial, believes that it would be “a big mistake” if the tribunal was to refuse Kay’s resignation in spite of lack of any cooperation by Milosevic.

“Witnesses are unlikely to appear, so Kay won’t be able to put up any defence,” she said. “That could mean that [the judges] might have to close the case within a couple of weeks from now.

"I don't think that in those circumstances people would be convinced that Milosevic was given every opportunity to mount a defence."

The trial chamber has so far insisted that if Milosevic refused to cooperate, he would have to take full responsibility for the judges not hearing evidence in his favour. And the prosecution has insisted that, should the defendant refuse to air his case, a verdict would have to be reached on the basis of the evidence presented to date.

Some observers have raised doubts whether the former Yugoslav president has ever intended to present a legitimate defence.

“Milosevic has said from the beginning that he does not recognise the tribunal and that he wants to destroy it,” said Armatta.

But it was Milosevic’s health and the slow pace of the mammoth trial - not his openly expressed wish to destroy the court - that compelled the judges to assign a lawyer last month.

Dutch legal commentator Heikelina Verrijn Stuart – a long-time observer of the trial - thinks that the judges erred in this decision and argues that the trial chamber should have explored other ways of dealing with the defendant’s poor health - such as additional medical examinations, or allowing Milosevic more time to prepare his defence case.

“They were seriously worried about the expeditiousness of the trial, and that was the overriding reason behind their decision,” she claimed.

“But trials in the Hague tribunal take a long time – it is the nature of the cases here, with complex indictments, a huge number of facts that need to be proven, and cumbersome procedures. And in that respect the Milosevic case, the most complex of them all, was not going too badly.”

Many observers IWPR spoke to believe that the trial has now turned into something of a power struggle between the court and the wilful defendant – with the latter seemingly prepared to go to extremes to ensure that the proceedings proceeds in a way that suits him.

One legal figure, who spoke to IWPR on condition of anonymity, said that under such circumstances, Kay’s resignation was inevitable. “It was mission impossible,” he said.

“It is difficult enough to defend a client who does not cooperate with his lawyer, but when a client actually declares a war on his lawyer, like Milosevic has, then the counsel simply has to stop.”

Observers believe that the decisions made by the tribunal in the coming weeks could influence the very way in which the court is viewed in future. Some believe that if it insists on forcing a lawyer on the unwilling defendant, the tribunal will be forever seen as unfair. But others warn against the dangers of the court appearing to “cave in” to a skilful political manipulator.

But Wierda believes that the court is far more than just the Milosevic case. “The tribunal has done enough to establish its credibility as an objective judicial institution,” she said

“There is, however, a hefty political price-tag attached to mismanaging the trial that will be seen as the court’s biggest case.”

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