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Milosevic Lawyers Must Stay

Trial chamber refuses British pair’s request to withdraw, arguing that it would be against the interests of justice.
By Alison Freebairn

The British lawyers assigned to defend Slobodan Milosevic in his trial at The Hague have had their request to leave the case rejected.

The trial chamber, which consists of presiding judge Patrick Robinson of Jamaica, Judge O-Gon Kwon of Korea and Judge Iain Bonomy of Scotland, announced its decision on December 7, some three weeks after hearing arguments for and against the withdrawal of Steven Kay QC and his assistant Gillian Higgins.

Its decision read, “The trial chamber holds that good cause justifying withdrawal of counsel has not been established. On the contrary, [it] remains of the view that presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proceedings.

“It is therefore plainly in the interests of justice that counsel should remain assigned to the accused and should not be permitted to withdraw.”

The British duo asked to leave the trial on October 26, some six weeks after they were appointed counsel to the former Yugoslav president.

Citing Milosevic’s poor health and chronic high blood pressure, which was causing a series of delays in the already long-running trial, the judges ruled on September 2 that assigned counsel would take over the bulk of preparing the defence case and witnesses and conducting the examination in chief.

Kay and Higgins, who until then had been acting as amici curiae or “friends of the court”, agreed to take on the role.

However, the defendant – who has always stated that he would refuse to cooperate with any lawyer appointed by a court he does not recognise – immediately cut all channels of communication with the two, leaving Kay to extrapolate Milosevic’s defence strategy from his opening statement and witness list.

The situation deteriorated when Milosevic loudly criticised his assigned counsel while at the same time refusing to instruct him, and the trial effectively ground to a halt when the defendant’s proposed witnesses refused to travel to The Hague in protest.

Kay appealed against his own appointment, but did not wait for the chamber’s decision before filing the request to withdraw from the case - a move criticised by prosecutor Geoffrey Nice, who argued that criticism should not prevent counsel from doing his or her job, and that non-cooperation by the defendant did not prevent lawyers from acting in the client’s best interests.

The trial chamber appears to agree, noting that all these developments were “foreseeable by counsel prior to their assignment”.

In any case, the trial chamber has described as “an erroneous analysis” Kay’s assertion that the defendant’s refusal to communicate had left counsel unable to protect his best interests, and therefore put them in breach of contract.

“What is required of counsel is that they act in what they perceive to be the best interests of the accused … [that] is all that can be reasonably expected in such circumstances.

“To hold otherwise would be to allow an accused to frustrate the statutory duty of the trial chamber to ensure that [the proceedings] is fair.”

In his address to the court on November 8, Kay had warned that if the trial chamber refused his request to withdraw, he would be prepared to leave anyway and face any potential consequences at the British Bar Council at a later date.

But the trial chamber’s decision appears to have pre-empted such a move by the assigned counsel, stating that as the appeals chamber had ruled that their appointment was lawful, “it is not simply a question of a subjective determination by counsel to terminate their assignment”.

“This trial chamber has determined that [Kay and Higgins’] withdrawal in the present circumstances would militate against the fair and expeditious conduct of the proceedings and that no good cause therefore exists,” the decision reads.

“It is plain that the same conclusion would apply to a unilateral termination by counsel of their appointment.”

If Kay chooses to do so in defiance of the trial chamber, the move would have serious implications for his career. Legal analysts believe that if a complaint was made to the British Bar Council and if Kay was found to have breached its code of conduct by leaving the case, he would face punishment and could even be disbarred.

Tribunal insiders say that the British duo now have three options – to walk out on the trial against the judges’ wishes; to appeal against the decision in a bid to leave the case amicably; or to accept the ruling and remain in their roles as assigned counsel.

While the latter would cause the least disruption to the long-running case, which is now starting to build up some momentum following numerous delays this year, some analysts believe that it is unlikely.

Judith Armatta of the Coalition for International Justice, who has observed the Milosevic trial since its start, told IWPR that while the trial chamber’s decision made legal sense, its practical implications might cause difficulties.

With Milosevic back in the driving seat of his trial following the appeals chamber’s November 1 decision to restore his right to conduct his own defence, the role of court-assigned counsel is reduced to a standby one.

“The trial chamber now has a Queen’s Counsel and another lawyer sitting there with nothing to do, and it’s unlikely that they will have something to do in the future,” said Armatta.

“In its decision, the judges say that the assigned counsel can become involved in filing written legal submissions and subpoenas, but in some cases Milosevic would have to instruct Kay and Higgins first, and he won’t communicate with them.

“It doesn’t make sense to have someone of the calibre of Kay sitting around with nothing to do. It’s also very expensive.”

And while the trial and appeals chambers agree that standby counsel are vital if the case is to proceed in the event of Milosevic falling ill, tribunal watchers worry that there will be a repeat of the problems and delays experienced in October.

“The witnesses did not come to court [at that time], and we can anticipate this happening again,” Armatta warned.

At the time of going to press, no appeal against the trial chamber’s decision had been filed. The Milosevic trial is expected to reconvene on December 15.

Alison Freebairn is an IWPR editor in London.

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