Institute for War and Peace Reporting | Giving Voice, Driving Change
Milosevic Trial Grinds to a Halt
The trial of Slobodan Milosevic ground to a halt again this week following the defence’s announcement that many witnesses were refusing to testify in protest at the court’s decision to force counsel on the former Yugoslav president.
The judges suspended the trial for four weeks to give the new lawyers – former amicus curiae Steven Kay and Gillian Higgins – time to reorganise the defence strategy in the light of the new developments.
But they turned down Kay’s request to allow Milosevic to carry out the main examination of the defence witnesses, adding that the lawyers should instead use the time granted to them to subpoena unwilling witnesses if necessary.
According to Kay, he and his co-counsel have been able to contact only 23 out of the first 48 witnesses listed by Milosevic. Twenty have refused to show up in court unless the defendant has the right to represent himself restored. The former Yugoslav president’s legal advisers - who have been present in the public gallery throughout - said 265 other potential witnesses have also refused to travel to The Hague on the same grounds.
The defendant himself read out a letter from once such witness, Canada’s former Belgrade ambassador James Bissett, who stated that he did not wish to appear in a court that “had taken on all the characteristics of a Stalinist show trial”.
Another potential witness, former US State Department official George Kenney, wrote that he would be willing to appear only if Milosevic were allowed to conduct his own defence.
The former Yugoslav president insisted in the courtroom this week that he did not try to influence any of the witnesses in their decision to boycott the tribunal, and said the mass refusal to appear was “spontaneous”.
But when Judge Iain Bonomy asked him whether he would “wish to encourage them to come”, Milosevic replied, “They are … people of integrity. It is up to them.”
In the course of the hearing on September 15, Kay warned the judges that their decision to force Milosevic to take a back seat in his own case would most likely mean alienating him for the remainder of the trial.
“I foresee great difficulties in attempting to go in cold and deal with uncooperative witnesses,” he warned the judges after they suggested he could subpoena those unwilling to appear.
Kay cautioned that defending the unwilling Milosevic may require more time and resources than if the former Yugoslav president were to continue to defend himself.
The lawyer also warned that should he be left to prepare the defence without Milosevic’s help, the issue of “equality of arms” - a tribunal principle apportioning of equal resources to the prosecution and the defence - would inevitably arise.
But the judges rebutted this assertion. “What is standing between you and the witnesses is not the difference in resources between you and the prosecutors, but the unwillingness of the accused to cooperate,” said Bonomy, who took as active a part in the proceedings as the presiding judge Patrick Robinson.
The problems facing the lawyers defending a client who resents their involvement and refuses to communicate with them were well illustrated in court a day earlier, when Kay attempted to carry out examination of the third witness to be called for the defence.
As the lawyer wound up an hour-and-a-half session questioning former Kosovo Verification Mission observer Roland Keith, presiding judge Patrick Robinson asked Milosevic if he had any additional questions for the witness.
“This examination in chief is completely senseless,” Milosevic replied. So as this weeks hearings drew to a close, it became increasingly obvious that Kay and Higgins will end up fighting two battles - one to counter and disprove the prosecutor’s case, and the other with their own client - who is unwilling to help but ready to denounce his lawyers at every opportunity.
But the judges remain determined not to change the way they envisage the defence. They insisted that their original decision to have Kay run the trial and Milosevic ask only additional questions was made for reasons of the defendant’s poor health, which has left him unable to conduct his own defence.
Robinson added that continued interruptions to the trial, brought about by Milosevic’s health, have also damaged the tribunal’s reputation.
The trial, he said, has been stopped 12 times so far due to Milosevic’s health problems and both the recent medical reports and experience suggested it would “inevitably” happen again.
“We know from experience that in two months he will break down again,” Robinson said. “Only an idiot fails to learn from experience.”
The judges also refused to order an additional medical examination of Milosevic, saying that those produced in July this year were made on the basis of the defendant’s entire medical record and confirmed that his condition was “chronic and recurrent”.
Some observers see the latest suspension of proceedings as a setback for the tribunal, considering that the assignment of defence counsel was supposed to speed up the trial.
“The first result of these decisions is delay,” said Jarinde Temminck Tuinstra, an Amsterdam University scholar who specialises in international war crimes defence. “And this is just what the judges wanted to avoid when they ruled to assign a lawyer to Milosevic.”
She agreed with Kay’s prediction that more resources will be needed to conduct a defence strategy without the cooperation of the defendant, “It is doubtful whether there is enough money at the tribunal to do it, if they want it done properly.”
But other observers view the chamber’s steadfastness as a victory in the face of new obstructions brought about by the defiant Milosevic, whom they suspect of orchestrating the witness boycott.
“The quality of Milosevic’s defence will now be decided by the degree of his cooperation,” said Judith Armatta of the Coalition for International Justice, a long-time observer of the trial.
“The trial chamber has decided to take itself seriously, and not let Milosevic dictate the rules again.
“It seems that from now on, the trial will be conducted on the court’s terms.”
In the meantime, Kay and Higgins have launched an appeal in order to have themselves dismissed from the case and the right to self-representation returned to Milosevic, who had been acting as his own lawyer since the trial began two and a half years ago. The appeals chamber is expected to return its verdict before the trial resumes on October 12.
Ana Uzelac is IWPR’s programme manager in The Hague. Michael Farquhar contributed to this report from London.
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