Milosevic's Health Jeopardizes Trial

[ERRATA: This article as originally posted contained an error when it was stated that the prosecution took 124 days in the Kosovo phase of the trial and 40 days so far in the Croatia phase. In fact, the prosecution took 97 days in the Kosovo phase and 66 days so far in the Croatia phase. We apologize for the error.]
The state of Milosevic's health has once again put his trial for war crimes, crimes against humanity and genocide in jeopardy. After a week off, Milosevic has refused the cardiologist's advice to increase his blood pressure medication, thereby rendering himself unfit for trial. Evidencing frustration with one more delay in a case where recesses are more frequent than trial days, Judge May suggested the Court might issue Milosevic a warning that unless he takes his medication, the trial will continue without him. 'He cannot be allowed to render himself unfit,' the Judge concluded.

The reason he refused to increase his medication, according to what he told staff at the Detention Unit, was because it caused him to feel drowsy, making him incapable of preparing for and conducting his defense. If true, it creates a dilemma for the Court. The trial has been recessed nearly 40 days for Milosevic's health, in addition to following an abbreviated schedule of a little over 4 hours per day, with a four day break every two weeks. Despite the shortened schedule, more court days have been lost since it was imposed last fall.

The first thing the Court must determine is whether an increased dosage of the high blood pressure medication does make Milosevic drowsy and unable to prepare his defense. They have requested a hearing on the matter some time this week. Once Milosevic's medical condition is clearer, the Court must decide how to proceed.

If Milosevic is unable to carry on representing himself without a strain on his health and the medication which reduces the risk of stroke or heart attack renders him unable to do so, the Court must revisit the issue of imposing some form of counsel against Milosevic's will. As Judge May pointed out, the accused's election to represent himself contributes to the position in which he (and the Court) finds itself. In other words, Milosevic's health may make it impossible for him to act as his own attorney, but would not prevent him from attending court and actively participating in his own defense with proper professional representation.

As we have reported before on this website,* several options remain open to the Court. They could appoint a professional attorney to act as Milosevic's defense counsel. In order to avoid any lengthy period for an attorney to familiarize him or herself with the case, the Court might appoint the Amici Curiae or Milosevic's legal assistants who have been following the case from the gallery. All of these attorneys are familiar with the case. An alternative is for the Court to appoint 'standby counsel.' Under U.S. jurisprudence, standby counsel's duty is to 'steer [the] defendant through the basic procedures of the trial,' regardless of the defendant's objection. A similar concept, called a 'McKenzie friend,' has been used in the United Kingdom. Neither of these seems adequate to relieve Milosevic of the burden that conducting his own defense has caused, however.

Another possibility mentioned by the Trial Chamber is to warn Milosevic that if he doesn't take action necessary and available to render himself fit, the trial will proceed without him. This is the least likely possibility, as it makes the trial appear unfair to the accused. That the Trial Chamber mentioned it is evidence of the degree of their frustration with a procedure that seems endless, and which has been prolonged not only because of Milosevic's illness but also because of his intransigence. He has insisted on taking at least as long to cross examine every witness as the prosecution takes on direct examination, and he has refused to stipulate to any facts no matter how noncontroversial, thus requiring the prosecution to prove everything, including such matters as the UNESCO protected status of Dubrovnik. In addition, the Trial Chamber has allowed Milosevic to orally cross examine nearly all '92bis' witnesses, those whose direct testimony is presented in written form. This has resulted in Milosevic taking more court time during the prosecution's case than the prosecution has.

Evidence that the Court may be changing its lenient approach with the accused can be seen in the Court's admission of eight 92bis witness statements without cross examination, another action it took in today's hearing. The statements are mostly cumulative of evidence already given viva voce (by live witnesses) or do not address an issue that is substantially in dispute.

A further problem caused by Milosevic's absence from trial is that an important witness who was to testify last week has limited availability. The prosecution submitted General Nojko Marinovic's written statement a week ago (see CIJ Report, 'Attack on Dubrovnik Planned at Highest Level,' March 19, 2003) when the General was video-linked from Dubrovnik to the Tribunal in order that the prosecution might introduce the statement and that Milosevic and the Amici Curiae might cross examine him. According to lead prosecutor Geoffrey Nice, the General will not be available after this week for a long time. Mr. Nice asked the Trial Chamber to consider hearing the General's testimony in chief even if Milosevic is not present, either allowing him to cross examine at a later date or allowing the amici to cross examine in his stead.

Amicus Steven Kay objected to the suggestion, insisting that it would violate ICTY Rule 71 which sets out the procedure for taking depositions (though called a 'deposition,' the procedure differs from depositions in U.S. jurisdictions). Rule 71 gives the accused the right to be present at the taking of a deposition and to cross examine the person being deposed. The prosecutor suggested it might be possible to video cast the proceedings in real time at the Detention Center, deferring cross examination until a later date. Mr. Kay objected that 'it would be quite wrong to divorce his [Milosevic's] participation to a later stage' for cross examination. Judge May then suggested that the Amici might be able to act as standby counsel to raise issues of credibility and inconsistencies, 'as Mr. Tapuskovic is always doing.' Mr. Kay, however, said he would be reluctant to do so without instructions from the accused. He also warned the Court that 'at the end of the day very little good will come out of' directing others to take over the role the accused has declared is his. He added, though objecting quite strongly, 'We will do whatever we are told to do.'

Under the circumstances, the Amici's orders may come later this week.

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*July 25, 2002: 'Fair Trial May Require Appointment of Counsel;' November 8, 2002: 'Prosecution Asks Court to Appoint Defense Counsel;' November 14, 2002: 'To Insure the Integrity of the Process;' March 3, 2003: Frustrated Prosecutor Seeks to Involve Court in Solution.'