Prosecutor Asks Appeals Chamber: 'Who Is Running This Court?'

Who is running this Court?' Prosecutor Geoffrey Nice's rhetorical question during oral argument on the issue of assigned counsel encapsulates the issue confronting the Appeals Chamber in the Milosevic case.

As he has done consistently, Slobodan Milosevic demanded that his right to represent himself, taken away by the Trial Chamber based on medical grounds, be returned to him. Nothing else will do. At the same time, assigned counsel Steven Kay advised the Appeals Panel he could no longer effectively represent the Accused without his cooperation and that of his witnesses. To do so jeopardizes his professional and ethical responsibilities, he said.

This appears to confront the Appeals Chamber with a fait accompli, orchestrated by Milosevic. If appointed counsel cannot provide effective representation and Milosevic will only participate if he can represent himself, how can the trial move forward?

Nice suggested Defence Counsel have sufficient information about the type of case Milosevic wishes to present from his three opening statements and his extensive cross examination of nearly 300 prosecution witnesses. Moreover, he pointed out, 'we are effectively being threatened by the Accused by his assertion he will not comply with anything but the return of his rights.' The Prosecutor also stressed it is up to the Accused whether he chooses to put on a defence. ' If the Accused doesn't wish to call more evidence, the case can end.'

The five member Appeals Panel was constituted to hear the Accused's appeal from the Trial Court order appointing counsel to represent him based on expert medical opinion that he was unfit to continue representing himself. Kay objected to the Prosecution's argument that the Appeals Chamber should consider other reasons for requiring counsel than Milosevic's health, given that the Trial Court had specifically refused to do so.

Other reasons to impose counsel, according to the Prosecution, include the Accused's obstructive behavior, his pursuit of a non-legal defense which wastes time and the interests of others (the Prosecution, victims, witnesses and the institution as a whole) in a fair and expeditious trial. While maintaining that health reasons were sufficient to justify imposing counsel, the Prosecution argued that the Appeals Chamber should uphold the Trial Chamber's order for the foregoing reasons as well, in order to provide certainty to the proceedings and prevent being in the same position should the Accused's health improve enough to allow him to represent himself at some point in the future. Nice argued that Milosevic is an accused who 'has to be represented by counsel.'

The issue for the Appeals Chamber is whether it can consider grounds not relied on by the Trial Chamber in determining the legality of the Trial Chamber's order. It may choose to uphold or overturn the order on medical grounds alone.

The main thrust of Kay's argument, however, was that the right of self-representation is a fundamental right which cannot be taken away. Where an accused is too sick to represent himself (though not to stand trial), he argued, it may well be that he should not stand trial.

Kay criticized the Trial Court's ruling as based on an overriding need for expediency and to complete the trial at the expense of the Accused's rights. Calling the Milosevic trial, the 'biggest criminal case ever in the world,' Appointed Counsel argued that however long it lasted was irrelevant, suggesting it might proceed on a schedule of one day a week. The Prosecutor pointed out that would require four more years of trial.

Ending on a note of frustration, Kay told the Chamber that the Accused should bear the burden of his choices himself. It is up to him to appoint counsel or not, to represent himself of not. 'Putting it on us [appointed counsel] is a function that has been shown to be inoperable.'

Milosevic also focused on what he considers his fundamental right to self representation, a right which he claims was taken away from him on the pretext of health reasons while actually motivated by political reasons. Alluding to a campaign designed to prevent him from speaking, he read from an opinion piece in the Washington Post by Professor Michael Scharf, who he said was connected with Madeleine Albright, former U.S. Secretary of State. He claimed Secretary Albright has a personal interest in the Tribunal and his case in view of her alleged (by him) responsibility for bombing Serbia and aiding Croatia in Operation Storm, which drove Serbs from the Croatian Krajina.

He then read from a petition to the UN Security Counsel by 100 prominent legal scholars and lawyers claiming the Trial Chamber's appointment of counsel was a punitive measure contrary to international law.

In addition, he argued that his health did not interfere with his ability to conduct his own defence, citing past blood pressure readings in the mild hypertension range. When he missed days for longer periods, he said, it was due to flu and fever. The Accused blamed the Trial Court for bringing on the conditions that led the doctors to conclude he was unfit to defend himself. Having denied his request for more time, they forced him to provide a witness list within six weeks, he said. 'I practically had to work from my bed at very high intensity.'

As he often does, he accused the Court and Prosecution of what he was accused of -- manipulation and obstructionism. While refusing any arrangement with standby counsel, he assured the Court that he could proceed under a 3-day a week schedule, with occasional weeks off for preparation of witnesses.

Milosevic declared he had nothing against Kay. He is 'doubtless a very capable lawyer,' he told the Chamber. However, he could not replace the Accused because of the nature of the charges and the fact that 'this is a political trial.' What is at issue, he said, is not that he committed crimes, but that he conducted policies against the interests of another party.

Tribunal President Theodor Meron, presiding, took issue with the Accused's statement that the trial is political. 'I really believe, and that all my colleagues strongly believe, this trial is not a political trial. . . . It is the model of a fair trial.'

The Panel, particularly Judge Meron, interrupted the parties numerous times to ask questions. The Presiding Judge asked the parties for their suggestions on remedies, but also inquired about the components of justice and whether the right to self-representation subsumes all other rights. From Judge Meron's questions, it appears he does not believe it does. At one point, he directly asked the Accused whether a person shouldn't accept the consequences of his decisions, referring to his decision to not accept his legal advisors as counsel to remove some of the burden from him and the resulting stress and pressure. At another point, he reminded the parties that the Chamber has to consider the interests of justice in a broad sense. Since it must meet the fair and expeditious trial requirement, can it do that if the Accused is only able to appear in court one day a week? The Presiding Judge was also concerned about what is appropriate for an appeals court as opposed to a trial court to determine.

At the end of the proceedings, Judge Meron advised the parties that the Chamber may request additional written submissions on particular points. If they do, no decision can be expected for several weeks. In the meantime, the trial will proceed according to the order of the Trial Chamber, with Kay and Higgins conducting Milosevic's defence as best they can.