Trial Court Refuses to Let Appointed Counsel Withdraw

The Milosevic Trial Chamber today issued its long awaited decision on Appointed Counsel's (Steven Kay and Gillian Higgins) request to withdraw by denying it. The Chamber held that an accused's refusal to communicate with or instruct assigned counsel cannot be grounds for withdrawal. If it were, the Court could not assign counsel without the cooperation of the Accused and there would be no way to implement the Appeals Chamber's order. On November 1, 2004, the Appeals Chamber ruled that it was proper for the Trial Chamber to assign counsel to defend Slobodan Milosevic despite his objection, though he should be allowed to conduct his own defence to the greatest extent possible.

The Trial Chamber held that assigned counsel do not breach any duty of loyalty to their client when they act to represent him despite his lack of cooperation and refusal to communicate with or instruct them. They are required to 'act in what they perceive to be the best interests of the Accused. . . . It is all that can be reasonably expected of counsel in such circumstances.' The Chamber concluded: 'To hold otherwise would be to allow an accused to frustrate the statutory duty of the Trial Chamber to ensure that a trial is fair.' In light of its holding, the Court ruled that 'good cause justifying withdrawal of counsel has not been established. On the contrary, the Trial Chamber remains of the view that the presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proceedings.'

The Trial Chamber also disagreed with Kay's assertion that he could unilaterally terminate his appointment, pointing to Article 9 (B) of the ICTY Code of Conduct for Defence Counsel to the effect that 'counsel must show that their termination (or withdrawal) can be accomplished without material adverse effect on the interests of the client, or that other good cause exists.' At a minimum, the Court continued, appointed counsel would be bound to continue its representation until replacement counsel is found. The Chamber did not venture an opinion on whether it would even consider that possibility.

Finally, the Court ruled that Assigned Counsel are to continue to act according to the modalities it originally established, as amended by the Appeals Chamber. In other words, to remain available should the Accused suddenly change his mind and decide to use their services or, if the Accused falls ill and cannot conduct witness examination, the Chamber calls on them to take over. The Chamber also suggested they might assist Milosevic with motions, such as drafting what is required to seek a subpoena. However, unless Milosevic tells them what efforts he has made to secure the attendance of witnesses, they won't have the information to file such a motion.

While the Trial Chamber's decision is reasonable on one level and legally defensible, it may not solve future problems. It also places Kay and Higgins in a most difficult position. The decision is reasonable because it is foreseeable given three year's past experience that the Court's obligation to assure a fair and expeditious trial may not be met without counsel waiting in the wings to take over when Milosevic next becomes ill. Kay has followed the trial since its inception and Higgins for almost as long. This makes them uniquely placed to know Milosevic's case and how to effectively present it without specific instructions. It is also legally sound. A court must not let an accused obstruct its process -- to the extent that that they must have his cooperation to try him at all. If the Milosevic Trial Chamber had allowed Kay and Higgins to withdraw because Milosevic refuses to cooperate with assigned counsel, the end of the trial as well as the Court's authority would be jeopardized.

However, the Court did not consider one likely scenario should the Accused become ill. If he does not wish anyone to take over examination of witnesses -- as he has steadfastly declared --, there is every reason to believe that his witnesses will refuse to attend, as they did in the past. While the Court can issue subpoenas, that takes time and there is no guarantee that their governments will cooperate, especially if the government is that of Serbia and Montenegro with its long history of noncooperation with the Tribunal.

There is a further question of whether the trial can continue if the Accused is too ill to attend court. The ICTY statute prohibits trials in absentia. Possibly, the situation would be distinguished where only a part of the proceedings were conducted without his attendance. Additionally, it can be argued that the Appeals Chamber anticipated this situation when it made its ruling.

At any rate, the next step is up to Kay and Higgins -- or to Milosevic.