Who's In Charge? Court called upon to decide how Milosevic defense will go forward

Following five days off and three days of trial in the last eight, Milosevic was unable to attend court due to 'exhaustion,' according to the ICTY Detention Unit. Two intelligence officers of the Yugoslav Army, one Serb and one Muslim, were the witnesses during the three days of trial. Another insider whose testimony and cross examination might take up to two weeks was slated to begin Friday. Some observers speculate that Milosevic's exhaustion reflects the damaging nature of the testimony, pointing to his prior illnesses following testimony from international interlocutors Lord Paddy Ashdown, General Klaus Naumann and William Walker. In any event, his inability to carry on with his defense despite the abbreviated trial schedule has caused a stir at the Tribunal.

Presiding Judge May closed Friday's brief hearing with a directive to the parties: 'In light of the state of the accused's health and the length and complexity of the case, the Trial Chamber is concerned about completion of the trial. Therefore, we wish to have submissions from the parties on the future conduct of the case in order to insure its expeditious conclusion.' Submissions are due in a week.

After Milosevic's prior illnesses which set the trial back three weeks, the Trial Chamber ordered a thorough medical examination by a cardiologist. His report recommended shorter days and longer rest periods. As a result, the Court established a schedule that provided for four to five day recesses every couple of weeks. Faced with a trial that is already expected to last nearly three years, the Court began to extend the half day sessions by several hours whenever possible.

When the Trial Chamber receives the new medical report it requested, it will once again be faced with the dilemma of how to assure an expeditious trial where an accused not only insists on representing himself, but refuses to recognize the legitimacy of the Court and its proceedings. There is no question that his self-representation, including his continual use of the proceedings as a forum to make political speeches, has significantly extended the length of the trial. The Court, appropriately, allows him greater leeway than it would professional counsel -- including leeway to ask repetitive questions, to pursue irrelevant topics, to argue his case and attempt to present evidence during cross examination -- and he takes full advantage of it. Because he considers the trial a forum to present his views of history and politics, he has little interest in its expeditious conclusion. According to his statements in court, he sees the indictment as fraudulent and the Tribunal as an agent of an international conspiracy against the Serbs. The outcome, then, is a foregone conclusion and there is no reason to defend himself. All his statements and cross examination are aimed at an audience outside the courtroom. He is weaving the latest chapter of the Serbian myth, with himself as the martyr hero.

The Court will get no help from Milosevic in trying to assure an expeditious trial, despite the fact that the accused's interests are the one's most served by it. While victims also share an interest in swift justice, it is the accused who suffers the most for lack of it. Trying to respond to evidence introduced a year or more earlier is daunting for a team of professional lawyers. For a self-represented accused, the difficulty is increased tenfold. The accused's interest in a speedy trial is greater where the accused is in pretrial detention. If he should be found not guilty, there is no way he can recover his lost years of freedom. The right to represent oneself before a court is not absolute. (See July 25, 2002 report, 'Fair Trial May Require Appointment of Counsel') Moreover, in at least some civil law jurisdictions, the accused does not have the right to directly question witnesses against him. His questions are given to the judge and it is the judge who asks them of the witness, subject to the judge's view of what is relevant and appropriate. This is one reason why some of Milosevic's fellow citizens object to his trial at the ICTY. In Serbia, he would never be allowed to 'take over the trial.'

Given the dearth of options for managing such a complex trial in a fair and expeditious manner, it is likely the Trial Chamber will revisit the issue of appointing legal counsel to represent Milosevic in court. Judge Robinson raised the possibility last summer of appointing an attorney who would assist Milosevic in cross examination, thus allowing him more of a rest during the trial. Clearly, the Trial Chamber has authority to do this -- even over Milosevic's objection. Imposing counsel without Milosevic's acquiescence, however, may provoke a response that is equally disruptive of the trial. The image of Milosevic bound and gagged, though welcomed by some who consider him responsible for their tragedies, is not an image conducive to confidence in the rule of law.

Short of that, imposing counsel against Milosevic's will does not amount to 'muzzling' him as some trial observers have suggested. However it would be viewed among his ardent supporters, Milosevic does not have the unrestricted right to use the trial for his own purposes. When he seeks to do so, silencing him is appropriate. The Court's duty is to assure he has a proper defense. One can argue that allowing him to continue as he has for the prior nine months fails in that duty. Ultimately, however, it is up to him whether he chooses to defend himself or not. But the Court must see that justice is done -- not only to the accused, but to the victims and the community for whom the rule of law has been established in the first place. Justice requires a fair and expeditious trial. It does not require, in fact it is not served by, allowing Milosevic to abuse the process for his own purposes.

Requiring Milosevic to defend himself through an attorney, according to the rules of the Tribunal is not silencing him. It puts him in a similar position to every other accused before the Tribunal and courts throughout the world. The coercion lies in forcing him to stand trial according to international law and its rules of procedure. Certainly, he protests that, as do his supporters who also see the Tribunal as a political tool of the West. Silencing that protest, once it has been heard, during a trial is a function of the power of the Court in seeking to render justice. In the end, the question comes down to who is in charge in the courtroom. It should be the judges. Milosevic and his supporters can make their political case elsewhere.