Milosevic Judges Face Crucial Choice

Wednesday, 9 November, 2005

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Alison Freebairn

British barrister Steven Kay’s request to withdraw from the Milosevic trial has serious implications for the Hague tribunal’s highest-profile case – and also for the lawyer’s career.

The trial chamber, consisting of presiding Judge Patrick Robinson, Judge O-Gon Kwon and Judge Iain Bonomy, is still deliberating and has said that it will “take its time” to decide whether or not to grant Kay’s October 26 request.

Their decision will affect how the fairness of the trial – the highest-profile war crimes proceedings since Nuremberg - is viewed by history.

If the judges let Kay and his assistant Gillian Higgins leave the case less than three months after appointing them, tribunal watchers fear that the trial chamber will lose face. However, the alternative – forcing the British duo to stay on against their will – could also damage the reputation of the tribunal.

Meanwhile, Kay risks possible disbarment if he chooses to leave the trial in defiance of the judges and a complaint is then made against him with the British Bar Council.

Kay has told the court that an irreconcilable conflict exists between the defendant and himself, and that the situation has deteriorated beyond hope of repair.

The difficulties of representing an unwilling client have left him unable to protect Milosevic’s best interests, Kay said, adding that if he remained in the role he would be in breach of both the tribunal’s code of conduct, and that of the British Bar Council he also answers to.

His request to withdraw from the case has received the backing of the tribunal’s Association of Defence Counsel.

The debate has raised the spectre that the already controversial and long-running case could end in a mistrial.

Last week, Kay warned of the dangers of him questioning witnesses without instruction from Milosevic, and outlined a scenario where he might unwittingly ask a question which, in the long term, would prove damaging to the defendant. If that happened, he said, the defendant – if convicted - could claim mistrial, arguing that his counsel had acted incompetently.

The trial chamber decided to impose counsel on Milosevic – who suffers from high blood pressure and heart problems – in September. Kay and Higgins, who had been performing the role of amicus curiae or “friend of the court” until that point, agreed to take on the task in the knowledge that the former Yugoslav president was refusing to cooperate.

Bizarrely, one of Kay’s first actions as defence counsel was to appeal against his own appointment, in line with what he assumed the wishes of the defendant would be.

The British legal team soon found their position becoming untenable as the defendant refused to communicate with them, leaving Kay trying to extrapolate his client’s defence strategy from an opening speech Milosevic gave at the start of the trial’s defence phase.

When a number of witnesses refused to testify in protest at the court’s decision to impose counsel on Milosevic, the trial effectively ground to a halt.

Kay, in a move criticised by prosecutor Geoffrey Nice, did not wait for the Appeals Chamber to deliver a verdict before submitting a formal request to withdraw.

The Appeals Chamber later restored Milosevic’s right to conduct his own defence, but – crucially - backed the trial chamber’s right to impose counsel.

As Milosevic has made it clear that as he no intention of communicating with a court-appointed counsel, any future lawyer stepping into the roles vacated by Kay and his assistant will face the same issues that they say have obstructed their work.

Any decision made by the trial chamber will have to take this into consideration.

Anthony D’Amato, a professor of law at Chicago’s Northwestern University and an experienced Hague tribunal defence counsel, argues that a court-appointed lawyer can still be a great help both to the accused and to the smooth running of the trial.

However, a defence lawyer performing the task reluctantly – such as Kay and Higgins would be if the court turns down their request – would undermine public perception of the trial as a fair one.

“The most sensible thing would be for the court to allow Kay to withdraw, and then allow someone willing to come in, in the full knowledge that the defendant will not speak to them,” said D’Amato.

A “court-savvy” defence counsel - acting in the knowledge that Milosevic will snub them and, in all likelihood, criticise their work – could still be of use to the former Serb leader, D’Amato noted. He quoted the early 20th century lawyer Justice Louis Brandeis, who stated that an lawyer does not represent a client, but rather represents a client’s situation.

Tribunal watchers admit that Milosevic is currently in a stronger position at this point in the trial than it has been in recent months. Now that he has regained control of his own defence – something that Kay argued in favour of from the outset – it will be up to the court to decide how best to proceed.

If they allow Kay and Higgins to leave, replacement counsel will have to be found, in line with the Appeals Chamber’s November 1 recommendation that standby counsel be appointed to sustain the case, should Milosevic’s health fail. The appointment process will invariably cause further delays – the very thing that the original decision to impose counsel sought to avoid.

The trial chamber can also refuse Kay’s request to withdraw. This, as D’Amato noted, would almost certainly damage the reputation of the tribunal in the eyes of the legal community and the public in general.

In any case, Kay has already warned the judges that if they refuse to let him leave, he will do so anyway, and face the consequences at the British Bar Council.

An English legal analyst, speaking on condition of anonymity, told IWPR that while it was common for the Bar Council to deal with complaints about a barrister withdrawing “inappropriately” from a case, situations regarding court-imposed counsel were very rare.

Speculating over the possible consequences of Kay’s decision, the analyst said, “The procedure would be that someone would lodge a complaint against the barrister, and then the bar council would take a view on whether or not that barrister was in breach of the code of conduct.

“If so, he could be referred to a disciplinary tribunal and, in the most serious of cases, he could ultimately be disbarred.”

The Milosevic trial is expected to continue next week.

Alison Freebairn is an IWPR editor in London.