Global Policy Forum

By Judith Armatta

Slobodan Milosevic's Assigned Counsel, Steven Kay and Gillian Higgins, increasingly find themselves in an untenable position. Not only has the Trial Chamber rejected their motion to withdraw, thereby relegating them to sit for months, perhaps more than a year, with nothing to do. Now, the Registrar has "unilaterally" changed the terms and conditions of their appointment in a way that left Kay "absolutely furious."

While he did not disclose the nature of the change, he felt it was serious enough to advise the Trial Chamber in court that, if it were not rescinded by Friday, "We will have no option but to seek work elsewhere as of January." Kay indicated that in addition to responding to the Registrar's office in writing, he had met with them last week, but to no avail.

After conferring with his colleagues, Presiding Judge Patrick Robinson told Kay it was not proper to debate the issue in court without putting a written motion before the Chamber.

Kay and Higgins also filed a request for certification to appeal the Trial Chamber's decision denying their request to withdraw as appointed counsel for Milosevic. Tribunal rules only allow interlocutory appeal (before the end of the trial) with permission of the Trial Chamber. The requesting party must establish that a ruling on the decision it seeks to appeal would "significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial" and that an appellate decision would "materially advance the proceedings."

Appointed Counsel argue that a final ruling on whether the Trial Chamber properly denied their withdrawal request is necessary at this stage because failure to do so could result in a retrial if the Appeals Chamber later rules that the Trial Chamber erred. They maintain the decision on withdrawal "impacts upon the fairness (or perceived fairness) of the trial to the Accused."

In their filing, the two defence attorneys seek to make clear they are not challenging assignment of counsel, only that they be forced to continue in the position. They point out even the Prosecutor advised the Court that, following the Appeals Chamber's ruling putting Milosevic in the driver's seat, there is effectively no role for them, given the Accused's absolute refusal to cooperate. The Trial Chamber should have considered this and the practical effect of its decision, they write. Kay and Higgins also argue that the Trial Chamber erred in holding they would not violate the ICTY Code of Conduct if they continue as appointed counsel against the will of the Accused.

The issues raised by Kay and Higgins are indeed important. While Kay has intervened in court two or three times since Milosevic took over to make legal arguments on his behalf, there is little more he can do without the Accused's cooperation. However, Milosevic's ongoing difficulty complying with ICTY procedural rules, particularly in regard to the use and introduction of documentary evidence, should give him pause to reconsider his position.

Since the Appeals Court returned Milosevic's 'right' to present his defence case personally, he has been more cooperative and professional in court -- with the significant exception of handling documents. ICTY practice requires documents to be submitted in English or French and B/C/S (Bosnian/Croatian/Serbian) -- with copies for the judges and the opposite party (prosecution or accused). Documents that will be introduced as evidence (i.e. exhibited) must be identified well in advance of trial in a list of exhibits, as must expert witness reports. This allows the opposing party to research and become familiar with the material and prepare questions for cross examination. Where documents are not properly prepared and introduced, the Court may give them less evidential weight. The same is true if late production inhibits the opposing party from thorough cross examination.

Milosevic has broken all the rules on the introduction of documents, to the growing irritation of the Court and Prosecution. Today, he attempted to examine his witness, Professor Cedomir Popov, about a map allegedly reflecting the Vance Owen Peace Plan. Prosecutor Geoffrey Nice objected, "The Accused has to comply with practices of this Tribunal. If he is using an exhibit in evidence, he must give advance notice to assure it is the exhibit and is correct."

Stating that he believed it had been exhibited by the Prosecutor, Milosevic was unable to reference the exhibit number, eliciting the following admonition from Judge Robinson: "You must comply with the practices and procedures of the Court. The map is not before the Chamber. We have been through this before and are repeating ourselves. I warn you that if we decide these things are happening because you don't care about the procedures, you will not be allowed to adduce the evidence [i.e., it will not be accepted]."

Another incident occurred when Nice challenged the expert report of Professor Popov for lacking any reference to sources. It turned out that the copies, in English and B/C/S, submitted to the Court and the Prosecutor lacked footnotes or endnotes, while Milosevic and the Professor had copies with 69 items end-noted. As the Accused claimed ignorance of the mistake, Nice strenuously objected. "This is another example of the Accused choosing to take part in the procedure only when it suits him. Had he read and responded to the [Prosecution's] filing of 18 October, he would have seen that we invited the Chamber to have the report rewritten with footnotes, [as we were] alarmed at having to deal with an expert report with no notes."

Judge Robinson lectured Milosevic about doing a great disservice to his witness, while Judge Bonomy demanded to know how it happened. Saying it was a disservice to him as well, the Accused allowed as how it must have been a technical error. Judge Bonomy pressed to find out who was responsible, but Milosevic said it could only have been unintentional. "'Unintentional'" will do for me," Judge Bonomy replied. "Who are the people you say have altered the report?" When the Accused refused to identify any of his associates, Judge Robinson suggested, "You can find fault with yourself."

Returning to Court after a morning recess, Judge Robinson resumed lecturing Milosevic. "This whole episode illustrates the importance of paying attention to procedure. Had you attended to the motion of the Prosecutor, you would have picked up that there were no footnotes. You have assumed responsibility for managing your case and any fault will reside with you. If I were Professor Popov, I would not accept the apology you will no doubt offer him later." Milosevic responded that he had seen Nice's filing with objections about the lack of footnotes, but "I thought it was senseless because it had to do with the paper of a well-known scholar." Since the Prosecutor lacked an advance copy of sources on which the witness relied, it will affect his cross examination, Judge Robinson informed the Accused, and "it will go to the weight the Chamber gives the report."

Throughout the Prosecution's case, Milosevic refused to bother himself with motions and other procedural matters, because he did not recognize the Court as a legitimate arbiter of law. He said repeatedly he would only use the time available to him to present his view of events in the former Yugoslavia, not to defend himself. That was much easier to get away with when he was merely cross examining the Prosecution's witnesses. Now that he is presenting his own case, he must convince the Court that his evidence is reliable and worth considering. More than mere assertion is required, whether by him or someone he deems an expert. Rules and court practices are meant to help assure the Court receives the best evidence to support its truth-seeking.

Milosevic and his team have shown they could greatly profit from the assistance of assigned counsel. Since he took over his defence, the Accused appears far more willing to cooperate with the Court than at any time in the past. It would serve him -- and the process of truth-seeking -- well, if he were to accept the assistance of such highly qualified counsel as Kay and Higgins.