Trial Moves On Without Milosevic
[Today, 19 April 2005, is the tenth anniversary of the bombing of the Murrah Federal Bldg in Oklahoma City. At a memorial service for the families of the 168 victims, 19 of whom were children, attended by prominent US terrorists like Dick Cheney and Bill Clinton, 168 seconds of silence were observed and, thereby, added to the decade-long silence as to the real nature, causes and perpetrators of this heinous, but by now quite ordinary, act in the on-going Western genocide of the innocents.
One is forced to wonder how such a crime could go unresolved for so long. When videos of live network news broadcasts of 19 April 1995, since abjectly suppressed and banished from any public scrutiny, clearly show that the explosion that blew the facade off the Murrah Bldg came not from some horseshit and fuel-oil-ladened rental truck parked at the curb, but from within this FBI field office; and that there were at least two other, unexploded, bombs recovered by local bomb squads and Federal anti-terrorist units from inside the structure after the initial blast .
How Timmy McVeigh could go to his death without ever snitching off his masters;
How the murder of Chandra Levy, McVeigh's contact in the Federal Bureau of prisons, could go unsolved to this day;
How the silence as to the realities of the 1993 WTC bombing;
the assassination of the two Hutu presidents of Rwanda and Burundi, Juvenal Habyarimana and Cyprien Ntaryamira, by the Tutsi RPF on 6 April 1994;
the bombing of the Sarajevo breadlines and Markale marketplace (1993-94) by the Bosnian (Muslim) government but internationally blamed on the Bosnian Serbs;
all the fuzzed out acts of 'friendly-fire' and 'false-flag' terrorism blamed on Arabs in the last 35 years, culmiating in 9/11, where the most improbable story of 19 young Arab terrorists, in the service of a cave-dwelling Saudi Svengali, hijack 3 or 4 civilian airliners and crash them into monuments to Western financial and military hegemony, a lie of such brazen bluster as to be almost infantile, in support of which not a single shred of material evidence has ever been furnished, and over which the silence has been deafening and the ignorance carcinogenic.
How this omerta become a dumb-show has turned the Western world into the land of the living dead not only buggers reason, it cries out in pain and despair, begging for more and stronger drugs.
But this wrenching away of historical truth, this unanesthetized extraction of the very essence of humanity, the knowledge of self; this criminalization of justice continues today and grows more and more insidious and arrogant with each incompetent ruling of the ad hocs. For today also marks the beginning of the in absentia trial of Slobodan Milosevic at the ICTY in The Hague. None of us who follow this trial is particularly surprised, but it's difficult not to be more than a little sickened by the gory grossness of yet another miscarriage.
So below you will find the article that broke this story of The Hague trying to cross-examine one of President Milosevic's witnesses while he is too ill to attend court; as well as a reposting of Maitre Tiphaine Dickson's two articles (Substantial Disturbance and Star Chamber) on the crude machinations of this lawless judiciary that NATO has engaged to continue its wars against the feckless victims of globalized waste capitalism.
--mc]
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News by priority, April 19, 2005
Trial moves on without Milosevic | 15:46 | FoNet
THE HAGUE -- Tuesday – The Hague Tribunal has decided to continue
the court process against Slobodan Milosevic even if the defendant
cannot make it to court because of illness.
The trial is scheduled to continue with a cross-examination of
defense witness Kosta Bulatovic, without Milosevic being present,
which Bulatovic has refused.
“I came here at the invitation of my president Slobodan Milosevic,
and I am his witness and no one else’s and without his presence I
will not speak, nor give any statements.” Bulatovic said.
Hague President Patrick Robinson told Bulatovic that Milosevic’s is
sick and that it has been decided that his testimony must continue
without the presence of Milosevic in court. Robinson said that
Milosevic will be able to see a video of the continuation of
Bulatovic’s testimony, read the transcript and will have the ability
to recall the witness if he wishes to.
“You can recall me, even if I am current not healthy and it was very
hard for me to come here in the first place. If you recall me, I will
try and come again, but without the presence of Milosevic I will not
agree to any questioning. I would feel ashamed and defeated if this
happened, and I’d rather take death home than defeat.” Bulatovic
said.
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"Substantial Disruption" at The Hague: Will Slobodan Milosevic be Tried In Absential? --by Tiphaine Dickson
Nov 9, 2004
[From Kivu, in Eastern Congo, where the UN, in its decade-long collaboration with Rwandan President Paul Kagame's marauding, mass-murdering RPF (the bastard sons of Museveni's Ugandan National Army that began this latest, fully US-DoD-backed seige of Central Africa in Oct 1990, and has not paused even to spit out the undigestible remains of the now nearly 9 million souls it has devoured), has recently renewed its fiery wasting of Rwandan refugees camps and the Hutu lives they so feebly protected; to Falluja, in Iraq, where legions of god- and drug-addled American youths, products of that vile shit-sausage machine that is Western junk culture, have launched an assault on 'Iraqi terrorist rebels' (what we now call those who resist that particular occupation unto annihilation that comes wrapped as American-style democracy); to The Hague, in The Netherlands (The Low Countries, how fucking appropriate!), where one man, Slobodan Milosevic, continues to stand up in defense of Historical Truth and International Justice against the real Terrorists--those who would lay waste to entire nations, not to control their territory and resources, but for no other reason than that they have no other reason to be--or no other means by which to continue their monstrous reproduction: All this seemed to have been put on Pause while the US went through its quadrennial pageant: Its little mime or dumbshow to decide who'll be prom queen for the next four-year episode of Every Time It Reigns It Reigns Terror from Heaven? Well, some folks still have their heads out (and up) and are keeping track of just about every crooked shyst going down out there. Here's Me Dickson's latest contribution to the Real Deal. I just don't know how the kinds of people get involved in the ad hocs, so devoid of decency--or even of what used to pass for humanity, before the term was kidnapped and pimped out by the Genocidaire Left--and so unsuceptible to secular reason will be even the least bit fazed by this sort of strong, well-founded argument. Can't hurt, I guess. --mc]
"Substantial Disruption" at The Hague:
Will Slobodan Milosevic be Tried In Absentia?
by Tiphaine Dickson
In an appellate decision which appears to have been painstakingly devised to convince public opinion that President Milosevic's rights have been restored--or even, as stated by some media, "increased", or exaggerated in favor of the defendant--the ICTY has opened the door to in absentia trials before international bodies, and reduced fundamental trial rights into mere "presumptions", matters of discretion.
Ominously, this decision is the direct echo of reports that the ICTY will be shut down quickly by the US, well ahead of the deadline imposed by the UN Security Council's "completion strategy". The Milosevic case is the last remaining thorn in the side of the institution whose outright politicization he has exposed. But his defense is far more threatening still: threatening to establish that the "Balkan Wars" were in fact one war, against Yugoslavia, waged by Western powers in their own interests. The Appeals Court has now fashioned a device to prevent that case from being made at the ICTY, which would close down, rather than hear the evidence.
The decision handed down by the ICTY's President, Theodor Meron, who also acts as President of the Appeals Chamber, as well as a Trial Chamber judge, permits Slobodan Milosevic's effective removal from the courtroom. Indeed, the judgment states that "substantial disruption" of a trial does not necessarily have to be intentional to justify holding proceedings in the absence of the accused, and that even the ill health of a defendant can constitute such a "substantial disruption". In such cases, according to the ICTY's "court of last resort", both imposition of counsel and removal from the proceedings are justified.
The current situation is infinitely worse than that brought about by the Trial Chamber's ultimately embarrassing ruling imposing counsel against the wishes of Mr. Milosevic, and granting what were described as "rights" to assigned counsel who had acted for another party in the proceedings as amici curiae. Imposed counsel predictably failed to present any meaningful defense, as scores of witnesses refused to participate in proceedings that shared characteristics with the notorious Star Chamber. In fact, most of the recalcitrant witnesses expressed their view that what the imposed counsel were presenting was not and could not be Mr. Milosevic's defense at all, and that their participation would only serve to further violate his fundamental rights.
Playing out as predicted
Presciently, perhaps, the ICTY's designated counsel had, themselves, argued against imposition of counsel last August 13th, stating that they were "concerned that the witnesses to be called by the accused, whilst they may be willing to cooperate with him, would in the event of a conflict make themselves unavailable to the Amici Curiae as imposed counsel." Despite having expressed this concern almost three months ago, Mr. Steven Kay and Ms. Gillian Higgins accepted their assignments without objection, and for two months, the "defense" of Slobodan Milosevic stumbled along gracelessly from postponement to postponement as only 5 witnesses were called. Stunningly, counsel failed to object to irrelevant, inflammatory, and frankly discriminatory--if not actually racist--cross-examinations by the prosecution team, who judged it necessary to attempt to impugn a witness' credibility based on his ethnic affiliation (Greek) and religion (Greek Orthodox). No objection was made to a question posed as to whether the father of the witness had donated money to a Serbian NGO, the Serbian Unity Congress, an organization dedicated to the preservation of Serbian heritage with chapters in 9 countries. But the question was posed to suggest, somehow, in an almost textbook display of impermissible cross-examination, that the witness could be tainted by his father's support for what was assumed to be a shadowy Serb outfit. Guilt by association disguised as cross-examination, but the imposed counsel let it slide. The Trial Chamber had no comment about this line of questioning, nor did it upbraid the Prosecutor, Mr. Nice, for "wasting time on irrelevant matters", even during a cross-examination that delved into obscure issues of comparative theology. Another cross-examination focused witheringly on why Serbs would think they were "so special", and deserve to live in one territory because they were "historic victims." (800 000 people-- Serbs, Jews, Roma-- were killed at the Croatian Ustase-run Jasenovac concentration camp. These systematic murders constitute one of the tragic chapters of the Holocaust, and can assuredly be considered to be a "special" part of Yugoslav history.) It goes without saying that no remotely similar question was asked of Elie Weisel about his people, when he testified during Biljana Plavsic's sentencing hearing in December 2002. Some questions are indecent and cannot be asked. Others, however, equally indecent and revisionist in their assumptions are asked, and with full impunity.
Ethics, suddenly
Only a little over a week ago did the imposed counsel request to be withdrawn from the case, citing ethical quandaries that should have been clear to them many months ago--that obviously were clear to them, since they had already articulated them, in detail, last August, in their arguments opposing the imposition of counsel. Before the Appeals Chamber, on October 21st, they complained of the fact that neither President Milosevic nor the witnesses were cooperating with them, again, a state of affairs they had themselves predicted, and therefore had reason to believe would play out precisely the way it did. To the Appeals Chamber, Mr. Kay made the following submission which could be interpreted as blaming President Milosevic for the predictable consequences of imposition, and for the "substantial disruption" of proceedings caused as a result: "… in terms of a solution, it may be that he undertakes his own consequences rather than us wasting resources believing, and people kidding themselves, making believe that what is happening here is a proper defense."
Who's to blame?
From the very first day of the court-appointed defense, it was made clear who was to be blamed for the dysfunction: Slobodan Milosevic. On September 7th, when the first witness was called by Mr. Kay, he told the court that he'd failed in his attempts to obtain instructions from his "client". Patrick Robinson, who presides over these proceedings, took pains to have the record reflect that President Milosevic was responsible for the non-cooperation. And reminded all that counsel had been imposed because Mr. Milosevic was unfit to represent himself, and unfit to question witnesses before assigned counsel. How, then, could he be expected to be "fit" enough to instruct imposed counsel?
When the defendant, on the first day of what should have been his defense, which he had been waiting to make since his dubious "transfer" to The Hague, demanded that his right to self-representation be restored, Mr. Robinson responded that he didn't want to hear the "tired refrain". How "tired" could it have been on the very first day of the defense?
There is a simple explanation for the fatigue, and it is that this defense must come to an end before it begins. Could it be that for this purpose a two-part strategy was designed? First, impose counsel and let the measure inevitably "backfire", then feign the re-establishment of the right to self-representation in a decision permitting the Trial Chamber to proceed in absentia, for part, or the remainder, of the defense case.
It is important to note that despite a subsequent denial from Washington, US media recently published comments by Undersecretary for arms control John Bolton, stating that the last Bush administration was dissatisfied with proceedings at the ICTY, and wished to see its "completion strategy" accelerated. In other words, close it down, transfer cases back to domestic courts, and even grant amnesty. Last June, the ICTY adopted an amendment to its rules of procedure and evidence permitting just such deferrals. Undersecretary Bolton and other senior State Department officials are said to believe that the "ICTY has degenerated into a politicized tribunal", but their complaints are aimed solely at Carla Del Ponte, and not at any of the other equally politicized organs of the institution. Yet the players in Washington know full well that the ICTY is a political body, as they created it as such. Indeed it has been stated without irony by those closest to its establishment, such as Professor Michael Scharf, that the institution was established to "educate Serbs", "pin responsibility on Milosevic", and "promote catharsis" by permitting "newly-elected" leaders to distance themselves from the policies of Milosevic. But, in order to accelerate the completion strategy, someone else must be faulted for the politicization of the ICTY, and who better than the Prosecutor--who was, perhaps, carefully chosen so that her demise would satisfy everybody: her employers and detractors as well. Washington also clearly stated its frustration with the pace of the Milosevic case, which has as of yet failed to produce a conviction. From Bolton's comments, it is obvious that President Milosevic would not be a suitable candidate for transfer to the jurisdiction of Serbia and Montenegro, unlike, for example, Operation Storm's Ante Gotovina, whose indictment--described as "bogus"--could conveniently be deferred to Croatia. Mere days after this article was published in the Washington Times, ICTY President Theodor Meron traveled to Zagreb, to discuss the "completion strategy" with the Croatian government, according to an ICTY press release. This, coincidentally, while the Appeals Chamber was deliberating on the appeal launched against imposition of counsel.
Despite the clear direction this case is taking, the Appeals Chamber of the ICTY has attempted--and, perhaps, , to some extent successfully--to give the appearance of having overturned an unfair decision as a legitimate Appeals Chamber and a judicial institution.
It has further attempted to give the appearance of providing excessive fairness to the accused in portraying the ICTY as an embattled underdog. The fairness afforded is an illusion, and the decision will serve to prevent Slobodan Milosevic from presenting his defense.
"Substantial disruption"
The Appeals Chamber decision is signed only by ICTY President Theodor Meron. In the course of arguments before the appellate body, President Milosevic argued that he could not present a meaningful defense while represented by counsel, since this political prosecution, before a political body, requires a political defense. The ICTY Code of conduct for defense lawyers indeed forbids counsel from " diminish(ing) public confidence in the International Tribunal (...) or otherwise bring(ing) the International Tribunal into disrepute." It is thus inconceivable that a defense lawyer could argue the ICTY's illegality or illegitimacy-- a cornerstone of Mr. Milosevic's defense-- without breaching the body's ethical rules. President Meron responded to Mr. Milosevic's arguments with the following statement: "I really believe, and I believe that all my colleagues very strongly believe that this trial is not a political trial. It is a legal trial under human rights and due process to determine, under international law and the Statute, whether—to determine whether you are guilty beyond a reasonable doubt or you are not. And we would not have been conducting those proceedings this way if we were not convinced that this is really not only a legal trial, but I believe it is a model of a fair trial."
The Appeals Chamber, reviewing the decision to impose counsel on an obviously competent law school graduate, made in the course of this "model of a fair trial"--a move unprecedented since the Star Chamber, and not even attempted by the Apartheid judiciary against Mandela, or Nazi Germany against Dimitrov--held, without relying on any authority whatsoever, that "substantial disruption of the proceedings" for the purposes of stripping an accused of the right to be tried in his presence, as well as the right to self representation, does not require any proof that the accused had the intention of disrupting the proceedings. Ill health suffices to violate an accused person's most fundamental right, a position contrary to international law and domestic practice. Illness warrants provisional release, or an end of the proceedings, not a supplementary violation of rights. The justification set out by Mr. Meron is the following: "But it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety." Not a single case is cited. This argument states "it cannot be", therefore "it should be". Here, then, is the acknowledgement that this measure is not only contrary to practice, and in violation of the International Covenant for Civil and Political Rights, but predicated on the idea of "illegal but good", or rather "illegal, but expedient" (and "discretionary").
Unprecedented assault against fair trial rights
The Appeals Chamber has further committed an unprecedented assault on internationally recognized human rights. The right to self-representation--described by Mr. Meron himself as "indispensable cornerstone of justice", "placed on a structural par" with the other rights set out at article 21 of the Statute (and article 14 of the International Covenant for Civil and Political Rights)--becomes a mere "presumptive right" that the ICTY Trial Chambers can apply in a discretionary manner:
"As the Appeals Chamber has previously noted, a Trial Chamber exercises its discretion in "many different situations – such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure." A Trial Chamber’s assignment of counsel fits squarely within this last category of decisions. It draws on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and requires a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings."
So the respect of that right--and of, one might conceive, the other rights "placed at a structural par" with it, those enumerated in Article 20, paragraph 4 of the Statute--are no longer "entitlements", to be "enjoyed in full equality", as set out by Article 20 of the Statute, but a matter of discretion for the Trial Chamber. Those entitlements constitute the minimum fundamental fair trial rights under international law, and guarantee the following to a defendant in a criminal trial: the right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; the right to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; the right to be tried without undue delay; the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; the right to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; the right not to be compelled to testify against himself or to confess guilt.
This remarkable perspective on basic fair trial rights invites discretionary "adjustments" or "balancing" of the other enumerated rights, since they are on a "structural par" with the right to self-representation. In other words, if all these rights have the same value, what prevents a Trial Chamber from violating them equally, as they have done with the right to self-representation, which the Appeals Chamber has upheld? This "discretion" will further be employed to severely curtail the duration, scope and subject matter of questions, as well as the very possibility of calling certain witnesses altogether.
Since the Trial Chamber has been granted the "wise discretion" to deal with the "myriad health-related difficulties that may arise in the future", and the power to craft "an appropriate set of responses to every possible eventuality", it is entirely plausible, and in fact highly likely that non-intentional "disruption" will be found to exist, whether for health reasons or "non-cooperation". Then, this partial "self-representation", and even presence at the hearings, will be dispensed with. Considering the record of the Trial Chamber, in particular judges Robinson and Bonomy, and their impatient attitude (calling Mr. Milosevic "petulant" and "puerile"), the Appeals Chamber decision can be interpreted as an invitation to remove the President entirely from the proceedings.
If the ICTY were not a political construct, it could and would simply restore President Milosevic's right to self-representation. Judicial institutions are independent bodies who suffer no interference from the executive branch; they do not rewrite their own rules in mid-trial, they do not emerge from the ether, survive for a few years, then hurry to shut down their operations. Criminal courts are committed to an unwavering respect for the Rule of law, which in adversary proceedings means that people can only be tried "in an ordinary manner, before the ordinary courts of the land". Courts do not engage in public relations activities, "outreach programs", nor do they attempt to influence the policies of foreign governments.
And as Mr. Kay compellingly argues that no lawyer can meaningfully represent President Milosevic as assigned counsel, or even as "stand-by counsel" without violating professional ethics, we see that there can be no defense at all unless the right to self-representation is restored.
The Appeals Chamber did not restore Slobodan Milosevic's right to self-representation, but rather provided the Trial Chamber with the tools it requires to see to it that Washington's completion strategy is carried out swiftly. In the process, it has dealt a blow to the fundamental fair trial rights guaranteed by the International Covenant for Civil and Political Rights. The ICTY's endgame, as illustrated by the strategy designed to prevent Slobodan Milosevic from further exposing the institution's political nature, provides a valuable lesson: there is nothing to be gained by establishing ad hoc political courts, be they in Europe, Africa, or anywhere else. When justice is used as an instrument to justify the crime of aggression, and when ad hoc bodies do not even consider aggression within their jurisdiction, there is no point in calling what emerges from the exercise "international law." The sole superpower does not agree to being submitted to the International Criminal Court's jurisdiction yet lays a gruesome siege on Fallujah. And the sole superpower wishes Slobodan Milosevic's microphone switched off, once and for all. It is imperative we at least attempt to ponder why that is.
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Tiphaine Dickson is a criminal defence lawyer specialized in international criminal law based in Montréal. She was lead counsel for the defence in one of the first UN trials prosecuting genocide before the International Criminal Tribunal for Rwanda.
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[Here's the version of Tiphaine Dickson's paper on the moribund prospects for proceeding toward truth and justice in the the Milosevic trial (and even the very real possibility of an imminent euthanasia of Tribunal, itself!). This is just as it was presented on Saturday, 26 February, 2005, at the ICDSM's International Law Conference in the Golden Tulip Belair Hotel in The Hague.
Because Maitre Dickson was unable to attend, I was given the high honor of reciting this paper before an audience of a couple hundred or so ICDSM members and loyalists from several nations, and a presidentium made up of some of the great legal minds of our day: Ramsey Clark, former US Attorney General (USA); Professor Velko Valkanov, Chairman of the Bulgarian Human Rights Committee; (Clark and Valkanov have been joined as co-chairman of the ICDSM by the Russian writer Alexander Zinoviev); Professor Aldo Bernardini, international law, Teramo University (Italy); Christopher Black, international criminal lawyer, Chair, Legal Committee of the ICDSM (Canada)(and lead counsel on General Ndindiliyimana's trial at the ICTR in Arusha); Dr John Laughland, the renouned journalist (UK); Dr Alexandar Mezhyaev, international law, Kazan (Russia); as well as Indian legislator and legal scholar Bekim Singh.
Dr Laughland's analysis of how The Hague Tribunal (the ad hocs, in general) have perverted the Nuremberg principles was another highlight of the conference. And most heartening to many of us was that serious consideration was finally given to the obvious need for linkage with and solidarity among the various political trials going on today and being planned for the near future: From Rwanda to Iraq to Palestine to Sudan, all interested eyes right now are turned to the trials of President Milosevic and the other Serbian military officers and government officials, and on General Ndindiliyimana and the other Hutu representatives of the Habyarimana governtment of Rwanda. For in these ICe houses, the ad hocs, lies the future of international (in)justice, victors' justice, and the ominous principle of 'might makes right.'
But the most astounding occurrence of the whole event was the absolute total media black-out of of this ICDSM function. Now that President Milosevic is making it unmistakeably clear, day after day and witness after witness, that the true origins and execution of the events leading to the destruction of his country, Yugoslavia/Serbia, have had almost nothing to do with the charges laid by the Prosecutor against him and his fellow defenders of the peace--and that this grotesque intoxication of the international public which was brought about by the craven complicity of the media with the spin-monsters of the real Western war mongers in the Balkans, has forced the fearless fourth estate to flee like burnt leeches from this, once upon a time, 'Trial of the Century;, into seeking refuge from the insults of their government minders by covering trials of the sendentary like those of Scott Petersen and Michael Jackson. --But maybe the press couldn't get to the Golden Tulip because they had to prep for the Academy Awards the next evening. --mc]
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Beyond The Star Chamber:
Shutting Down the Milosevic Defense in The Hague
By
Tiphaine Dickson
On February 14th, The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) hearing the Milosevic case resumed proceedings after having adjourned the week before following a UN physician’s opinion that Slobodan Milosevic would require some days to recover after having been affected by influenza in early February. Media coverage had again complained of “delays in the trial”, and of illness—generally described as “bouts of flu”—as the cause of “lost time”. The Chamber faulted President Milosevic for “wasting time” in his examination of the former Foreign Minister of Yugoslavia with respect to the secession of the former republics and of foreign involvement in the conflicts that ensued as a result. Mr. Milosevic was told the questions—of obvious relevance, and, indeed, of crucial importance—were “pointless”. The Prosecutor has asked that the proceedings continue in the absence of Mr. Milosevic. The situation is ominous and there is evidence that the ICTY is poised to take radical measures, including the interruption, and, ultimately, the premature conclusion of Slobodan Milosevic’s defense.
Indeed, the ICTY, a UN Security Council institution, has set the stage to justify ending these proceedings, —while holding President Milosevic responsible for the result—, in four rulings, two of which were handed down in the last two weeks. First, counsel was imposed against the defendant’s will. Second, in absentia proceedings were approved. Third, imposed counsel was not allowed to withdraw from the case for ethical reasons. And finally, the duration of the Prosecution’s case was artificially reduced, while the time afforded to Slobodan Milosevic was inflated by counting his cross-examination of Prosecution witnesses as time devoted to his defense, in an unusual order devoted to statistics. Slobodan Milosevic is either directly or indirectly made responsible for the unfortunate state of affairs in all four decisions. All is in place to wrap things up.
In September, the Trial Chamber imposed counsel against the clear wishes of the defendant, a practice described by the United States Supreme Court as having been largely abandoned since the unlamented demise in the late 16th and early 17th centuries of the Star Chamber, an executive entity infamous for trying political cases. The Trial Chamber’s decision to impose counsel with broad powers to determine the strategy of the defense created a crisis, as defense witnesses refused to cooperate with imposed counsel Steven Kay and Gillian Higgins, previously ICTY-appointed amici curiae (friends of the court), thrust upon Slobodan Milosevic as defense advocates, seemingly oblivious to the fact that they’d been parties to the proceedings for over two years, and that this created—at minimum—an apparent conflict of interest. Mr. Kay complained bitterly, and publicly, about the non-cooperation of defense witnesses (the Chamber had already received Slobodan Milosevic’s list of witnesses when they imposed counsel), and complained of Milosevic’s lack of cooperation as well, bringing the proceedings to a virtual standstill with a mere trickle of witnesses making the trip to testify in The Hague.
The imposition of counsel upon an unwilling accused—in clear violation of the International Covenant on Civil and Political Rights, which provides for the minimum fundamental right to defend oneself in person—was approved, as a matter of law, by the Appeals Chamber (the initial imposition of counsel was appealed again by Mr. Kay and Ms. Higgins) last November. The ruling reduced this right—which is guaranteed by the ICTY’s own Statute as a minimum fundamental right—to the rank of a mere “presumption”. In so doing, the ICTY’s President, American Theodor Meron, stated that all the “minimum” fundamental rights afforded to the accused by the ICTY’s Statute (which were imported, almost verbatim, from the International Covenant on Civil and Political Rights, leaving out only—inexplicably—the Covenant’s provision of the right to be tried by an independent, impartial, and competent court) were “on a par” with the right to represent oneself in person. In other words, the right for a defendant to represent himself is just a “presumption”, as are all the other basic, fundamental, internationally recognized, minimal trial rights provided by the ICTY’s Statute: such as the right to know the nature of the charge, the right to remain silent, the right to present evidence in the same conditions as the Prosecutor, the right to an interpreter, and the right to be tried in one’s own presence. In fact, they are all stripped of their essence as rights. The ad hoc international legal order holds them to be mere “presumptions” that can be violated at the discretion of a trial chamber when expedient, or “justified”. And as they are no longer really rights, it then follows that they cannot even really be violated. And if they can’t be violated, there is not much incentive to respect them, much less to guarantee them, as “minimal rights”, nor to sanction or remedy their breach.
President Meron’s decision was almost universally understood as having handed a victory to President Milosevic, as it overturned, not the legality, nor even the propriety, of the imposition of counsel, but rather the modalities set out by the Trial Chamber for such “assignment” of counsel—that term, ‘assignment’, is the ICTY’s delicate formulation—. Hence, President Meron directed that Mr. Milosevic be allowed to present his defense and question his own witnesses, with imposed counsel on standby in case of illness. Elsewhere in the Appeals Chamber ruling, however, President Meron made a startlingly ominous claim: the right to be tried in one’s presence is not absolute (it seems this right, too, is but a “presumption”) and can be obviated by “substantial disruption” of the proceedings. This disruption need not be deliberate or even intended by the accused, and can be caused merely by illness. The possibility of holding in absentia proceedings in the Milosevic case as a result of illness (as had been forcefully advocated by the former US Ambassador for War Crimes Issues, David Scheffer, in the International Herald Tribune last summer), had just been approved by the Appeals Chamber.
In early February, President Meron denied a request by imposed counsel to resign from the proceedings, citing ethical incapacity to continue in the absence of cooperation from their “client”, and complaining of his public criticism of their work. The British barristers directly blamed President Milosevic—the very person whose rights are being violated by this imposition—for their ethical predicament: “[T]he accused has made a relationship of ‘candid exchange and trust’ impossible”. President Meron accordingly took Kay and Higgins’ word for it, and laid responsibility for their inability to act for an unwilling accused squarely at the feet of the very victim of the measure: “an accused does not have the right to unilaterally destroy the trust between himself and his counsel.” (Although, as President Milosevic had pointed out at a previous hearing, it is impossible to destroy, unilaterally or otherwise, something that never existed in the first place.) Thus, citing the Appeals Chambers’ previous ruling in the equally astonishing (and dismal, from a legal and human rights perspective) –the case of General Vidoje Blagojevic, President Meron resolved any and all ethical issues—including such questions of interest to lawyers everywhere as: how do you represent a client who refuses your services[?], who will not speak to you[?], whose witnesses do not trust you, who will not communicate facts to you, (such as those relevant to a defense, including alibi), and how does one act for an unwilling accused when one has acted for another party in the very same proceedings?—Meron resolved these questions by insisting on counsel’s obligations towards the ICTY, an institution not recognized as a legitimate legal body by Slobodan Milosevic. President Meron held that: “In such circumstances, where an Appellant unjustifiably resists legal representation from assigned Counsel, Counsel’s professional obligations to continue to represent the accused remain.”
It is unfortunate that President Meron’s decision does not reveal whether the British Bar Council provided an opinion with respect to the ethical issues raised, or whether one was in fact sought by imposed counsel. Whatever the position of the UK Bar, a venerable institution whose opinion might well have been of assistance in this debate; as far as the ICTY is concerned, Mr. Kay and Ms. Higgins must continue to act, since President Meron held that President Milosevic cannot be allowed to “manufacture” a reason for counsels’ withdrawal by refusing to cooperate. To “permit” him to do so, wrote Theodor Meron, would be to “render nugatory” the Appeals Chamber’s decision to approve imposition of counsel! One can only admire the perfection of that argument’s circularity.
As a final indication that these proceedings may well (soon) be derailed, late last week, the Trial Chamber issued an odd calculation of the time devoted by both sides, the Prosecutor and Mr. Milosevic, to the presentation of their respective cases. The ruling goes so far as to count the minutes the institution has apparently suffered through in what was once billed as “The Trial of the Century”. This bizarre accounting of time, unheard of in normal trials, and glaringly at odds with known practice in the adversarial system, is meant to suggest that these proceedings have gone on for a tediously long time and that in “bending over backwards” the International Criminal Tribunal for Yugoslavia now risks violating the “integrity” of international justice if it continues to afford such overwhelming fairness to the accused. Such a suggestion stands in sharp contrast to the reality of a skewed process which has from the moment the defendant was indicted—that being at the height of an illegal bombing campaign, in the course of a war of aggression against the nation of which he was the legitimate President, by a Prosecutor who diligently informed the media that President Milosevic’s new status would disqualify him from negotiating peace in Kosovo—has not been characterized by fairness at all, but by the steady violation of President Milosevic’s rights and of international law, itself.
These proceedings have, indeed, on occasion, been excruciatingly slow, but the main victim has been President Milosevic, who was “transferred” to The Hague—that is to say, he was snatched from a Belgrade detention facility without recourse to common law courts and in violation of the Yugoslav constitution, according to the (then) Yugoslav constitutional court—and detained under UN authority since June 28th, 2001. It is astonishing to note that international justice, or what attempts to portray itself as such, would tolerate the four and a half year detention of a man suffering from malignant hypertension, and worse yet, employ his illness as a justification for imposing counsel, ONLY AFTER his defense had begun, in a display of medical concern much less apparent during Ms. Del Ponte’s inexplicably historical/political marathon presentation of evidence, much of which was not immediately relevant, to put it mildly, to the charges contained in the indictments. That the ICTY would attempt to blame Slobodan Milosevic for this interminable trial is absurd. Indeed, the Prosecution’s case, presented while investigations were ongoing, was for many observers unintelligible, and meandering.
His surprisingly underreported defense, however, threatens to shed some light on what he (and increasingly, his witnesses) have described, not as the “Balkan Wars”, but as a single war against Yugoslavia, a state no longer in existence, whose last days were punctuated by aerial bombardments not seen in Belgrade since those carried out by the Allies at the end of WWII and Nazi Germany in 1941. THAT is the war President Milosevic is beginning to investigate in his defense, and that may well be the reason why suddenly “time is being wasted”, the “trial has drawn on long enough”, and that the “integrity” of the proceedings is now at stake. Indeed, this defense could well present the very “substantial disturbance” required to bring it—and perhaps the whole institution—to a untimely end.
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One is forced to wonder how such a crime could go unresolved for so long. When videos of live network news broadcasts of 19 April 1995, since abjectly suppressed and banished from any public scrutiny, clearly show that the explosion that blew the facade off the Murrah Bldg came not from some horseshit and fuel-oil-ladened rental truck parked at the curb, but from within this FBI field office; and that there were at least two other, unexploded, bombs recovered by local bomb squads and Federal anti-terrorist units from inside the structure after the initial blast .
How Timmy McVeigh could go to his death without ever snitching off his masters;
How the murder of Chandra Levy, McVeigh's contact in the Federal Bureau of prisons, could go unsolved to this day;
How the silence as to the realities of the 1993 WTC bombing;
the assassination of the two Hutu presidents of Rwanda and Burundi, Juvenal Habyarimana and Cyprien Ntaryamira, by the Tutsi RPF on 6 April 1994;
the bombing of the Sarajevo breadlines and Markale marketplace (1993-94) by the Bosnian (Muslim) government but internationally blamed on the Bosnian Serbs;
all the fuzzed out acts of 'friendly-fire' and 'false-flag' terrorism blamed on Arabs in the last 35 years, culmiating in 9/11, where the most improbable story of 19 young Arab terrorists, in the service of a cave-dwelling Saudi Svengali, hijack 3 or 4 civilian airliners and crash them into monuments to Western financial and military hegemony, a lie of such brazen bluster as to be almost infantile, in support of which not a single shred of material evidence has ever been furnished, and over which the silence has been deafening and the ignorance carcinogenic.
How this omerta become a dumb-show has turned the Western world into the land of the living dead not only buggers reason, it cries out in pain and despair, begging for more and stronger drugs.
But this wrenching away of historical truth, this unanesthetized extraction of the very essence of humanity, the knowledge of self; this criminalization of justice continues today and grows more and more insidious and arrogant with each incompetent ruling of the ad hocs. For today also marks the beginning of the in absentia trial of Slobodan Milosevic at the ICTY in The Hague. None of us who follow this trial is particularly surprised, but it's difficult not to be more than a little sickened by the gory grossness of yet another miscarriage.
So below you will find the article that broke this story of The Hague trying to cross-examine one of President Milosevic's witnesses while he is too ill to attend court; as well as a reposting of Maitre Tiphaine Dickson's two articles (Substantial Disturbance and Star Chamber) on the crude machinations of this lawless judiciary that NATO has engaged to continue its wars against the feckless victims of globalized waste capitalism.
--mc]
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News by priority, April 19, 2005
Trial moves on without Milosevic | 15:46 | FoNet
THE HAGUE -- Tuesday – The Hague Tribunal has decided to continue
the court process against Slobodan Milosevic even if the defendant
cannot make it to court because of illness.
The trial is scheduled to continue with a cross-examination of
defense witness Kosta Bulatovic, without Milosevic being present,
which Bulatovic has refused.
“I came here at the invitation of my president Slobodan Milosevic,
and I am his witness and no one else’s and without his presence I
will not speak, nor give any statements.” Bulatovic said.
Hague President Patrick Robinson told Bulatovic that Milosevic’s is
sick and that it has been decided that his testimony must continue
without the presence of Milosevic in court. Robinson said that
Milosevic will be able to see a video of the continuation of
Bulatovic’s testimony, read the transcript and will have the ability
to recall the witness if he wishes to.
“You can recall me, even if I am current not healthy and it was very
hard for me to come here in the first place. If you recall me, I will
try and come again, but without the presence of Milosevic I will not
agree to any questioning. I would feel ashamed and defeated if this
happened, and I’d rather take death home than defeat.” Bulatovic
said.
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"Substantial Disruption" at The Hague: Will Slobodan Milosevic be Tried In Absential? --by Tiphaine Dickson
Nov 9, 2004
[From Kivu, in Eastern Congo, where the UN, in its decade-long collaboration with Rwandan President Paul Kagame's marauding, mass-murdering RPF (the bastard sons of Museveni's Ugandan National Army that began this latest, fully US-DoD-backed seige of Central Africa in Oct 1990, and has not paused even to spit out the undigestible remains of the now nearly 9 million souls it has devoured), has recently renewed its fiery wasting of Rwandan refugees camps and the Hutu lives they so feebly protected; to Falluja, in Iraq, where legions of god- and drug-addled American youths, products of that vile shit-sausage machine that is Western junk culture, have launched an assault on 'Iraqi terrorist rebels' (what we now call those who resist that particular occupation unto annihilation that comes wrapped as American-style democracy); to The Hague, in The Netherlands (The Low Countries, how fucking appropriate!), where one man, Slobodan Milosevic, continues to stand up in defense of Historical Truth and International Justice against the real Terrorists--those who would lay waste to entire nations, not to control their territory and resources, but for no other reason than that they have no other reason to be--or no other means by which to continue their monstrous reproduction: All this seemed to have been put on Pause while the US went through its quadrennial pageant: Its little mime or dumbshow to decide who'll be prom queen for the next four-year episode of Every Time It Reigns It Reigns Terror from Heaven? Well, some folks still have their heads out (and up) and are keeping track of just about every crooked shyst going down out there. Here's Me Dickson's latest contribution to the Real Deal. I just don't know how the kinds of people get involved in the ad hocs, so devoid of decency--or even of what used to pass for humanity, before the term was kidnapped and pimped out by the Genocidaire Left--and so unsuceptible to secular reason will be even the least bit fazed by this sort of strong, well-founded argument. Can't hurt, I guess. --mc]
"Substantial Disruption" at The Hague:
Will Slobodan Milosevic be Tried In Absentia?
by Tiphaine Dickson
In an appellate decision which appears to have been painstakingly devised to convince public opinion that President Milosevic's rights have been restored--or even, as stated by some media, "increased", or exaggerated in favor of the defendant--the ICTY has opened the door to in absentia trials before international bodies, and reduced fundamental trial rights into mere "presumptions", matters of discretion.
Ominously, this decision is the direct echo of reports that the ICTY will be shut down quickly by the US, well ahead of the deadline imposed by the UN Security Council's "completion strategy". The Milosevic case is the last remaining thorn in the side of the institution whose outright politicization he has exposed. But his defense is far more threatening still: threatening to establish that the "Balkan Wars" were in fact one war, against Yugoslavia, waged by Western powers in their own interests. The Appeals Court has now fashioned a device to prevent that case from being made at the ICTY, which would close down, rather than hear the evidence.
The decision handed down by the ICTY's President, Theodor Meron, who also acts as President of the Appeals Chamber, as well as a Trial Chamber judge, permits Slobodan Milosevic's effective removal from the courtroom. Indeed, the judgment states that "substantial disruption" of a trial does not necessarily have to be intentional to justify holding proceedings in the absence of the accused, and that even the ill health of a defendant can constitute such a "substantial disruption". In such cases, according to the ICTY's "court of last resort", both imposition of counsel and removal from the proceedings are justified.
The current situation is infinitely worse than that brought about by the Trial Chamber's ultimately embarrassing ruling imposing counsel against the wishes of Mr. Milosevic, and granting what were described as "rights" to assigned counsel who had acted for another party in the proceedings as amici curiae. Imposed counsel predictably failed to present any meaningful defense, as scores of witnesses refused to participate in proceedings that shared characteristics with the notorious Star Chamber. In fact, most of the recalcitrant witnesses expressed their view that what the imposed counsel were presenting was not and could not be Mr. Milosevic's defense at all, and that their participation would only serve to further violate his fundamental rights.
Playing out as predicted
Presciently, perhaps, the ICTY's designated counsel had, themselves, argued against imposition of counsel last August 13th, stating that they were "concerned that the witnesses to be called by the accused, whilst they may be willing to cooperate with him, would in the event of a conflict make themselves unavailable to the Amici Curiae as imposed counsel." Despite having expressed this concern almost three months ago, Mr. Steven Kay and Ms. Gillian Higgins accepted their assignments without objection, and for two months, the "defense" of Slobodan Milosevic stumbled along gracelessly from postponement to postponement as only 5 witnesses were called. Stunningly, counsel failed to object to irrelevant, inflammatory, and frankly discriminatory--if not actually racist--cross-examinations by the prosecution team, who judged it necessary to attempt to impugn a witness' credibility based on his ethnic affiliation (Greek) and religion (Greek Orthodox). No objection was made to a question posed as to whether the father of the witness had donated money to a Serbian NGO, the Serbian Unity Congress, an organization dedicated to the preservation of Serbian heritage with chapters in 9 countries. But the question was posed to suggest, somehow, in an almost textbook display of impermissible cross-examination, that the witness could be tainted by his father's support for what was assumed to be a shadowy Serb outfit. Guilt by association disguised as cross-examination, but the imposed counsel let it slide. The Trial Chamber had no comment about this line of questioning, nor did it upbraid the Prosecutor, Mr. Nice, for "wasting time on irrelevant matters", even during a cross-examination that delved into obscure issues of comparative theology. Another cross-examination focused witheringly on why Serbs would think they were "so special", and deserve to live in one territory because they were "historic victims." (800 000 people-- Serbs, Jews, Roma-- were killed at the Croatian Ustase-run Jasenovac concentration camp. These systematic murders constitute one of the tragic chapters of the Holocaust, and can assuredly be considered to be a "special" part of Yugoslav history.) It goes without saying that no remotely similar question was asked of Elie Weisel about his people, when he testified during Biljana Plavsic's sentencing hearing in December 2002. Some questions are indecent and cannot be asked. Others, however, equally indecent and revisionist in their assumptions are asked, and with full impunity.
Ethics, suddenly
Only a little over a week ago did the imposed counsel request to be withdrawn from the case, citing ethical quandaries that should have been clear to them many months ago--that obviously were clear to them, since they had already articulated them, in detail, last August, in their arguments opposing the imposition of counsel. Before the Appeals Chamber, on October 21st, they complained of the fact that neither President Milosevic nor the witnesses were cooperating with them, again, a state of affairs they had themselves predicted, and therefore had reason to believe would play out precisely the way it did. To the Appeals Chamber, Mr. Kay made the following submission which could be interpreted as blaming President Milosevic for the predictable consequences of imposition, and for the "substantial disruption" of proceedings caused as a result: "… in terms of a solution, it may be that he undertakes his own consequences rather than us wasting resources believing, and people kidding themselves, making believe that what is happening here is a proper defense."
Who's to blame?
From the very first day of the court-appointed defense, it was made clear who was to be blamed for the dysfunction: Slobodan Milosevic. On September 7th, when the first witness was called by Mr. Kay, he told the court that he'd failed in his attempts to obtain instructions from his "client". Patrick Robinson, who presides over these proceedings, took pains to have the record reflect that President Milosevic was responsible for the non-cooperation. And reminded all that counsel had been imposed because Mr. Milosevic was unfit to represent himself, and unfit to question witnesses before assigned counsel. How, then, could he be expected to be "fit" enough to instruct imposed counsel?
When the defendant, on the first day of what should have been his defense, which he had been waiting to make since his dubious "transfer" to The Hague, demanded that his right to self-representation be restored, Mr. Robinson responded that he didn't want to hear the "tired refrain". How "tired" could it have been on the very first day of the defense?
There is a simple explanation for the fatigue, and it is that this defense must come to an end before it begins. Could it be that for this purpose a two-part strategy was designed? First, impose counsel and let the measure inevitably "backfire", then feign the re-establishment of the right to self-representation in a decision permitting the Trial Chamber to proceed in absentia, for part, or the remainder, of the defense case.
It is important to note that despite a subsequent denial from Washington, US media recently published comments by Undersecretary for arms control John Bolton, stating that the last Bush administration was dissatisfied with proceedings at the ICTY, and wished to see its "completion strategy" accelerated. In other words, close it down, transfer cases back to domestic courts, and even grant amnesty. Last June, the ICTY adopted an amendment to its rules of procedure and evidence permitting just such deferrals. Undersecretary Bolton and other senior State Department officials are said to believe that the "ICTY has degenerated into a politicized tribunal", but their complaints are aimed solely at Carla Del Ponte, and not at any of the other equally politicized organs of the institution. Yet the players in Washington know full well that the ICTY is a political body, as they created it as such. Indeed it has been stated without irony by those closest to its establishment, such as Professor Michael Scharf, that the institution was established to "educate Serbs", "pin responsibility on Milosevic", and "promote catharsis" by permitting "newly-elected" leaders to distance themselves from the policies of Milosevic. But, in order to accelerate the completion strategy, someone else must be faulted for the politicization of the ICTY, and who better than the Prosecutor--who was, perhaps, carefully chosen so that her demise would satisfy everybody: her employers and detractors as well. Washington also clearly stated its frustration with the pace of the Milosevic case, which has as of yet failed to produce a conviction. From Bolton's comments, it is obvious that President Milosevic would not be a suitable candidate for transfer to the jurisdiction of Serbia and Montenegro, unlike, for example, Operation Storm's Ante Gotovina, whose indictment--described as "bogus"--could conveniently be deferred to Croatia. Mere days after this article was published in the Washington Times, ICTY President Theodor Meron traveled to Zagreb, to discuss the "completion strategy" with the Croatian government, according to an ICTY press release. This, coincidentally, while the Appeals Chamber was deliberating on the appeal launched against imposition of counsel.
Despite the clear direction this case is taking, the Appeals Chamber of the ICTY has attempted--and, perhaps, , to some extent successfully--to give the appearance of having overturned an unfair decision as a legitimate Appeals Chamber and a judicial institution.
It has further attempted to give the appearance of providing excessive fairness to the accused in portraying the ICTY as an embattled underdog. The fairness afforded is an illusion, and the decision will serve to prevent Slobodan Milosevic from presenting his defense.
"Substantial disruption"
The Appeals Chamber decision is signed only by ICTY President Theodor Meron. In the course of arguments before the appellate body, President Milosevic argued that he could not present a meaningful defense while represented by counsel, since this political prosecution, before a political body, requires a political defense. The ICTY Code of conduct for defense lawyers indeed forbids counsel from " diminish(ing) public confidence in the International Tribunal (...) or otherwise bring(ing) the International Tribunal into disrepute." It is thus inconceivable that a defense lawyer could argue the ICTY's illegality or illegitimacy-- a cornerstone of Mr. Milosevic's defense-- without breaching the body's ethical rules. President Meron responded to Mr. Milosevic's arguments with the following statement: "I really believe, and I believe that all my colleagues very strongly believe that this trial is not a political trial. It is a legal trial under human rights and due process to determine, under international law and the Statute, whether—to determine whether you are guilty beyond a reasonable doubt or you are not. And we would not have been conducting those proceedings this way if we were not convinced that this is really not only a legal trial, but I believe it is a model of a fair trial."
The Appeals Chamber, reviewing the decision to impose counsel on an obviously competent law school graduate, made in the course of this "model of a fair trial"--a move unprecedented since the Star Chamber, and not even attempted by the Apartheid judiciary against Mandela, or Nazi Germany against Dimitrov--held, without relying on any authority whatsoever, that "substantial disruption of the proceedings" for the purposes of stripping an accused of the right to be tried in his presence, as well as the right to self representation, does not require any proof that the accused had the intention of disrupting the proceedings. Ill health suffices to violate an accused person's most fundamental right, a position contrary to international law and domestic practice. Illness warrants provisional release, or an end of the proceedings, not a supplementary violation of rights. The justification set out by Mr. Meron is the following: "But it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety." Not a single case is cited. This argument states "it cannot be", therefore "it should be". Here, then, is the acknowledgement that this measure is not only contrary to practice, and in violation of the International Covenant for Civil and Political Rights, but predicated on the idea of "illegal but good", or rather "illegal, but expedient" (and "discretionary").
Unprecedented assault against fair trial rights
The Appeals Chamber has further committed an unprecedented assault on internationally recognized human rights. The right to self-representation--described by Mr. Meron himself as "indispensable cornerstone of justice", "placed on a structural par" with the other rights set out at article 21 of the Statute (and article 14 of the International Covenant for Civil and Political Rights)--becomes a mere "presumptive right" that the ICTY Trial Chambers can apply in a discretionary manner:
"As the Appeals Chamber has previously noted, a Trial Chamber exercises its discretion in "many different situations – such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure." A Trial Chamber’s assignment of counsel fits squarely within this last category of decisions. It draws on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and requires a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings."
So the respect of that right--and of, one might conceive, the other rights "placed at a structural par" with it, those enumerated in Article 20, paragraph 4 of the Statute--are no longer "entitlements", to be "enjoyed in full equality", as set out by Article 20 of the Statute, but a matter of discretion for the Trial Chamber. Those entitlements constitute the minimum fundamental fair trial rights under international law, and guarantee the following to a defendant in a criminal trial: the right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; the right to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; the right to be tried without undue delay; the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; the right to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; the right not to be compelled to testify against himself or to confess guilt.
This remarkable perspective on basic fair trial rights invites discretionary "adjustments" or "balancing" of the other enumerated rights, since they are on a "structural par" with the right to self-representation. In other words, if all these rights have the same value, what prevents a Trial Chamber from violating them equally, as they have done with the right to self-representation, which the Appeals Chamber has upheld? This "discretion" will further be employed to severely curtail the duration, scope and subject matter of questions, as well as the very possibility of calling certain witnesses altogether.
Since the Trial Chamber has been granted the "wise discretion" to deal with the "myriad health-related difficulties that may arise in the future", and the power to craft "an appropriate set of responses to every possible eventuality", it is entirely plausible, and in fact highly likely that non-intentional "disruption" will be found to exist, whether for health reasons or "non-cooperation". Then, this partial "self-representation", and even presence at the hearings, will be dispensed with. Considering the record of the Trial Chamber, in particular judges Robinson and Bonomy, and their impatient attitude (calling Mr. Milosevic "petulant" and "puerile"), the Appeals Chamber decision can be interpreted as an invitation to remove the President entirely from the proceedings.
If the ICTY were not a political construct, it could and would simply restore President Milosevic's right to self-representation. Judicial institutions are independent bodies who suffer no interference from the executive branch; they do not rewrite their own rules in mid-trial, they do not emerge from the ether, survive for a few years, then hurry to shut down their operations. Criminal courts are committed to an unwavering respect for the Rule of law, which in adversary proceedings means that people can only be tried "in an ordinary manner, before the ordinary courts of the land". Courts do not engage in public relations activities, "outreach programs", nor do they attempt to influence the policies of foreign governments.
And as Mr. Kay compellingly argues that no lawyer can meaningfully represent President Milosevic as assigned counsel, or even as "stand-by counsel" without violating professional ethics, we see that there can be no defense at all unless the right to self-representation is restored.
The Appeals Chamber did not restore Slobodan Milosevic's right to self-representation, but rather provided the Trial Chamber with the tools it requires to see to it that Washington's completion strategy is carried out swiftly. In the process, it has dealt a blow to the fundamental fair trial rights guaranteed by the International Covenant for Civil and Political Rights. The ICTY's endgame, as illustrated by the strategy designed to prevent Slobodan Milosevic from further exposing the institution's political nature, provides a valuable lesson: there is nothing to be gained by establishing ad hoc political courts, be they in Europe, Africa, or anywhere else. When justice is used as an instrument to justify the crime of aggression, and when ad hoc bodies do not even consider aggression within their jurisdiction, there is no point in calling what emerges from the exercise "international law." The sole superpower does not agree to being submitted to the International Criminal Court's jurisdiction yet lays a gruesome siege on Fallujah. And the sole superpower wishes Slobodan Milosevic's microphone switched off, once and for all. It is imperative we at least attempt to ponder why that is.
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Tiphaine Dickson is a criminal defence lawyer specialized in international criminal law based in Montréal. She was lead counsel for the defence in one of the first UN trials prosecuting genocide before the International Criminal Tribunal for Rwanda.
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[Here's the version of Tiphaine Dickson's paper on the moribund prospects for proceeding toward truth and justice in the the Milosevic trial (and even the very real possibility of an imminent euthanasia of Tribunal, itself!). This is just as it was presented on Saturday, 26 February, 2005, at the ICDSM's International Law Conference in the Golden Tulip Belair Hotel in The Hague.
Because Maitre Dickson was unable to attend, I was given the high honor of reciting this paper before an audience of a couple hundred or so ICDSM members and loyalists from several nations, and a presidentium made up of some of the great legal minds of our day: Ramsey Clark, former US Attorney General (USA); Professor Velko Valkanov, Chairman of the Bulgarian Human Rights Committee; (Clark and Valkanov have been joined as co-chairman of the ICDSM by the Russian writer Alexander Zinoviev); Professor Aldo Bernardini, international law, Teramo University (Italy); Christopher Black, international criminal lawyer, Chair, Legal Committee of the ICDSM (Canada)(and lead counsel on General Ndindiliyimana's trial at the ICTR in Arusha); Dr John Laughland, the renouned journalist (UK); Dr Alexandar Mezhyaev, international law, Kazan (Russia); as well as Indian legislator and legal scholar Bekim Singh.
Dr Laughland's analysis of how The Hague Tribunal (the ad hocs, in general) have perverted the Nuremberg principles was another highlight of the conference. And most heartening to many of us was that serious consideration was finally given to the obvious need for linkage with and solidarity among the various political trials going on today and being planned for the near future: From Rwanda to Iraq to Palestine to Sudan, all interested eyes right now are turned to the trials of President Milosevic and the other Serbian military officers and government officials, and on General Ndindiliyimana and the other Hutu representatives of the Habyarimana governtment of Rwanda. For in these ICe houses, the ad hocs, lies the future of international (in)justice, victors' justice, and the ominous principle of 'might makes right.'
But the most astounding occurrence of the whole event was the absolute total media black-out of of this ICDSM function. Now that President Milosevic is making it unmistakeably clear, day after day and witness after witness, that the true origins and execution of the events leading to the destruction of his country, Yugoslavia/Serbia, have had almost nothing to do with the charges laid by the Prosecutor against him and his fellow defenders of the peace--and that this grotesque intoxication of the international public which was brought about by the craven complicity of the media with the spin-monsters of the real Western war mongers in the Balkans, has forced the fearless fourth estate to flee like burnt leeches from this, once upon a time, 'Trial of the Century;, into seeking refuge from the insults of their government minders by covering trials of the sendentary like those of Scott Petersen and Michael Jackson. --But maybe the press couldn't get to the Golden Tulip because they had to prep for the Academy Awards the next evening. --mc]
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Beyond The Star Chamber:
Shutting Down the Milosevic Defense in The Hague
By
Tiphaine Dickson
On February 14th, The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) hearing the Milosevic case resumed proceedings after having adjourned the week before following a UN physician’s opinion that Slobodan Milosevic would require some days to recover after having been affected by influenza in early February. Media coverage had again complained of “delays in the trial”, and of illness—generally described as “bouts of flu”—as the cause of “lost time”. The Chamber faulted President Milosevic for “wasting time” in his examination of the former Foreign Minister of Yugoslavia with respect to the secession of the former republics and of foreign involvement in the conflicts that ensued as a result. Mr. Milosevic was told the questions—of obvious relevance, and, indeed, of crucial importance—were “pointless”. The Prosecutor has asked that the proceedings continue in the absence of Mr. Milosevic. The situation is ominous and there is evidence that the ICTY is poised to take radical measures, including the interruption, and, ultimately, the premature conclusion of Slobodan Milosevic’s defense.
Indeed, the ICTY, a UN Security Council institution, has set the stage to justify ending these proceedings, —while holding President Milosevic responsible for the result—, in four rulings, two of which were handed down in the last two weeks. First, counsel was imposed against the defendant’s will. Second, in absentia proceedings were approved. Third, imposed counsel was not allowed to withdraw from the case for ethical reasons. And finally, the duration of the Prosecution’s case was artificially reduced, while the time afforded to Slobodan Milosevic was inflated by counting his cross-examination of Prosecution witnesses as time devoted to his defense, in an unusual order devoted to statistics. Slobodan Milosevic is either directly or indirectly made responsible for the unfortunate state of affairs in all four decisions. All is in place to wrap things up.
In September, the Trial Chamber imposed counsel against the clear wishes of the defendant, a practice described by the United States Supreme Court as having been largely abandoned since the unlamented demise in the late 16th and early 17th centuries of the Star Chamber, an executive entity infamous for trying political cases. The Trial Chamber’s decision to impose counsel with broad powers to determine the strategy of the defense created a crisis, as defense witnesses refused to cooperate with imposed counsel Steven Kay and Gillian Higgins, previously ICTY-appointed amici curiae (friends of the court), thrust upon Slobodan Milosevic as defense advocates, seemingly oblivious to the fact that they’d been parties to the proceedings for over two years, and that this created—at minimum—an apparent conflict of interest. Mr. Kay complained bitterly, and publicly, about the non-cooperation of defense witnesses (the Chamber had already received Slobodan Milosevic’s list of witnesses when they imposed counsel), and complained of Milosevic’s lack of cooperation as well, bringing the proceedings to a virtual standstill with a mere trickle of witnesses making the trip to testify in The Hague.
The imposition of counsel upon an unwilling accused—in clear violation of the International Covenant on Civil and Political Rights, which provides for the minimum fundamental right to defend oneself in person—was approved, as a matter of law, by the Appeals Chamber (the initial imposition of counsel was appealed again by Mr. Kay and Ms. Higgins) last November. The ruling reduced this right—which is guaranteed by the ICTY’s own Statute as a minimum fundamental right—to the rank of a mere “presumption”. In so doing, the ICTY’s President, American Theodor Meron, stated that all the “minimum” fundamental rights afforded to the accused by the ICTY’s Statute (which were imported, almost verbatim, from the International Covenant on Civil and Political Rights, leaving out only—inexplicably—the Covenant’s provision of the right to be tried by an independent, impartial, and competent court) were “on a par” with the right to represent oneself in person. In other words, the right for a defendant to represent himself is just a “presumption”, as are all the other basic, fundamental, internationally recognized, minimal trial rights provided by the ICTY’s Statute: such as the right to know the nature of the charge, the right to remain silent, the right to present evidence in the same conditions as the Prosecutor, the right to an interpreter, and the right to be tried in one’s own presence. In fact, they are all stripped of their essence as rights. The ad hoc international legal order holds them to be mere “presumptions” that can be violated at the discretion of a trial chamber when expedient, or “justified”. And as they are no longer really rights, it then follows that they cannot even really be violated. And if they can’t be violated, there is not much incentive to respect them, much less to guarantee them, as “minimal rights”, nor to sanction or remedy their breach.
President Meron’s decision was almost universally understood as having handed a victory to President Milosevic, as it overturned, not the legality, nor even the propriety, of the imposition of counsel, but rather the modalities set out by the Trial Chamber for such “assignment” of counsel—that term, ‘assignment’, is the ICTY’s delicate formulation—. Hence, President Meron directed that Mr. Milosevic be allowed to present his defense and question his own witnesses, with imposed counsel on standby in case of illness. Elsewhere in the Appeals Chamber ruling, however, President Meron made a startlingly ominous claim: the right to be tried in one’s presence is not absolute (it seems this right, too, is but a “presumption”) and can be obviated by “substantial disruption” of the proceedings. This disruption need not be deliberate or even intended by the accused, and can be caused merely by illness. The possibility of holding in absentia proceedings in the Milosevic case as a result of illness (as had been forcefully advocated by the former US Ambassador for War Crimes Issues, David Scheffer, in the International Herald Tribune last summer), had just been approved by the Appeals Chamber.
In early February, President Meron denied a request by imposed counsel to resign from the proceedings, citing ethical incapacity to continue in the absence of cooperation from their “client”, and complaining of his public criticism of their work. The British barristers directly blamed President Milosevic—the very person whose rights are being violated by this imposition—for their ethical predicament: “[T]he accused has made a relationship of ‘candid exchange and trust’ impossible”. President Meron accordingly took Kay and Higgins’ word for it, and laid responsibility for their inability to act for an unwilling accused squarely at the feet of the very victim of the measure: “an accused does not have the right to unilaterally destroy the trust between himself and his counsel.” (Although, as President Milosevic had pointed out at a previous hearing, it is impossible to destroy, unilaterally or otherwise, something that never existed in the first place.) Thus, citing the Appeals Chambers’ previous ruling in the equally astonishing (and dismal, from a legal and human rights perspective) –the case of General Vidoje Blagojevic, President Meron resolved any and all ethical issues—including such questions of interest to lawyers everywhere as: how do you represent a client who refuses your services[?], who will not speak to you[?], whose witnesses do not trust you, who will not communicate facts to you, (such as those relevant to a defense, including alibi), and how does one act for an unwilling accused when one has acted for another party in the very same proceedings?—Meron resolved these questions by insisting on counsel’s obligations towards the ICTY, an institution not recognized as a legitimate legal body by Slobodan Milosevic. President Meron held that: “In such circumstances, where an Appellant unjustifiably resists legal representation from assigned Counsel, Counsel’s professional obligations to continue to represent the accused remain.”
It is unfortunate that President Meron’s decision does not reveal whether the British Bar Council provided an opinion with respect to the ethical issues raised, or whether one was in fact sought by imposed counsel. Whatever the position of the UK Bar, a venerable institution whose opinion might well have been of assistance in this debate; as far as the ICTY is concerned, Mr. Kay and Ms. Higgins must continue to act, since President Meron held that President Milosevic cannot be allowed to “manufacture” a reason for counsels’ withdrawal by refusing to cooperate. To “permit” him to do so, wrote Theodor Meron, would be to “render nugatory” the Appeals Chamber’s decision to approve imposition of counsel! One can only admire the perfection of that argument’s circularity.
As a final indication that these proceedings may well (soon) be derailed, late last week, the Trial Chamber issued an odd calculation of the time devoted by both sides, the Prosecutor and Mr. Milosevic, to the presentation of their respective cases. The ruling goes so far as to count the minutes the institution has apparently suffered through in what was once billed as “The Trial of the Century”. This bizarre accounting of time, unheard of in normal trials, and glaringly at odds with known practice in the adversarial system, is meant to suggest that these proceedings have gone on for a tediously long time and that in “bending over backwards” the International Criminal Tribunal for Yugoslavia now risks violating the “integrity” of international justice if it continues to afford such overwhelming fairness to the accused. Such a suggestion stands in sharp contrast to the reality of a skewed process which has from the moment the defendant was indicted—that being at the height of an illegal bombing campaign, in the course of a war of aggression against the nation of which he was the legitimate President, by a Prosecutor who diligently informed the media that President Milosevic’s new status would disqualify him from negotiating peace in Kosovo—has not been characterized by fairness at all, but by the steady violation of President Milosevic’s rights and of international law, itself.
These proceedings have, indeed, on occasion, been excruciatingly slow, but the main victim has been President Milosevic, who was “transferred” to The Hague—that is to say, he was snatched from a Belgrade detention facility without recourse to common law courts and in violation of the Yugoslav constitution, according to the (then) Yugoslav constitutional court—and detained under UN authority since June 28th, 2001. It is astonishing to note that international justice, or what attempts to portray itself as such, would tolerate the four and a half year detention of a man suffering from malignant hypertension, and worse yet, employ his illness as a justification for imposing counsel, ONLY AFTER his defense had begun, in a display of medical concern much less apparent during Ms. Del Ponte’s inexplicably historical/political marathon presentation of evidence, much of which was not immediately relevant, to put it mildly, to the charges contained in the indictments. That the ICTY would attempt to blame Slobodan Milosevic for this interminable trial is absurd. Indeed, the Prosecution’s case, presented while investigations were ongoing, was for many observers unintelligible, and meandering.
His surprisingly underreported defense, however, threatens to shed some light on what he (and increasingly, his witnesses) have described, not as the “Balkan Wars”, but as a single war against Yugoslavia, a state no longer in existence, whose last days were punctuated by aerial bombardments not seen in Belgrade since those carried out by the Allies at the end of WWII and Nazi Germany in 1941. THAT is the war President Milosevic is beginning to investigate in his defense, and that may well be the reason why suddenly “time is being wasted”, the “trial has drawn on long enough”, and that the “integrity” of the proceedings is now at stake. Indeed, this defense could well present the very “substantial disturbance” required to bring it—and perhaps the whole institution—to a untimely end.
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posted by CirqueMinime/Paris at 4:41 AM
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