[Sometimes the Old Taylor-ed suits from Legal and their egg-headed academic Sanchos fall out the boat and actually hit water. This here's a case in point--and a pretty big splash they've made quand même. This draught's full-bodied with good information, but still has an insouciant nose, like a '57 T-bird--but don't chug it straight out the brown paper bag; sip it gently! Relish it. There's not a lot of this vintage going around right now. mc]
"That Is The Nature Of The Beast":
Why The Hague ICTY Cannot Afford
Slobodan Milosevic's Right to Self-Representation
by Tiphaine Dickson and Aleksandar Jokic
24 October 2004
When Slobodan Milosevic was asked to plead to the indictment filed against
him, after being whisked off to The Hague as a result of a transfer whose
legality bore more resemblance to kidnapping for ransom than to extradition,
his response to the ICTY Chamber was not the typical "Not guilty." Milosevic
instead said: "That is not my problem, that is your problem."
And, indeed, the ICTY's problem it has become. When the prosecution rested
its case after the resignation of the Trial Chamber's President, Richard
May, last spring, many in the media bemoaned the failure to prove genocide,
and others were unimpressed by the picture of confusion left by weak
witnesses, deflated in cross-examination by a defendant who consistently
stated the ICTY was not a legal, or judicial, institution. Voices rose to
express increasingly strident concern that the trial was going off the
rails. Expectations appeared not to have been met.
As the defense approached, and Milosevic announced that he would secure the
attendance of 1600 witnesses to support the case he announced he would make
from the beginning-namely that the "Balkan Wars" had in fact been one war,
against Yugoslavia, planned and carried out by Western powers, whose
gruesome apotheosis was NATO's 78-day bombing campaign in 1999-the ICTY's
most prestigious supporters zeroed in on the upcoming defense, arguing that
Milosevic's right to represent himself had been granted "long enough."
The media onslaught was, and remains, significant and raises an obvious
question: what is it about the present stage of the hearings that requires
such collective effort to defeat?
The latest offensive is apparently triggered by fear, and not only
challenges the internationally mandated right to self-representation (and
the resulting freedom to present a true defense), but is further calculated
to prevent Milosevic from demonstrating the ICTY's illegality, and
functions. President Milosevic has indeed consistently argued that the ICTY
serves up apologia for the destruction of Yugoslavia, provides justification
for aggression, and rewrites history. Hence, the seemingly endless
references, not to Milosevic's health, but to his deleterious impact on the
"Court's reputation", "credibility" and "legitimacy."
Public lobbying of the ICTY supporting the imposition of counsel on Slobodan
Milosevic has been undertaken by a trio of its stalwart supporters: David
Scheffer, Michael Scharf, and Judith Armatta. Their claims-perhaps
inadvertently-betray the political nature of the institution.
Writing in the pages of International Herald Tribune ("Enough of Milosevic's
Antics" July 13, 2004), David Scheffer, former Ambassador at Large for War
Crimes Issues under Secretary of State Albright, dehumanizes Milosevic, and
urges the ICTY to reassert its "authority" over him. Writes Scheffer: "When
he was the presiding judge, the late Richard May deftly handled Milosevic's
exercise of his right to self-representation by giving him enough leash
every day to speak his mind and then jerking that leash when he overstepped
his bounds." The metaphor of "leash jerking" is powerfully deployed here in
light of the painfully recent Abu Ghraib prison atrocities in Iraq,
immortalized by the infamous photograph of Pfc. Lynndie England holding a
naked human being on a leash. Is Scheffer urging the ICTY to become more
like Abu Ghraib, but in the judicial, rather than military theater of
operations? Whatever his intent, in one important respect there is hardly
any difference between the physical and metaphorical leash jerking: they are
both firmly grounded in the most primitive racist or reifying attitudes
toward their targets. And who exactly is the target of David Scheffer's
comments? It would appear to be only Mr. Milosevic who is thus rendered
inhuman, but there is another, even more crucial objective: the ICTY's
judges and prosecutor are implicitly reminded here that they are mere tools
(res) of the Empire, so they had better deliver.
And what were the goods to be delivered by the ICTY? The process is
staggeringly costly, so it follows that a conviction is necessary, and that
"justice" mandates the gagging of Milosevic, who is: "charged with crimes of
enormous gravity in the Balkans: genocide, crimes against humanity and war
crimes. They scream out for accountability. The United Nations and its
member states are expending large sums of money on these trials for the
purpose of justice, not political diatribes and meandering defenses." It is
unclear whether this is a legal or political argument. It may be that
Scheffer's position-promoting a novel legal approach-is that since Milosevic
has been charged with the most serious crimes of all, and that they "scream
out for accountability," this very fact ipso facto constitutes proof beyond
reasonable doubt of his actual guilt. For who could imagine that the ICTY
might bring frivolous charges and indict a sitting President in the midst of
a war of aggression against his country? Alternatively, Scheffer's words
might be expressing a direct political claim: "We paid for this, and we
certainly did not pay for this man to jerk us around."
Scheffer advocates the imposition of counsel, to: "ensure the integrity of
the process, which may be nearing a breaking point with the international
community." The impatience expressed on behalf of the phantom "international
community" might in fact be just Scheffer's own and those of his ilk, well
connected to the establishment of the ICTY. In any event, the point is that
the ICTY has no legal authority beyond the powers granted by the Security
Council, and deemed legally valid by its own appeals chamber, i.e., itself.
Hence, its authority "must be asserted." The very process, which is an
abuse, must be protected from "a crippling abuse," that is, from
denunciation by Milosevic, and in particular his witnesses: "A massive
criminal enterprise of this character deserves a long, carefully developed
trial that inevitably will experience delays. That is the nature of the
beast. But the time has arrived to reassert the court's mandated authority
and prevent a crippling abuse of the process by the likes of Slobodan
Milosevic." "Nature of the beast", indeed. It is urgent that this be
accomplished since the ICTY, as opposed to judicial bodies the world over,
is a "limited engagement," and is attempting to complete investigations,
trials, and appeals before a Security Council-mandated deadline-known as the
"completion strategy"-in 2010. A conviction must be secured before then.
Just as performances must end before the circus can leave town.
Also urgent is that "Serbs," specifically, "respect the court's authority,"
and presumably this transformation can only take place if Milosevic is
gagged, and the illegality of the body never mentioned again: "Perhaps if
the discipline of a competent counsel is brought into the courtroom,
Milosevic's Serb supporters would learn to respect the authority of this
tribunal."
In his conclusion Scheffer fittingly returns to his tired leash metaphor to
reinforce his point that Milosevic must be silenced "permanently" since he
is inhuman: "Milosevic has jerked the court around long enough. It is time
to permanently pull in Judge May's well-worn leash."
Michael Scharf, visiting professor of law at Case Western Reserve
University, and instrumental in the creation of the ICTY, followed Scheffer'
s opening salvo in the Washington Post, and, with bone-chilling clarity,
made the case for imposition, employing strikingly political arguments.
("Making a Spectacle of Himself: Milosevic Wants a Stage, Not the Right to
Provide His Own Defense", August 29th, 2004) Drawing on the now-familiar
refrain that Slobodan Milosevic is "playing for the home audience", Scharf
is outraged by the idea that the unrepresented defendant would somehow make
use of a show trial to gain support in Serbia and Montenegro, when the ICTY
was created, he deadpans, precisely to remove Milosevic from politics, and
"educate" Serbs, so that he and his like would be put out of commission
forever. That his own argument confirms the political nature of the ICTY and
candidly clarifies its objectives as non-judicial does not deter Scharf from
the description of the process as an "international war crimes trial" and
the institution as a "court of law."
According to Scharf: "Milosevic's caustic defense strategy is unlikely to
win him acquittal, but it isn't aimed at the court of law in The Hague. His
audience is the court of public opinion back home in Serbia, where the trial
is a top-rated TV show and Milosevic's standing continues to rise. Opinion
polls have reported that 75 percent of Serbs do not feel that Milosevic is
getting a fair trial, and 67 percent think that he is not responsible for
any war crimes. 'Slobo Hero!' graffiti is omnipresent on Belgrade buses and
buildings. Last December, he easily won a seat in the Serbian parliament in
a national election."
What any of these concerns and political trivia could possibly have to do
with international law-if considered as an activity of a judicial nature-is
unclear. If, however, playing to an uninformed Western public, the idea is
to suggest that by granting basic internationally recognized human rights to
the man who was the West's principal interlocutor in Balkan peace
negotiations for over half a decade, the ICTY is failing in its mission to
"educate" the Serbs, then the point is well taken. Scharf deplores the fact
that opinion polls show that "75% of Serbs do not feel Milosevic is getting
a fair trial." Scharf's disappointment in this expression of popular
distrust-which may well be directed to the institution as a whole-assumes
that public opinion in Serbia and Montenegro is misguided, and that it fails
to appreciate the "fairness" of the proceedings. But if, as Scharf claims,
ICTY hearings are "top rated" TV shows, then public opinion was formed by
actually observing the proceedings; in which case the problem might not be
collective delusion abroad, but rather Western ignorance of the ICTY's day
to day workings. The latter are largely inconsistent with the widely held
Western belief-based, perhaps, on faith or missionary zeal-that proceedings
in The Hague are inherently fair.
Scharf's preoccupation with graffiti adorning the buses and buildings of
Belgrade is perhaps an expression of concern for the environment. However,
any threat posed by "Slobo Hero!" pales in comparison to the effects of NATO
's bombing, and in particular, with the presence of depleted uranium in the
soil and groundwater of Serbia and Montenegro. It may be that "Serb" public
opinion has not yet been sufficiently educated by the "court of law" to lose
sight of this disturbing reality, which will remain with it for decades, and
possibly centuries. Perhaps this reality and the ever-present reminders of
NATO's bombing in the streets of Belgrade have had some influence on the
public perception of the ICTY's "fairness."
Scharf's assault on Mr. Milosevic's right to self-representation, while in
line with Scheffer's demand that the "leash be pulled in permanently,"
presents one significant difference in approach. Where Scheffer depicted the
late judge May as an uncompromising animal-tamer of sorts, Scharf presents
him as a misguided fool. Rather than invoke his capacity for discipline, he
accuses him-in an eloquent demonstration of the reification of the ICTY's
functionaries, in particular the deceased-of having been lax and in error by
having granted the right to self-representation to Milosevic in the first
place. He writes: "Virtually everything that has gone wrong with the
Milosevic trial can be traced back to that erroneous ruling."
And what has "gone wrong" is that Milosevic made "disparaging remarks about
the court" and "browbeat" witnesses. He doesn't recognize the ICTY, and he
has said so. As for the "browbeating" of witnesses, that is to a certain
extent, whether we like it or not, part of the art of cross-examination. But
Scharf's emphasis is placed not so much on these complaints as on his wild
claims about Mr. Milosevic's growing popularity in Serbia and Montenegro.
Scharf makes plain that the ICTY was created for political reasons, yet
advocates imposing counsel on Slobodan Milosevic to prevent him from making
precisely the same point. The only difference is that Milosevic is
"disparaging," while Scharf argues that the ICTY's evident political
objectives are somehow valid:
"In creating the Yugoslavia tribunal statute, the U.N. Security Council set
three objectives: first, to educate the Serbian people, who were long misled
by Milosevic's propaganda, about the acts of aggression, war crimes and
crimes against humanity committed by his regime; second, to facilitate
national reconciliation by pinning prime responsibility on Milosevic and
other top leaders and disclosing the ways in which the Milosevic regime had
induced ordinary Serbs to commit atrocities; and third, to promote political
catharsis while enabling Serbia's newly elected leaders to distance
themselves from the repressive policies of the past. May's decision to allow
Milosevic to represent himself has seriously undercut these aims."
The idea that affording the right of self-representation to Milosevic had
"seriously undercut" the "aims" of the ICTY's very establishment strains
credulity. However, if those aims were, and continue to be, "to pin"
responsibility on Slobodan Milosevic, and to "educate" Serbs about how bad
he was-or, ultimately, how bad Yugoslavia was-then these aims are assuredly
not shared by the defendant. Indeed, Milosevic has no intention of assisting
the ICTY in "convincing Serbs" that acts of aggression committed against
Yugoslavia were justified. Furthermore, whether or not the political aims
set out by Scharf are valid, morally correct, or politically expedient, they
cannot make legal what is illegal, they cannot make legitimate what is
illegitimate, and they cannot, most crucially, turn a political body into a
court.
As was perhaps inevitable, the ICTY did impose counsel. On September 2nd,
two of the former amici curiae were "assigned"-the Trial Chamber pointedly
insisted on the use of this term, instead of the apparently indelicate
"imposed"-to represent Slobodan Milosevic, and given full responsibility
over his defense, including the formation of his strategy and choice of
witnesses. The prerogatives granted to imposed counsel were far more
intrusive than what had been expected; even, apparently, by the prosecution'
s senior trial attorney who had appeared during the hearings to envisage a
"standby counsel" prepared to step in should Milosevic's health prevent him
from acting. Instead, the defense was handed over to strangers, who in
addition to receiving no instructions from their "client" happened to have
acted as another party in these proceedings, as "friends" of a "court" the
defendant does not recognize.
That this imposition of counsel constitutes a conflict of interest, that it
violates the International Covenant for Civil and Political Rights, that
neither the South African Apartheid regime nor Nazi Germany imposed counsel
against Mandela or Dimitrov, respectively, and that imposition has actually
caused more delay of the proceedings (while Milosevic is healthy) does not
deter those who defend the ICTY's decision to strip President Milosevic of
the right to call his witnesses, and present his defense. And his defense is
the problem, as it is candidly presented as a political defense, before a
political body.
Imposed counsel struggled in vain to present more than five witnesses since
early September, and were confronted with the refusal of experts, diplomats,
officers and dozens of others to participate in a defense that was not the
defense they had agreed to support. (Of note, here, is that before a normal
judiciary, witnesses have no say in whether or not they wish to participate
in the workings of justice. The etymology of the word "subpoena"-"under
penalty"-makes clear that legal courts also have legal authority) This
latest crisis before the ICTY prompted new intervention in the media, for
the sake of the ICTY's credibility. But the political nature of the claims
has had the opposite effect.
Judith Armatta, a lawyer acting as trial observer for the US-based Coalition
for International Justice (Justice, not Political Platform for Milosevic,
IHT, October 7th), much like her predecessors, Scheffer and Scharf, betrays
the true reason for imposition of counsel on Slobodan Milosevic. Clearly
neither Armatta nor the ICTY appreciates his "political defense". Armatta
implies that Milosevic-and others before the ad hoc Security Council bodies,
such as the ICTR in Arusha, Tanzania-are simply capricious accused who
refuse to respect established court procedure, while these embattled courts
struggle to provide fair trials in the face of obstructionism from
"unreasonable" defendants. This is a mischaracterization both of Slobodan
Milosevic's position (and that of Rwandan accused at the ICTR) and of the ad
hoc tribunals' legitimacy.
Armatta writes that the "trial of Slobodan Milosevic before the
International Criminal Tribunal for the Former Yugoslavia has reached a
standoff, where the will of the UN-established court is pitted against the
will of one individual, the accused."
This depiction of the Milosevic case as a battle of wills is peculiar, to
say the least, as it falsely presents ICTY as an underdog in this "standoff"
requiring some assistance and encouragement. What could possibly
disadvantage the ICTY-which enjoys the full support of the only super
power-in its "test of wills" with Milosevic? The message sent by ICTY suppor
ters, such as Armatta, is that the ICTY's handicap is its tendency to go
overboard with fairness. Trying to be as fair as possible creates
difficulties for the forces of justice. Thus calls on ICTY like this one:
"It is incumbent on this tribunal to stand up to Milosevic, assert its
authority and bring the world one step closer to the rule of law." But is
accomplishing fairness the ICTY's central concern? And how does "standing
up" to Milosevic bring anybody any closer to the Rule of law, in particular
when international human rights instruments are violated in the process?
The problem is what Milosevic has to say. That the ICTY pointedly imposed
counsel for "health reasons" is a secondary consideration for Armatta, as it
might well have been for the Chamber who disregarded the fact that Slobodan
Milosevic has defended himself quite ably for the past three years, and
suffered from hypertension for ten. In fact, since counsel was imposed, the
health reasons that justified the measure have gradually been replaced by
suggestions that Milosevic lacks sufficient "respect for the court."
Armatta's criticism of Slobodan Milosevic's behavior suggests she has
privileged access to his mind. She not only chastises him for not
cooperating with the ongoing violation of his rights, but reveals why he
embarks on such a baffling course: "the accused refuses to communicate with
counsel or assist in selecting and securing witnesses or developing a
defense strategy, since he seeks not to defend himself but to use the trial
as a platform to advance his political agenda. "
Were it acceptable to apply such psychoanalysis to the ICTY, instead of
Milosevic, the inquiry could address the wholly predictable consequences of
imposition of counsel. Armatta describes the situation in the following
manner: "Nearly half the witnesses initially scheduled to testify on his
behalf have followed his example by refusing to appear in court if Milosevic
is not allowed to represent himself." If we wanted to speculate, we could
posit that the reason for imposition of counsel had nothing to do with his
health or fairness. On the contrary, the reason might be that the ICTY
wanted to prevent the appearance of most of his witnesses, as they would
expose the illegal nature of ICTY. So, while in the realm of speculation,
one could imagine that they correctly predicted that by imposing counsel on
Milosevic they would bring about a boycott by those witnesses and bring the
proceedings to a quick conclusion without most of them ever appearing.
But this type of speculation is deemed improper. And it is inconsistent with
Armatta's depiction of the current situation as a battle of the wills, which
provides absolute clarity as to where the good and the bad wills lie. And
what better way to expose the unsavory intent of the one deemed to have bad
will than to point to his consistent opposition to the process that is
assumed to be inherently fair? Armatta states, as if this established his
bad faith, that Mr. Milosevic: "has consistently maintained, he does not
recognize the legitimacy of the tribunal but will use whatever opportunity
is provided to make his political case to the public."
It should be obvious by now that if Slobodan Milosevic maintains that the
ICTY is illegal, he will naturally take every opportunity he gets to let the
world know about that fact. Is Armatta suggesting that those who contend,
relying on reasonable legal arguments, that the institution is illegal
should nonetheless quietly succumb to it and personally contribute to the
illegal activities undertaken against them? Armatta-as well as Scheffer and
Scharf-express concern about the deleterious effects of self-representation
in other cases. Scharf fears Saddam Hussein could use "the unique
opportunity of self-representation to launch daily attacks against the
legitimacy of the proceedings and the U.S. invasion of Iraq." Is it then
that all targets of aggression are to be denied the right to
self-representation? Or does the very creation of the ICTY, by the Security
Council, (who then proceeded to establish the ICTR, a body without
jurisdiction to consider the invasion of Rwanda by US-supported "rebels",
which aggression sparked that country's tragic war) send another message?
Could it be that there is no right of self-defense when the US, or their
clients, are the aggressors?
The essence of Armatta's complaint against Milosevic, whose will must not be
allowed to prevail over the will of the ICTY, comes from a flawed view of
the ICTY and its process. She states:
"As a legitimate court, it is charged with seeing justice done for the
heinous crimes, including genocide, committed throughout the territory of
the former Yugoslavia during the 1990s. Its fundamental responsibility, as
that of all courts, is to justice."
It is probably no accident the court is here described as "legitimate."
Since the institution's legality is dubious, the goal is to portray it as
"legitimate" instead. This is the same well known gambit employed by Antonio
Cassese, the former President of the ICTY, whose unequivocal assertion that
the US war against Yugoslavia (by means of NATO) in 1999 was illegal, but a
good ("legitimate"?) thing since it might lead to the emergence of a new
legal principle. Could it be that even Armatta agrees with Milosevic on the
illegality of the ICTY? This minor problem of illegality can be totally
overlooked, however, since "the court's fundamental responsibility is to
justice". The picture emerges of an illegal but legitimate court dispensing
justice! If one finds it baffling that an illegal court could be legitimate,
it is all the more challenging to conclude that the ICTY dispenses justice.
For how can a court dispense justice without observing due process?
Nonetheless, Armatta, reacting to the boycott of the proceedings by many of
Slobodan Milosevic's witnesses, argues that they have some kind of duty
towards the process: "Witnesses who can testify on those issues owe it to
the accused, the public and the victims to participate in the trial." But if
the trial is essentially unfair, and the court is illegal, there is no one
to whom the witnesses owe anything.
The need to preserve the Rule of law is advocated by Armatta in support of
her contention that the ICTY is correct in refusing to be "highjacked" or
"blackmailed" by President Milosevic. But the "Rule of law" means something
quite different from the process Armatta seeks to legitimate. A.V. Dicey,
the celebrated British constitutional scholar, offers the classic
definition:
"We mean, in the first place, that no man is punishable or can be made to
suffer in body or goods except for a distinct breach of law established in
the ordinary legal manner before the ordinary courts of the land."
Slobodan Milosevic is by no means being tried "in the ordinary legal manner
before the ordinary courts of the land." The ICTY was not established by
treaty or by a vote of the UN General Assembly. The Constitutional court of
Yugoslavia found that Milosevic had been "transferred" to The Hague in
violation of Yugoslav and international law. The concept of "joint criminal
enterprise", which does not require the prosecution to establish genocidal
intent in some instances, is a recent jurisprudential development. (Not all
would consider this caselaw consistent with the idea that the requisite
intent for genocide must reflect the gravity of the crime, and that it must
therefore be special. The first judgment of an ad hoc court defining
genocide, Prosecutor v. Akayesu, called this dolus specialis. Most, however,
would argue that the relaxed requirements are "good". Again, perhaps a
manifestation of "illegal but good.") Dicey also defines Rule of Law as a
system that adheres to equality before the law. The ICTY's Prosecutor (an
actual "organ" of the body, as per its Statute) did not consider it
necessary to bring a single charge as a result of the myriad breaches of
international law alleged as a result of NATO's 78-day bombing campaign
against Yugoslavia in 1999.
Michael Scharf argues that the ICTY's aims are to "educate" the Serbian
people, and to promote "reconciliation" in the Balkans. But these are not
judicial functions, and Slobodan Milosevic should have the right to point
out what the ICTY's creators-Scharf is considered to have been instrumental
in the adoption of Security Council Resolution 827, which adopted the ICTY's
Statute-unhesitatingly state themselves.
To argue that the ICTY is not violating fundamental rights and international
law, but is rather protecting the "Rule of Law" is not only false, but
debases the very idea.
On October 21st, the ICTY's Appeals Chamber heard the parties on assigned
counsels' appeal against the Trial Chamber's decision to impose them as
Milosevic's lawyers. Slobodan Milosevic argued that imposition of counsel
and the violation of the right to defend oneself in person is the province
of political courts, such as the 17th century Star Chamber, and pointed to
Scharf's statement that the ICTY's objectives were transparently political,
not judicial, in nature. Hence, Milosevic stated that given the fact the
process was political, he required a political defense, which could only be
achieved through self-representation. (Indeed, recent amendments to the ICTY
's Code of Conduct for defense lawyers state that lawyers:
"must not have engaged in conduct, whether in pursuit of his profession or
otherwise (...) likely to diminish public confidence in the International
Tribunal (...) or otherwise bring the International Tribunal into
disrepute.")
The ICTY's President, Theodor Meron, responded by saying:
"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."
While we note that President Meron's remarks constitute an implicit
disavowal of Scharf's conception of the ICTY's aims, the fact remains that
the ICTY did not clearly indicate that it would not tolerate such claims.
For who and what endangers the ICTY's credibility? President Milosevic, who
is prevented from arguing that the ICTY is a political body, or people like
Scheffer, Scharf and Armatta, who make plain that it is? Could it simply be
that the ICTY is in fact a political body, whose creation, as well as its
conclusion-in other words, whose birth and death-are the result of political
decisions?
That political reality eloquently reveals "the nature of the beast." And the
fact that not everyone is entitled to make that very point only reinforces
Slobodan Milosevic's arguments, even if he is stripped of the right to
articulate them.
*****************************************************************
Tiphaine Dickson is a Montreal-based criminal defense lawyer and was lead
counsel in one of the first UN genocide trials before the ICTR in Arusha,
Tanzania.
Me. Dicksoon is also Legal Spokesperson of the International Committee to
Defend Slobodan Milosevic (ICDSM).
She can be reached at tiphainedickson@videotron.ca
Aleksandar Jokic is Professor of Philosophy at Portland State University,
and Director of the Center for Philosophical Education in Santa Barbara. He
can be reached at ajokic@sbceo.org
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