Judith Armatta
Excerpt from the Book

Death on the Bench

[Excerpted from Chapter 12: Interregnum]  

The year 2004 turned out to be intermission in the Milošević trial, though an eventful one. The prosecution completed its case in February. The presiding judge fell ill, resigned, and died in July. A replacement judge was appointed. The Trial Chamber issued its decision that the prosecution had produced enough evidence to support its case, including the charge of genocide. The defense case was delayed again and again by Milošević's illness, exhaustion, and manipulation, leading the Court to a “radical review” of the trial and ultimately appointment of counsel. Milošević angrily objected and refused to cooperate. His supporters organized a boycott of defense witnesses, making it impossible for appointed counsel to carry on. When the Court refused their application to withdraw, defense counsel threatened to walk out. The witness boycott ended when a five judge panel of the appeals chamber, led by President Theodor Meron from the US, ruled in favor of Milošević. The year ended with two weeks of Milošević leading his defense. In the process the court’s new-found assertion of authority suffered a major setback.

Courtesy 
	of the ICTY. Front view of the International Criminal Tribunal for the 
	former Yugoslavia.

In December 2003 Judge May looked pale. He slurred some words, forgot others. By January he was forgetting to caution witnesses not to talk about their testimony until it was concluded. As the prosecution case drew to an end in February 2004, Judge May missed court for the first time in two years. After the third day of his absence Milošević also stayed away, with a recurrence of high blood pressure. The prosecution bowed to circumstances and ended its case early.

Rumors abounded, fed by the tribunal’s secrecy. The tribunal’s president did not want the public to know the seriousness of Judge May’s condition. Leaks were inevitable. It was not long before the New York Times reported that Judge May had a brain tumor. Tribunal halls and public airwaves crackled with speculation over its effect on the trial. Could a new judge familiarize himself or herself with thousands of pages of documents and 300 videotaped trial days so that the trial could continue? Could a mistrial be declared under ICTY rules? After two years, would the trial begin again from the beginning, or would it end and Milošević be set free?

ICTY rules provide that the president may appoint a replacement judge if a sitting judge is unable to continue. The accused must consent, but the remaining judges may override non-consent if they decide that it is in the interests of justice for the case to proceed. Milošević refused to say whether he agreed to a replacement judge. It was an administrative matter of an illegal tribunal, he declared, and he had nothing to say about it. President Meron interpreted his nonresponse as refusal to accept appointment of a new judge, returning the matter to Judges Robinson and Kwon, who decided in the interests of justice to let the case proceed. President Meron appointed an accomplished prosecutor and criminal trial judge, Lord Iain Bonomy from Scotland, to replace Judge May. The panel elected Judge Robinson as its new presiding judge.

Observers wondered how Robinson would approach his new role. Since Judge May as chief judge had primary responsibility to rein in Milošević, Robinson had taken a conciliatory position with the accused, advising him in a friendly way and often favoring his position in evidentiary and procedural matters. Milošević courted Judge Robinson, attempting to play on the third-world status of his country, Jamaica, in relation to the first-world powers that had attacked Serbia in 1999. When Robinson assumed the center chair, however, he also assumed responsibility to manage the trial. He made his position clear during the pre-defense conference, when he strictly limited Milošević's case to 150 days, the same allowed the prosecution, though the accused insisted that he needed to call 1,631 witnesses. Despite his newfound assertion, Robinson was not a strong presiding judge. Often, it was the new Scottish judge who challenged Milošević's argumentation, irrelevancies, and time-wasting.

According to backroom gossip, Judge Bonomy was known at home as “the hanging judge” for his severity in criminal cases. He was also known as a judge who managed his courtroom with a heavy hand. Bonomy’s experience as a criminal trial judge and former prosecutor was an invaluable addition to a court suffering from the loss of Judge May’s practical expertise. Nor did he show reluctance to hold the accused accountable as May too often had done, though he lacked the power of the presiding judge to cut short repetitive and irrelevant questioning. Judge Bonomy showed that he was also up to the task of assimilating two years of testimony, documentation, and legal rulings.

Milošević's defense was due to start in early June, after a three-month hiatus, but the Court was forced to extend the adjournment when Milošević fell ill. By July he was still unable to return to court. The doctor advised that his blood pressure was too high to begin the stressful work of presenting his defense.

As the summer recess approached, with Milošević no more ready for trial because of his poor health, the court finally took matters in hand. “The Chamber clearly is of the view that the time has come for a radical review of the trial process and continuation of the trial in light of the health problems of the Accused,” Judge Robinson declared.

Steven Kay advised the court that it should take up both the accused’s ability to return to trial in the immediate future and his long-term fitness to stand trial at all. The prosecutor pressed the judges to impose counsel. “It is now essential if the case is to be properly concluded in a reasonable time that counsel be imposed.” Nice argued that Milošević should be allowed to appoint someone of his choosing; if he declined, the court should step in. Nice suggested a video link to Milošević's cell, allowing him to view proceedings on days he was not able to attend. To all this Milošević vehemently objected.

“It is out of the question, as you know,” he thundered. “Nor will I ever agree to it. . . . I am going to examine my witnesses and will be present here in this room.” Unaware that he was undermining his position, he told the court of his doctor’s advice to work a maximum of three days per week, including time out of court. That would considerably reduce the number of trial days -- perhaps to one a week -- pushing the trial’s end out of sight.

Courtesy 
	of ICTY. Witness Stand in Courtroom.

The Trial Chamber ordered an examination of Milošević by an independent cardiologist to determine his fitness to represent himself and “the likely impact on the trial schedule should he continue to do so.” Referring to the latest medical report advising that Milošević's health problem could be expected to recur and considering the time lost because of his illness (sixty-six days during the prosecution’s case in addition to the abbreviated trial schedule), the court noted “there is evidence that the health of the Accused is such that he may not be fit to continue to represent himself, and that his continuing to represent himself could adversely affect the fair and expeditious conduct of the trial.” It was the clearest statement yet that the trial chamber was moving towards appointing counsel. The court rejected, for lack of evidence, Kay’s suggestion that the accused might not be fit to stand trial at all.

The court found reinforcement for its position in Judge Wolfgang Schomburg’s handling of Vojislav Seselj, the notorious Serb nationalist who insisted on representing himself amid tirades in court. With evidence of Seselj’s obstructive behavior, Judge Schomburg and his two co-judges directed the registrar to appoint standby counsel who would attend all court sessions and be available to take over should the defendant disrupt proceedings. The Milošević court noted that civil law countries like Serbia and Montenegro do not allow an accused to represent himself in serious cases, providing further justification for imposing counsel.

The prospect of appointing counsel over the objections of an accused who insisted on representing himself set off a firestorm among lawyers and observers. On one side were those who argued that the right to self-representation is fundamental, like the rights to practice one’s religion and speak freely on political issues. Any infringement, in this view, makes the trial unfair. On the other side were those who held that self-representation was a qualified right; the fundamental right was to a fair trial. From this perspective self-representation amounting to an obstruction of justice waived the right, since it made a fair trial impossible.

The argument over the right to self-representation obscured the real issue, the tribunal’s legitimacy. To what extent, if any, may an accused utilize a trial for his own political purposes? From the beginning Milošević made clear that he had no intention of defending himself before a body he considered illegal, but he would use whatever opportunity presented itself to make his political case to the public. He had appealed and lost his challenge to the tribunal’s legitimacy, established in the Tadic case long before he arrived.

It all came down to Milošević's insistence that he would have his forum on his own terms, or he would not participate. It was not the right to defend himself that he championed. While the tribunal could not force him to participate, it could refuse to be his instrument for advancing a political agenda and undermining their authority. As Judge Schomburg stated in appointing standby counsel over Seselj’s objections, an accused’s right to self-representation may be limited if the interests of justice so require. The interests of justice include the right to a fair trial, the judge declared, “which is not only a fundamental right of the accused, but also a fundamental interest of the Tribunal related to its own legitimacy.” With the focus on the accused and his rights at trial, other interests were ignored, not least of which were those of the public and the victims of Milošević's crimes in seeing justice done.


_______________________________

FIVE. Interregnum

1 In part the tribunal’s secrecy derived from the need to protect confidential sources and witnesses and the general confidentiality required of lawyers, but it grew over time beyond what was necessary.

2 ICTY Rule 15 bis (C).

3 ICTY Rule 15 bis (D).

4 Prosecutor v. Seselj, Case No. IT-03-67-PT, “Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence,” 9 May 2003. 

5 “The Code of Criminal Procedure of the Federal Republic of Yugoslavia (2001), which remains valid in Serbia, provides that imposition of defence counsel is mandatory in proceedings relating to offences which carry in excess of ten years imprisonment.” Article 71(1).  “The rationale behind the mandatory assignment of counsel in these jurisdictions appears to be that, in case where the personal liberty of an accused is at stake, the right to a fair trial, which includes the right to an adequate and effective defence, actually imposes a duty on the State to ensure that the accused is represented by professional counsel whose task is to ensure that the interests of the accused are fully protected throughout the proceedings.”  “Trial Chamber’s Reasons for Decision on Assignment of Defence Counsel,” 22 September 2004, 20.

6 Prosecutor v. Tadic, “Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,” 2 October 1995.  The chamber found the ability of a judicial tribunal “to determine its own jurisdiction” is “a major part, of [its] incidental or inherent jurisdiction.”  The UN Security Council had authority under Article 41 of the UN Charter to establish the ICTY.  The Court decided a threat to the peace in the former Yugoslavia justified invocation of Chapter VII of the Charter to establish an international criminal court.

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