ICTY: MILOSEVIC'S POOR HEALTH TRIGGER'S "RADICAL"

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001715

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
STEPHENS/GREGORIAN/MITCHELL, L/EUR - LAHNE, L/AF - GTAFT.
INR/WCAD - SEIDENSTRICKER/MORIN; USUN FOR ROSTOW/WILLSON

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: MILOSEVIC'S POOR HEALTH TRIGGER'S "RADICAL"
REVIEW OF CASE BY COURT AND PAVES WAY FOR IMPOSITION OF
DEFENSE COUNSEL

Classified By: Legal Counselor Clifton M. Johnson per 1.5(d).


1. (C) Summary: The trial chamber hearing the case against
Slobodan Milosevic before the International Criminal Tribunal
for the former Yugoslavia (ICTY) postponed the July 5
commencement of the defense case due to the Accused,s poor
health. During the hearing, Milosevic accused the Tribunal
of damaging his health by ignoring his requests for
additional time to prepare his defense case and rejected
various suggestions by the Chamber and Prosecution to ease
the trial burden. In an order issued on July 6, the Chamber
decided to commence the defense case on July 14 and then
recess on July 21 until August 31. The order expressed the
Chamber,s view that a "radical review of the future conduct
of the trial" was in order, while noting that there was "no
evidence" to suggest that Milosevic was unfit to stand trial
at all. Signaling that the likely outcome of this review was
the imposition of stand-by counsel on Milosevic, the Court
ordered the Registrar to identify trial counsel who might be
assigned to the case. End Summary.

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From Trial to "Administrative" Hearing
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2. (C) Complaining of illness, and supported by reports from
his cardiologist, Milosevic did not give his much anticipated
opening statement -- the first stage in the defense component
of the case-- at the July 5 proceedings. Instead, presiding
Judge Patrick Robinson (Jamaica) convened the hearing to
discuss the "administrative" issues raised by the Accused,s
continuing ill health. A July 1 medical report received by
the Court, which Robinson read in Chambers, noted
Milosevic,s very high blood pressure (200/130) and the
injury to his heart that the ailment has already caused. The
report noted that when under stress the pressure is increased
further, but with rest the "situation returns to normal."
The report contained a recommendation from the consulting
cardiologist, Dr. van Dykman (a highly regarded Dutch
physician),that the Accused be allowed to rest at least
until July 9. (Comment. Embassy legal officers observed
that Milosevic, while speaking firmly, appeared somewhat worn
and moved a bit stiffly, wincing once (a touch theatrically)
near his left shoulder. End comment.)


3. (SBU) Robinson asked the three parties present for their
comments on the report. Milosevic angrily protested his
presence in the courtroom, stating that a doctor who had
examined him that morning at the detention facility told him
that he was not fit to stand trial at this time. Claiming
maltreatment and further loss of preparation time due to
sickness, Milosevic demanded an additional month to prepare.
He noted that court appointed physicians had previously
advised that he should work only three days a week. Given
the need for preparation time, he was essentially proposing
that the court hold no more than one or two trial sessions
each week. He reiterated his categorical refusal to accept
the appointment of counsel. He also rebuffed any of the
Court,s suggestions about ways to alleviate his stress, such
as Judge Bonomy,s suggestion that he deliver his opening
statement in writing or the notion, raised by Chambers, that
he participate in the proceedings via video link at the
detention facility. Amicus Steven Kay stated that the
Accused,s "pronounced decline in health" raised not only the
issue whether the accused was fit to present his own case,
but also whether he was fit to stand trial at all. Lead
prosecutor Geoffrey Nice, repeating OTP,s long-held
position, argued that counsel must be imposed on Milosevic,
contending that the reason his blood pressure was so elevated
was due to the stress of preparing his defense.

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A Solution?
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4. (SBU) In its order of July 6, the Court stated that a
"radical review" of the trial,s conduct was necessary and
set forth the key factors that will guide its decision. The
Court noted that Milosevic,s poor health has resulted in
numerous interruptions of the trial and the loss of 66 days
during the Prosecution,s case. Further, Milosevic,s poor
health was likely to recur. At the same time, the Court
noted that "there is no evidence that the Accused is not fit
to stand trial at all, but 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 expeditions
conduct of the trial." Further the Court noted that when it
had last declined to impose defense counsel on Milosevic in
April 2003 it had stated that "the right to defend oneself in
person is not absolute ... there may be circumstances ...
where it is in the interest of justice to appoint counsel."
The Court then referenced the imposition of stand-by counsel
in the Seselj case and said that "it may be necessary to
assign counsel to the Accused, and/or adopt other measures to
ensure a fair and expeditious conduct of the trial." Noting
that it is "in the interests of the Accused and the broader
interests of justice that this trial be conducted and
concluded within a reasonable period of time" the Court
concluded that it was "incumbent upon the Trial Chamber to
identify measures for the continuation of the trial which are
efficient, sensitive to the health of the Accused, and
conducive to the fair an proper presentation of the defense."


5. (C) The Court,s order stopped short of determining the
specific measures it would impose; instead, it set the stage
for a later decision by ordering that the defense will
commence on July 14 for one week and then go into recess from
July 21 until August 31. Second, the Registrar will identify
counsel who might be assigned to the case if the Court
requests it. The chamber also requested that a new
cardiologist, with no prior involvement in the treatment of
the Accused, examine Milosevic and "report to the Trial
Chamber on the fitness of the Accused to continue to
represent himself and the likely impact on the trail schedule
should he continue to do so." The purpose of this seems
aimed less at Dr. van Dykman, an eminent physician agreed
upon by both sides whose conclusions are not contested, than
at establishing a fresh opinion on the extent to which
Milosevic,s health can handle the stresses of mounting a
defense and the costs in terms of trial time if he were to
continue to do this alone.

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Comment
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6. (C) The hearing crystallized two issues that have had a
dominant impact on the trial from its inception. First,
Milosevic again proved himself a master at stage-managing the
proceedings. He threw the judges off balance at the outset
of the hearing by demanding why the Court had insisted on his
presence when the detention facility physician had pronounced
him unfit that morning. (He did not mention that the
physician had thought he was attending a full trial session
rather than an administrative hearing). He also skillfully
played the health card to present himself as the victim of a
Tribunal that is predestined to convict him, blaming the
Court for deliberately injuring his health by refusing his
requests for additional preparation time. At the same time
that he was portraying himself as a victim, he defiantly
refused every suggestion by the Court and Prosecution for
measures that might ease the stress on his health. The
result was to place the Court in a position where, short of
discontinuing the trial, any other measure it took to help
Milosevic would be over his strong objection.


7. (C) The second issue highlighted during the hearing was
the ongoing impact of Milosevic,s unstable health. With the
trial moving to a defense phase, where Milosevic must not
merely respond to Prosecution evidence but advance a defense,
the stress on his health will continue to increase. The
Chamber is therefore faced with the untenable option of
allowing the trial to limp ahead uncertainly for years with a
day or two of hearings per week or take "radical" action.
The Chamber,s order strongly hints that it is poised to do
the latter, and we expect it to impose stand-by defense
counsel this summer. By buying additional time for an
assessment of the situation, foreshadowing the appointment to
the public, granting Milosevic more time to prepare his
defense, and getting a second medical opinion on which to
base its decision, the Court is skillfully laying the
groundwork for the imposition of counsel. While this course
of action, realistically the only way forward, is defensible
legally and manageable in terms of public perception, whether
it will actually work is an open question. Some basic level
of cooperation between Milosevic and such counsel is
essential, and it remains to be seen whether Milosevic will
seek to push the trial to a crises point through
noncooperation or be content, as he is with the Amici, to
castigate them publicly while working with them behind the
scenes to advance his defense. End comment.
SOBEL