ICTY: COUNSEL IMPOSED ON MILOSEVIC

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 002201

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: COUNSEL IMPOSED ON MILOSEVIC

REF: THE HAGUE 2196

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


1. (SBU) Summary: As anticipated, Trial Chamber Three of the
International Criminal Tribunal for the Former Yugoslavia
(ICTY) decided on September 2 to assign counsel to assist in
the defense of Slobodan Milosevic. The court decided that
the counsel should be the amici curiae (friends of the
Court),led by British lawyer Steven Kay. The decision
capped a dramatic hearing, in which the Office of the
Prosecutor (OTP),citing medical reports, alleged that
Milosevic was taking unprescribed medication and failing to
follow his prescribed therapeutic regime in order to
manipulate his health and, consequently, the pace of the
trial. Milosevic, visibly frustrated with the proceedings,
argued repeatedly and in vain that assignment of counsel
deprived him of his "fundamental rights" to defend himself,
and he promised to appeal the decision. When asked whether
he wanted to comment on "modalities" for assigning counsel,
Milosevic throw his hands in the air and refused to offer any
suggestions, foreshadowing the posture he might take with
respect to his new lawyers. End summary.


2. (C) As soon as Milosevic concluded his politically focused
opening defense statement (see reftel),the trial chamber
turned to what has become the key issue of the trial --
whether Milosevic could continue to defend himself in light
of his recurring bouts with hypertension. The hearing
considered recent medical reports, issued as recently as last
week. First, both cardiologists -- a Dutch physician with
long experience examining the accused, and an esteemed
Belgian doctor brought in this summer for a second opinion --
concluded that Milosevic's current condition of hypertension
makes him unfit to serve as his own defense counsel without
assistance. Second, the doctors identified not only that
Milosevic was failing to follow the therapeutic regime
prescribed for him over the past year (e.g., by continuing to
smoke) but also that he was taking an unprescribed medication
without their supervision. Lead prosecutor Nice indicated
that the doctors believe that the unprescribed medication
caused further deterioration in his condition, even though
the same medication -- which Milosevic refused last year
because of its capacity to undermine his focus and make him
lethargic -- was offered by the Dutch doctor last year.
Unsupervised medication, the doctors said, was a serious
threat to his ability to control the hypertension.


3. (C) Nice interpreted the drug use as a manipulation of the
tribunal. Agreeing with Judge Kwon that the underlying
health condition would be the basis for assigning defense
counsel, Nice nonetheless added that the "manipulation"
amounted to "obstruction", demonstrating that counsel must be
imposed. For his part, Milosevic had no apologies. He said
that he had rejected elements of the doctors' proposed
medical regimen because they caused fatigue and interfered
with his work. Instead, he consulted with his own doctor,
who had been treating him for ten years, to create a
different regime. The regime involved some rest and now, he
said, his blood pressure had normalized.


4. (C) Note. Registry officials supervising the detention
facility are reviewing ways in which they might better
control the "smuggling" of medication into the facility.
Prison warden McFadden had warned Registry officials in the
spring that the Court's order to provide Milosevic with a
special room at the facility to prepare his defense and have
privileged discussions with potential witnesses was
"something he would never do in any other prison" because of
the potential security breach. A senior Registry official
told embassy legal officer that they have ways to make it
more difficult for such "contraband" to be brought into the
facility, and they have confiscated items such as mobile
phones and small electronics, among other things, in the
past. The medication, however, poses special problems. For
instance, material received from his legal associates,
including the extensive files stored in his preparation room,
and contacts with his consular representatives, are
privileged, making it difficult to determine whether such
individuals are bringing him the drugs and whether they are
hidden among his privileged documents. Other detainees may
be helping him as well. End note.

5. (SBU) The medical reports provided the trial chamber with
a firm basis on which to assign counsel, though Milosevic
made last-minute pleas in an effort to avoid that outcome.
He requested that the Tribunal order yet another set of
medical evaluations, not by the doctor from "Belgium, the
country which is the seat of the NATO pact," but by a team of
Russian, Serb and Greek doctors. (The Tribunal, Judge
Robinson dissenting, rejected his request.) He called the
effort to impose counsel a "manipulation aimed at depriving
me of my right to speak here and to speak the truth." When
asked by Judge Robinson why he made his request for another
medical evaluation at the last moment, he responded that,
"until today . . . it never crossed my mind that it might be
at all possible that counsel would be imposed on me."
Milosevic made clear repeatedly that the matter was one of
"principle" for him -- he would not accept assigned counsel.
The press gallery erupted in laughter, though amicus Kay
suggested to the chamber that Milosevic's assertion was
"probably right."


6. (SBU) The trial chamber's decision this morning to assign
counsel was based on Milosevic's "severe essential
hypertension" which could lead to a life-threatening
"hypertensive emergency." Further delays in the trial, the
Chamber concluded, would result from continued
self-representation. Moreover, Judge Robinson said, the
right to self-representation under the Tribunal statute is
not unfettered -- the trial chamber has authority to assign
counsel if "in the interest of justice." A plainly agitated
Milosevic interjected, "I told you yesterday" that such a
move "violates my fundamental rights," but Judge Robinson cut
him off and told him that he had had an opportunity to make
his point already and that he had avenues to object outside
the trial chamber. Milosevic, for the first time in emboffs'
knowledge, said, "I want the appeals chamber to consider this
opinion."


7. (SBU) The remaining issue for the Court was the
"modalities" for assigning counsel. Nice argued for a
version of defense counsel in which the counsel would have
ultimate authority over defense decisions, including
witnesses, but he noted that the accused could be "completely
in control" if he uses his own appointed counsel. The amicus
were somewhat more restrained, suggesting that Milosevic
first be given seven days to nominate his own counsel. Only
if he refuses to exercise that option would the Registrar be
requested to appoint counsel. The counsel, moreover, would
be guided by the Tribunal's code of conduct for defense
counsel -- any instructions to the counsel from the bench,
Kay suggested, should be guided by the code of conduct. Kay
was clearly not in favor of a strict position, such as
Nice's, in which defense counsel decisions always trump the
accused's. In response to a question from the bench, Kay was
coy about whether he would accept the role as defense
counsel. Robinson finally turned to Milosevic for his views.
Throwing up his hands in a gesture mixed with frustration
and disgust, he said, "Then go ahead: deal with it," and
refused to engage further on the subject.


8. (SBU) The trial chamber's subsequent decision rejected
Kay's suggestion of a seven-day period during which Milosevic
could appoint his own counsel, saying there was every
indication that Milosevic would not do so. It then ordered
the Registrar to seek to appoint the amici, Kay and his
associate, Gillian Higgins, as counsel, and that he should
report back on the progress of such an appointment by 1:00
p.m. Friday, September 3. (It is unclear why the ruling did
not specify the third amicus, Timothy McCormack, or whether
the amicus will continue to exist in any capacity.) It will
subsequently issue an order dealing with further modalities
of defense counsel.


9. (C) Comment: The trial chamber's decision to appoint
counsel was in many respects inevitable, given the medical
reports and the history of health-related delays in the case.
Whether the decision will actually help the troubled
proceeding toward a successful conclusion depends on whether
and how Milosevic decides to interact with counsel and
whether counsel moves beyond a posture of deference toward
Milosevic and adopts one of real advocacy. Based on
Milosevic's and the Amici's conduct to date, we anticipate
that Milosevic, at least publicly, will seek to shunt counsel
aside and continue to argue the case on his own (and it is
unclear the extent to which counsel would challenge him).
The real test will arise when Milosevic's blood pressure, as
is inevitable, precludes his participation for a few days and
the assigned counsel is placed in the role of advancing the
case on his own for the first time.


9. (C) Comment continued. One positive sign in this
uncertainty is that the trial chamber has become something
more of a team effort than was the case under the late Judge
Richard May. All three judges, including the usually silent
Kwon, actively participated in the hearing, asked probing
questions, and showed decisiveness. Judge Bonomy, clearly not
a shy newcomer, demonstrated a real eagerness to see
proceedings move forward expeditiously and with decorum --
frequently leaning over to convey his thoughts to the
presiding judge. Presiding Judge Robinson, long deferential
to the accused, cut him off several times to avoid irrelevant
and lengthy diatribes. With a frustrated Milosevic before
them, they will likely need all the collaboration they can
muster to ensure that the trial moves forward with expedition
and credibility. End comment.
RUSSEL