Identifier
Created
Classification
Origin
04THEHAGUE2494
2004-09-30 12:08:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY - MILOSEVIC TRIAL ADJOURNS IN DISARRAY

Tags:  BK HR KAWC NL PHUM PREL SR ICTY 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002494 

SIPDIS

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

E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY - MILOSEVIC TRIAL ADJOURNS IN DISARRAY
FOLLOWING IMPOSITION OF COUNSEL

Classified By: Clifton M. Johnson, Legal Counselor, Reason 1.5(b)-(d).

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002494

SIPDIS

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

E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY - MILOSEVIC TRIAL ADJOURNS IN DISARRAY
FOLLOWING IMPOSITION OF COUNSEL

Classified By: Clifton M. Johnson, Legal Counselor, Reason 1.5(b)-(d).


1. (C) Summary. The defense phase of Slobodan Milosevic,s
trial before the International Criminal Tribunal for the
Former Yugoslavia (ICTY) stumbled into a new set of obstacles
during the week of September 13. The trial chamber abruptly
transformed the defense from one led exclusively by Milosevic
to one where imposed counsel was instructed to lead direct
examination of all defense witnesses, with only a subsidiary
role for Milosevic. This has led to a test of wills and
another crisis, with the accused refusing to engage the
proceedings and denouncing the trial as a show. Witnesses
Milosevic intended to call are now staying away from the
proceedings in droves, expressing outrage at the trial
chamber,s refusal to allow Milosevic to conduct his own
defense. Assigned counsel Stephen Kay has been left with a
dwindling supply of witnesses, an uncooperative client, and
the task of putting together an entirely new defense
approach. With members of the prosecution team suggesting
that the case could sputter to a conclusion before the end of
the year, the trial chamber recessed the case for one month
(until October 12) to allow Kay to get his case together.
End summary.


2. (SBU) The second week of Milosevic,s defense case began
with the issuance of a September 10 chamber decision allowing
the defense counsel to appeal immediately their own
appointment. Lead Prosecutor Geoffrey Nice told Embassy
legal officers that he expected a quick decision from the
Appeals Chamber. Prosecutors and observers alike expect the
Appeals Chamber to affirm the trial chamber,s decisions on
counsel.


3. (SBU) With newly-assigned counsel Stephen Kay conducting
the defense,s examination in chief, the second week of the

Milosevic defense saw only one witness, bringing to three the
total number of witnesses examined during the two weeks of
the defense case. Kay examined retired Canadian army captain
Roland Keith, who was in the Glogovac and KOSOVO Polje areas
as part of the OSCE KOSOVO Verification Mission in February
and March 1999. Milosevic sat behind, as usual, showing
evident displeasure. Kay endeavored to show that KOSOVO
Liberation Army (KLA) responsibility for offenses during the
conflict in KOSOVO. Keith,s testimony was hardly
persuasive. For instance, the centerpiece of his examination
involved an incident in which he believed KLA members
instigated an attack against a routine police patrol on the
Pristina-Pec road, though he stated he was not present when
the clash started. Nice later told us that Keith,s testimony
had been almost "embarrassing" since he could only speculate
that the attack was initiated by the KLA. Further, the
testimony was based on Keith,s few weeks in a small patch of
the region and contradicted detailed, published reports by
higher-ranking members of the OSCE KOSOVO Verification
Mission who had a deeper involvement in the project and
region.


4. (C) Lacking additional witnesses (and evidently a real
defense strategy),Kay sought a postponement in the case. He
requested that the trial be adjourned until the Appeals
Chamber ruled on the issue of assigning counsel to Milosevic.
He further urged the court to grant two defense requests: (1)
that Milosevic have another medical examination, and (2) that
Milosevic essentially reverse roles with Kay, so that
Milosevic would conduct the defense,s examination in chief.
The court rejected both requests, pointing out that
Milosevic,s health was the reason for the imposition of
counsel; Presiding Judge Robinson repeatedly asked Kay what
would happen when Milosevic,s health "breaks down." Kay
continued to press, arguing Milosevic,s right to conduct his
defense and bringing up very candidly the difficulty Kay is
having with his uncooperative client. He stressed that,
unable to represent Milosevic adequately, he was concerned
about the consequences for a fair trial. Comment. In
rejecting Kay,s reasonable request, the trial court further
boxed itself in to an approach that all but ensures
Milosevic,s nonparticipation. End comment.


5. (U) On the issue of uncooperative witnesses, the court
told Kay he needed to demonstrate that the witnesses would
not testify. Kay responded that of 23 witnesses recently
contacted, 20 had already refused to appear. The court then
suggested that Kay subpoena the witnesses and, dismissing
Kay,s objection that it would ultimately require hundreds of
subpoenas, told Kay to begin the process so that he could
demonstrate to the court that compelled witnesses would not
appear. Milosevic himself contributed to the current conflict
over witness participation, reading from letters from former
State Department FRY desk officer George Kenney and former
Canadian ambassador to Yugoslavia James Bissett. Kenney,
according to the accused, wrote that "I . . . still believe
that you are innocent of all the charges," but that because
the Tribunal took away "your fundamental right to represent
yourself . . . the proceedings have become inherently unfair,
amounting to no more than a political show trial with no
authentic legal legitimacy." Bissett, again according to
Milosevic, wrote that "the proceedings have taken on all of
the characteristics of a Stalinist show trial. I do not want
to be part of this travesty of justice."


6. (SBU) The Trial Chamber, facing a crumbling to
non-existent defense, finally ruled that the trial would
recess for four weeks. It did not base the hiatus on the
status of the appeal but rather offered the break so that the
defense counsel could prepare his examination of more
witnesses and a longer-term defense strategy. The trial will
continue on 12 October, barring any further interruptions.


7. (C) Comment: While warmly welcomed by the Prosecution,
the Chamber,s decision to not only impose counsel on
Milosevic but to also strip him of any leading role in his
defense is quickly proving to be a serious miscalculation.
Although the decision addressed the disruptions caused by
Milosevic,s recurrent health problems, it did so by
introducing a new and perhaps more fundamental concern about
the fairness and credibility of proceedings. How this will
play out will not become clear until the trial resumes on
October 12. Under a positive scenario Milosevic would
reengage the proceedings because he cannot keep himself away
from his stage or the appointed counsel would pull together a
credible defense to offer in Milosevic,s absence. A more
likely and negative scenario is of Milosevic absenting
himself from the trial and having it limp to a close in a few
months with only a thin defense having been advanced. While
ICTY watchers would condemn (with considerable merit) the
result of such a truncated trial as unfair, it will also be
clear to all that Milosevic brought it upon himself.
Moreover, few may care as Milosevic,s saga has become
yesterday,s news and both his supporters and detractors
would not be surprised to see him convicted. The most
immediate impact on the USG may be a trial court that is less
obliging of efforts to deflect the testimony of U.S.
officials requested by the defense. The longer term impact
will likely be seen when the success of the ICTY is assessed
and its model considered for the trial of future war
criminals. End comment.
SOBEL