ICTY: "WHO'S RUNNING THIS COURT?"

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002736

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS;
EUR/SCE - GREGORIAN/MITCHELL, L - LAHNE/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: "WHO'S RUNNING THIS COURT?"

REF: THE HAGUE 2494

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


1. (C) Summary: A rare appeals chamber hearing in the
International Criminal Tribunal for the former Yugoslavia
(ICTY) case against Slobodan Milosevic heard sharp and
well-presented arguments this week on the imposition of
counsel on the accused. Defense counsel Steven Kay pleaded
with the appeals chamber to restore to Milosevic substantial
control over the presentation of his defense, admitting that
counsel (i.e. his team) have become "ineffective" and unable
to say they are acting in the best interests of justice and
the accused. Milosevic, back on the stage again, made a
vigorous, impassioned, and cogent -- if often factually
misleading -- presentation for the chamber to "restore" his
right of self-representation. Lead prosecutor Geoffrey Nice,
with chief prosecutor Carla Del Ponte sitting silently by his
side, asked the appeals chamber to affirm the trial chamber,
wondering aloud, "who's running this court, the judges or the
accused?" The hearing came following another week of
witnesses failing to appear for Milosevic's defense. End
summary.

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Counsel Appeal
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2. (C) President Theodor Meron, presiding judge of the
Appeals Chamber, opened the hearing by noting that the
question of assigning counsel to Milosevic "has been
percolating in one form or another since very early on" in
the trial. He reviewed the main elements of the appeal and
the prosecution's response. Three central thematic questions
appeared relevant to Meron: One, to what extent can the
individual right to defend oneself as one chooses be modified
in order to ensure a fair and expeditious trial? Two, does
the Tribunal need additional and more current information on
Milosevic's health -- including an examination by a physician
of the accused's own choosing and consideration of whether he
is manipulating his health -- in order to affirm the need for
imposed counsel? And three, has the decision to impose
counsel so changed the dynamics and reality of the defense
that it has proved to be unworkable in practice? Throughout
the hearing, Meron also expressed a separate, juridical worry
-- namely, the extent to which the appeals chamber may review
a trial chamber decision concerning imposition of counsel.
(Comment: Given this appeals chamber's previous exercise of
broad discretion to review trial chamber decisions, this may
signal less a legal constraint than an unwillingness to
reopen a difficult decision by the trial chamber. End
comment.) He also assured the litigants, in response to a
comment from Kay, that the completion strategy "has no
bearing" on the chamber's assessment of this appeal, as "we
are here to do justice."


3. (C) Defense counsel Kay contended that the trial chamber
imposed counsel following a "concerted attack" by the
prosecution on Milosevic's right to represent himself, and he
gave a bleak picture of the course of his efforts to defend
the accused. He asked the chamber not to consider the
prosecution's arguments that Milosevic manipulated his health
to obstruct the trial and, in response to a follow-up
question from Meron, suggested that a new medical exam,
including by one of the accused's own doctors, should be
conducted (as Milosevic requested in September). The
prosecution had argued that Milosevic had not raised this
issue in a timely manner, but Kay said that the imposition of
counsel -- the "most extreme" of the options before the trial
chamber -- came as a "complete surprise" to the accused.
Meron quickly interjected, "how could it?", to which Kay gave
a raft of reasons suggesting that the trial chamber had led
Milosevic to believe that it would do something less than
impose counsel in the way that it did, such as impose
stand-by counsel available to assist or in case of the
accused's ill-health. (Note: Emboffs learned from a Registry
source with regular contact with Milosevic that he was
actually prepared to accept a stand-by counsel proposal. The
decision to not only impose counsel on him but give that
counsel the lead and authoritative role in his defense --
putting Milosevic in the second chair, so to speak -- likely
surprised Milosevic as much as it did other court observers.
End note.)

4. (SBU) Kay argued that irrespective of how the Court got
itself to this point, the bottom line was that one risk --
delays in the trial caused by ill health -- had been replaced
with another, the denial of a real defense case in the face
of non-participation of witnesses and the accused. Kay
concluded that he and his co-counsel "are ineffective" and
that, as a result of the trial chamber's decision, Milosevic
is not obtaining a real defense. His suggested remedy was
one he had put forward to the trial chamber in September:
Milosevic should appoint counsel or represent himself,
putting the responsibility on him to conduct his own defense;
if that means taking only one day a week to conclude the case
over the next several years, that would be acceptable to him.
But to determine whether that would in fact occur, he said,
the court needs a new medical report.


5. (SBU) Milosevic expressed his "deep conviction" that the
trial chamber acted as it did not for health reasons but for
"political reasons," the result of a "campaign conducted not
to permit me to speak." He challenged the prosecution's
assertion that he manipulated his health, saying that a good
percentage of his sick days were from the flu, not from his
chronic hypertension. He added that his blood pressure had
improved over time, adding that the stress of putting on the
case in what he defined as a short time allotted by the trial
chamber contributed to his poor health (though he did not see
that this presented an argument for imposing some form of
counsel in itself).


6. (SBU) Milosevic, aside from points relating to his health
and some typical political posturing, mostly limited himself
to making a legal case for self representation. He cited a
"petition" of lawyers from around the world arguing that his
right to self-representation could not be modified or
minimized, and referred to U.S. constitutional protections
under the Sixth Amendment. "I would like for my right (of
self-representation) to be restored to me," he said, and he
saw no middle-ground in the assigning of a "stand-by counsel"
to assist in his work. He has "no objection" to Kay
continuing to ask questions of witnesses, much as he did when
he was the amicus curiae (friend of the court). But "the
only thing I can see as just, fair, logical and reasonable is
to give me back my right to call witnesses myself, to examine
them, and to lead evidence in my defense case." This is, he
said, guaranteed him under international law, including "your
own Statute." Finally, he said, "I cannot agree to anything
less because that is my principled position, one from which I
do not intend to retreat so much."


7. (SBU) Nice would have none of the appeals for sympathy
sought by Kay and Milosevic. Instead he argued that
everything Milosevic said "show(s) that this man is not
capable now of presenting a case before what is manifestly a
straightforward criminal court trying him for criminal
offenses." He should not, Nice said, be allowed to "carry
on" before judges "whom he has quite wickedly impugned." He
presented an alternate account of the way in which the
chamber came to assign counsel, showing that the prosecution
had repeatedly urged the trial chamber to impose counsel to
assist, but not necessarily overtake, Milosevic's defense.
That said, the prosecution "entirely support" the trial
chamber decision and its "modalities" (i.e., the placing of
defense counsel in the lead role and forcing Milosevic to
seek permission to examine witnesses). Nice further
suggested that the modalities could change if Milosevic were
to show himself behaving in a rational, sensible and
cooperative manner in the courtroom. Summing up, he noted
sharply, "who's running this court, the accused or the judges
who have been appointed to do so?"


8. (C) Meron closed by suggesting that the chamber may seek
further supplemental briefing from the parties on specific
issues. However, in a later conversation, Meron told Emboff
that "the fog is clearing" in the way he views the case and
that a decision should be expected soon. Separately, Nice
asked emboff, sounding anxious, what he thought of the
proceeding. When the question was turned around, Nice said
that one of the members of his team thought the defense had
the better of it. Nice expressed concern that any change in
the modalities by the appellate chamber could lead to a
situation where the accused, more than ever, believes he can
dictate his views to, and manipulate, the trial chamber.

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The Defense Muddles Along
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9. (SBU) The trial chamber met briefly on October 18 to
review Kay,s newly filed witness list and discuss his
prospects for getting witnesses to appear. The list, which is
not public, is divided into experts, internationals, and
insiders and, as best could be divined from context, includes
138 names with contact information, as well as the status of
the defense's efforts to contact each witness and persuade
him/her to testify. Kay is still having virtually no success
-- there was the usual rehashing of witnesses refusing to
testify in opposition to the assignment of counsel -- but the
judges did focus in on a few prospects. Two are Germans
awaiting approval from either the German government, the EU,
or OSCE -- the Registry has put in the request on Kay's
behalf but it is unclear which institution is holding up the
process. One, Henning Hensch from the OSCE/KVM, appears
likely to testify soon. With respect to the other, Dietmar
Hartwig, former head of the ECCM, Judge Robinson explicitly
said to Kay that &if the necessary consents have been given,
that witness still refuses to come, you may want to invite
the Chamber or request the Chamber to issue a binding
order.8


10. (SBU) The defense on October 19 examined Leona Kanelli,
an independent member of the Greek Parliament connected to
the Communist Party. Kanelli, also the publisher of the
magazine Nemesis, visited Aleksinac in southern Serbia
shortly after NATO started bombing in 1999. The substance of
her testimony centered on pictures she took and reports she
published about the destruction of the town, but much of her
actual testimony took the form of dramatic and combative
monologues about the innocents killed by NATO bombing and the
tragedy of war in general. The trial chamber was patient with
her but, when she called into question the legitimacy of the
court itself, Judge Robinson interrupted to inform her that
her comment was &completely out of order.8 Prosecutor
Geoffrey Nice,s cross-examination went to Kanelli,s
assertion that there was no military target in Aleksinac,
producing a Human Rights Watch report already in evidence
that detailed the intended target, the Aleksinac Deligrad
military barracks. Kanelli,s irreverence toward the court
and Nice was striking, to the point that many in the audience
gallery were by the end of cross-examination laughing at her.


11. (SBU) Milosevic did contribute slightly to the defense
examination of Kanelli. He at one point helped the court in
trying to locate Aleksinac on a map of Serbia and, when given
the chance to examine Kanelli, did ask one question. He asked
her, in English, if she had been asked all the agreed
questions. She responded that Kay had asked only a small
portion of them. When prompted by Judge Robinson to fill gaps
in the examination in chief with his own questions, Milosevic
said he would not enter the trial on the merits until his
rights were restored.

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Comment
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12. (C) Meron has called the appeal of the imposition of
counsel issue the most difficult decision of his tenure. If
his chamber reverses the trial chamber, the case is certain
to be held hostage once again to Milosevic's uncertain
health. If he upholds the chamber's decision without
modification, it seems equally certain that Milosevic will
not engage the proceedings and that only a feeble and
truncated defense will be put forward. The stakes are high:
the legacy of the case, already shaken, depends on observers
viewing the proceedings as legitimate, meeting the highest
standards of fairness to the accused, and providing a
persuasive basis for conclusions as to whether the
prosecution proved its case beyond a reasonable doubt. The
Prosecution seems uniquely content to have the case conclude
within weeks and allow the trial chamber to move toward
judgment. For others, who have in mind the larger legacy of
the Tribunal -- and its ability to bring reconciliation to
the region -- there is hope that the Appeals Chamber will
strike the right balance between imposing counsel on
Milosevic and permitting him to retain a reasonable degree of
control over his defense, so that whatever the outcome, the
credibility of the proceedings and the institution will
withstand the test of time. End Comment.
SOBEL