ICTY - MILOSEVIC REGAINS SOME CONTROL OVER DEFENSE

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002792

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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 REGAINS SOME CONTROL OVER DEFENSE
CASE; ASSIGNED COUNSEL REQUESTS RESIGNATION

REF: THE HAGUE 2736

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


1. (C) Summary. The trial of Slobodan Milosevic before the
International Criminal Tribunal for the former Yugoslavia
(ICTY) was recessed again because of a lack of witnesses
during the week of October 24, but that did not stop the case
from making news. In particular, Steven Kay, imposed defense
counsel, submitted a request to the Registrar to remove him
from the case on October 26. His letter stressed his
inability to adequately represent Milosevic due to the
accused,s noncooperation and urged that he and his associate
Gillian Higgins be taken off the case. Kay,s departure
would leave the trial, yet again, in disarray. The appeals
chamber issued today (see septel) an opinion affirming the
imposition of counsel on the accused but finding that the
trial chamber erred in failing "to recognize that any
restrictions on Milosevic's right to represent himself must
be limited to the minimum extent necessary to protect the
Tribunal's interest in assuring a reasonably expeditions
trial". This balanced decision may well prompt Milosevic to
reengage the proceedings and assigned counsel to reconsider
their resignation. Meanwhile, a new list of 140 "priority"
defense witnesses has been submitted to the trial chamber and
includes both former President Clinton and former Secretary
Albright. In the absence of available witnesses, however, the
trial is on hiatus until November 9. End summary.


2. (SBU) Defense counsel Steven Kay, joined by his co-counsel
Gillian Higgins, submitted a request to the Registrar on
October 26 to withdraw as Milosevic,s defense counsel. (NB:
Under Tribunal directives, the Registrar has responsibility
for the selection and withdrawal of counsel. In this case,
however, the Registrar will follow the lead of the chambers,
as the request was referred on October 27 to the trial
chamber.) The 12 page resignation letter, which reads like a
legal brief, says that "the Accused has consistently refused
to see us or to speak with us," "has not provided any
instructions," and "will not co-operate in any way with us as
the Assigned Counsel or as standby counsel." In the absence
of guidance from the Accused, "counsel cannot know the nature
and substance of their client's defence and cannot therefore
fulfill their obligation to present that defence." The
letter concludes that assigned counsel "are now under an
obligation to seek withdrawal from our role as Assigned
Counsel as it is plain that we are no longer able to function
without breaching the terms of our Code of Conduct at the
ICTY."


3. (C) As reported reftel, a five-judge panel of the appeals
chamber, led by ICTY president Theodor Meron, heard arguments
on October 21 in Milosevic,s interlocutory appeal of the
trial chamber,s assignment of defense counsel. The decision
today vigorously affirms the trial court's decision to impose
counsel but finds that the trial court committed "a
fundamental error of law" in failing to make the modalities
of the imposition proportional to the interests being
protected. As detailed septel, it therefore reverses the
trial court order on the modalities and leaves it to the
trial court to "steer a careful course between allowing
Milosevic to exercise his fundamental right of
self-representation and safeguarding the Tribunal's basic
interest in a reasonably expeditions resolution of the cases
before it." In light of this decision, which will give
Milosevic a new opportunity to reengage the proceedings, it
is unclear whether Kay and Higgins will withdraw their
resignation request. In any event, because the defense has
no witnesses ready to testify, the trial has been adjourned
until November 9. Meanwhile, Kay and Higgins continue in
their roles as counsel.


4. (C) Separately, Embassy legal officers have learned from
the Registry liaison officer (RLO) to the accused (protect)
that Milosevic and his legal associate, Zdenko Tomanovic,
provided Kay with a priority list of 140 names from
Milosevic's original witness list. The list comprises
individuals who are relevant to the KOSOVO phase of the
defense, and it includes two American officials -- former
President Clinton and former Secretary Albright. (NB:
Milosevic's request to the USG for testimony of USG officials
in May 2004, through the RLO, also included former
Secretaries Christopher and Cohen and Wesley Clark. These

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three are not on a current priority list, and Kay is said to
believe that Clark could not be called as a defense witness
in any event, since he appeared for the prosecution in
December 2003.) It is from this list of 140 that Kay is
expected to begin seeking subpoenas, though not, at least in
the initial phases, for governmental witnesses. Meanwhile,
Milosevic provided the RLO with specific grounds for his
interest in the testimony of a range of potential witnesses,
including the USG officials, all of which has been provided
to Kay. The RLO, despite the current uncertainties related
to defense counsel, continues to engage with counsel and
brief Milosevic on the conduct of the counsel's work.


5. (C) Comment: The appeals decision sensibly restores some
balance to the approach taken by the trial court in imposing
counsel. But whether it is too late to make a difference
depends on the reaction of the assigned counsel which in turn
depends on the reaction of the Accused. If the resignation
request was primarily a tactical effort to influence the
appeals chamber as it decided Milosevic,s appeal regarding
the assignment of counsel, then we would expect Kay and
Higgins to stay on given that the decision gives Milosevic
greater latitude in the conduct of his defense. If, however,
the request reflected a genuine desire to leave the
proceedings or if, in spite of the decision, Milosevic does
not reengage the proceedings, then we would expect Kay and
Higgins to depart. This would be a further significant blow
for a defense phase that is already teetering, and would
likely see the case limp to a close by year's end. As has
been the case throughout much of these proceedings, Milosevic
remains in the drivers seat and will once again set their
course. End comment.
SOBEL