ICTY: MILOSEVIC TRIAL CHAMBER FOCUSES ON APPOINTED

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002932

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: MILOSEVIC TRIAL CHAMBER FOCUSES ON APPOINTED
COUNSEL AND GOVERNMENT WITNESSES

REF: THE HAGUE 2869

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


1. (SBU) Summary: The trial chamber in the case against
Slobodan Milosevic before the International Criminal Tribunal
for the former Yugoslavia (ICTY) continued to deal with
defense counsel issues during the week of November 8. Its
three days of hearings -- a full schedule for this case --
were devoted to defense counsel Steven Kay's application to
withdraw from the case. Meanwhile, Milosevic, acting
vindicated by the Appeals Chamber decision returning the lead
of the case to him (reftel),has taken on a renewed interest
in the proceedings, seems to be preparing for his case to
begin in earnest and is renewing old demands of the judges.
His oral request for subpoenas against former senior USG, UK
and German officials was met with stiff, and judicious,
resistance by presiding Judge Robinson. End summary.


2. (SBU) Defense Counsel Steven Kay's application to withdraw
from the case received the full attention of the trial
chamber this week. Presiding Judge Patrick Robinson and
Judge Iain Bonomy seemed highly skeptical of Kay's arguments
that he should be allowed to withdraw in light of the lack of
cooperation he is receiving from Milosevic. Kay told Embassy
legal officers that he felt the chamber very much wanted him
to stay on, an impression confirmed by the nature and tenor
of questions from Robinson and Bonomy. After nearly a full
day of discussion of whether the trial chamber had
jurisdiction to rule on Kay's application to withdraw, Kay
did his argument no favors when he argued on the third day of
the hearings that, in fact, his UK codes of conduct, to which
he is bound, do not require him to seek the leave of a court
to withdraw from a case. This prompted a confused exchange
in which the judges seemed annoyed by the suggestion that the
hearings were unnecessary. Milosevic cut through much of
this debate with the pointed assertion to the judges that
"the Trial Chamber put the Mr. Kay in the position he is now
in ... it would be logical to assume that it has jurisdiction
to resolve the situation." Judge Robinson, chuckling,
acknowledged that it was "a very pragmatic approach."
Milosevic made clear that he would be happy to see Kay leave
the defense, while lead Prosecutor Geoffrey Nice -- clearly
downbeat and frustrated by a proceeding that had nothing to
do with the case he rested last February -- presented
arguments against enabling Kay to withdraw.


3. (SBU) Toward the end of the hearing, Milosevic was asked
by the chamber whether he had anything "administrative" he
wished to raise. Milosevic indicated that he wanted the
Court to call former President Clinton, former Secretary
Albright, Prime Minister Blair, Prime Minister Schroeder and
former Defense Minister Scharping before the end of this
year. He said that they are "need(ed) to provide a general
overview of the situation, and they pertain to all of the
issues contained in the indictment." He then added that he
wanted to recall General Wesley Clark. (Note. Kay in an
informal meeting with Embassy legal officers expressed his
view that the Chamber would not allow Clark to be recalled
since Milosevic had already had a chance to question him.)


4. (SBU) Judge Robinson responded firmly that "there are
procedures to be followed." He continued, "First you have to
show that you yourself have made an effort to contact the
witness, to get the witness, and the witness is not willing
to come. Then you have to satisfy us as to the evidence that
the witness is going to give, that it is going to be useful
and relevant evidence." He told Milosevic to follow the
procedure used by the Prosecution in seeking government
witnesses. Milosevic then said, falsely, that "by conclusive
action it has been shown that they are not willing to
appear." (Note. Milosevic, through the Registry Liaison
Officer (RLO),requested the appearance of the named
witnesses in May; the Embassy, coordinating with the
Department, responded with a letter explaining the process by
which such requests are made and then considered by the USG.
The Embassy received no further communication from the
accused or the RLO. We understand that neither have other
embassies in receipt of similar requests -- the UK, France,
Germany -- received responses.) Robinson usefully concluded
the dialogue with Milosevic by saying, "You must make a
written submission. I am not going to issue any subpoena on
your oral statement. You must make a written submission
setting out the circumstances which show that they're
unwilling to come and setting out the evidence that you want
them to give. That is what the Prosecution had to do, and
that is what you will do."


5. (SBU) Kay intervened to note that U.S. Embassy reps had
informed him of the steps the USG considers necessary in
order to process a request for the testimony of former USG
officials. He usefully noted that the USG considers requests
from both the prosecution and defense according to the same
criteria. (NB: In a later conversation with the RLO, Embassy
legal officer noted that requests for senior USG officials
are scrutinized with particular rigor, and that a request for
a former president's or secretary of state's testimony would
receive the strictest scrutiny. Emboff reminded the RLO that
the USG needed to be persuaded not just of the relevance and
necessity of the requested testimony but also that only the
requested person could provide such testimony.) Judge
Robinson responded to Kay's intervention by reiterating the
importance of making a written submission that "will have to
satisfy the Court . . . that the witnesses are not willing to
come, because if it is not necessary, why should a Court
issue a subpoena?"


6. (U) Milosevic pressed for additional time off from the
trial in order to prepare his case and his witnesses, but the
trial chamber largely demurred. The trial will resume on
Tuesday, November 16, for only one day next week, leaving
Milosevic the rest of the week to prepare. Thereafter it
will resume on Monday, November 22, with the expectation of a
return to the three days weekly schedule. Judge Robinson
noted sternly that if Milosevic "choose(s) to use the time
set aside by the Court for sitting to carry out proprietary
work, or for any other reason you are responsible for the
time court does not sit, the period of time will be regarded
as falling within the 150 days" allotted for the defense case.


7. (C) Comment: While Milosevic has returned to take what he
sees as his rightful place in the center of the trial against
him, the defense case has not yet begun with him in the lead.
The chamber seems determined to keep Kay on board, but the
ruptured relations between him and Milosevic make this a
difficult, if not counterproductive, proposition. Meanwhile,
Judge Robinson has usefully emphasized to Milosevic that the
trial chamber will not call government witnesses without it
being shown that they are relevant and necessary to his case.
The fact that Kay echoed these requirements in court further
isolates Milosevic, making it more difficult for him to get
traction on subpoena requests when he has not done the bare
minimum to meet governments' (and the trial chamber's)
requirements. End comment.
SOBEL