UNCLAS SECTION 01 OF 02 THE HAGUE 000783

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: N/A
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: MILOSEVIC REFUSES TO GIVE CONSENT TO
CONTINUING TRIAL WITH SUBSTITUTE JUDGE

REF: THE HAGUE 498

Entire text sensitive but unclassified. Protect accordingly.



1. (SBU) Summary: The President of the International Criminal
Tribunal for the Former Yugoslavia (ICTY), Judge Theodor
Meron, convened a special hearing on March 25 in order to
determine whether Slobodan Milosevic would consent to the
continuation of the trial with a new judge, an as-yet
appointed substitute for retiring Judge Richard May.
Milosevic not only failed to provide such consent, but took
the opportunity to restate defiantly requests he has made in
the past to grant him greater time and freedom to prepare his
defense case. Meron construed Milosevic's response as
non-consent. As a result, the trial chamber will need to
determine, as provided by the Tribunal rules, whether a
continuation of proceedings with a substitute judge would
"serve the interests of justice," or whether a new trial
should be ordered. End summary.


2. (SBU) President Meron held a special hearing this morning
to determine whether Milosevic will consent to proceedings
with a judge, not yet named, to replace the ailing Presiding
Judge Richard May, who is resigning. Meron explained that
Rule 15bis governs the question of replacing a judge who must
leave an ongoing trial, for whatever reason. According to
the rule, the President "may assign another Judge to the case
and order either a rehearing or continuation of the
proceedings from that point." However, at this stage "the
continuation of the proceedings can only be ordered with the
consent of the accused," or if such consent is withheld, the
trial chamber may decide to continue if "they determine
unanimously that doing so would serve the interests of
justice." If they decide to continue the proceedings with a
substitute Milosevic may appeal the decision directly to a
full bench of the Appeals Chamber. (Note: It is unclear

whether the amici curiae, the friends of the court, enjoy
such a right as well, but the liberal attitude of the chamber
to the amici suggests that they would allow the amici to
lodge such an appeal.) If the determination is for the trial
to continue, the substitute judge must certify familiarity
with the record of the proceedings before taking on duties on
the trial chamber.


3. (SBU) After reviewing the rules, Meron then asked
Milosevic to answer directly whether he consented to the
continuation with a substitute judge. Milosevic took the
opportunity to make three separate and unrelated pleas
relating to decisions taken by the trial chamber (see
reftel). First, he said that he wanted the Tribunal to
review the amount of time he has been granted (90 days) to
prepare his defense. He argued that the medical opinion is
that he should only work three days per week, and as a
consequence he should have at least thirty weeks, not ninety
days (he has previously argued for two years preparation).
Second, he asked that the Tribunal reconsider its limit on
his defense of 150 days. He argued that the Prosecution had
submitted a large number of its witnesses in writing, as
allowed by the Tribunal rules, and that this was "to the
detriment of the public" and the right of a public trial.
For his part, he said he would present all of "my witnesses"
in public, which would require more time than 150 days.
Finally, he asked "yet again" that the Tribunal "set me
free," arguing that he is currently prevented from
effectively defending himself in a free manner without
supervision. Adopting a feisty tone, he said that there
would be "no danger" of his disappearing, in part because "my
objective is to win, to prevail" because "this false
prosecution" has failed to prove its charges.


4. (SBU) Meron responded immediately, and calmly, by assuring
Milosevic that the Tribunal shares the concerns about his
health and that the Registry is taking unprecedented steps to
ensure his continued good health. Meron added, however, that
"you could have made it easier" had he accepted legal
representation for his defense. With respect to the specific
requests, Meron said that it was not appropriate for him to
address them but that a transcript of the hearing would be
delivered to the trial chamber for its consideration. He
concluded by saying that Milosevic had not answered his
question as to whether he consented to continuation of the
trial with a substitute judge.


5. (SBU) Milosevic said, in response, that "I consider this
Tribunal illegal" because it is not consistent with the
United Nations Charter. In that light, he said he had no
intention to declare his views with respect to "your
administrative issues." He added that he considered the
Tribunal to be a "means of war" against the Serbian people.


6. (SBU) Meron construed Milosevic's response as denying
consent, stating "I cannot see your statement as a clear and
unequivocal consent." Milosevic interrupted to say that
"your interpretation is not correct," and then began to
restate his position that the Tribunal is illegal. Meron cut
him off and said that, "as a matter of fairness," he would
take his responses as evidence of non-consent. As a result,
he remanded the issue to the Trial Chamber, which will have
to determine whether it should continue in "the interests of
justice." He asked the Chief Prosecutor, Carla Del Ponte,
whether she had any comment, and she said only that "I am not
a false prosecutor" and that she agreed with the President's
interpretation of the accused's responses.


7. (SBU) Comment: Few observers expected Milosevic to consent
to continuation of the trial in light of his consistent
refusal to recognize the legitimacy of the Tribunal.
Nonetheless, his robust and defiant performance gave the
impression of a man ready to fight the prosecution case. It
also strengthened our impression that his defense will
challenge the specific charges against him while both
continuing to challenge the legitimacy of the Tribunal and
advancing a political defense based on alleged Western
responsibility for the disintegration of Yugoslavia and the
ensuing wars. We expect the trial chamber to approve the
continuation of a trial with a substitute judge. Milosevic
is not likely to challenge such a decision given his position
today -- were he to do so, he would almost certainly lose.
SOBEL