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Nelson Mandela, charged with being a terrorist and a communist, defended himself in the infamous Rivonia trials of the 1960's. From the dock Mandela issued a searing denunciation of the South African regime which would inspire worldwide mobilization in the struggle against Apartheid.
Slobodan Milosevic will not enjoy the right to self-representation afforded to Nelson Mandela by the Apartheid judiciary, since the ICTY has decided to impose a defence counsel on him against his will. The imposed counsel will be entirely responsible for presenting a defence - not Milosevic's defence -but a respectful, courteous, and ingratiating defence, one mindful of the ICTY's dignity, image and reputation. This in contrast to Slobodan Milosevic's principled non-recognition of the ICTY as a legal body. This foreign defence will be devised and introduced without the instructions of the accused and against his will by two British lawyers who had previously been assigned by the institution to act as amici curiae or "friends of the court". Their apparent conflict of interest - known in the UK as "professional embarrassment" - which they had themselves raised a mere two weeks ago when strenuously objecting to imposition of counsel, was overlooked without comment as they accepted their new appointments.
While South Africa's Apartheid-era judiciary dared not take such a radical step against Mandela, a UN court has shown no hesitation to violate this most fundamental of fundamental rights: an accused's defence is his own, and his right to counsel is a right, to be employed if desired, but not to be inflicted upon him, against his will, by a court, or by the state. It is evident that in light of these conditions that it can no longer be called a right, but an imposition, an infringement, and a violation.
The US Supreme Court recognized the inherent injustice of the imposition of counsel against the will of a defendant in Faretta v. California, written in 1975. The Justices pointed out that imposition of counsel had been the province of the infamous Star Chamber, a political court of mixed judicial and executive nature, which flourished in England in the late 16th and early 17th century. Imposition of counsel, stated the Supreme Court, has been abandoned as a practice since then.
Today a UN body has steered the future of international law back to those dark times, and confirmed the accuracy of Slobodan Milosevic's charge that the ICTY is an illegal body, established in contravention of the provisions of the UN's own Charter.
Over 90 lawyers and law professors from 17 different countries filed a petition with the UN Security Council weeks ago warning it and member states that the envisaged imposition of counsel violated international law. Mr. Milosevic was not permitted to read from the petition last Wednesday. (See http://www.icdsm.org/Lawappeal.htm )
During the ICTY's "administrative session" held to debate whether counsel should be imposed - (the Chamber pointedly used of the term "assignment" rather than "imposition"), the Chamber stated its concern that Mr Milosevic's medical condition - malignant hypertension - would render him unfit to defend himself. This assertion was based on medical reports submitted by ICTY-appointed cardiologists, without the defendant being granted the right to obtain a second opinion, and in spite of the fact that physicians aren't really qualified to determine who is fit to represent him or herself.
Milosevic has represented himself very ably for three years and has suffered from hypertension for ten. Yet it is only now that the issue of the fitness of Milosevic to act as his own counsel has acquired urgency. Only now, that is, on the eve of his defence presentation - one which he has announced would establish that the "Balkan Wars" were in fact one war, against Yugoslavia, and whose apotheosis was NATO's gruesome 78-day bombing campaign in 1999.
Throughout the administrative hearing, submissions were made by the Prosecution, the amici (who would go on to become the counsel assigned to Mr. Milosevic against his will) and the Chamber as to the role that could be played by an assigned counsel. Their consensus appeared to be that a lawyer, if imposed, would only be required on those occasions when the defendant would be too ill to carry on the burden of courtroom work. In the result, the Chamber not only assigned counsel, but imposed the amici - who have acted since the beginning of the proceedings in the service of the Chamber - and instructed them to take over the defence.
Among the "duties" the ICTY has instructed the former amici to carry out are the determination of how the case is to be presented, the preparation and examination of witnesses they deem appropriate, the duty to "endeavour" to obtain the defendant's instructions, and to "take into account his views while retaining the right to determine what course to follow." Assigned defence counsel, it seems, have rights, while the accused merely has "views", which can be taken into account by counsel he objects to and refuses to instruct.
This is not a credible framework for the accused's defence. And it points up once again that this process is not a trial. This is, rather, as reknowned Canadian trial lawyer Edward Greenspan presciently observed at the beginning, "a lynching."
Much was made by the Prosecution of Slobodan Milosevic's conduct, his lack of respect for the ICTY, "the interests of justice", and Milosevic's failure to observe "etiquette," to quote lead prosecutor Geoffrey Nice. The rulings handed down by the ICTY this past week have done far more harm to the interests of justice than Mr. Milosevic's legally accurate criticisms of the ICTY could ever do. For half a century, legal scholars have struggled to establish a truly democratic permanent international criminal court. Although the ICC now formally exists, the US is not a participant. Recent events make plain that to exempt the United States from jurisdiction over war crimes renders the whole exercise of international justice, if not pointless, then profoundly arbitrary and contrary to universally held notions of equality before the law.
It was a former US State Department lawyer and reputed professor of international law, Michael P. Scharf, who in last week's Washington Post publicly appealed for the ICTY to impose counsel upon Slobodan Milosevic, evoking the fear that future defendants could employ international and special courts to accuse the US of war crimes such as the invasion of Iraq. Mr. Milosevic might have been accused of lacking "etiquette," had he, like Professor Scharf, recalled that the ICTY had been created in 1993 with three objectives: first, to educate the Serbian people about the crimes committed by Milosevic; second, to facilitate national reconciliation, by "pinning prime responsibility on Milosevic" and other top leaders; and third, to"promote political catharsis" by permitting current Serbian leaders to "distance themselves" from the policies of the previous governements.
These stated objectives are all transparently political, and geopolitically motivated. And in order that they be attained, it appears that counsel must be imposed upon Slobodan Milosevic. He must also be prevented from stating precisely what Scharf averred with bone-chilling clarity: that the ICTY is a political court.
Whether international law will recover from the hijacking of Slobodan Milosevic's defence is open to question. However, the true nature of the Security Council's ad hoc courts clearly resembles much more the Star Chamber than the scrupulously fair humanitarian legal body to which the world has aspired since Nuremberg.
Tiphaine Dickson is a criminal defence lawyer specialized in international criminal law based in Montréal. She was lead counsel for the defence in one of the first UN trials prosecuting genocide before the International Criminal Tribunal for Rwanda. She can be reached at [email protected]
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© Copyright Tiphaine Dickson, CRG, 2004.