US embassy cable - 04THEHAGUE783

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