US embassy cable - 04THEHAGUE1715

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001715 
 
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: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: MILOSEVIC'S POOR HEALTH TRIGGER'S "RADICAL" 
REVIEW OF CASE BY COURT AND PAVES WAY FOR IMPOSITION OF 
DEFENSE COUNSEL 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (C) Summary:  The trial chamber hearing the case against 
Slobodan Milosevic before the International Criminal Tribunal 
for the former Yugoslavia (ICTY) postponed the July 5 
commencement of the defense case due to the Accused,s poor 
health.  During the hearing, Milosevic accused the Tribunal 
of damaging his health by ignoring his requests for 
additional time to prepare his defense case and rejected 
various suggestions by the Chamber and Prosecution to ease 
the trial burden.  In an order issued on July 6, the Chamber 
decided to commence the defense case on July 14 and then 
recess on July 21 until August 31.  The order expressed the 
Chamber,s view that a "radical review of the future conduct 
of the trial" was in order, while noting that there was "no 
evidence" to suggest that Milosevic was unfit to stand trial 
at all.  Signaling that the likely outcome of this review was 
the imposition of stand-by counsel on Milosevic, the Court 
ordered the Registrar to identify trial counsel who might be 
assigned to the case.  End Summary. 
 
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From Trial to "Administrative" Hearing 
--------------------------------------------- --- 
 
2.  (C) Complaining of illness, and supported by reports from 
his cardiologist, Milosevic did not give his much anticipated 
opening statement -- the first stage in the defense component 
of the case-- at the July 5 proceedings.  Instead, presiding 
Judge Patrick Robinson (Jamaica) convened the hearing to 
discuss the "administrative" issues raised by the Accused,s 
continuing ill health.  A July 1 medical report received by 
the Court, which Robinson read in Chambers, noted 
Milosevic,s very high blood pressure (200/130) and the 
injury to his heart that the ailment has already caused.  The 
report noted that when under stress the pressure is increased 
further, but with rest the "situation returns to normal." 
The report contained a recommendation from the consulting 
cardiologist, Dr. van Dykman (a highly regarded Dutch 
physician), that the Accused be allowed to rest at least 
until July 9.  (Comment.  Embassy legal officers observed 
that Milosevic, while speaking firmly, appeared somewhat worn 
and moved a bit stiffly, wincing once (a touch theatrically) 
near his left shoulder. End comment.) 
 
3. (SBU) Robinson asked the three parties present for their 
comments on the report.  Milosevic angrily protested his 
presence in the courtroom, stating that a doctor who had 
examined him that morning at the detention facility told him 
that he was not fit to stand trial at this time.  Claiming 
maltreatment and further loss of preparation time due to 
sickness, Milosevic demanded an additional month to prepare. 
He noted that court appointed physicians had previously 
advised that he should work only three days a week.  Given 
the need for preparation time, he was essentially proposing 
that the court hold no more than one or two trial sessions 
each week.  He reiterated his categorical refusal to accept 
the appointment of counsel.  He also rebuffed any of the 
Court,s suggestions about ways to alleviate his stress, such 
as Judge Bonomy,s suggestion that he deliver his opening 
statement in writing or the notion, raised by Chambers, that 
he participate in the proceedings via video link at the 
detention facility.  Amicus Steven Kay stated that the 
Accused,s "pronounced decline in health" raised not only the 
issue whether the accused was fit to present his own case, 
but also whether he was fit to stand trial at all.  Lead 
prosecutor Geoffrey Nice, repeating OTP,s long-held 
position, argued that counsel must be imposed on Milosevic, 
contending that the reason his blood pressure was so elevated 
was due to the stress of preparing his defense. 
 
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A Solution? 
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4. (SBU) In its order of July 6, the Court stated that a 
"radical review" of the trial,s conduct was necessary and 
set forth the key factors that will guide its decision.  The 
Court noted that Milosevic,s poor health has resulted in 
numerous interruptions of the trial and the loss of 66 days 
during the Prosecution,s case.  Further, Milosevic,s poor 
health was likely to recur.  At the same time, the Court 
noted that "there is no evidence that the Accused is not fit 
to stand trial at all, but there is evidence that the health 
of the Accused is such that he may not be fit to continue to 
represent himself, and that his continuing to represent 
himself could adversely affect the fair and expeditions 
conduct of the trial."  Further the Court noted that when it 
had last declined to impose defense counsel on Milosevic in 
April 2003 it had stated that "the right to defend oneself in 
person is not absolute ... there may be circumstances ... 
where it is in the interest of justice to appoint counsel." 
The Court then referenced the imposition of stand-by counsel 
in the Seselj case and said that "it may be necessary to 
assign counsel to the Accused, and/or adopt other measures to 
ensure a fair and expeditious conduct of the trial."  Noting 
that it is "in the interests of the Accused and the broader 
interests of justice that this trial be conducted and 
concluded within a reasonable period of time" the Court 
concluded that it was "incumbent upon the Trial Chamber to 
identify measures for the continuation of the trial which are 
efficient, sensitive to the health of the Accused, and 
conducive to the fair an proper presentation of the defense." 
 
5.  (C) The Court,s order stopped short of determining the 
specific measures it would impose; instead, it set the stage 
for a later decision by ordering that the defense will 
commence on July 14 for one week and then go into recess from 
July 21 until August 31.  Second, the Registrar will identify 
counsel who might be assigned to the case if the Court 
requests it.  The chamber also requested that a new 
cardiologist, with no prior involvement in the treatment of 
the Accused, examine Milosevic and "report to the Trial 
Chamber on the fitness of the Accused to continue to 
represent himself and the likely impact on the trail schedule 
should he continue to do so."  The purpose of this seems 
aimed less at Dr. van Dykman, an eminent physician agreed 
upon by both sides whose conclusions are not contested, than 
at establishing a fresh opinion on the extent to which 
Milosevic,s health can handle the stresses of mounting a 
defense and the costs in terms of trial time if he were to 
continue to do this alone. 
 
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Comment 
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6. (C)  The hearing crystallized two issues that have had a 
dominant impact on the trial from its inception.  First, 
Milosevic again proved himself a master at stage-managing the 
proceedings.  He threw the judges off balance at the outset 
of the hearing by demanding why the Court had insisted on his 
presence when the detention facility physician had pronounced 
him unfit that morning.  (He did not mention that the 
physician had thought he was attending a full trial session 
rather than an administrative hearing).  He also skillfully 
played the health card to present himself as the victim of a 
Tribunal that is predestined to convict him, blaming the 
Court for deliberately injuring his health by refusing his 
requests for additional preparation time.  At the same time 
that he was portraying himself as a victim, he defiantly 
refused every suggestion by the Court and Prosecution for 
measures that might ease the stress on his health.  The 
result was to place the Court in a position where, short of 
discontinuing the trial, any other measure it took to help 
Milosevic would be over his strong objection. 
 
7.  (C)  The second issue highlighted during the hearing was 
the ongoing impact of Milosevic,s unstable health.  With the 
trial moving to a defense phase, where Milosevic must not 
merely respond to Prosecution evidence but advance a defense, 
the stress on his health will continue to increase.  The 
Chamber is therefore faced with the untenable option of 
allowing the trial to limp ahead uncertainly for years with a 
day or two of hearings per week or take "radical" action. 
The Chamber,s order strongly hints that it is poised to do 
the latter, and we expect it to impose stand-by defense 
counsel this summer.  By buying additional time for an 
assessment of the situation, foreshadowing the appointment to 
the public, granting Milosevic more time to prepare his 
defense, and getting a second medical opinion on which to 
base its decision, the Court is skillfully laying the 
groundwork for the imposition of counsel.  While this course 
of action, realistically the only way forward, is defensible 
legally and manageable in terms of public perception, whether 
it will actually work is an open question.  Some basic level 
of cooperation between Milosevic and such counsel is 
essential, and it remains to be seen whether Milosevic will 
seek to push the trial to a crises point through 
noncooperation or be content, as he is with the  Amici, to 
castigate them publicly while working with them behind the 
scenes to advance his defense.  End comment. 
SOBEL