US embassy cable - 04THEHAGUE2201

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 002201 
 
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: COUNSEL IMPOSED ON MILOSEVIC 
 
REF: THE HAGUE 2196 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (SBU) Summary: As anticipated, Trial Chamber Three of the 
International Criminal Tribunal for the Former Yugoslavia 
(ICTY) decided on September 2 to assign counsel to assist in 
the defense of Slobodan Milosevic.  The court decided that 
the counsel should be the amici curiae (friends of the 
Court), led by British lawyer Steven Kay.  The decision 
capped a dramatic hearing, in which the Office of the 
Prosecutor (OTP), citing medical reports, alleged that 
Milosevic was taking unprescribed medication and failing to 
follow his prescribed therapeutic regime in order to 
manipulate his health and, consequently, the pace of the 
trial. Milosevic, visibly frustrated with the proceedings, 
argued repeatedly and in vain that assignment of counsel 
deprived him of his "fundamental rights" to defend himself, 
and he promised to appeal the decision.  When asked whether 
he wanted to comment on "modalities" for assigning counsel, 
Milosevic throw his hands in the air and refused to offer any 
suggestions, foreshadowing the posture he might take with 
respect to his new lawyers. End summary. 
 
2. (C) As soon as Milosevic concluded his politically focused 
opening defense statement (see reftel), the trial chamber 
turned to what has become the key issue of the trial -- 
whether Milosevic could continue to defend himself in light 
of his recurring bouts with hypertension.  The hearing 
considered recent medical reports, issued as recently as last 
week.  First, both cardiologists -- a Dutch physician with 
long experience examining the accused, and an esteemed 
Belgian doctor brought in this summer for a second opinion -- 
concluded that Milosevic's current condition of hypertension 
makes him unfit to serve as his own defense counsel without 
assistance.  Second, the doctors identified not only that 
Milosevic was failing to follow the therapeutic regime 
prescribed for him over the past year (e.g., by continuing to 
smoke) but also that he was taking an unprescribed medication 
without their supervision.  Lead prosecutor Nice indicated 
that the doctors believe that the unprescribed medication 
caused further deterioration in his condition, even though 
the same medication -- which Milosevic refused last year 
because of its capacity to undermine his focus and make him 
lethargic -- was offered by the Dutch doctor last year. 
Unsupervised medication, the doctors said, was a serious 
threat to his ability to control the hypertension. 
 
3. (C) Nice interpreted the drug use as a manipulation of the 
tribunal.  Agreeing with Judge Kwon that the underlying 
health condition would be the basis for assigning defense 
counsel, Nice nonetheless added that the "manipulation" 
amounted to "obstruction", demonstrating that counsel must be 
imposed.  For his part, Milosevic had no apologies.  He said 
that he had rejected elements of the doctors' proposed 
medical regimen because they caused fatigue and interfered 
with his work.  Instead, he consulted with his own doctor, 
who had been treating him for ten years, to create a 
different regime.  The regime involved some rest and now, he 
said, his blood pressure had normalized. 
 
4.  (C) Note.  Registry officials supervising the detention 
facility are reviewing ways in which they might better 
control the "smuggling" of medication into the facility. 
Prison warden McFadden had warned Registry officials in the 
spring that the Court's order to provide Milosevic with a 
special room at the facility to prepare his defense and have 
privileged discussions with potential witnesses was 
"something he would never do in any other prison" because of 
the potential security breach.  A senior Registry official 
told embassy legal officer that they have ways to make it 
more difficult for such "contraband" to be brought into the 
facility, and they have confiscated items such as mobile 
phones and small electronics, among other things, in the 
past.  The medication, however, poses special problems.  For 
instance, material received from his legal associates, 
including the extensive files stored in his preparation room, 
and contacts with his consular representatives, are 
privileged, making it difficult to determine whether such 
individuals are bringing him the drugs and whether they are 
hidden among his privileged documents.  Other detainees may 
be helping him as well. End note. 
5. (SBU) The medical reports provided the trial chamber with 
a firm basis on which to assign counsel, though Milosevic 
made last-minute pleas in an effort to avoid that outcome. 
He requested that the Tribunal order yet another set of 
medical evaluations, not by the doctor from "Belgium, the 
country which is the seat of the NATO pact," but by a team of 
Russian, Serb and Greek doctors.  (The Tribunal, Judge 
Robinson dissenting, rejected his request.)  He called the 
effort to impose counsel a "manipulation aimed at depriving 
me of my right to speak here and to speak the truth."  When 
asked by Judge Robinson why he made his request for another 
medical evaluation at the last moment, he responded that, 
"until today . . . it never crossed my mind that it might be 
at all possible that counsel would be imposed on me." 
Milosevic made clear repeatedly that the matter was one of 
"principle" for him -- he would not accept assigned counsel. 
The press gallery erupted in laughter, though amicus Kay 
suggested to the chamber that Milosevic's assertion was 
"probably right." 
 
6. (SBU) The trial chamber's decision this morning to assign 
counsel was based on Milosevic's "severe essential 
hypertension" which could lead to a life-threatening 
"hypertensive emergency."  Further delays in the trial, the 
Chamber concluded, would result from continued 
self-representation.  Moreover, Judge Robinson said, the 
right to self-representation under the Tribunal statute is 
not unfettered -- the trial chamber has authority to assign 
counsel if "in the interest of justice."  A plainly agitated 
Milosevic interjected, "I told you yesterday" that such a 
move "violates my fundamental rights," but Judge Robinson cut 
him off and told him that he had had an opportunity to make 
his point already and that he had avenues to object outside 
the trial chamber.  Milosevic, for the first time in emboffs' 
knowledge, said, "I want the appeals chamber to consider this 
opinion." 
 
7. (SBU) The remaining issue for the Court was the 
"modalities" for assigning counsel.  Nice argued for a 
version of defense counsel in which the counsel would have 
ultimate authority over defense decisions, including 
witnesses, but he noted that the accused could be "completely 
in control" if he uses his own appointed counsel.  The amicus 
were somewhat more restrained, suggesting that Milosevic 
first be given seven days to nominate his own counsel.  Only 
if he refuses to exercise that option would the Registrar be 
requested to appoint counsel.  The counsel, moreover, would 
be guided by the Tribunal's code of conduct for defense 
counsel -- any instructions to the counsel from the bench, 
Kay suggested, should be guided by the code of conduct.  Kay 
was clearly not in favor of a strict position, such as 
Nice's, in which defense counsel decisions always trump the 
accused's.  In response to a question from the bench, Kay was 
coy about whether he would accept the role as defense 
counsel.  Robinson finally turned to Milosevic for his views. 
 Throwing up his hands in a gesture mixed with frustration 
and disgust, he said, "Then go ahead: deal with it," and 
refused to engage further on the subject. 
 
8. (SBU) The trial chamber's subsequent decision rejected 
Kay's suggestion of a seven-day period during which Milosevic 
could appoint his own counsel, saying there was every 
indication that Milosevic would not do so.  It then ordered 
the Registrar to seek to appoint the amici, Kay and his 
associate, Gillian Higgins, as counsel, and that he should 
report back on the progress of such an appointment by 1:00 
p.m. Friday, September 3.  (It is unclear why the ruling did 
not specify the third amicus, Timothy McCormack, or whether 
the amicus will continue to exist in any capacity.)  It will 
subsequently issue an order dealing with further modalities 
of defense counsel. 
 
9. (C) Comment: The trial chamber's decision to appoint 
counsel was in many respects inevitable, given the medical 
reports and the history of health-related delays in the case. 
 Whether the decision will actually help the troubled 
proceeding toward a successful conclusion depends on whether 
and how Milosevic decides to interact with counsel and 
whether counsel moves beyond a posture of deference toward 
Milosevic and adopts one of real advocacy.  Based on 
Milosevic's and the Amici's conduct to date, we anticipate 
that Milosevic, at least publicly, will seek to shunt counsel 
aside and continue to argue the case on his own (and it is 
unclear the extent to which counsel would challenge him). 
The real test will arise when Milosevic's blood pressure, as 
is inevitable, precludes his participation for a few days and 
the assigned counsel is placed in the role of advancing the 
case on his own for the first time. 
 
9.  (C) Comment continued.  One positive sign in this 
uncertainty is that the trial chamber has become something 
more of a team effort than was the case under the late Judge 
Richard May.  All three judges, including the usually silent 
Kwon, actively participated in the hearing, asked probing 
questions, and showed decisiveness. Judge Bonomy, clearly not 
a shy newcomer, demonstrated a real eagerness to see 
proceedings move forward expeditiously and with decorum -- 
frequently leaning over to convey his thoughts to the 
presiding judge.  Presiding Judge Robinson, long deferential 
to the accused, cut him off several times to avoid irrelevant 
and lengthy diatribes.  With a frustrated Milosevic before 
them, they will likely need all the collaboration they can 
muster to ensure that the trial moves forward with expedition 
and credibility.  End comment. 
RUSSEL