US embassy cable - 04THEHAGUE2494

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002494 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS, 
EUR/SCE - GAUDIOSI/GREGORIAN/MITCHELL, L/EUR - LAHNE, L/AF 
- GTAFT. INR/WCAD - SEIDENSTRICKER/MORIN; USUN FOR 
ROSTOW/WILLSON 
 
E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY - MILOSEVIC TRIAL ADJOURNS IN DISARRAY 
FOLLOWING IMPOSITION OF COUNSEL 
 
Classified By: Clifton M. Johnson, Legal Counselor, Reason 1.5(b)-(d). 
 
 1. (C) Summary. The defense phase of Slobodan Milosevic,s 
trial before the International Criminal Tribunal for the 
Former Yugoslavia (ICTY) stumbled into a new set of obstacles 
during the week of September 13.  The trial chamber abruptly 
transformed the defense from one led exclusively by Milosevic 
to one where imposed counsel was instructed to lead direct 
examination of all defense witnesses, with only a subsidiary 
role for Milosevic.  This has led to a test of wills and 
another crisis, with the accused refusing to engage the 
proceedings and denouncing the trial as a show.  Witnesses 
Milosevic intended to call are now staying away from the 
proceedings in droves, expressing outrage at the trial 
chamber,s refusal to allow Milosevic to conduct his own 
defense.  Assigned counsel Stephen Kay has been left with a 
dwindling supply of witnesses, an uncooperative client, and 
the task of putting together an entirely new defense 
approach.  With members of the prosecution team suggesting 
that the case could sputter to a conclusion before the end of 
the year, the trial chamber recessed the case for one month 
(until October 12) to allow Kay to get his case together. 
End summary. 
 
2. (SBU) The second week of Milosevic,s defense case began 
with the issuance of a September 10 chamber decision allowing 
the defense counsel to appeal immediately their own 
appointment.  Lead Prosecutor Geoffrey Nice told Embassy 
legal officers that he expected a quick decision from the 
Appeals Chamber.  Prosecutors and observers alike expect the 
Appeals Chamber to affirm the trial chamber,s decisions on 
counsel. 
 
3. (SBU) With newly-assigned counsel Stephen Kay conducting 
the defense,s examination in chief, the second week of the 
Milosevic defense saw only one witness, bringing to three the 
total number of witnesses examined during the two weeks of 
the defense case.  Kay examined retired Canadian army captain 
Roland Keith, who was in the Glogovac and Kosovo Polje areas 
as part of the OSCE Kosovo Verification Mission in February 
and March 1999. Milosevic sat behind, as usual, showing 
evident displeasure.  Kay endeavored to show that Kosovo 
Liberation Army (KLA) responsibility for offenses during the 
conflict in Kosovo.  Keith,s testimony was hardly 
persuasive.  For instance, the centerpiece of his examination 
involved an incident in which he believed KLA members 
instigated an attack against a routine police patrol on the 
Pristina-Pec road, though he stated he was not present when 
the clash started. Nice later told us that Keith,s testimony 
had been almost "embarrassing" since he could only speculate 
that the attack was initiated by the KLA. Further, the 
testimony was based on Keith,s few weeks in a small patch of 
the region and contradicted detailed, published reports by 
higher-ranking members of the OSCE Kosovo Verification 
Mission who had a deeper involvement in the project and 
region. 
 
4. (C) Lacking additional witnesses (and evidently a real 
defense strategy), Kay sought a postponement in the case.  He 
requested that the trial be adjourned until the Appeals 
Chamber ruled on the issue of assigning counsel to Milosevic. 
He further urged the court to grant two defense requests: (1) 
that Milosevic have another medical examination, and (2) that 
Milosevic essentially reverse roles with Kay, so that 
Milosevic would conduct the defense,s examination in chief. 
The court rejected both requests, pointing out that 
Milosevic,s health was the reason for the imposition of 
counsel; Presiding Judge Robinson repeatedly asked Kay what 
would happen when Milosevic,s health "breaks down." Kay 
continued to press, arguing Milosevic,s right to conduct his 
defense and bringing up very candidly the difficulty Kay is 
having with his uncooperative client. He stressed that, 
unable to represent Milosevic adequately, he was concerned 
about the consequences for a fair trial.  Comment.  In 
rejecting Kay,s reasonable request, the trial court further 
boxed itself in to an approach that all but ensures 
Milosevic,s nonparticipation.  End comment. 
 
5. (U) On the issue of uncooperative witnesses, the court 
told Kay he needed to demonstrate that the witnesses would 
not testify. Kay responded that of 23 witnesses recently 
contacted, 20 had already refused to appear. The court then 
suggested that Kay subpoena the witnesses and, dismissing 
Kay,s objection that it would ultimately require hundreds of 
subpoenas, told Kay to begin the process so that he could 
demonstrate to the court that compelled witnesses would not 
appear. Milosevic himself contributed to the current conflict 
over witness participation, reading from letters from former 
State Department FRY desk officer George Kenney and former 
Canadian ambassador to Yugoslavia James Bissett. Kenney, 
according to the accused, wrote that "I . . . still believe 
that you are innocent of all the charges," but that because 
the Tribunal took away "your fundamental right to represent 
yourself . . . the proceedings have become inherently unfair, 
amounting to no more than a political show trial with no 
authentic legal legitimacy."  Bissett, again according to 
Milosevic, wrote that "the proceedings have taken on all of 
the characteristics of a Stalinist show trial.  I do not want 
to be part of this travesty of justice." 
 
6. (SBU) The Trial Chamber, facing a crumbling to 
non-existent defense, finally ruled that the trial would 
recess for four weeks. It did not base the hiatus on the 
status of the appeal but rather offered the break so that the 
defense counsel could prepare his examination of more 
witnesses and a longer-term defense strategy. The trial will 
continue on 12 October, barring any further interruptions. 
 
7. (C) Comment:  While warmly welcomed by the Prosecution, 
the Chamber,s decision to not only impose counsel on 
Milosevic but to also strip him of any leading role in his 
defense is quickly proving to be a serious miscalculation. 
Although the decision addressed the disruptions caused by 
Milosevic,s recurrent health problems, it did so by 
introducing a new and perhaps more fundamental concern about 
the fairness and credibility of proceedings.  How this will 
play out will not become clear until the trial resumes on 
October 12.  Under a positive scenario Milosevic would 
reengage the proceedings because he cannot keep himself away 
from his stage or the appointed counsel would pull together a 
credible defense to offer in Milosevic,s absence.  A more 
likely and negative scenario is of Milosevic absenting 
himself from the trial and having it limp to a close in a few 
months with only a thin defense having been advanced.  While 
ICTY watchers would condemn (with considerable merit) the 
result of such a truncated trial as unfair, it will also be 
clear to all that Milosevic brought it upon himself. 
Moreover, few may care as Milosevic,s saga has become 
yesterday,s news and both his supporters and detractors 
would not be surprised to see him convicted.  The most 
immediate impact on the USG may be a trial court that is less 
obliging of efforts to deflect the testimony of U.S. 
officials requested by the defense.  The longer term impact 
will likely be seen when the success of the ICTY is assessed 
and its model considered for the trial of future war 
criminals.  End comment. 
SOBEL