US embassy cable - 04THEHAGUE2736

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002736 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS; 
EUR/SCE - GREGORIAN/MITCHELL, L - LAHNE/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: "WHO'S RUNNING THIS COURT?" 
 
REF: THE HAGUE 2494 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (C) Summary: A rare appeals chamber hearing in the 
International Criminal Tribunal for the former Yugoslavia 
(ICTY) case against Slobodan Milosevic heard sharp and 
well-presented arguments this week on the imposition of 
counsel on the accused.  Defense counsel Steven Kay pleaded 
with the appeals chamber to restore to Milosevic substantial 
control over the presentation of his defense, admitting that 
counsel (i.e. his team) have become "ineffective" and unable 
to say they are acting in the best interests of justice and 
the accused.  Milosevic, back on the stage again, made a 
vigorous, impassioned, and cogent -- if often factually 
misleading -- presentation for the chamber to "restore" his 
right of self-representation.  Lead prosecutor Geoffrey Nice, 
with chief prosecutor Carla Del Ponte sitting silently by his 
side, asked the appeals chamber to affirm the trial chamber, 
wondering aloud, "who's running this court, the judges or the 
accused?"  The hearing came following another week of 
witnesses failing to appear for Milosevic's defense.  End 
summary. 
 
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Counsel Appeal 
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2. (C) President Theodor Meron, presiding judge of the 
Appeals Chamber, opened the hearing by noting that the 
question of assigning counsel to Milosevic "has been 
percolating in one form or another since very early on" in 
the trial.  He reviewed the main elements of the appeal and 
the prosecution's response.  Three central thematic questions 
appeared relevant to Meron: One, to what extent can the 
individual right to defend oneself as one chooses be modified 
in order to ensure a fair and expeditious trial?  Two, does 
the Tribunal need additional and more current information on 
Milosevic's health -- including an examination by a physician 
of the accused's own choosing and consideration of whether he 
is manipulating his health -- in order to affirm the need for 
imposed counsel?  And three, has the decision to impose 
counsel so changed the dynamics and reality of the defense 
that it has proved to be unworkable in practice?  Throughout 
the hearing, Meron also expressed a separate, juridical worry 
-- namely, the extent to which the appeals chamber may review 
a trial chamber decision concerning imposition of counsel. 
(Comment: Given this appeals chamber's previous exercise of 
broad discretion to review trial chamber decisions, this may 
signal less a legal constraint than an unwillingness to 
reopen a difficult decision by the trial chamber.  End 
comment.)  He also assured the litigants, in response to a 
comment from Kay, that the completion strategy "has no 
bearing" on the chamber's assessment of this appeal, as "we 
are here to do justice." 
 
3. (C) Defense counsel Kay contended that the trial chamber 
imposed counsel following a "concerted attack" by the 
prosecution on Milosevic's right to represent himself, and he 
gave a bleak picture of the course of his efforts to defend 
the accused.  He asked the chamber not to consider the 
prosecution's arguments that Milosevic manipulated his health 
to obstruct the trial and, in response to a follow-up 
question from Meron, suggested that a new medical exam, 
including by one of the accused's own doctors, should be 
conducted (as Milosevic requested in September).  The 
prosecution had argued that Milosevic had not raised this 
issue in a timely manner, but Kay said that the imposition of 
counsel -- the "most extreme" of the options before the trial 
chamber -- came as a "complete surprise" to the accused. 
Meron quickly interjected, "how could it?", to which Kay gave 
a raft of reasons suggesting that the trial chamber had led 
Milosevic to believe that it would do something less than 
impose counsel in the way that it did, such as impose 
stand-by counsel available to assist or in case of the 
accused's ill-health.  (Note: Emboffs learned from a Registry 
source with regular contact with Milosevic that he was 
actually prepared to accept a stand-by counsel proposal.  The 
decision to not only impose counsel on him but give that 
counsel the lead and authoritative role in his defense -- 
putting Milosevic in the second chair, so to speak -- likely 
surprised Milosevic as much as it did other court observers. 
End note.) 
4. (SBU) Kay argued that irrespective of how the Court got 
itself to this point, the bottom line was that one risk -- 
delays in the trial caused by ill health -- had been replaced 
with another, the denial of a real defense case in the face 
of non-participation of witnesses and the accused.  Kay 
concluded that he and his co-counsel "are ineffective" and 
that, as a result of the trial chamber's decision, Milosevic 
is not obtaining a real defense.  His suggested remedy was 
one he had put forward to the trial chamber in September: 
Milosevic should appoint counsel or represent himself, 
putting the responsibility on him to conduct his own defense; 
if that means taking only one day a week to conclude the case 
over the next several years, that would be acceptable to him. 
 But to determine whether that would in fact occur, he said, 
the court needs a new medical report. 
 
5. (SBU) Milosevic expressed his "deep conviction" that the 
trial chamber acted as it did not for health reasons but for 
"political reasons," the result of a "campaign conducted not 
to permit me to speak."  He challenged the prosecution's 
assertion that he manipulated his health, saying that a good 
percentage of his sick days were from the flu, not from his 
chronic hypertension.  He added that his blood pressure had 
improved over time, adding that the stress of putting on the 
case in what he defined as a short time allotted by the trial 
chamber contributed to his poor health (though he did not see 
that this presented an argument for imposing some form of 
counsel in itself). 
 
6. (SBU) Milosevic, aside from points relating to his health 
and some typical political posturing, mostly limited himself 
to making a legal case for self representation.  He cited a 
"petition" of lawyers from around the world arguing that his 
right to self-representation could not be modified or 
minimized, and referred to U.S. constitutional protections 
under the Sixth Amendment.  "I would like for my right (of 
self-representation) to be restored to me," he said, and he 
saw no middle-ground in the assigning of a "stand-by counsel" 
to assist in his work.  He has "no objection" to Kay 
continuing to ask questions of witnesses, much as he did when 
he was the amicus curiae (friend of the court).  But "the 
only thing I can see as just, fair, logical and reasonable is 
to give me back my right to call witnesses myself, to examine 
them, and to lead evidence in my defense case."  This is, he 
said, guaranteed him under international law, including "your 
own Statute."  Finally, he said, "I cannot agree to anything 
less because that is my principled position, one from which I 
do not intend to retreat so much." 
 
7. (SBU) Nice would have none of the appeals for sympathy 
sought by Kay and Milosevic.  Instead he argued that 
everything Milosevic said "show(s) that this man is not 
capable now of presenting a case before what is manifestly a 
straightforward criminal court trying him for criminal 
offenses."  He should not, Nice said, be allowed to "carry 
on" before judges "whom he has quite wickedly impugned."  He 
presented an alternate account of the way in which the 
chamber came to assign counsel, showing that the prosecution 
had repeatedly urged the trial chamber to impose counsel to 
assist, but not necessarily overtake, Milosevic's defense. 
That said, the prosecution "entirely support" the trial 
chamber decision and its "modalities" (i.e., the placing of 
defense counsel in the lead role and forcing Milosevic to 
seek permission to examine witnesses).  Nice further 
suggested that the modalities could change if Milosevic were 
to show himself behaving in a rational, sensible and 
cooperative manner in the courtroom.  Summing up, he noted 
sharply, "who's running this court, the accused or the judges 
who have been appointed to do so?" 
 
8. (C) Meron closed by suggesting that the chamber may seek 
further supplemental briefing from the parties on specific 
issues.  However, in a later conversation, Meron told Emboff 
that "the fog is clearing" in the way he views the case and 
that a decision should be expected soon.  Separately, Nice 
asked emboff, sounding anxious, what he thought of the 
proceeding.  When the question was turned around, Nice said 
that one of the members of his team thought the defense had 
the better of it.  Nice expressed concern that any change in 
the modalities by the appellate chamber could lead to a 
situation where the accused, more than ever, believes he can 
dictate his views to, and manipulate, the trial chamber. 
 
-------------------------------- 
The Defense Muddles Along 
-------------------------------- 
 
9. (SBU) The trial chamber met briefly on October 18 to 
review Kay,s newly filed witness list and discuss his 
prospects for getting witnesses to appear. The list, which is 
not public, is divided into experts, internationals, and 
insiders and, as best could be divined from context, includes 
138 names with contact information, as well as the status of 
the defense's efforts to contact each witness and persuade 
him/her to testify. Kay is still having virtually no success 
-- there was the usual rehashing of witnesses refusing to 
testify in opposition to the assignment of counsel -- but the 
judges did focus in on a few prospects. Two are Germans 
awaiting approval from either the German government, the EU, 
or OSCE -- the Registry has put in the request on Kay's 
behalf but it is unclear which institution is holding up the 
process. One, Henning Hensch from the OSCE/KVM, appears 
likely to testify soon. With respect to the other, Dietmar 
Hartwig, former head of the ECCM, Judge Robinson explicitly 
said to Kay that &if the necessary consents have been given, 
that witness still refuses to come, you may want to invite 
the Chamber or request the Chamber to issue a binding 
order.8 
 
10. (SBU) The defense on October 19 examined Leona Kanelli, 
an independent member of the Greek Parliament connected to 
the Communist Party. Kanelli, also the publisher of the 
magazine Nemesis, visited Aleksinac in southern Serbia 
shortly after NATO started bombing in 1999. The substance of 
her testimony centered on pictures she took and reports she 
published about the destruction of the town, but much of her 
actual testimony took the form of dramatic and combative 
monologues about the innocents killed by NATO bombing and the 
tragedy of war in general. The trial chamber was patient with 
her but, when she called into question the legitimacy of the 
court itself, Judge Robinson interrupted to inform her that 
her comment was &completely out of order.8 Prosecutor 
Geoffrey Nice,s cross-examination went to Kanelli,s 
assertion that there was no military target in Aleksinac, 
producing a Human Rights Watch report already in evidence 
that detailed the intended target, the Aleksinac Deligrad 
military barracks. Kanelli,s irreverence toward the court 
and Nice was striking, to the point that many in the audience 
gallery were by the end of cross-examination laughing at her. 
 
11. (SBU) Milosevic did contribute slightly to the defense 
examination of Kanelli. He at one point helped the court in 
trying to locate Aleksinac on a map of Serbia and, when given 
the chance to examine Kanelli, did ask one question. He asked 
her, in English, if she had been asked all the agreed 
questions. She responded that Kay had asked only a small 
portion of them. When prompted by Judge Robinson to fill gaps 
in the examination in chief with his own questions, Milosevic 
said he would not enter the trial on the merits until his 
rights were restored. 
 
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Comment 
--------- 
 
12. (C) Meron has called the appeal of the imposition of 
counsel issue the most difficult decision of his tenure.  If 
his chamber reverses the trial chamber, the case is certain 
to be held hostage once again to Milosevic's uncertain 
health.  If he upholds the chamber's decision without 
modification, it seems equally certain that Milosevic will 
not engage the proceedings and that only a feeble and 
truncated defense will be put forward.  The stakes are high: 
the legacy of the case, already shaken, depends on observers 
viewing the proceedings as legitimate, meeting the highest 
standards of fairness to the accused, and providing a 
persuasive basis for conclusions as to whether the 
prosecution proved its case beyond a reasonable doubt.  The 
Prosecution seems uniquely content to have the case conclude 
within weeks and allow the trial chamber to move toward 
judgment.  For others, who have in mind the larger legacy of 
the Tribunal -- and its ability to bring reconciliation to 
the region -- there is hope that the Appeals Chamber will 
strike the right balance between imposing counsel on 
Milosevic and permitting him to retain a reasonable degree of 
control over his defense, so that whatever the outcome, the 
credibility of the proceedings and the institution will 
withstand the test of time.  End Comment. 
SOBEL