US embassy cable - 04THEHAGUE2792

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002792 
 
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 REGAINS SOME CONTROL OVER DEFENSE 
CASE; ASSIGNED COUNSEL REQUESTS RESIGNATION 
 
REF: THE HAGUE 2736 
 
Classified By: Clifton M. Johnson, Legal Counselor, Reason 1.5(b)-(d). 
 
1. (C) Summary. The trial of Slobodan Milosevic before the 
International Criminal Tribunal for the former Yugoslavia 
(ICTY) was recessed again because of a lack of witnesses 
during the week of October 24, but that did not stop the case 
from making news.  In particular, Steven Kay, imposed defense 
counsel, submitted a request to the Registrar to remove him 
from the case on October 26. His letter stressed his 
inability to adequately represent Milosevic due to the 
accused,s noncooperation and urged that he and his associate 
Gillian Higgins be taken off the case.  Kay,s departure 
would leave the trial, yet again, in disarray.  The appeals 
chamber issued today (see septel) an opinion affirming the 
imposition of counsel on the accused but finding that the 
trial chamber erred in failing "to recognize that any 
restrictions on Milosevic's right to represent himself must 
be limited to the minimum extent necessary to protect the 
Tribunal's interest in assuring a reasonably expeditions 
trial".  This balanced decision may well prompt Milosevic to 
reengage the proceedings and assigned counsel to reconsider 
their resignation.  Meanwhile, a new list of 140 "priority" 
defense witnesses has been submitted to the trial chamber and 
includes both former President Clinton and former Secretary 
Albright. In the absence of available witnesses, however, the 
trial is on hiatus until November 9. End summary. 
 
2. (SBU) Defense counsel Steven Kay, joined by his co-counsel 
Gillian Higgins, submitted a request to the Registrar on 
October 26 to withdraw as Milosevic,s defense counsel.  (NB: 
Under Tribunal directives, the Registrar has responsibility 
for the selection and withdrawal of counsel.  In this case, 
however, the Registrar will follow the lead of the chambers, 
as the request was referred on October 27 to the trial 
chamber.)  The 12 page resignation letter, which reads like a 
legal brief, says that "the Accused has consistently refused 
to see us or to speak with us," "has not provided any 
instructions," and "will not co-operate in any way with us as 
the Assigned Counsel or as standby counsel."  In the absence 
of guidance from the Accused, "counsel cannot know the nature 
and substance of their client's defence and cannot therefore 
fulfill their obligation to present that defence."  The 
letter concludes that assigned counsel "are now under an 
obligation to seek withdrawal from our role as Assigned 
Counsel as it is plain that we are no longer able to function 
without breaching the terms of our Code of Conduct at the 
ICTY." 
 
3. (C) As reported reftel, a five-judge panel of the appeals 
chamber, led by ICTY president Theodor Meron, heard arguments 
on October 21 in Milosevic,s interlocutory appeal of the 
trial chamber,s assignment of defense counsel.  The decision 
today vigorously affirms the trial court's decision to impose 
counsel but finds that the trial court committed "a 
fundamental error of law" in failing to make the modalities 
of the imposition proportional to the interests being 
protected.  As detailed septel, it therefore reverses the 
trial court order on the modalities and leaves it to the 
trial court to "steer a careful course between allowing 
Milosevic to exercise his fundamental right of 
self-representation and safeguarding the Tribunal's basic 
interest in a reasonably expeditions resolution of the cases 
before it."  In light of this decision, which will give 
Milosevic a new opportunity to reengage the proceedings, it 
is unclear whether Kay and Higgins will withdraw their 
resignation request.  In any event, because the defense has 
no witnesses ready to testify, the trial has been adjourned 
until November 9.  Meanwhile, Kay and Higgins continue in 
their roles as counsel. 
 
4. (C) Separately, Embassy legal officers have learned from 
the Registry liaison officer (RLO) to the accused (protect) 
that Milosevic and his legal associate, Zdenko Tomanovic, 
provided Kay with a priority list of 140 names from 
Milosevic's original witness list.  The list comprises 
individuals who are relevant to the Kosovo phase of the 
defense, and it includes two American officials -- former 
President Clinton and former Secretary Albright.  (NB: 
Milosevic's request to the USG for testimony of USG officials 
in May 2004, through the RLO, also included former 
Secretaries Christopher and Cohen and Wesley Clark.  These 
 
SIPDIS 
three are not on a current priority list, and Kay is said to 
believe that Clark could not be called as a defense witness 
in any event, since he appeared for the prosecution in 
December 2003.)  It is from this list of 140 that Kay is 
expected to begin seeking subpoenas, though not, at least in 
the initial phases, for governmental witnesses.  Meanwhile, 
Milosevic provided the RLO with specific grounds for his 
interest in the testimony of a range of potential witnesses, 
including the USG officials, all of which has been provided 
to Kay.  The RLO, despite the current uncertainties related 
to defense counsel, continues to engage with counsel and 
brief Milosevic on the conduct of the counsel's work. 
 
5. (C) Comment:  The appeals decision sensibly restores some 
balance to the approach taken by the trial court in imposing 
counsel.  But whether it is too late to make a difference 
depends on the reaction of the assigned counsel which in turn 
depends on the reaction of the Accused.  If the resignation 
request was primarily a tactical effort to influence the 
appeals chamber as it decided Milosevic,s appeal regarding 
the assignment of counsel, then we would expect Kay and 
Higgins to stay on given that the decision gives Milosevic 
greater latitude in the conduct of his defense.  If, however, 
the request reflected a genuine desire to leave the 
proceedings or if, in spite of the decision, Milosevic does 
not reengage the proceedings, then we would expect Kay and 
Higgins to depart.  This would be a further significant blow 
for a defense phase that is already teetering, and would 
likely see the case limp to a close by year's end.  As has 
been the case throughout much of these proceedings, Milosevic 
remains in the drivers seat and will once again set their 
course.   End comment. 
SOBEL