US embassy cable - 04THEHAGUE2932

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002932 
 
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: MILOSEVIC TRIAL CHAMBER FOCUSES ON APPOINTED 
COUNSEL AND GOVERNMENT WITNESSES 
 
REF: THE HAGUE 2869 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (SBU) Summary: The trial chamber in the case against 
Slobodan Milosevic before the International Criminal Tribunal 
for the former Yugoslavia (ICTY) continued to deal with 
defense counsel issues during the week of November 8.  Its 
three days of hearings -- a full schedule for this case -- 
were devoted to defense counsel Steven Kay's application to 
withdraw from the case.  Meanwhile, Milosevic, acting 
vindicated by the Appeals Chamber decision returning the lead 
of the case to him (reftel), has taken on a renewed interest 
in the proceedings, seems to be preparing for his case to 
begin in earnest and is renewing old demands of the judges. 
His oral request for subpoenas against former senior USG, UK 
and German officials was met with stiff, and judicious, 
resistance by presiding Judge Robinson. End summary. 
 
2. (SBU) Defense Counsel Steven Kay's application to withdraw 
from the case received the full attention of the trial 
chamber this week.  Presiding Judge Patrick Robinson and 
Judge Iain Bonomy seemed highly skeptical of Kay's arguments 
that he should be allowed to withdraw in light of the lack of 
cooperation he is receiving from Milosevic.  Kay told Embassy 
legal officers that he felt the chamber very much wanted him 
to stay on, an impression confirmed by the nature and tenor 
of questions from Robinson and Bonomy.  After nearly a full 
day of discussion of whether the trial chamber had 
jurisdiction to rule on Kay's application to withdraw, Kay 
did his argument no favors when he argued on the third day of 
the hearings that, in fact, his UK codes of conduct, to which 
he is bound, do not require him to seek the leave of a court 
to withdraw from a case.  This prompted a confused exchange 
in which the judges seemed annoyed by the suggestion that the 
hearings were unnecessary.  Milosevic cut through much of 
this debate with the pointed assertion to the judges that 
"the Trial Chamber put the Mr. Kay in the position he is now 
in ... it would be logical to assume that it has jurisdiction 
to resolve the situation."  Judge Robinson, chuckling, 
acknowledged that it was "a very pragmatic approach." 
Milosevic made clear that he would be happy to see Kay leave 
the defense, while lead Prosecutor Geoffrey Nice -- clearly 
downbeat and frustrated by a proceeding that had nothing to 
do with the case he rested last February -- presented 
arguments against enabling Kay to withdraw. 
 
3. (SBU) Toward the end of the hearing, Milosevic was asked 
by the chamber whether he had anything "administrative" he 
wished to raise.  Milosevic indicated that he wanted the 
Court to call former President Clinton, former Secretary 
Albright, Prime Minister Blair, Prime Minister Schroeder and 
former Defense Minister Scharping before the end of this 
year. He said that they are "need(ed) to provide a general 
overview of the situation, and they pertain to all of the 
issues contained in the indictment."  He then added that he 
wanted to recall General Wesley Clark.  (Note.  Kay in an 
informal meeting with Embassy legal officers expressed his 
view that the Chamber would not allow Clark to be recalled 
since Milosevic had already had a chance to question him.) 
 
4.  (SBU) Judge Robinson responded firmly that "there are 
procedures to be followed."  He continued, "First you have to 
show that you yourself have made an effort to contact the 
witness, to get the witness, and the witness is not willing 
to come.  Then you have to satisfy us as to the evidence that 
the witness is going to give, that it is going to be useful 
and relevant evidence."  He told Milosevic to follow the 
procedure used by the Prosecution in seeking government 
witnesses.  Milosevic then said, falsely, that "by conclusive 
action it has been shown that they are not willing to 
appear."  (Note. Milosevic, through the Registry Liaison 
Officer (RLO), requested the appearance of the named 
witnesses in May; the Embassy, coordinating with the 
Department, responded with a letter explaining the process by 
which such requests are made and then considered by the USG. 
The Embassy received no further communication from the 
accused or the RLO.  We understand that neither have other 
embassies in receipt of similar requests -- the UK, France, 
Germany -- received responses.)  Robinson usefully concluded 
the dialogue with Milosevic by saying, "You must make a 
written submission.  I am not going to issue any subpoena on 
your oral statement.  You must make a written submission 
setting out the circumstances which show that they're 
unwilling to come and setting out the evidence that you want 
them to give.  That is what the Prosecution had to do, and 
that is what you will do." 
 
5. (SBU) Kay intervened to note that U.S. Embassy reps had 
informed him of the steps the USG considers necessary in 
order to process a request for the testimony of former USG 
officials.  He usefully noted that the USG considers requests 
from both the prosecution and defense according to the same 
criteria.  (NB: In a later conversation with the RLO, Embassy 
legal officer noted that requests for senior USG officials 
are scrutinized with particular rigor, and that a request for 
a former president's or secretary of state's testimony would 
receive the strictest scrutiny.  Emboff reminded the RLO that 
the USG needed to be persuaded not just of the relevance and 
necessity of the requested testimony but also that only the 
requested person could provide such testimony.)  Judge 
Robinson responded to Kay's intervention by reiterating the 
importance of making a written submission that "will have to 
satisfy the Court . . . that the witnesses are not willing to 
come, because if it is not necessary, why should a Court 
issue a subpoena?" 
 
6. (U) Milosevic pressed for additional time off from the 
trial in order to prepare his case and his witnesses, but the 
trial chamber largely demurred.  The trial will resume on 
Tuesday, November 16, for only one day next week, leaving 
Milosevic the rest of the week to prepare.  Thereafter it 
will resume on Monday, November 22, with the expectation of a 
return to the three days weekly schedule.  Judge Robinson 
noted sternly that if Milosevic "choose(s) to use the time 
set aside by the Court for sitting to carry out proprietary 
work, or for any other reason you are responsible for the 
time court does not sit, the period of time will be regarded 
as falling within the 150 days" allotted for the defense case. 
 
7. (C) Comment: While Milosevic has returned to take what he 
sees as his rightful place in the center of the trial against 
him, the defense case has not yet begun with him in the lead. 
 The chamber seems determined to keep Kay on board, but the 
ruptured relations between him and Milosevic make this a 
difficult, if not counterproductive, proposition.  Meanwhile, 
Judge Robinson has usefully emphasized to Milosevic that the 
trial chamber will not call government witnesses without it 
being shown that they are relevant and necessary to his case. 
 The fact that Kay echoed these requirements in court further 
isolates Milosevic, making it more difficult for him to get 
traction on subpoena requests when he has not done the bare 
minimum to meet governments' (and the trial chamber's) 
requirements.  End comment. 
SOBEL