Da: ICDSM Italia
Data: Mar 26 Ott 2004
A: icdsm-italia @ yahoogroups.com
From : zambon
To : "ICDSM Italia"
Cc :
Date : Mon, 25 Oct 2004 18:14:06 +0200
Subject : Giudici o mercenari?
cari compagni,
vi segnalo alcuni episodi (credo sconosciuti) dell'attività
professionale di
Carla Del Ponte tratti dalle memorie di un ispettore di polizia
svizzero da
lei costretto ad abbandonare il servizio.
I motivi sono da ricercare nell' "eccessivo" zelo del commissario nel
perseguire i reati di alcuni noti esponenti della mafia internazionale
del
traffico di droga.
Nel suo libro "Deckname Tato, Pendo Verlag, Zürich" (Soprannome TATO",
Edizioni Pendo, Zurigo) l'ex commissario Fausto Cattaneo scrive:
a pagina 197: "...il conflitto con Carla del Ponte è inevitabile. Lei
non
vuole assolutamente vedere Escobar Junior in un carcere svizzero...."
a pagina 377: "... La nomina di Carla Del Ponte a Pubblico Ministero al
Tribunale Internazionale dell'Aia nell'agosto del 1999 rappresentò il
coronamento di una carriera che si è sempre realizzata nel segno della
politica."
*** THE NATURE OF THE HAGUE BEAST ***
"La natura della bestia dell'Aia": e' il titolo della approfondita
analisi di T. Dickson ed A. Jokic che riportiamo di seguito.
La decisione del "Tribunale ad hoc" dell'Aia (ICTY) di impedire a
Milosevic di difendersi da solo, oltre a rappresentare una violazione
senza precedenti dei diritti elementari dell'"imputato", ha finito con
il determinare una situazione di totale stallo nel "processo": infatti,
la stragrande maggioranza dei "testimoni" convocati a difesa di
Milosevic si sono rifiutati di comparire per protesta, fintantoche' la
decisione non verra' ritirata. Cosicche', il "processo" e' nuovamente
bloccato.
Sulle recenti vicende vedi anche gli aggiornamenti al nostro sito:
http://www.pasti.org/milodif.htm
Sul grave imbarazzo che le attivita' dell'ICTY stanno provocando,
persino ai piu' alti vertici dell'establishment statunitense, si veda
anche:
BALKAN JUSTICE JOUST - By Jeffrey T. Kuhner
The Washington Times - October 24, 2004
(... Washington is insisting that war crimes cases relating to the
Balkan wars of the 1990s be tried either in domestic courts or be given
an amnesty. This shift not only marks a dramatic change in U.S. policy
toward the ICTY, but more importantly, it is a fatal blow to the power
and credibility of Mrs. Del Ponte...)
http://www.washingtontimes.com/commentary/20041023-105636-4172r.htm
Rinnoviamo infine il nostro APPELLO:
Senza mezzi finanziari, la difesa di Milosevic non ha chances.
PER PROSEGUIRE QUESTA LOTTA ABBIAMO ASSOLUTO BISOGNO
DEL TUO CONTRIBUTO ECONOMICO -- VEDI:
http://www.pasti.org/traduz.htm
---
Da: "Vladimir Krsljanin"
Data: Lun 25 Ott 2004 15:20:40 Europe/Rome
Oggetto: The Nature of the Hague Beast by Tiphaine Dickson and
Aleksandar Jokic
*************************************************************
INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM Sofia-New York-Moscow www.icdsm.org
*************************************************************
www.globalresearch.ca
Centre for Research on Globalisation
Centre de recherche sur la mondialisation
"That Is The Nature Of The Beast":
Why The Hague ICTY Cannot Afford
Slobodan Milosevic’s Right to Self-Representation
by Tiphaine Dickson and Aleksandar Jokic
www.globalresearch.ca 24 October 2004
The URL of this article is:
http://globalresearch.ca/articles/DIC410A.html
When Slobodan Milosevic was asked to plead to the indictment filed
against him, after being whisked off to The Hague as a result of a
transfer whose legality bore more resemblance to kidnapping for ransom
than to extradition, his response to the ICTY Chamber was not the
typical "Not guilty." Milosevic instead said: "That is not my problem,
that is your problem."
And, indeed, the ICTY’s problem it has become. When the prosecution
rested its case after the resignation of the Trial Chamber’s President,
Richard May, last spring, many in the media bemoaned the failure to
prove genocide, and others were unimpressed by the picture of confusion
left by weak witnesses, deflated in cross-examination by a defendant
who consistently stated the ICTY was not a legal, or judicial,
institution. Voices rose to express increasingly strident concern that
the trial was going off the rails. Expectations appeared not to have
been met.
As the defense approached, and Milosevic announced that he would
secure the attendance of 1600 witnesses to support the case he
announced he would make from the beginning—namely that the "Balkan
Wars" had in fact been one war, against Yugoslavia, planned and carried
out by Western powers, whose gruesome apotheosis was NATO’s 78-day
bombing campaign in 1999—the ICTY’s most prestigious supporters zeroed
in on the upcoming defense, arguing that Milosevic’s right to represent
himself had been granted "long enough."
The media onslaught was, and remains, significant and raises an
obvious question: what is it about the present stage of the hearings
that requires such collective effort to defeat?
The latest offensive is apparently triggered by fear, and not only
challenges the internationally mandated right to self-representation
(and the resulting freedom to present a true defense), but is further
calculated to prevent Milosevic from demonstrating the ICTY’s
illegality, and functions. President Milosevic has indeed consistently
argued that the ICTY serves up apologia for the destruction of
Yugoslavia, provides justification for aggression, and rewrites
history. Hence, the seemingly endless references, not to Milosevic’s
health, but to his deleterious impact on the "Court’s reputation",
"credibility" and "legitimacy."
Public lobbying of the ICTY supporting the imposition of counsel on
Slobodan Milosevic has been undertaken by a trio of its stalwart
supporters: David Scheffer, Michael Scharf, and Judith Armatta. Their
claims—perhaps inadvertently—betray the political nature of the
institution.
Writing in the pages of International Herald Tribune ("Enough of
Milosevic’s Antics" July 13, 2004), David Scheffer, former Ambassador
at Large for War Crimes Issues under Secretary of State Albright,
dehumanizes Milosevic, and urges the ICTY to reassert its "authority"
over him. Writes Scheffer: "When he was the presiding judge, the late
Richard May deftly handled Milosevic’s exercise of his right to
self-representation by giving him enough leash every day to speak his
mind and then jerking that leash when he overstepped his bounds." The
metaphor of "leash jerking" is powerfully deployed here in light of the
painfully recent Abu Ghraib prison atrocities in Iraq, immortalized by
the infamous photograph of Pfc. Lynndie England holding a naked human
being on a leash. Is Scheffer urging the ICTY to become more like Abu
Ghraib, but in the judicial, rather than military theater of
operations? Whatever his intent, in one important respect there is
hardly any difference between the physical and metaphorical leash
jerking: they are both firmly grounded in the most primitive racist or
reifying attitudes toward their targets. And who exactly is the target
of David Scheffer’s comments? It would appear to be only Mr. Milosevic
who is thus rendered inhuman, but there is another, even more crucial
objective: the ICTY’s judges and prosecutor are implicitly reminded
here that they are mere tools (res) of the Empire, so they had better
deliver.
And what were the goods to be delivered by the ICTY? The process is
staggeringly costly, so it follows that a conviction is necessary, and
that "justice" mandates the gagging of Milosevic, who is: "charged with
crimes of enormous gravity in the Balkans: genocide, crimes against
humanity and war crimes. They scream out for accountability. The United
Nations and its member states are expending large sums of money on
these trials for the purpose of justice, not political diatribes and
meandering defenses." It is unclear whether this is a legal or
political argument. It may be that Scheffer’s position—promoting a
novel legal approach—is that since Milosevic has been charged with the
most serious crimes of all, and that they "scream out for
accountability," this very fact ipso facto constitutes proof beyond
reasonable doubt of his actual guilt. For who could imagine that the
ICTY might bring frivolous charges and indict a sitting President in
the midst of a war of aggression against his country? Alternatively,
Scheffer’s words might be expressing a direct political claim: "We paid
for this, and we certainly did not pay for this man to jerk us around."
Scheffer advocates the imposition of counsel, to: "ensure the
integrity of the process, which may be nearing a breaking point with
the international community." The impatience expressed on behalf of the
phantom "international community" might in fact be just Scheffer’s own
and those of his ilk, well connected to the establishment of the ICTY.
In any event, the point is that the ICTY has no legal authority beyond
the powers granted by the Security Council, and deemed legally valid by
its own appeals chamber, i.e., itself. Hence, its authority "must be
asserted." The very process, which is an abuse, must be protected from
"a crippling abuse," that is, from denunciation by Milosevic, and in
particular his witnesses: "A massive criminal enterprise of this
character deserves a long, carefully developed trial that inevitably
will experience delays. That is the nature of the beast. But the time
has arrived to reassert the court’s mandated authority and prevent a
crippling abuse of the process by the likes of Slobodan Milosevic."
"Nature of the beast", indeed. It is urgent that this be accomplished
since the ICTY, as opposed to judicial bodies the world over, is a
"limited engagement," and is attempting to complete investigations,
trials, and appeals before a Security Council-mandated deadline—known
as the "completion strategy"—in 2010. A conviction must be secured
before then. Just as performances must end before the circus can leave
town.
Also urgent is that "Serbs," specifically, "respect the court’s
authority," and presumably this transformation can only take place if
Milosevic is gagged, and the illegality of the body never mentioned
again: "Perhaps if the discipline of a competent counsel is brought
into the courtroom, Milosevic’s Serb supporters would learn to respect
the authority of this tribunal."
In his conclusion Scheffer fittingly returns to his tired leash
metaphor to reinforce his point that Milosevic must be silenced
"permanently" since he is inhuman: "Milosevic has jerked the court
around long enough. It is time to permanently pull in Judge May’s
well-worn leash."
Michael Scharf, visiting professor of law at Case Western Reserve
University, and instrumental in the creation of the ICTY, followed
Scheffer’s opening salvo in the Washington Post, and, with
bone-chilling clarity, made the case for imposition, employing
strikingly political arguments. ("Making a Spectacle of Himself:
Milosevic Wants a Stage, Not the Right to Provide His Own Defense",
August 29th, 2004) Drawing on the now-familiar refrain that Slobodan
Milosevic is "playing for the home audience", Scharf is outraged by the
idea that the unrepresented defendant would somehow make use of a show
trial to gain support in Serbia and Montenegro, when the ICTY was
created, he deadpans, precisely to remove Milosevic from politics, and
"educate" Serbs, so that he and his like would be put out of commission
forever. That his own argument confirms the political nature of the
ICTY and candidly clarifies its objectives as non-judicial does not
deter Scharf from the description of the process as an "international
war crimes trial" and the institution as a "court of law."
According to Scharf: "Milosevic’s caustic defense strategy is
unlikely to win him acquittal, but it isn’t aimed at the court of law
in The Hague. His audience is the court of public opinion back home in
Serbia, where the trial is a top-rated TV show and Milosevic’s standing
continues to rise. Opinion polls have reported that 75 percent of Serbs
do not feel that Milosevic is getting a fair trial, and 67 percent
think that he is not responsible for any war crimes. ‘Slobo Hero!’
graffiti is omnipresent on Belgrade buses and buildings. Last December,
he easily won a seat in the Serbian parliament in a national election."
What any of these concerns and political trivia could possibly have
to do with international law—if considered as an activity of a judicial
nature—is unclear. If, however, playing to an uninformed Western
public, the idea is to suggest that by granting basic internationally
recognized human rights to the man who was the West’s principal
interlocutor in Balkan peace negotiations for over half a decade, the
ICTY is failing in its mission to "educate" the Serbs, then the point
is well taken. Scharf deplores the fact that opinion polls show that
"75% of Serbs do not feel Milosevic is getting a fair trial." Scharf’s
disappointment in this expression of popular distrust—which may well be
directed to the institution as a whole—assumes that public opinion in
Serbia and Montenegro is misguided, and that it fails to appreciate the
"fairness" of the proceedings. But if, as Scharf claims, ICTY hearings
are "top rated" TV shows, then public opinion was formed by actually
observing the proceedings; in which case the problem might not be
collective delusion abroad, but rather Western ignorance of the ICTY’s
day to day workings. The latter are largely inconsistent with the
widely held Western belief—based, perhaps, on faith or missionary
zeal—that proceedings in The Hague are inherently fair.
Scharf’s preoccupation with graffiti adorning the buses and
buildings of Belgrade is perhaps an expression of concern for the
environment. However, any threat posed by "Slobo Hero!" pales in
comparison to the effects of NATO’s bombing, and in particular, with
the presence of depleted uranium in the soil and groundwater of Serbia
and Montenegro. It may be that "Serb" public opinion has not yet been
sufficiently educated by the "court of law" to lose sight of this
disturbing reality, which will remain with it for decades, and possibly
centuries. Perhaps this reality and the ever-present reminders of
NATO’s bombing in the streets of Belgrade have had some influence on
the public perception of the ICTY’s "fairness."
Scharf’s assault on Mr. Milosevic’s right to self-representation,
while in line with Scheffer’s demand that the "leash be pulled in
permanently," presents one significant difference in approach. Where
Scheffer depicted the late judge May as an uncompromising animal-tamer
of sorts, Scharf presents him as a misguided fool. Rather than invoke
his capacity for discipline, he accuses him—in an eloquent
demonstration of the reification of the ICTY’s functionaries, in
particular the deceased—of having been lax and in error by having
granted the right to self-representation to Milosevic in the first
place. He writes: "Virtually everything that has gone wrong with the
Milosevic trial can be traced back to that erroneous ruling."
And what has "gone wrong" is that Milosevic made "disparaging
remarks about the court" and "browbeat" witnesses. He doesn’t recognize
the ICTY, and he has said so. As for the "browbeating" of witnesses,
that is to a certain extent, whether we like it or not, part of the art
of cross-examination. But Scharf’s emphasis is placed not so much on
these complaints as on his wild claims about Mr. Milosevic’s growing
popularity in Serbia and Montenegro.
Scharf makes plain that the ICTY was created for political reasons,
yet advocates imposing counsel on Slobodan Milosevic to prevent him
from making precisely the same point. The only difference is that
Milosevic is "disparaging," while Scharf argues that the ICTY’s evident
political objectives are somehow valid:
"In creating the Yugoslavia tribunal statute, the U.N. Security
Council set three objectives: first, to educate the Serbian people, who
were long misled by Milosevic’s propaganda, about the acts of
aggression, war crimes and crimes against humanity committed by his
regime; second, to facilitate national reconciliation by pinning prime
responsibility on Milosevic and other top leaders and disclosing the
ways in which the Milosevic regime had induced ordinary Serbs to commit
atrocities; and third, to promote political catharsis while enabling
Serbia’s newly elected leaders to distance themselves from the
repressive policies of the past. May’s decision to allow Milosevic to
represent himself has seriously undercut these aims."
The idea that affording the right of self-representation to
Milosevic had "seriously undercut" the "aims" of the ICTY’s very
establishment strains credulity. However, if those aims were, and
continue to be, "to pin" responsibility on Slobodan Milosevic, and to
"educate" Serbs about how bad he was—or, ultimately, how bad Yugoslavia
was—then these aims are assuredly not shared by the defendant. Indeed,
Milosevic has no intention of assisting the ICTY in "convincing Serbs"
that acts of aggression committed against Yugoslavia were justified.
Furthermore, whether or not the political aims set out by Scharf are
valid, morally correct, or politically expedient, they cannot make
legal what is illegal, they cannot make legitimate what is
illegitimate, and they cannot, most crucially, turn a political body
into a court.
As was perhaps inevitable, the ICTY did impose counsel. On
September 2nd, two of the former amici curiae were "assigned"—the Trial
Chamber pointedly insisted on the use of this term, instead of the
apparently indelicate "imposed"—to represent Slobodan Milosevic, and
given full responsibility over his defense, including the formation of
his strategy and choice of witnesses. The prerogatives granted to
imposed counsel were far more intrusive than what had been expected;
even, apparently, by the prosecution’s senior trial attorney who had
appeared during the hearings to envisage a "standby counsel" prepared
to step in should Milosevic’s health prevent him from acting. Instead,
the defense was handed over to strangers, who in addition to receiving
no instructions from their "client" happened to have acted as another
party in these proceedings, as "friends" of a "court" the defendant
does not recognize.
That this imposition of counsel constitutes a conflict of interest,
that it violates the International Covenant for Civil and Political
Rights, that neither the South African Apartheid regime nor Nazi
Germany imposed counsel against Mandela or Dimitrov, respectively, and
that imposition has actually caused more delay of the proceedings
(while Milosevic is healthy) does not deter those who defend the ICTY’s
decision to strip President Milosevic of the right to call his
witnesses, and present his defense. And his defense is the problem, as
it is candidly presented as a political defense, before a political
body.
Imposed counsel struggled in vain to present more than five
witnesses since early September, and were confronted with the refusal
of experts, diplomats, officers and dozens of others to participate in
a defense that was not the defense they had agreed to support. (Of
note, here, is that before a normal judiciary, witnesses have no say in
whether or not they wish to participate in the workings of justice. The
etymology of the word "subpoena"—"under penalty"—makes clear that legal
courts also have legal authority) This latest crisis before the ICTY
prompted new intervention in the media, for the sake of the ICTY’s
credibility. But the political nature of the claims has had the
opposite effect.
Judith Armatta, a lawyer acting as trial observer for the US-based
Coalition for International Justice (Justice, not Political Platform
for Milosevic, IHT, October 7th), much like her predecessors, Scheffer
and Scharf, betrays the true reason for imposition of counsel on
Slobodan Milosevic. Clearly neither Armatta nor the ICTY appreciates
his "political defense". Armatta implies that Milosevic—and others
before the ad hoc Security Council bodies, such as the ICTR in Arusha,
Tanzania—are simply capricious accused who refuse to respect
established court procedure, while these embattled courts struggle to
provide fair trials in the face of obstructionism from "unreasonable"
defendants. This is a mischaracterization both of Slobodan Milosevic’s
position (and that of Rwandan accused at the ICTR) and of the ad hoc
tribunals' legitimacy.
Armatta writes that the "trial of Slobodan Milosevic before the
International Criminal Tribunal for the Former Yugoslavia has reached a
standoff, where the will of the UN-established court is pitted against
the will of one individual, the accused."
This depiction of the Milosevic case as a battle of wills is
peculiar, to say the least, as it falsely presents ICTY as an underdog
in this "standoff" requiring some assistance and encouragement. What
could possibly disadvantage the ICTY—which enjoys the full support of
the only super power—in its "test of wills" with Milosevic? The message
sent by ICTY supporters, such as Armatta, is that the ICTY’s handicap
is its tendency to go overboard with fairness. Trying to be as fair as
possible creates difficulties for the forces of justice. Thus calls on
ICTY like this one: "It is incumbent on this tribunal to stand up to
Milosevic, assert its authority and bring the world one step closer to
the rule of law." But is accomplishing fairness the ICTY’s central
concern? And how does "standing up" to Milosevic bring anybody any
closer to the Rule of law, in particular when international human
rights instruments are violated in the process?
The problem is what Milosevic has to say. That the ICTY pointedly
imposed counsel for "health reasons" is a secondary consideration for
Armatta, as it might well have been for the Chamber who disregarded the
fact that Slobodan Milosevic has defended himself quite ably for the
past three years, and suffered from hypertension for ten. In fact,
since counsel was imposed, the health reasons that justified the
measure have gradually been replaced by suggestions that Milosevic
lacks sufficient "respect for the court."
Armatta’s criticism of Slobodan Milosevic’s behavior suggests she
has privileged access to his mind. She not only chastises him for not
cooperating with the ongoing violation of his rights, but reveals why
he embarks on such a baffling course: "the accused refuses to
communicate with counsel or assist in selecting and securing witnesses
or developing a defense strategy, since he seeks not to defend himself
but to use the trial as a platform to advance his political agenda. "
Were it acceptable to apply such psychoanalysis to the ICTY,
instead of Milosevic, the inquiry could address the wholly predictable
consequences of imposition of counsel. Armatta describes the situation
in the following manner: "Nearly half the witnesses initially scheduled
to testify on his behalf have followed his example by refusing to
appear in court if Milosevic is not allowed to represent himself." If
we wanted to speculate, we could posit that the reason for imposition
of counsel had nothing to do with his health or fairness. On the
contrary, the reason might be that the ICTY wanted to prevent the
appearance of most of his witnesses, as they would expose the illegal
nature of ICTY. So, while in the realm of speculation, one could
imagine that they correctly predicted that by imposing counsel on
Milosevic they would bring about a boycott by those witnesses and bring
the proceedings to a quick conclusion without most of them ever
appearing.
But this type of speculation is deemed improper. And it is
inconsistent with Armatta’s depiction of the current situation as a
battle of the wills, which provides absolute clarity as to where the
good and the bad wills lie. And what better way to expose the unsavory
intent of the one deemed to have bad will than to point to his
consistent opposition to the process that is assumed to be inherently
fair? Armatta states, as if this established his bad faith, that Mr.
Milosevic: "has consistently maintained, he does not recognize the
legitimacy of the tribunal but will use whatever opportunity is
provided to make his political case to the public."
It should be obvious by now that if Slobodan Milosevic maintains
that the ICTY is illegal, he will naturally take every opportunity he
gets to let the world know about that fact. Is Armatta suggesting that
those who contend, relying on reasonable legal arguments, that the
institution is illegal should nonetheless quietly succumb to it and
personally contribute to the illegal activities undertaken against
them? Armatta—as well as Scheffer and Scharf—express concern about the
deleterious effects of self-representation in other cases. Scharf fears
Saddam Hussein could use "the unique opportunity of self-representation
to launch daily attacks against the legitimacy of the proceedings and
the U.S. invasion of Iraq." Is it then that all targets of aggression
are to be denied the right to self-representation? Or does the very
creation of the ICTY, by the Security Council, (who then proceeded to
establish the ICTR, a body without jurisdiction to consider the
invasion of Rwanda by US-supported "rebels", which aggression sparked
that country’s tragic war) send another message? Could it be that there
is no right of self-defense when the US, or their clients, are the
aggressors?
The essence of Armatta’s complaint against Milosevic, whose will
must not be allowed to prevail over the will of the ICTY, comes from a
flawed view of the ICTY and its process. She states:
"As a legitimate court, it is charged with seeing justice done
for the heinous crimes, including genocide, committed throughout the
territory of the former Yugoslavia during the 1990s. Its fundamental
responsibility, as that of all courts, is to justice."
It is probably no accident the court is here described as
"legitimate." Since the institution’s legality is dubious, the goal is
to portray it as "legitimate" instead. This is the same well known
gambit employed by Antonio Cassese, the former President of the ICTY,
whose unequivocal assertion that the US war against Yugoslavia (by
means of NATO) in 1999 was illegal, but a good ("legitimate"?) thing
since it might lead to the emergence of a new legal principle. Could it
be that even Armatta agrees with Milosevic on the illegality of the
ICTY? This minor problem of illegality can be totally overlooked,
however, since "the court’s fundamental responsibility is to justice".
The picture emerges of an illegal but legitimate court dispensing
justice! If one finds it baffling that an illegal court could be
legitimate, it is all the more challenging to conclude that the ICTY
dispenses justice. For how can a court dispense justice without
observing due process?
Nonetheless, Armatta, reacting to the boycott of the proceedings by
many of Slobodan Milosevic’s witnesses, argues that they have some kind
of duty towards the process: "Witnesses who can testify on those issues
owe it to the accused, the public and the victims to participate in the
trial." But if the trial is essentially unfair, and the court is
illegal, there is no one to whom the witnesses owe anything.
The need to preserve the Rule of law is advocated by Armatta in
support of her contention that the ICTY is correct in refusing to be
"highjacked" or "blackmailed" by President Milosevic. But the "Rule of
law" means something quite different from the process Armatta seeks to
legitimate. A.V. Dicey, the celebrated British constitutional scholar,
offers the classic definition:
"We mean, in the first place, that no man is punishable or can
be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of
the land."
Slobodan Milosevic is by no means being tried "in the ordinary
legal manner before the ordinary courts of the land." The ICTY was not
established by treaty or by a vote of the UN General Assembly. The
Constitutional court of Yugoslavia found that Milosevic had been
"transferred" to The Hague in violation of Yugoslav and international
law. The concept of "joint criminal enterprise", which does not require
the prosecution to establish genocidal intent in some instances, is a
recent jurisprudential development. (Not all would consider this
caselaw consistent with the idea that the requisite intent for genocide
must reflect the gravity of the crime, and that it must therefore be
special. The first judgment of an ad hoc court defining genocide,
Prosecutor v. Akayesu, called this dolus specialis. Most, however,
would argue that the relaxed requirements are "good". Again, perhaps a
manifestation of "illegal but good.") Dicey also defines Rule of Law as
a system that adheres to equality before the law. The ICTY’s Prosecutor
(an actual "organ" of the body, as per its Statute) did not consider it
necessary to bring a single charge as a result of the myriad breaches
of international law alleged as a result of NATO’s 78-day bombing
campaign against Yugoslavia in 1999.
Michael Scharf argues that the ICTY’s aims are to "educate" the
Serbian people, and to promote "reconciliation" in the Balkans. But
these are not judicial functions, and Slobodan Milosevic should have
the right to point out what the ICTY’s creators—Scharf is considered to
have been instrumental in the adoption of Security Council Resolution
827, which adopted the ICTY’s Statute—unhesitatingly state themselves.
To argue that the ICTY is not violating fundamental rights and
international law, but is rather protecting the "Rule of Law" is not
only false, but debases the very idea.
On October 21st, the ICTY’s Appeals Chamber heard the parties on
assigned counsels’ appeal against the Trial Chamber’s decision to
impose them as Milosevic’s lawyers. Slobodan Milosevic argued that
imposition of counsel and the violation of the right to defend oneself
in person is the province of political courts, such as the 17th century
Star Chamber, and pointed to Scharf’s statement that the ICTY’s
objectives were transparently political, not judicial, in nature.
Hence, Milosevic stated that given the fact the process was political,
he required a political defense, which could only be achieved through
self-representation. (Indeed, recent amendments to the ICTY’s Code of
Conduct for defense lawyers state that lawyers:
"must not have engaged in conduct, whether in pursuit of his
profession or otherwise (...) likely to diminish public confidence in
the International Tribunal (...) or otherwise bring the International
Tribunal into disrepute.")
The ICTY’s President, Theodor Meron, responded by saying:
"I really believe, and I believe that all my colleagues very
strongly believe that this trial is not a political trial. It is a
legal trial under human rights and due process to determine, under
international law and the Statute, whether —to determine whether you
are guilty beyond a reasonable doubt or you are not. And we would not
have been conducting those proceedings this way if we were not
convinced that this is really not only a legal trial, but I believe it
is a model of a fair trial."
While we note that President Meron’s remarks constitute an implicit
disavowal of Scharf’s conception of the ICTY’s aims, the fact remains
that the ICTY did not clearly indicate that it would not tolerate such
claims. For who and what endangers the ICTY’s credibility? President
Milosevic, who is prevented from arguing that the ICTY is a political
body, or people like Scheffer, Scharf and Armatta, who make plain that
it is? Could it simply be that the ICTY is in fact a political body,
whose creation, as well as its conclusion—in other words, whose birth
and death—are the result of political decisions?
That political reality eloquently reveals "the nature of the
beast." And the fact that not everyone is entitled to make that very
point only reinforces Slobodan Milosevic's arguments, even if he is
stripped of the right to articulate them.
Tiphaine Dickson is a Montreal-based criminal defense lawyer and
was lead counsel in one of the first UN genocide trials before the ICTR
in Arusha, Tanzania. She can be reached at tiphainedickson @
videotron.ca
Aleksandar Jokic is Professor of Philosophy at Portland State
University, and Director of the Center for Philosophical Education in
Santa Barbara. He can be reached at ajokic @ sbceo.org
******************************************************************
© Copyright Tiphaine Dickson an Aleksandar Jokic, CRG 2004 .
================================================
THE INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM www.icdsm.org Sofia-New York-Moscow
SLOBODA/FREEDOM ASSOCIATION - Member of the World Peace Council
www.sloboda.org.yu Belgrade
*********************************************************
URGENT FUNDRAISING APPEAL
*********************************************************
After the Hague Tribunal declared war against human rights and
International Law by banning President Milosevic's right to
self-defense, our activities for his liberation and for the restoration
of his freedom and for the national sovereignty of the Serbian people
need to be reorganized and intensified.
We need professional, legal work now more than ever. Thus, the creation
of conditions for that work is the imperative at this moment.
The petition of 100 lawyers and law professors from 18 countries, and
other related activities of the ICDSM Legal Committee, produced a
public effect incomparable to any other previous action by the ICDSM.
President Milosevic has the truth and law on his side. In order to use
that advantage to achieve his freedom, we must fight this totally
discredited tribunal and its patrons through professionally conducted
actions which would involve the Bar Associations, the European Court,
the UN organs in charge and the media.
Our practice has shown that ad hoc voluntary work is not enough to deal
properly with these tasks. The funds secured in Serbia are still enough
only to cover the expenses of the stay and work of President
Milosevic's legal associates at The Hague (one at the time). The funds
secured by the German section of the ICDSM (still the only one with
regular contributions) are enough only to cover minimal additional work
at The Hague connected with contacts and preparations of foreign
witnesses. Everything else is lacking.
3000-5000 EUR per month is our imminent need.
Our history and our people oblige us to go on with this necessary
action.
But without these funds it will not be possible.
Please organize urgently the fundraising activity
and send the donations to the following ICDSM accounts:
Peter Betscher
Stadt- und Kreissparkasse Darmstadt, Germany
IBAN: DE 21 5085 0150 0102 1441 63
SWIFT-BIC: HELADEF1DAS
or
Vereinigung für Internationale Solidarität (VIS)
4000 Basel, Switzerland
PC 40-493646-5
All of your donations will be used for legal and other necessary
accompanying activities, on instruction or with the consent of
President Milosevic. To obtain additional information on the use of
your donations or to obtain additional advice on the most efficient way
to submit your donations or to make bank transfers, please do not
hesitate to contact us:
Peter Betscher (ICDSM Treasurer) E-mail: peter_betscher @ freenet.de
Phone: +49 172 7566 014
Vladimir Krsljanin (ICDSM Secretary) E-mail: slobodavk @ yubc.net
Phone: +381 63 8862 301
The ICDSM and Sloboda need to address governments, international human
rights and legal organizations, and to launch legal proceedings. The
ICDSM plans a legal conference at The Hague. Sloboda has just sent to
the patriotic factions in the Serbian Parliament an initiative to adopt
a parliamentary Resolution against the human rights violations by the
Hague Tribunal and to form an international team of experts to make an
extensive report on these violations which would be submitted to the UN.
***************************************************************
For truth and human rights against aggression!
Freedom for Slobodan Milosevic!
Freedom and equality for people!
On behalf of Sloboda and ICDSM,
Vladimir Krsljanin,
Foreign Relations Assistant to President Milosevic
*************************************************************
To join or help this struggle, visit:
http://www.sloboda.org.yu/ (Sloboda/Freedom association)
http://www.icdsm.org/ (the international committee to defend Slobodan
Milosevic)
http://www.free-slobo.de/ (German section of ICDSM)
http://www.icdsm-us.org/ (US section of ICDSM)
http://www.icdsmireland.org/ (ICDSM Ireland)
http://www.pasti.org/milodif.htm (ICDSM Italy)
http://www.wpc-in.org/ (world peace council)
http://www.geocities.com/b_antinato/ (Balkan antiNATO center)
==========================
ICDSM - Sezione Italiana
c/o GAMADI, Via L. Da Vinci 27
00043 Ciampino (Roma)
tel/fax +39-06-4828957
email: icdsm-italia @ libero.it
Conto Corrente Postale numero 86557006
intestato ad Adolfo Amoroso, ROMA
causale: DIFESA MILOSEVIC
sito internet:
http://www.pasti.org/linkmilo.htm
Data: Mar 26 Ott 2004
A: icdsm-italia @ yahoogroups.com
From : zambon
To : "ICDSM Italia"
Cc :
Date : Mon, 25 Oct 2004 18:14:06 +0200
Subject : Giudici o mercenari?
cari compagni,
vi segnalo alcuni episodi (credo sconosciuti) dell'attività
professionale di
Carla Del Ponte tratti dalle memorie di un ispettore di polizia
svizzero da
lei costretto ad abbandonare il servizio.
I motivi sono da ricercare nell' "eccessivo" zelo del commissario nel
perseguire i reati di alcuni noti esponenti della mafia internazionale
del
traffico di droga.
Nel suo libro "Deckname Tato, Pendo Verlag, Zürich" (Soprannome TATO",
Edizioni Pendo, Zurigo) l'ex commissario Fausto Cattaneo scrive:
a pagina 197: "...il conflitto con Carla del Ponte è inevitabile. Lei
non
vuole assolutamente vedere Escobar Junior in un carcere svizzero...."
a pagina 377: "... La nomina di Carla Del Ponte a Pubblico Ministero al
Tribunale Internazionale dell'Aia nell'agosto del 1999 rappresentò il
coronamento di una carriera che si è sempre realizzata nel segno della
politica."
*** THE NATURE OF THE HAGUE BEAST ***
"La natura della bestia dell'Aia": e' il titolo della approfondita
analisi di T. Dickson ed A. Jokic che riportiamo di seguito.
La decisione del "Tribunale ad hoc" dell'Aia (ICTY) di impedire a
Milosevic di difendersi da solo, oltre a rappresentare una violazione
senza precedenti dei diritti elementari dell'"imputato", ha finito con
il determinare una situazione di totale stallo nel "processo": infatti,
la stragrande maggioranza dei "testimoni" convocati a difesa di
Milosevic si sono rifiutati di comparire per protesta, fintantoche' la
decisione non verra' ritirata. Cosicche', il "processo" e' nuovamente
bloccato.
Sulle recenti vicende vedi anche gli aggiornamenti al nostro sito:
http://www.pasti.org/milodif.htm
Sul grave imbarazzo che le attivita' dell'ICTY stanno provocando,
persino ai piu' alti vertici dell'establishment statunitense, si veda
anche:
BALKAN JUSTICE JOUST - By Jeffrey T. Kuhner
The Washington Times - October 24, 2004
(... Washington is insisting that war crimes cases relating to the
Balkan wars of the 1990s be tried either in domestic courts or be given
an amnesty. This shift not only marks a dramatic change in U.S. policy
toward the ICTY, but more importantly, it is a fatal blow to the power
and credibility of Mrs. Del Ponte...)
http://www.washingtontimes.com/commentary/20041023-105636-4172r.htm
Rinnoviamo infine il nostro APPELLO:
Senza mezzi finanziari, la difesa di Milosevic non ha chances.
PER PROSEGUIRE QUESTA LOTTA ABBIAMO ASSOLUTO BISOGNO
DEL TUO CONTRIBUTO ECONOMICO -- VEDI:
http://www.pasti.org/traduz.htm
---
Da: "Vladimir Krsljanin"
Data: Lun 25 Ott 2004 15:20:40 Europe/Rome
Oggetto: The Nature of the Hague Beast by Tiphaine Dickson and
Aleksandar Jokic
*************************************************************
INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM Sofia-New York-Moscow www.icdsm.org
*************************************************************
www.globalresearch.ca
Centre for Research on Globalisation
Centre de recherche sur la mondialisation
"That Is The Nature Of The Beast":
Why The Hague ICTY Cannot Afford
Slobodan Milosevic’s Right to Self-Representation
by Tiphaine Dickson and Aleksandar Jokic
www.globalresearch.ca 24 October 2004
The URL of this article is:
http://globalresearch.ca/articles/DIC410A.html
When Slobodan Milosevic was asked to plead to the indictment filed
against him, after being whisked off to The Hague as a result of a
transfer whose legality bore more resemblance to kidnapping for ransom
than to extradition, his response to the ICTY Chamber was not the
typical "Not guilty." Milosevic instead said: "That is not my problem,
that is your problem."
And, indeed, the ICTY’s problem it has become. When the prosecution
rested its case after the resignation of the Trial Chamber’s President,
Richard May, last spring, many in the media bemoaned the failure to
prove genocide, and others were unimpressed by the picture of confusion
left by weak witnesses, deflated in cross-examination by a defendant
who consistently stated the ICTY was not a legal, or judicial,
institution. Voices rose to express increasingly strident concern that
the trial was going off the rails. Expectations appeared not to have
been met.
As the defense approached, and Milosevic announced that he would
secure the attendance of 1600 witnesses to support the case he
announced he would make from the beginning—namely that the "Balkan
Wars" had in fact been one war, against Yugoslavia, planned and carried
out by Western powers, whose gruesome apotheosis was NATO’s 78-day
bombing campaign in 1999—the ICTY’s most prestigious supporters zeroed
in on the upcoming defense, arguing that Milosevic’s right to represent
himself had been granted "long enough."
The media onslaught was, and remains, significant and raises an
obvious question: what is it about the present stage of the hearings
that requires such collective effort to defeat?
The latest offensive is apparently triggered by fear, and not only
challenges the internationally mandated right to self-representation
(and the resulting freedom to present a true defense), but is further
calculated to prevent Milosevic from demonstrating the ICTY’s
illegality, and functions. President Milosevic has indeed consistently
argued that the ICTY serves up apologia for the destruction of
Yugoslavia, provides justification for aggression, and rewrites
history. Hence, the seemingly endless references, not to Milosevic’s
health, but to his deleterious impact on the "Court’s reputation",
"credibility" and "legitimacy."
Public lobbying of the ICTY supporting the imposition of counsel on
Slobodan Milosevic has been undertaken by a trio of its stalwart
supporters: David Scheffer, Michael Scharf, and Judith Armatta. Their
claims—perhaps inadvertently—betray the political nature of the
institution.
Writing in the pages of International Herald Tribune ("Enough of
Milosevic’s Antics" July 13, 2004), David Scheffer, former Ambassador
at Large for War Crimes Issues under Secretary of State Albright,
dehumanizes Milosevic, and urges the ICTY to reassert its "authority"
over him. Writes Scheffer: "When he was the presiding judge, the late
Richard May deftly handled Milosevic’s exercise of his right to
self-representation by giving him enough leash every day to speak his
mind and then jerking that leash when he overstepped his bounds." The
metaphor of "leash jerking" is powerfully deployed here in light of the
painfully recent Abu Ghraib prison atrocities in Iraq, immortalized by
the infamous photograph of Pfc. Lynndie England holding a naked human
being on a leash. Is Scheffer urging the ICTY to become more like Abu
Ghraib, but in the judicial, rather than military theater of
operations? Whatever his intent, in one important respect there is
hardly any difference between the physical and metaphorical leash
jerking: they are both firmly grounded in the most primitive racist or
reifying attitudes toward their targets. And who exactly is the target
of David Scheffer’s comments? It would appear to be only Mr. Milosevic
who is thus rendered inhuman, but there is another, even more crucial
objective: the ICTY’s judges and prosecutor are implicitly reminded
here that they are mere tools (res) of the Empire, so they had better
deliver.
And what were the goods to be delivered by the ICTY? The process is
staggeringly costly, so it follows that a conviction is necessary, and
that "justice" mandates the gagging of Milosevic, who is: "charged with
crimes of enormous gravity in the Balkans: genocide, crimes against
humanity and war crimes. They scream out for accountability. The United
Nations and its member states are expending large sums of money on
these trials for the purpose of justice, not political diatribes and
meandering defenses." It is unclear whether this is a legal or
political argument. It may be that Scheffer’s position—promoting a
novel legal approach—is that since Milosevic has been charged with the
most serious crimes of all, and that they "scream out for
accountability," this very fact ipso facto constitutes proof beyond
reasonable doubt of his actual guilt. For who could imagine that the
ICTY might bring frivolous charges and indict a sitting President in
the midst of a war of aggression against his country? Alternatively,
Scheffer’s words might be expressing a direct political claim: "We paid
for this, and we certainly did not pay for this man to jerk us around."
Scheffer advocates the imposition of counsel, to: "ensure the
integrity of the process, which may be nearing a breaking point with
the international community." The impatience expressed on behalf of the
phantom "international community" might in fact be just Scheffer’s own
and those of his ilk, well connected to the establishment of the ICTY.
In any event, the point is that the ICTY has no legal authority beyond
the powers granted by the Security Council, and deemed legally valid by
its own appeals chamber, i.e., itself. Hence, its authority "must be
asserted." The very process, which is an abuse, must be protected from
"a crippling abuse," that is, from denunciation by Milosevic, and in
particular his witnesses: "A massive criminal enterprise of this
character deserves a long, carefully developed trial that inevitably
will experience delays. That is the nature of the beast. But the time
has arrived to reassert the court’s mandated authority and prevent a
crippling abuse of the process by the likes of Slobodan Milosevic."
"Nature of the beast", indeed. It is urgent that this be accomplished
since the ICTY, as opposed to judicial bodies the world over, is a
"limited engagement," and is attempting to complete investigations,
trials, and appeals before a Security Council-mandated deadline—known
as the "completion strategy"—in 2010. A conviction must be secured
before then. Just as performances must end before the circus can leave
town.
Also urgent is that "Serbs," specifically, "respect the court’s
authority," and presumably this transformation can only take place if
Milosevic is gagged, and the illegality of the body never mentioned
again: "Perhaps if the discipline of a competent counsel is brought
into the courtroom, Milosevic’s Serb supporters would learn to respect
the authority of this tribunal."
In his conclusion Scheffer fittingly returns to his tired leash
metaphor to reinforce his point that Milosevic must be silenced
"permanently" since he is inhuman: "Milosevic has jerked the court
around long enough. It is time to permanently pull in Judge May’s
well-worn leash."
Michael Scharf, visiting professor of law at Case Western Reserve
University, and instrumental in the creation of the ICTY, followed
Scheffer’s opening salvo in the Washington Post, and, with
bone-chilling clarity, made the case for imposition, employing
strikingly political arguments. ("Making a Spectacle of Himself:
Milosevic Wants a Stage, Not the Right to Provide His Own Defense",
August 29th, 2004) Drawing on the now-familiar refrain that Slobodan
Milosevic is "playing for the home audience", Scharf is outraged by the
idea that the unrepresented defendant would somehow make use of a show
trial to gain support in Serbia and Montenegro, when the ICTY was
created, he deadpans, precisely to remove Milosevic from politics, and
"educate" Serbs, so that he and his like would be put out of commission
forever. That his own argument confirms the political nature of the
ICTY and candidly clarifies its objectives as non-judicial does not
deter Scharf from the description of the process as an "international
war crimes trial" and the institution as a "court of law."
According to Scharf: "Milosevic’s caustic defense strategy is
unlikely to win him acquittal, but it isn’t aimed at the court of law
in The Hague. His audience is the court of public opinion back home in
Serbia, where the trial is a top-rated TV show and Milosevic’s standing
continues to rise. Opinion polls have reported that 75 percent of Serbs
do not feel that Milosevic is getting a fair trial, and 67 percent
think that he is not responsible for any war crimes. ‘Slobo Hero!’
graffiti is omnipresent on Belgrade buses and buildings. Last December,
he easily won a seat in the Serbian parliament in a national election."
What any of these concerns and political trivia could possibly have
to do with international law—if considered as an activity of a judicial
nature—is unclear. If, however, playing to an uninformed Western
public, the idea is to suggest that by granting basic internationally
recognized human rights to the man who was the West’s principal
interlocutor in Balkan peace negotiations for over half a decade, the
ICTY is failing in its mission to "educate" the Serbs, then the point
is well taken. Scharf deplores the fact that opinion polls show that
"75% of Serbs do not feel Milosevic is getting a fair trial." Scharf’s
disappointment in this expression of popular distrust—which may well be
directed to the institution as a whole—assumes that public opinion in
Serbia and Montenegro is misguided, and that it fails to appreciate the
"fairness" of the proceedings. But if, as Scharf claims, ICTY hearings
are "top rated" TV shows, then public opinion was formed by actually
observing the proceedings; in which case the problem might not be
collective delusion abroad, but rather Western ignorance of the ICTY’s
day to day workings. The latter are largely inconsistent with the
widely held Western belief—based, perhaps, on faith or missionary
zeal—that proceedings in The Hague are inherently fair.
Scharf’s preoccupation with graffiti adorning the buses and
buildings of Belgrade is perhaps an expression of concern for the
environment. However, any threat posed by "Slobo Hero!" pales in
comparison to the effects of NATO’s bombing, and in particular, with
the presence of depleted uranium in the soil and groundwater of Serbia
and Montenegro. It may be that "Serb" public opinion has not yet been
sufficiently educated by the "court of law" to lose sight of this
disturbing reality, which will remain with it for decades, and possibly
centuries. Perhaps this reality and the ever-present reminders of
NATO’s bombing in the streets of Belgrade have had some influence on
the public perception of the ICTY’s "fairness."
Scharf’s assault on Mr. Milosevic’s right to self-representation,
while in line with Scheffer’s demand that the "leash be pulled in
permanently," presents one significant difference in approach. Where
Scheffer depicted the late judge May as an uncompromising animal-tamer
of sorts, Scharf presents him as a misguided fool. Rather than invoke
his capacity for discipline, he accuses him—in an eloquent
demonstration of the reification of the ICTY’s functionaries, in
particular the deceased—of having been lax and in error by having
granted the right to self-representation to Milosevic in the first
place. He writes: "Virtually everything that has gone wrong with the
Milosevic trial can be traced back to that erroneous ruling."
And what has "gone wrong" is that Milosevic made "disparaging
remarks about the court" and "browbeat" witnesses. He doesn’t recognize
the ICTY, and he has said so. As for the "browbeating" of witnesses,
that is to a certain extent, whether we like it or not, part of the art
of cross-examination. But Scharf’s emphasis is placed not so much on
these complaints as on his wild claims about Mr. Milosevic’s growing
popularity in Serbia and Montenegro.
Scharf makes plain that the ICTY was created for political reasons,
yet advocates imposing counsel on Slobodan Milosevic to prevent him
from making precisely the same point. The only difference is that
Milosevic is "disparaging," while Scharf argues that the ICTY’s evident
political objectives are somehow valid:
"In creating the Yugoslavia tribunal statute, the U.N. Security
Council set three objectives: first, to educate the Serbian people, who
were long misled by Milosevic’s propaganda, about the acts of
aggression, war crimes and crimes against humanity committed by his
regime; second, to facilitate national reconciliation by pinning prime
responsibility on Milosevic and other top leaders and disclosing the
ways in which the Milosevic regime had induced ordinary Serbs to commit
atrocities; and third, to promote political catharsis while enabling
Serbia’s newly elected leaders to distance themselves from the
repressive policies of the past. May’s decision to allow Milosevic to
represent himself has seriously undercut these aims."
The idea that affording the right of self-representation to
Milosevic had "seriously undercut" the "aims" of the ICTY’s very
establishment strains credulity. However, if those aims were, and
continue to be, "to pin" responsibility on Slobodan Milosevic, and to
"educate" Serbs about how bad he was—or, ultimately, how bad Yugoslavia
was—then these aims are assuredly not shared by the defendant. Indeed,
Milosevic has no intention of assisting the ICTY in "convincing Serbs"
that acts of aggression committed against Yugoslavia were justified.
Furthermore, whether or not the political aims set out by Scharf are
valid, morally correct, or politically expedient, they cannot make
legal what is illegal, they cannot make legitimate what is
illegitimate, and they cannot, most crucially, turn a political body
into a court.
As was perhaps inevitable, the ICTY did impose counsel. On
September 2nd, two of the former amici curiae were "assigned"—the Trial
Chamber pointedly insisted on the use of this term, instead of the
apparently indelicate "imposed"—to represent Slobodan Milosevic, and
given full responsibility over his defense, including the formation of
his strategy and choice of witnesses. The prerogatives granted to
imposed counsel were far more intrusive than what had been expected;
even, apparently, by the prosecution’s senior trial attorney who had
appeared during the hearings to envisage a "standby counsel" prepared
to step in should Milosevic’s health prevent him from acting. Instead,
the defense was handed over to strangers, who in addition to receiving
no instructions from their "client" happened to have acted as another
party in these proceedings, as "friends" of a "court" the defendant
does not recognize.
That this imposition of counsel constitutes a conflict of interest,
that it violates the International Covenant for Civil and Political
Rights, that neither the South African Apartheid regime nor Nazi
Germany imposed counsel against Mandela or Dimitrov, respectively, and
that imposition has actually caused more delay of the proceedings
(while Milosevic is healthy) does not deter those who defend the ICTY’s
decision to strip President Milosevic of the right to call his
witnesses, and present his defense. And his defense is the problem, as
it is candidly presented as a political defense, before a political
body.
Imposed counsel struggled in vain to present more than five
witnesses since early September, and were confronted with the refusal
of experts, diplomats, officers and dozens of others to participate in
a defense that was not the defense they had agreed to support. (Of
note, here, is that before a normal judiciary, witnesses have no say in
whether or not they wish to participate in the workings of justice. The
etymology of the word "subpoena"—"under penalty"—makes clear that legal
courts also have legal authority) This latest crisis before the ICTY
prompted new intervention in the media, for the sake of the ICTY’s
credibility. But the political nature of the claims has had the
opposite effect.
Judith Armatta, a lawyer acting as trial observer for the US-based
Coalition for International Justice (Justice, not Political Platform
for Milosevic, IHT, October 7th), much like her predecessors, Scheffer
and Scharf, betrays the true reason for imposition of counsel on
Slobodan Milosevic. Clearly neither Armatta nor the ICTY appreciates
his "political defense". Armatta implies that Milosevic—and others
before the ad hoc Security Council bodies, such as the ICTR in Arusha,
Tanzania—are simply capricious accused who refuse to respect
established court procedure, while these embattled courts struggle to
provide fair trials in the face of obstructionism from "unreasonable"
defendants. This is a mischaracterization both of Slobodan Milosevic’s
position (and that of Rwandan accused at the ICTR) and of the ad hoc
tribunals' legitimacy.
Armatta writes that the "trial of Slobodan Milosevic before the
International Criminal Tribunal for the Former Yugoslavia has reached a
standoff, where the will of the UN-established court is pitted against
the will of one individual, the accused."
This depiction of the Milosevic case as a battle of wills is
peculiar, to say the least, as it falsely presents ICTY as an underdog
in this "standoff" requiring some assistance and encouragement. What
could possibly disadvantage the ICTY—which enjoys the full support of
the only super power—in its "test of wills" with Milosevic? The message
sent by ICTY supporters, such as Armatta, is that the ICTY’s handicap
is its tendency to go overboard with fairness. Trying to be as fair as
possible creates difficulties for the forces of justice. Thus calls on
ICTY like this one: "It is incumbent on this tribunal to stand up to
Milosevic, assert its authority and bring the world one step closer to
the rule of law." But is accomplishing fairness the ICTY’s central
concern? And how does "standing up" to Milosevic bring anybody any
closer to the Rule of law, in particular when international human
rights instruments are violated in the process?
The problem is what Milosevic has to say. That the ICTY pointedly
imposed counsel for "health reasons" is a secondary consideration for
Armatta, as it might well have been for the Chamber who disregarded the
fact that Slobodan Milosevic has defended himself quite ably for the
past three years, and suffered from hypertension for ten. In fact,
since counsel was imposed, the health reasons that justified the
measure have gradually been replaced by suggestions that Milosevic
lacks sufficient "respect for the court."
Armatta’s criticism of Slobodan Milosevic’s behavior suggests she
has privileged access to his mind. She not only chastises him for not
cooperating with the ongoing violation of his rights, but reveals why
he embarks on such a baffling course: "the accused refuses to
communicate with counsel or assist in selecting and securing witnesses
or developing a defense strategy, since he seeks not to defend himself
but to use the trial as a platform to advance his political agenda. "
Were it acceptable to apply such psychoanalysis to the ICTY,
instead of Milosevic, the inquiry could address the wholly predictable
consequences of imposition of counsel. Armatta describes the situation
in the following manner: "Nearly half the witnesses initially scheduled
to testify on his behalf have followed his example by refusing to
appear in court if Milosevic is not allowed to represent himself." If
we wanted to speculate, we could posit that the reason for imposition
of counsel had nothing to do with his health or fairness. On the
contrary, the reason might be that the ICTY wanted to prevent the
appearance of most of his witnesses, as they would expose the illegal
nature of ICTY. So, while in the realm of speculation, one could
imagine that they correctly predicted that by imposing counsel on
Milosevic they would bring about a boycott by those witnesses and bring
the proceedings to a quick conclusion without most of them ever
appearing.
But this type of speculation is deemed improper. And it is
inconsistent with Armatta’s depiction of the current situation as a
battle of the wills, which provides absolute clarity as to where the
good and the bad wills lie. And what better way to expose the unsavory
intent of the one deemed to have bad will than to point to his
consistent opposition to the process that is assumed to be inherently
fair? Armatta states, as if this established his bad faith, that Mr.
Milosevic: "has consistently maintained, he does not recognize the
legitimacy of the tribunal but will use whatever opportunity is
provided to make his political case to the public."
It should be obvious by now that if Slobodan Milosevic maintains
that the ICTY is illegal, he will naturally take every opportunity he
gets to let the world know about that fact. Is Armatta suggesting that
those who contend, relying on reasonable legal arguments, that the
institution is illegal should nonetheless quietly succumb to it and
personally contribute to the illegal activities undertaken against
them? Armatta—as well as Scheffer and Scharf—express concern about the
deleterious effects of self-representation in other cases. Scharf fears
Saddam Hussein could use "the unique opportunity of self-representation
to launch daily attacks against the legitimacy of the proceedings and
the U.S. invasion of Iraq." Is it then that all targets of aggression
are to be denied the right to self-representation? Or does the very
creation of the ICTY, by the Security Council, (who then proceeded to
establish the ICTR, a body without jurisdiction to consider the
invasion of Rwanda by US-supported "rebels", which aggression sparked
that country’s tragic war) send another message? Could it be that there
is no right of self-defense when the US, or their clients, are the
aggressors?
The essence of Armatta’s complaint against Milosevic, whose will
must not be allowed to prevail over the will of the ICTY, comes from a
flawed view of the ICTY and its process. She states:
"As a legitimate court, it is charged with seeing justice done
for the heinous crimes, including genocide, committed throughout the
territory of the former Yugoslavia during the 1990s. Its fundamental
responsibility, as that of all courts, is to justice."
It is probably no accident the court is here described as
"legitimate." Since the institution’s legality is dubious, the goal is
to portray it as "legitimate" instead. This is the same well known
gambit employed by Antonio Cassese, the former President of the ICTY,
whose unequivocal assertion that the US war against Yugoslavia (by
means of NATO) in 1999 was illegal, but a good ("legitimate"?) thing
since it might lead to the emergence of a new legal principle. Could it
be that even Armatta agrees with Milosevic on the illegality of the
ICTY? This minor problem of illegality can be totally overlooked,
however, since "the court’s fundamental responsibility is to justice".
The picture emerges of an illegal but legitimate court dispensing
justice! If one finds it baffling that an illegal court could be
legitimate, it is all the more challenging to conclude that the ICTY
dispenses justice. For how can a court dispense justice without
observing due process?
Nonetheless, Armatta, reacting to the boycott of the proceedings by
many of Slobodan Milosevic’s witnesses, argues that they have some kind
of duty towards the process: "Witnesses who can testify on those issues
owe it to the accused, the public and the victims to participate in the
trial." But if the trial is essentially unfair, and the court is
illegal, there is no one to whom the witnesses owe anything.
The need to preserve the Rule of law is advocated by Armatta in
support of her contention that the ICTY is correct in refusing to be
"highjacked" or "blackmailed" by President Milosevic. But the "Rule of
law" means something quite different from the process Armatta seeks to
legitimate. A.V. Dicey, the celebrated British constitutional scholar,
offers the classic definition:
"We mean, in the first place, that no man is punishable or can
be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of
the land."
Slobodan Milosevic is by no means being tried "in the ordinary
legal manner before the ordinary courts of the land." The ICTY was not
established by treaty or by a vote of the UN General Assembly. The
Constitutional court of Yugoslavia found that Milosevic had been
"transferred" to The Hague in violation of Yugoslav and international
law. The concept of "joint criminal enterprise", which does not require
the prosecution to establish genocidal intent in some instances, is a
recent jurisprudential development. (Not all would consider this
caselaw consistent with the idea that the requisite intent for genocide
must reflect the gravity of the crime, and that it must therefore be
special. The first judgment of an ad hoc court defining genocide,
Prosecutor v. Akayesu, called this dolus specialis. Most, however,
would argue that the relaxed requirements are "good". Again, perhaps a
manifestation of "illegal but good.") Dicey also defines Rule of Law as
a system that adheres to equality before the law. The ICTY’s Prosecutor
(an actual "organ" of the body, as per its Statute) did not consider it
necessary to bring a single charge as a result of the myriad breaches
of international law alleged as a result of NATO’s 78-day bombing
campaign against Yugoslavia in 1999.
Michael Scharf argues that the ICTY’s aims are to "educate" the
Serbian people, and to promote "reconciliation" in the Balkans. But
these are not judicial functions, and Slobodan Milosevic should have
the right to point out what the ICTY’s creators—Scharf is considered to
have been instrumental in the adoption of Security Council Resolution
827, which adopted the ICTY’s Statute—unhesitatingly state themselves.
To argue that the ICTY is not violating fundamental rights and
international law, but is rather protecting the "Rule of Law" is not
only false, but debases the very idea.
On October 21st, the ICTY’s Appeals Chamber heard the parties on
assigned counsels’ appeal against the Trial Chamber’s decision to
impose them as Milosevic’s lawyers. Slobodan Milosevic argued that
imposition of counsel and the violation of the right to defend oneself
in person is the province of political courts, such as the 17th century
Star Chamber, and pointed to Scharf’s statement that the ICTY’s
objectives were transparently political, not judicial, in nature.
Hence, Milosevic stated that given the fact the process was political,
he required a political defense, which could only be achieved through
self-representation. (Indeed, recent amendments to the ICTY’s Code of
Conduct for defense lawyers state that lawyers:
"must not have engaged in conduct, whether in pursuit of his
profession or otherwise (...) likely to diminish public confidence in
the International Tribunal (...) or otherwise bring the International
Tribunal into disrepute.")
The ICTY’s President, Theodor Meron, responded by saying:
"I really believe, and I believe that all my colleagues very
strongly believe that this trial is not a political trial. It is a
legal trial under human rights and due process to determine, under
international law and the Statute, whether —to determine whether you
are guilty beyond a reasonable doubt or you are not. And we would not
have been conducting those proceedings this way if we were not
convinced that this is really not only a legal trial, but I believe it
is a model of a fair trial."
While we note that President Meron’s remarks constitute an implicit
disavowal of Scharf’s conception of the ICTY’s aims, the fact remains
that the ICTY did not clearly indicate that it would not tolerate such
claims. For who and what endangers the ICTY’s credibility? President
Milosevic, who is prevented from arguing that the ICTY is a political
body, or people like Scheffer, Scharf and Armatta, who make plain that
it is? Could it simply be that the ICTY is in fact a political body,
whose creation, as well as its conclusion—in other words, whose birth
and death—are the result of political decisions?
That political reality eloquently reveals "the nature of the
beast." And the fact that not everyone is entitled to make that very
point only reinforces Slobodan Milosevic's arguments, even if he is
stripped of the right to articulate them.
Tiphaine Dickson is a Montreal-based criminal defense lawyer and
was lead counsel in one of the first UN genocide trials before the ICTR
in Arusha, Tanzania. She can be reached at tiphainedickson @
videotron.ca
Aleksandar Jokic is Professor of Philosophy at Portland State
University, and Director of the Center for Philosophical Education in
Santa Barbara. He can be reached at ajokic @ sbceo.org
******************************************************************
© Copyright Tiphaine Dickson an Aleksandar Jokic, CRG 2004 .
================================================
THE INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM www.icdsm.org Sofia-New York-Moscow
SLOBODA/FREEDOM ASSOCIATION - Member of the World Peace Council
www.sloboda.org.yu Belgrade
*********************************************************
URGENT FUNDRAISING APPEAL
*********************************************************
After the Hague Tribunal declared war against human rights and
International Law by banning President Milosevic's right to
self-defense, our activities for his liberation and for the restoration
of his freedom and for the national sovereignty of the Serbian people
need to be reorganized and intensified.
We need professional, legal work now more than ever. Thus, the creation
of conditions for that work is the imperative at this moment.
The petition of 100 lawyers and law professors from 18 countries, and
other related activities of the ICDSM Legal Committee, produced a
public effect incomparable to any other previous action by the ICDSM.
President Milosevic has the truth and law on his side. In order to use
that advantage to achieve his freedom, we must fight this totally
discredited tribunal and its patrons through professionally conducted
actions which would involve the Bar Associations, the European Court,
the UN organs in charge and the media.
Our practice has shown that ad hoc voluntary work is not enough to deal
properly with these tasks. The funds secured in Serbia are still enough
only to cover the expenses of the stay and work of President
Milosevic's legal associates at The Hague (one at the time). The funds
secured by the German section of the ICDSM (still the only one with
regular contributions) are enough only to cover minimal additional work
at The Hague connected with contacts and preparations of foreign
witnesses. Everything else is lacking.
3000-5000 EUR per month is our imminent need.
Our history and our people oblige us to go on with this necessary
action.
But without these funds it will not be possible.
Please organize urgently the fundraising activity
and send the donations to the following ICDSM accounts:
Peter Betscher
Stadt- und Kreissparkasse Darmstadt, Germany
IBAN: DE 21 5085 0150 0102 1441 63
SWIFT-BIC: HELADEF1DAS
or
Vereinigung für Internationale Solidarität (VIS)
4000 Basel, Switzerland
PC 40-493646-5
All of your donations will be used for legal and other necessary
accompanying activities, on instruction or with the consent of
President Milosevic. To obtain additional information on the use of
your donations or to obtain additional advice on the most efficient way
to submit your donations or to make bank transfers, please do not
hesitate to contact us:
Peter Betscher (ICDSM Treasurer) E-mail: peter_betscher @ freenet.de
Phone: +49 172 7566 014
Vladimir Krsljanin (ICDSM Secretary) E-mail: slobodavk @ yubc.net
Phone: +381 63 8862 301
The ICDSM and Sloboda need to address governments, international human
rights and legal organizations, and to launch legal proceedings. The
ICDSM plans a legal conference at The Hague. Sloboda has just sent to
the patriotic factions in the Serbian Parliament an initiative to adopt
a parliamentary Resolution against the human rights violations by the
Hague Tribunal and to form an international team of experts to make an
extensive report on these violations which would be submitted to the UN.
***************************************************************
For truth and human rights against aggression!
Freedom for Slobodan Milosevic!
Freedom and equality for people!
On behalf of Sloboda and ICDSM,
Vladimir Krsljanin,
Foreign Relations Assistant to President Milosevic
*************************************************************
To join or help this struggle, visit:
http://www.sloboda.org.yu/ (Sloboda/Freedom association)
http://www.icdsm.org/ (the international committee to defend Slobodan
Milosevic)
http://www.free-slobo.de/ (German section of ICDSM)
http://www.icdsm-us.org/ (US section of ICDSM)
http://www.icdsmireland.org/ (ICDSM Ireland)
http://www.pasti.org/milodif.htm (ICDSM Italy)
http://www.wpc-in.org/ (world peace council)
http://www.geocities.com/b_antinato/ (Balkan antiNATO center)
==========================
ICDSM - Sezione Italiana
c/o GAMADI, Via L. Da Vinci 27
00043 Ciampino (Roma)
tel/fax +39-06-4828957
email: icdsm-italia @ libero.it
Conto Corrente Postale numero 86557006
intestato ad Adolfo Amoroso, ROMA
causale: DIFESA MILOSEVIC
sito internet:
http://www.pasti.org/linkmilo.htm