da ICDSM-Italia:
1. BRITISH HELSINKI HUMAN RIGHTS GROUP:
Confusing rules and exceptions: Or, why the ICTY should not be judge,
jury and lawmaker (20 February 2005)
2. OPEN LETTER TO THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS (G.
Louis-Jensen, 11 December 2004)
Lettera aperta di G. Louis-Jensen, rappresentante dell'ICDSM in
Danimarca, alla ex procuratrice del "tribunale" dell'Aia, oggi Alto
Commissario dell'ONU per i Diritti Umani, Louise Arbour...
==========================
26 February Hague International Conference:
The Final Announcement
# http://it.groups.yahoo.com/group/icdsm-italia/message/167 #
Terzo - e definitivo - annuncio ufficiale della Conferenza dell'Aia
sulle problematiche legate al processo-farsa contro Milosevic e contro
la Jugoslavia (26 febbraio 2005)
==========================
ICDSM - Sezione Italiana
c/o GAMADI, Via L. Da Vinci 27
00043 Ciampino (Roma)
tel/fax +39-06-4828957
email: icdsm-italia @ libero.it
*** CONTRIBUISCI E FAI CONTRIBUIRE:
Conto Corrente Postale numero 86557006
intestato ad Adolfo Amoroso, ROMA
causale: DIFESA MILOSEVIC ***
IL NOSTRO SITO INTERNET:
http://www.pasti.org/linkmilo.htm
IL TESTO IN LINGUA ITALIANA DELLA AUTODIFESA DI MILOSEVIC, IN CORSO
DI REVISIONE E CORREZIONE, E' TEMPORANEAMENTE OSPITATO ALLA PAGINA:
https://www.cnj.it/documentazione/autodifesa04.htm
LE TRASCRIZIONI "UFFICIALI" DEL "PROCESSO" SI TROVANO AI SITI:
http://www.un.org/icty/transe54/transe54.htm (IN ENGLISH)
http://www.un.org/icty/transf54/transf54.htm (EN FRANCAIS)
==========================
1)
http://www.bhhrg.org/LatestNews.asp?ArticleID=60
BRITISH HELSINKI HUMAN RIGHTS GROUP:
NEWS ANALYSIS
Confusing rules and exceptions: Or, why the ICTY should not be judge,
jury and lawmaker
Date: 20 February 2005
“Extensive research has not led to the identification of any case in
any jurisdiction where counsel has been assigned to an accused person
because he was unfit to conduct his case as the result of impaired
physical health.”
International Criminal Tribunal for the former Yugoslavia, Trial
Chamber, Decision of 22nd September 2004
In a previous news item, dated 13th September 2004, BHHRG reported on
and criticised the decision of the International Criminal Tribunal for
the former Yugoslavia to impose defence counsel on Slobodan Milošević.
Commenting on the Order issued by the Trial Chamber on 10th September
2004,[1] BHHRG concluded,
“Crucially, the Trial Chamber offered no legal argument, i.e. by
quoting precedent or law, for using the health of the accused as a
reason for imposing counsel. It simply rescinded all its earlier
decisions, which had been grounded in law and precedent; it stated that
international and domestic law provided precedents for imposing
counsel, without quoting a single one; and it said that it was ‘in the
interests of justice’ to impose counsel. No definition was given of
these interests.”
Since the publication of that Order (which in turn confirmed an oral
ruling given on 2nd September 2004 [2]) the Trial Chamber has given
more detailed reasoning for its decision, and the Appeal Chamber has
upheld that decision.
(This is in spite of the Appeal Chamber’s decision overturning the
“modalities” laid down by the Trial Chamber for the new regime. In its
Decision of 1st November 2004, the Appeal Chamber criticised the Trial
Chamber for its “excessiveness” in taking away the defendant’s right to
conduct his own counsel, and effectively restored the status quo ante
while upholding the general principle that counsel could be
imposed.[3] This followed the refusal by 92 out of 97 defence witnesses
to testify, after counsel was imposed in September. Although the change
of the modalities means that Mr. Milošević is now once again preparing
and cross-examining witnesses as before, and although he refuses all
contact with imposed counsel, the legal position remains that the ICTY
has invented the principle that a defendant’s right to represent
himself can be overruled for health reasons. The Appeal Chamber upheld
the Trial Chamber’s earlier ruling on this point.)
The Trial Chamber decision of 22nd September 2004 does contain legal
reasoning, most of which was upheld on appeal, and it is therefore
important to revisit this issue in the light of these further legal
statements.
The Trial Chamber issued its “Reasons for Decision on Assignment of
Defence Counsel” on 22nd September 2004.[4] The basic argument of this
document is that the health of the defendant is too fragile for him to
be allowed to defend himself, and that counsel must therefore be
imposed in order to prevent the proceedings from being subject to
excessive delay. The undefined “fairness” of the proceedings is invoked
as an overriding principle in support of this decision.
This report will not concentrate on the merits of the case, which were
dealt with in the report dated 13th September. That report drew
attention to the fact that the right of a defendant to defend himself
in person is clearly enunciated in the ICTY’s own charter (Article 21,
where it is described as a “minimum guarantee”, not subject to any
limitations or qualifications) as well as in all the other relevant
international human rights conventions. It is also forcefully affirmed
in many authoritative national rulings, including most notably the US
Supreme Court’s decision inFaretta v. California(1975). Indeed, the
right was itself clearly enunciated in the Tribunal’s own rulings on
the matter, especially the one dated 4th April 2003, which the
September 2004 decisions overturned.
Instead, the purpose of this report is to look more closely at the
legal methodology employed by the Trial Chamber and the Appeal Chamber
in rescinding their earlier decisions. The legal reasoning is not only
of a disgracefully poor quality; it also calls into serious question
the lawfulness of the Tribunal itself.
One of the key conditions of lawfulness is that the law be clear,
predictable and stable. Yet the reasoning employed by the ICTY
contradicts this fundamental principle. In the explanation given on22nd
September 2004 document, as in the original Order of 10th September
2004 and in the Oral Ruling of 2nd September, the argument is made that
the right to defend oneself in person is not an absolute right, and
that therefore the Trial Chamber has the right to withdraw it. With a
repetition which borders on the compulsive - as if to cover up a guilty
conscience - the Trial Chamber says that the right to defend oneself in
person, recognised by numerous jurisdictions and international
conventions, is in fact not absolute.[5] This point is made repeatedly
in paragraphs 1, 8, 9, 39, 41, 42, 43, 45, 49, and 50.
The ICTY refers to an earlier ruling which says that the ICTY Charter
is a treaty, and that Article 31 (1) of the Vienna Convention on the
Law of Treaties [6] means that it should be therefore interpreted “in
good faith in accordance with the ordinary meaning of the terms of the
treaty in their context and in the light of its object and purpose.” It
uses this Convention to offset the right to defend oneself in person
(which is described as a “minimum guarantee” in the Charter) and to say
that it must give way to the overarching need for the trial to be fair,
which it will not be if it is repeatedly delayed because of the
defendant’s poor health.
It is unconvincing to see the ICTY suddenly concerned that its trials
should be speedy, when it is (like its sister tribunal, the ICTR in
Arusha) notorious for making defendants wait for years before their
cases come to trial. Had the ICTY Trial Chamber been concerned that the
Milošević trial proceed quickly, it should have prevented the
Prosecution from calling a host of irrelevant “expert” witnesses; it
should have cut down the Prosecution’s time to a few months instead of
two years; and it should have refused to bundle the Bosnia and Croatia
indictments into the same trial as the Kosovo indictment. Apart from
making the trial terribly long, this decision infringed the principle
of extradition law that a defendant cannot be tried for charges other
than those for which he was in fact extradited: the Bosnia and Croatia
indictments were not produced until November 2001, more than two years
after the Kosovo indictment, issued in May 1999, and several months
after the defendant had been transferred to the Tribunal in June 2001.
But the key point in the ICTY’s reasoning is that the right to
self-defence is not absolute. This reasoning contains a fatal non
sequitur, which destroys the Tribunal’s claim to be acting
lawfully. The simple fact that a general rule may admit of some
exceptions – or the fact that a general legal principle can be limited
and refined by other general statements of principle – does not
invalidate the original rule. Instead, the qualifications render the
general rule more precise. This is what jurisprudence is all about. To
infer, as the ICTY does, from the fact that a right is not “absolute”,
that it can be violated in circumstances not covered by the existing
exceptions is to undermine the very notion of lawfulness itself. In
order for the exceptions or refinements to a rule to count as
justification for a decision to overrule it in a particular case, that
case must be an example of the kind of cases dealt with in the
refinements.
On inspection, it appears that none of the exceptions or refinements
discussed in the ICTY Trial Chamber ruling is relevant to the Milošević
case. As the quotation at the beginning of this report shows, the ICTY
has been unable to find a single precedent for the imposition of
counsel against a defendant’s wishes on the grounds of ill health. The
cases adduced by the ICTY in support of its decision to do so for
Milošević are in fact all different from his, and, as such, legally
irrelevant.
For example, in paragraph 33 of the 22nd September 2004 Decision, the
Trial Chamber states:
“If at any stage of a trial there is a real prospect that it will be
disrupted and the integrity of the trial undermined with the risk that
it will not be conducted fairly, then the Trial Chamber has a duty to
put in place a regime which will avoid that … It is widely recognised
in domestic jurisdictions that, where an accused who represents himself
disrupts his trial by misbehaviour, he may be removed from the court
and counsel appointed to conduct his defence. There is no difference in
principle between deliberate misconduct which disrupts the proceedings
and any other circumstance which so disrupts the proceedings as to
threaten the integrity of the trial. These are simply examples of
circumstances in which the right to represent oneself must yield to the
overarching right to a fair trial.” [Italics added.]
Leaving aside for a moment the astonishing idea that the Trial Chamber,
a body which is supposed to apply criminal law, says there is no
difference between an intentional act and events which are outside a
defendant’s control – a criminal tribunal must surely place mens rea at
the very centre of its focus - it is noteworthy that in paragraph 67 of
the same ruling, the Trial Chamber specifically dismisses the
Prosecution’s claim that Mr. Milosevic had been deliberately not taking
his prescribed medicine in order to manipulate his health to delay the
trial. It therefore discounts the possibility that his ill health is
deliberately caused, or that he is being deliberately obstructive. In
other words, this discussion of what to do with obstructive defendants
is totally irrelevant. Mr. Milošević precisely wishes to conduct his
own defence, not obstruct it.[7]
This deliberate elision of intentionally disruptive behaviour with
unintentional illness is especially egregious in view of the fact that,
in its own ruling of 4th April 2003, the Trial Chamber had specifically
considered a case from the Rwanda tribunal,Prosecutor v.
Barayagwiza(Case No. ICTR-97-19-T) and concluded that the Milošević
trial was “very different”.[8] In paragraph 40 of the 4th April 2003
decision, the ICTY Trial Chamber described as “correct” the Amici
curiae’s explanation of what the difference was. The Amici had stated:
“The issue was whether the ICTR Trial Chamber would allow defence
counsel to withdraw from the case in circumstances where the accused
had instructed defence counsel not to represent him in any respect
during the trial. That Trial Chamber held that the accused was
boycotting the trial, that his actions were obstructing the course of
justice, and that defence counsel should not withdraw. Thus, the Amici
Curiae note that Barayagwiza chose not to attend his trial and,
crucially, that he did not assert his right to self-representation;
whereas the Accused in the present case has consistently asserted his
right to represent himself.” [9]
In other words, it is dishonest for the Trial Chamber now (on 22nd
September 2004) to invoke the imposition of counsel in cases where the
defendant is deliberately disruptive, when its earlier rulings clearly
say that this is not an issue in the Milošević trial.
The Trial Chamber uses the same subterfuge in discussing other
qualifications of the general right to defend oneself in person. It
discusses, for instance, its Decision in the Šešelj case, dated 9th May
2003.[10] That ruling approves the imposition of a “standby counsel” to
assist the defendant, whom it also accuses of being obstructive. It is
logically and legally unacceptable to use such a case (whatever one
might think about its merits) to justify imposing counsel on Milošević,
because the imposition is not of “standby counsel,” but instead of
defence counsel, and in any case the defendant has not been found
guilty of deliberate obstruction.
The Trial Chamber then invokes a European Court of Human Rights ruling
from 1992, Croissant v. Germany.[11] Yet as withBarayagwiza, the Trial
Chamberhad already made clear in the 4th April 2003 ruling that this
was not relevant to the Milošević case. The issue turned on whether a
German regional court had the right to impose a third lawyer on a
defendant who already had two. The irrelevance of this to the Milošević
case is threefold: (1) the defendant did not want to defend himself;
(2) he did not suffer from ill health; and (3) the imposition was of an
additional lawyer, not the removal of the ones he had chosen. The
waters were also muddied by the fact that the case was brought to the
ECHR when Mr. Croissant objected to being forced to pay the imposed
lawyer’s legal costs, following his conviction.
It is true that the European Court of Human Rights, which found against
Croissant, does allow for counsel to be imposed against a defendant’s
wishes “in the interests of justice”, and that this phrase is not
defined. But it is also clear that the ECHR approved the imposition of
a third lawyer because it considered that the complexity of the case
required it. So the case is not relevant to the Milošević case: the
complexity of the case has never been invoked as a reason for imposing
counsel, and Croissant did not want to represent himself.
The ICTY then invokes the US Supreme Court Faretta case, and admits
that that ruling confirmed that it is a “fundamental” constitutional
right in the USA to defend oneself in person. The Trial Chamber again
says that this general rule admits of exceptions, which it lists. Yet
the exceptions include only “serious and obstructionist misconduct” by
the defendant and the imposition of “standby counsel” when requested by
the defendant. In other words, the exceptions in Faretta do not support
the Trial Chamber’s argument in the Milošević trial: they refute it.
The ICTY then further claims that even Faretta was hedged around by
Martinez v. Court of Appeal of California in 2000.[12] The ICTY’s
discussion of this case is so tendentious that it seems that whoever
wrote the 22nd September 2004 Decision is deliberately misrepresenting
the evidence. It says that both Martinez and Faretta agree that the
right to pro se defence is “not absolute”. But Martinez qualified that
right only for appeal hearings following conviction, not for trial
hearings. Worse, the ICTY seems to be practising deliberate obfuscation
when it quotes Martinez thus: “Even at the trial level, the
government’s interest in ensuring the integrity and efficiency of the
trial at times outweighs the defendant’s interest in acting as his own
lawyer.” This sentence is quoted as if it supported the ICTY’s decision
to impose counsel on Milošević “in the interests of justice”. But it is
being quoted out of context, in particular by omitting the previous
sentences which read thus: “We have further held that standby counsel
may participate in the trial proceedings, even without the express
consent of the defendant, as long as that participation does not
‘seriously undermine’ the ‘appearance before the jury’ that the
defendant is representing himself … Additionally, the trial judge is
under no duty to provide personal instruction on courtroom procedure or
to perform any legal ‘chores’ for the defendant that counsel would
normally carry out.” Given that this is the sentence immediately prior
to the statement that “the government’s interest in ensuring the
integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer”, it is clear that
this statement, quoted by the ICTY in support of its own appeal to
“justice” as a reason for imposing counsel, actually refers only to the
obvious fact that a judge cannot be expected waste valuable trial time
coaching an untrained defendant if he elects to represent himself. This
is the conflict of “interest” in question. The statement does not
provide a general rule for the imposition of counsel “in the interests
of justice”. It is simply a misreading of the law, whether deliberate
or accidental, to say that these rulings provide a precedent for the
imposition of counsel on health grounds.
The same applies to the ICTY’s allusion to cases in English and
Scottish law where counsel can be imposed in order to protect witnesses
in rape cases from the trauma of being cross-examined by their alleged
attacker. To bring this into the equation is incredible, for the ICTY
is notorious for proving anonymity for its witnesses, allowing
testimony by video link, and providing other forms of protection for
witnesses, for precisely this reason. These highly exceptional measures
have become (unfortunately) very common in the ICTY, even though they
diminish the defendant’s rights. But nowhere has the issue of trauma
been claimed to be legally relevant to the question of imposing counsel
on Milošević.
The ICTY then makes the extraordinary claim that the jurisprudence of
several civil law countries (France, Germany, Belgium, the Federal
Republic of Yugoslavia) requires the presence of a defence lawyer in
serious criminal trial. The fact that it introduces this apparently
decisive argument right at the end of very length legal reasoning gives
rise to suspicion - a suspicion aggravated by the ICTY’s vague
statement that the justification for these rules “appears to be” that
the state requires defendants to have adequate defence. Why “appears to
be”? Do the authors of the document not know what the justification
is? It certainly seems that they are unfamiliar with the civil law
systems of which they speak: Article 13 of the Criminal Procedure of
the Federal Republic of Yugoslavia provides that a defendant may elect
to defend himself in person, but the ICTY omits to mention this.
In any case, to adduce jurisprudence from civil law systems is a
subterfuge. While it is true that the ICTY procedures contain some
elements from the civil law tradition – the judges can question
defendants and witnesses, for instance – the basic structure of the
Tribunal is overwhelmingly adversarial. In adversarial systems, the
Prosecution is given huge scope to present his case, and this is why
the Defence is supposed to be on the same level as it. In inquisitorial
systems, by contrast, the emphasis is less on prosecution, but instead
on the judge’s professional duty to ascertain the truth. Indeed, it is
impossible to see how a civil law system could function without the
presence of the defendant in court, since the judge will need to
question him. Yet this is what the ICTY proposes to do with Mr.
Milošević.
The key point is therefore this: no legal system in the world
recognises a difference between a defendant being too ill to defend
himself, and too ill to stand trial. If Mr. Milošević is too ill, the
trial should come to an end immediately. The ICTY has invented this
distinction for the purposes of imposing defence counsel on Mr.
Milošević, just as soon as his defence got under way: It asked its
doctors to answer the question whether Mr. Milošević was too ill to
defend himself, not whether he was too ill to stand trial. [BHHRG has
asked to see the medical reports: no reply has been received from the
ICTY so far.] The ICTY has also invented the principle that a defence
counsel may be imposed on a sick defendant, saying that Mr. Milošević
will be tried in absentia if he is too ill to appear in court. No
jurisdiction countenances this, even for defendants who are represented
by counsel.
The point, though, is not to draw attention to the inherent injustice
of overruling a defendant’s right to defend himself in person. It is,
instead, to highlight the logical and jurisprudential flaws in the
ICTY’s reasoning. These flaws call into question the Tribunal’s very
lawfulness. Lawfulness consists in the correct application of
rules. The repetition of the fact that the right to self-defence is not
absolute is quite insufficient as to justify curtailing it beyond those
circumstances laid down in law and precedent. This is what has happened
in the Milošević case. As the ICTY itself admits, there is no precedent
in any jurisdiction for imposing counsel on a sick defendant. In the
absence of any legislator empowered to change the law, or indeed of any
attempt on the part of the ICTY to make any kind of appeal to a body
other than itself (the International Court of Justice, for instance, or
the European Court of Human Rights), the Hague Tribunal should have
applied the law as it currently stands. That it has done the opposite
shows it to be a law unto itself.
[1] “Order on Request for Certification to Appeal the Decision of the
Trial Chamber on Court Assigned Counsel,” 10th September 2004,
http://www.un.org/icty/milosevic/trialc/order-e/040910.htm
[2] http://www.un.org/icty/transe54/040902IT.htm
[3] http://www.un.org/icty/milosevic/appeal/decision-e/041101.htm#47
[4] http://www.un.org/icty/milosevic/trialc/decision-e/040922.htm
[5] It is stated repeatedly in paragraph 1, 8, 9, 39, 41, 42, 43, 45,
49, 50,
[6] http://www.un.org/law/ilc/texts/treaties.htm
[7] It should be noted that the diagnosis of Mr. Milosevic’s health is
itself open to question. The defendant asked for different physicians
to examine him, alleging that the ones appointed were going to
manipulate their reports to fit the imperatives of the Tribunal. BHHRG
has asked the ICTY to provide the doctors’ reports but it has not yet
received a reply. The doctors were asked to rule on whether the
defendant was too ill to defend himself, a loaded question. Defendants
are often said to be too ill to stand trial, in which case the trial
does not take place, or collapses. The distinction between being too
ill to stand trial and too ill to defend oneself in person has been
completely invented for the purposes of this trial.
[8] The ICTR ruled against Barayagwiza’s application for his counsel to
withdraw on 2nd November 2000, on the grounds that he was being
obstructive and refusing to present a case at all. See
http://www.ictr.org/default.htm
[9] Paragraph 15.
[10] http://www.un.org/icty/seselj/trialc/decision-e/030509.htm, see
especially the discussion in paragraphs 20-30.
[11] The judgement can be read
here: http://cmiskp.echr.coe.int/tkp197/
view.asp?item=1&portal=hbkm&action=html&highlight=Croissant&sessionid=99
0462&skin=hudoc-en
[12]
http://tech.clayton.edu/mshapiro/Para%201107%20Criminal%20Litigation/
Martinez%20v%20Court%20of%20Appeal%20of%20California.htm
==========================
2)
[Lettera aperta di G. Louis-Jensen, rappresentante dell'ICDSM in
Danimarca, alla ex procuratrice del "tribunale" dell'Aia, oggi Alto
Commissario dell'ONU per i Diritti Umani, Louise Arbour...]
Da: "Vladimir Krsljanin"
Data: Ven 17 Dic 2004 17:04:57 Europe/Rome
Oggetto: ICDSM: An Open Letter to Louise Arbour
**************************************************************
INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM Sofia-New York-Moscow www.icdsm.org
**************************************************************
Canadian Justice Louise Arbour, who fabricated, on direct orders of the
Clinton administration, during its war of aggression against Yugoslavia
in May 1999, the 'initial indictment' against President Milosevic
before the Hague Tribunal, is now the UN High Commissioner for human
rights. In that capacity, she recently visited Denmark. After her
visit, ICDSM member from Denmark, respected architect Mr. Godfred
Louis-Jensen, continuously engaged in the promotion of the truth on the
the dangerous Hague political farce in judicial robes and on the
struggle of President Milosevic, addressed her with the following Open
Letter:
****************************************************************
OPEN LETTER TO THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS
****************************************************************
Enighedsvej 3
2920 Charlottenlund
D E N M A R K.
UN High Commissioner for Human Rights
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND.
Charlottenlund, 11 December 2004
Dear Louise Arbour,
Re.: The Political Trial of President Milosevic: Open Letter to the UN
High Commissioner for Human Rights
How as a Canadian jurist could you be oblivious of the fact that a
Canadian officer's testimony invalidates the legitimacy of your Initial
Indictment filed while Canada as a member of the NATO was bombing the
F.R. of Yugoslavia, a small nation that in consequence lost its
meaningful capacity to negotiate peace?
On 30th November 2004, when visiting the Danish Institute for Human
Rights (DIHR), speaking at a public meeting you were briefly answering
a couple of questions also on the conduct and progress of the so called
trial against former Yugoslav President, Slobodan Milosevic.
Your answers, as well as my verbal questions are transcribed below (A).
As you were previously the Chief Prosecutor at the International War
Crimes Tribunal in The Hague (ICTY), I ask you to kindly allow me a
couple of comment and further queries:
1) In rather striking contrast to a great many international jurists,
law professors as well as criminal lawyers incl. Bjørn Elmquist, a
former member of the Danish Parliament and current Chairman of DIHR
expressing their alarm and concern over the ICTY's imposition of
counsel on Mr. Milosevic (B), which was decided and executed at the
very start of his defense case in early September this year, you were
concluding that the records of the Tribunal are "absolutely impeccable"
(Sic!).
That would jar on the ears of anyone aware of the facts and the
International Covenant on Civil and Political Rights. Yet as if the
ICTY were affording Mr. Milosevic every occasion for due process and
fair trial - and even "to excess" - you stressed that the former
Yugoslav president has been "allowed to act unrepresented by councel".
Most recently however the Appeals Chamber - without relying on any
authority whatsoever - decided, that what they now would see as
"substantial disruption of the proceedings" does not require any proof
that the accused had the intention of disrupting the proceedings, a
decision which appears to permit the effective removal of Mr. Milosevic
from the courtroom altogether (C).
Thus opening the door to in absentia trial the ICTY has already made a
mockery also of your suggestion that "councel has been made available
to him". Yet, on that day in Copenhagen you proudly were declaring to
"be the first one to champion the right of any person accused of any
crime to defend himself" - including obviously Mr. Milosevic's to
self-representation in his defence too. As in the circumstances at the
DIHR it did not come out clearly what the OHCHR may in fact do to
promote and protect the rights of Mr. Milosevic, I ask you to kindly
let us know in concrete terms when you are going to exercise your
proposed "championship"?
That exercise might indeed provide an opportunity for you to prove the
very profound consciousness of the right of others associated with, and
said even to be ingeniously created by human rights instruments.
2) If the ICTY were not a political construct, the Trial Chamber could
simply restore Mr. Milosevic´s right to self-representation. If on the
other hand the Tribunal were truly an international judicial
institution - as it is suggested by its name - committed to respect the
Rule of Law, then why would it make such an incredible mess of its own
case, the Prosecution's case?
Without commenting further on the ICTY's performance either as
political or criminal, may I ask you if as responsible for the Initial
Indictment (D) against Mr. Milosevic you did somehow follow the
resulting trial proceedings? You may not of course have been reading up
to 32.079 pages of Trial Transcripts, but surely you studied hearings
specifically devoted to the infamous incident at Racak - which
triggered NATO's war?
The "massacre at Racak" in fact is the one and only count in the
`Kosovo case` dating back to the period prior to the start of the NATO
aggression on 23 March 1999. Hence I find it hard to believe that you
are not aware of the testimony of your countryman, Canadian General
Maisonneuve (E) - a former Head of the OSCE's KVM Regional Centre in
Prizren, Kosovo and these days reportedly a NATO Chief of Staff - who
on Wednesday 29 May 2002 was testifying in The Hague that on the 15th
of January, 1999 he did not know that KLA members had been killed at
Racak, nor in fact that civilians had been killed either (F). In
response to Mr. Milosevic insisting that he "had to know that it was
KLA members", this expert witness - who was in fact in command of the
OSCE's verification mission present at Racak - could not even verify
that anybody were killed there on the day of the alledged "massacre".
The evidence of this key witness for the Prosecution includes wounded
people that he did see to the hospital in nearby Stimlje, in the
afternoon - however they were not members of the KLA, but "a lady and a
young girl" (Trial Transcripts, p.5904, l.1). General Maisonneuve
clearly told the court that "on the 15th, he didn't know" of any
killings! And may I ask you:
Which commander would personally see civilians to the hospital, if in
fact he knew that others had been shot and killed under his very
observing eyes?
It is obviously a crucial point in this 'trial' against Mr. Milosevic,
that only by the 16th did the commanding general learn about those 45
persons alledgedly killed at Racak, as in the early morning hours a
number of bodies were "discovered" on a nearby hill. In the hearing
General Maisonneuve was in fact dissociating himself from the infamous
statement of KVM Head, American Ambassador William Walker - but by that
fundamentally challenging the particular count, which has it that i.a.
"villagers attempting to flee from the Serb police were shot throughout
the village", the general's testimony in fact completely undermines
your Initial Indictment against President Milosevic, as well as against
Milan Milutinovic (then President of Serbia), Nikola Sainovic (then
Deputy Prime Minister of Serbia), Colonel General Ojdanic (then Chief
of the General Staff of the VJ) and the late Vlajko Stojiljkovic (then
a Minister of Internal Affairs of Serbia).
At our meeting on 30 November 2004 you appeared to wish to repudiate
the facts with reference to some BBC-reports of "bodies lying on the
ground".
These however did not appear until later, as you well know - and the
schedule of persons killed, which was eventually attached as an
appendix to your Initial Indictment, does not tie up convincingly with
the your account of the incident - which never made sense at all,
anyway.
The testimony of the commander of the OSCE verifiers, your countryman
was never contradicted during the Prosecution's case - suggesting that
on this particular point at least you are entirely wrong.
The NATO's campaign thus started with a lie - and so did your Initial
Indictment. May I summarize this reasoning by suggesting, that the
rights of Mr. Milosevic are in fact set aside in the interest of the
then U.S. President Clinton, the British Prime Minister Blair and other
Western leaders deciding on the NATO war - and even in a presumed
interest of your own international career.
I am not a criminal lawyer, but as an architect I am quite capable of
finding and judging the facts. As a citizen of Denmark - a NATO country
which regrettably did participate also in what is known to some as "the
conflict in Kosovo" - I hereby challenge your claim of any "absolutely
impeccable" records of the ICTY's case against Mr. Milosevic, and in
particular your theory of what happened "in Racak on January 15th,
1999" (G).
May that suffice to suggest that in respect for international law, and
in fairness also to the peoples of Serbia and the F.R. of Yugoslavia,
this 'trial' at The Hague must now lead to an expeditious release of
Mr. Milosevic, who as President dutyfully stood up to defend his
country.
Faithfully Yours,
Godfred Louis-Jensen, architect
PS: The above contents have been transmitted to Danish and
international press as an open letter in abbreaviated form.
C.C:
President Milosevic, c/o SLOBODA Freedom Association, Belgrade
Bjørn Elmquist, Chairman, Council of the Danish Institute for Human
Rights (DIHR)
Morten Kjærum, Executive Director, Danish Institute for Human Rights
(DIHR)
Tiphaine Dickson, Centre for Research on Globalization (CRG)
Lieutenant-General J.O. Michel Maisonneuve, NATO HQ SACT COS, Norfolk,
Va.
Enclosures:
A. Transcript of Questions and Answers given by Mme Louise Arbour on
Tuesday November 30th, 2004:
[transcript starts]
GODFRED LOUIS-JENSEN:
Q. I am Godfred Louis-Jensen, an architect. Not a lawyer, I am a member
of the International Committee for the Defence of Slobodan Milosevic.
My question to you is this: Do you not agree, that Mr. Milosevic does
indeed have the right to defend himself? If so - when are you going to
see to it? What are you going to do about it?
Now, I have a small additional question: A countryman of yours, General
Maisonneuve, was testifying in The Hague that: On the 15th of January,
1999 - when General Maisonneuve actually entered the village of Racak
in Kosovo - he "did not know that anybody were killed" (1).
That testimony completely undermines your Indictment (2). Don't you
agree?
Mme LOUISE ARBOUR:
A. I am not aware of Monsieur Maisonneuve - or whoever he was?
testifying in the trial of Milosevic in The Hague, but if indeed he
testified and if he said that in Racak on January 15th, 1999 he didn't
see that anybody had been killed, he should have turned on the BBC as
there he could see the bodies lying on the ground. He may not be able
to see from that who were responsible for it. But if that is the extent
of his testimony I think that it has been amply contradicted by
otherwise very credible evidence.
As to Mr. Milosevic's right to defend himself, I would be the first one
to champion the right of any person accused of any crime to defend
himself. I think that he has been offered that (...) to excess: He has
been allowed to act unrepresented by councel. Councel has been made
available to him. I do not comment on his performance either as
represented or not, but I think that the records of the Tribunal on
affording him every occasion for due process and fair trial are
absolutely impeccable.
[transcript ends]
B. Lawyers Appeal. ICDSM, 29 July 2004:
http://www.icdsm.org/Lawappeal.htm
C."Substantial Disruption" at The Hague: Will Slobodan Milosevic be
Tried in Absentia?". Global Research, November 2004:
http://globalresearch.ca/articles/DIC411A.html
D. ICTY INDICTMENT, Case No.IT-99-37. Louise Arbour, 22 May 1999:
http://www.un.org/icty/indictment/english/mil-ii990524e.htm
E. On Canadian General Maisonneuve:
http://www.act.nato.int/multimedia/bios/maisonneuve.htm
F. Testimony of Canadian General Maisonneuve. ICTY, 29 May 2002:
http://www.un.org/icty/transe54/020529ED.htm
Excerpts from Trial Transcripts, p.5841, l.14 onw.:
Examined by Mr. Milosevic:
Q. I'm asking you, Mr. Maisonneuve, in view of your obligations as a
verifier - and I assume that there is also your obligation to tell the
truth - you had to know, on the 15th when you entered Racak that it was
KLA members who were killed there. Isn't that right or is that not
right?
A. On the 15th, I did not know that KLA members had been killed. In
fact, I did not know that civilians had been killed either. It was on
the 16th that we discovered the bodies, and I can tell you, from my
observations, that these bodies were civilians. In my assessment, they
were not members of the KLA, the bodies that we found.
G. Excerpts of the ICTY's Initial Indictment, Counts 1 - 4:
98. Beginning on or about 1 January 1999 and continuing until the date
of this indictment, forces of the FRY and Serbia, acting at the
direction, with the encouragement, or with the support of Slobodan
MILOSEVIC, Milan MILUTINOVIC, Nikola SAINOVIC, Dragoljub OJDANIC, and
Vlajko STOJILJKOVIC, have murdered hundreds of Kosovo Albanian
civilians. These killings have occurred in a widespread or systematic
manner throughout the province of Kosovo and have resulted in the
deaths of numerous men, women, and children.
Included among the incidents of mass killings are the following:
a. On or about 15 January 1999, in the early morning hours, the village
of Racak (Stimlje/Shtime municipality) was attacked by forces of the
FRY and Serbia. After shelling by the VJ units, the Serb police entered
the village later in the morning and began conducting house-to-house
searches.
Villagers, who attempted to flee from the Serb police, were shot
throughout the village. A group of approximately 25 men attempted to
hide in a building, but were discovered by the Serb police. They were
beaten and then were removed to a nearby hill, where the policemen shot
and killed them. Altogether, the forces of the FRY and Serbia killed
approximately 45 Kosovo Albanians in and around Racak.
1. BRITISH HELSINKI HUMAN RIGHTS GROUP:
Confusing rules and exceptions: Or, why the ICTY should not be judge,
jury and lawmaker (20 February 2005)
2. OPEN LETTER TO THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS (G.
Louis-Jensen, 11 December 2004)
Lettera aperta di G. Louis-Jensen, rappresentante dell'ICDSM in
Danimarca, alla ex procuratrice del "tribunale" dell'Aia, oggi Alto
Commissario dell'ONU per i Diritti Umani, Louise Arbour...
==========================
26 February Hague International Conference:
The Final Announcement
# http://it.groups.yahoo.com/group/icdsm-italia/message/167 #
Terzo - e definitivo - annuncio ufficiale della Conferenza dell'Aia
sulle problematiche legate al processo-farsa contro Milosevic e contro
la Jugoslavia (26 febbraio 2005)
==========================
ICDSM - Sezione Italiana
c/o GAMADI, Via L. Da Vinci 27
00043 Ciampino (Roma)
tel/fax +39-06-4828957
email: icdsm-italia @ libero.it
*** CONTRIBUISCI E FAI CONTRIBUIRE:
Conto Corrente Postale numero 86557006
intestato ad Adolfo Amoroso, ROMA
causale: DIFESA MILOSEVIC ***
IL NOSTRO SITO INTERNET:
http://www.pasti.org/linkmilo.htm
IL TESTO IN LINGUA ITALIANA DELLA AUTODIFESA DI MILOSEVIC, IN CORSO
DI REVISIONE E CORREZIONE, E' TEMPORANEAMENTE OSPITATO ALLA PAGINA:
https://www.cnj.it/documentazione/autodifesa04.htm
LE TRASCRIZIONI "UFFICIALI" DEL "PROCESSO" SI TROVANO AI SITI:
http://www.un.org/icty/transe54/transe54.htm (IN ENGLISH)
http://www.un.org/icty/transf54/transf54.htm (EN FRANCAIS)
==========================
1)
http://www.bhhrg.org/LatestNews.asp?ArticleID=60
BRITISH HELSINKI HUMAN RIGHTS GROUP:
NEWS ANALYSIS
Confusing rules and exceptions: Or, why the ICTY should not be judge,
jury and lawmaker
Date: 20 February 2005
“Extensive research has not led to the identification of any case in
any jurisdiction where counsel has been assigned to an accused person
because he was unfit to conduct his case as the result of impaired
physical health.”
International Criminal Tribunal for the former Yugoslavia, Trial
Chamber, Decision of 22nd September 2004
In a previous news item, dated 13th September 2004, BHHRG reported on
and criticised the decision of the International Criminal Tribunal for
the former Yugoslavia to impose defence counsel on Slobodan Milošević.
Commenting on the Order issued by the Trial Chamber on 10th September
2004,[1] BHHRG concluded,
“Crucially, the Trial Chamber offered no legal argument, i.e. by
quoting precedent or law, for using the health of the accused as a
reason for imposing counsel. It simply rescinded all its earlier
decisions, which had been grounded in law and precedent; it stated that
international and domestic law provided precedents for imposing
counsel, without quoting a single one; and it said that it was ‘in the
interests of justice’ to impose counsel. No definition was given of
these interests.”
Since the publication of that Order (which in turn confirmed an oral
ruling given on 2nd September 2004 [2]) the Trial Chamber has given
more detailed reasoning for its decision, and the Appeal Chamber has
upheld that decision.
(This is in spite of the Appeal Chamber’s decision overturning the
“modalities” laid down by the Trial Chamber for the new regime. In its
Decision of 1st November 2004, the Appeal Chamber criticised the Trial
Chamber for its “excessiveness” in taking away the defendant’s right to
conduct his own counsel, and effectively restored the status quo ante
while upholding the general principle that counsel could be
imposed.[3] This followed the refusal by 92 out of 97 defence witnesses
to testify, after counsel was imposed in September. Although the change
of the modalities means that Mr. Milošević is now once again preparing
and cross-examining witnesses as before, and although he refuses all
contact with imposed counsel, the legal position remains that the ICTY
has invented the principle that a defendant’s right to represent
himself can be overruled for health reasons. The Appeal Chamber upheld
the Trial Chamber’s earlier ruling on this point.)
The Trial Chamber decision of 22nd September 2004 does contain legal
reasoning, most of which was upheld on appeal, and it is therefore
important to revisit this issue in the light of these further legal
statements.
The Trial Chamber issued its “Reasons for Decision on Assignment of
Defence Counsel” on 22nd September 2004.[4] The basic argument of this
document is that the health of the defendant is too fragile for him to
be allowed to defend himself, and that counsel must therefore be
imposed in order to prevent the proceedings from being subject to
excessive delay. The undefined “fairness” of the proceedings is invoked
as an overriding principle in support of this decision.
This report will not concentrate on the merits of the case, which were
dealt with in the report dated 13th September. That report drew
attention to the fact that the right of a defendant to defend himself
in person is clearly enunciated in the ICTY’s own charter (Article 21,
where it is described as a “minimum guarantee”, not subject to any
limitations or qualifications) as well as in all the other relevant
international human rights conventions. It is also forcefully affirmed
in many authoritative national rulings, including most notably the US
Supreme Court’s decision inFaretta v. California(1975). Indeed, the
right was itself clearly enunciated in the Tribunal’s own rulings on
the matter, especially the one dated 4th April 2003, which the
September 2004 decisions overturned.
Instead, the purpose of this report is to look more closely at the
legal methodology employed by the Trial Chamber and the Appeal Chamber
in rescinding their earlier decisions. The legal reasoning is not only
of a disgracefully poor quality; it also calls into serious question
the lawfulness of the Tribunal itself.
One of the key conditions of lawfulness is that the law be clear,
predictable and stable. Yet the reasoning employed by the ICTY
contradicts this fundamental principle. In the explanation given on22nd
September 2004 document, as in the original Order of 10th September
2004 and in the Oral Ruling of 2nd September, the argument is made that
the right to defend oneself in person is not an absolute right, and
that therefore the Trial Chamber has the right to withdraw it. With a
repetition which borders on the compulsive - as if to cover up a guilty
conscience - the Trial Chamber says that the right to defend oneself in
person, recognised by numerous jurisdictions and international
conventions, is in fact not absolute.[5] This point is made repeatedly
in paragraphs 1, 8, 9, 39, 41, 42, 43, 45, 49, and 50.
The ICTY refers to an earlier ruling which says that the ICTY Charter
is a treaty, and that Article 31 (1) of the Vienna Convention on the
Law of Treaties [6] means that it should be therefore interpreted “in
good faith in accordance with the ordinary meaning of the terms of the
treaty in their context and in the light of its object and purpose.” It
uses this Convention to offset the right to defend oneself in person
(which is described as a “minimum guarantee” in the Charter) and to say
that it must give way to the overarching need for the trial to be fair,
which it will not be if it is repeatedly delayed because of the
defendant’s poor health.
It is unconvincing to see the ICTY suddenly concerned that its trials
should be speedy, when it is (like its sister tribunal, the ICTR in
Arusha) notorious for making defendants wait for years before their
cases come to trial. Had the ICTY Trial Chamber been concerned that the
Milošević trial proceed quickly, it should have prevented the
Prosecution from calling a host of irrelevant “expert” witnesses; it
should have cut down the Prosecution’s time to a few months instead of
two years; and it should have refused to bundle the Bosnia and Croatia
indictments into the same trial as the Kosovo indictment. Apart from
making the trial terribly long, this decision infringed the principle
of extradition law that a defendant cannot be tried for charges other
than those for which he was in fact extradited: the Bosnia and Croatia
indictments were not produced until November 2001, more than two years
after the Kosovo indictment, issued in May 1999, and several months
after the defendant had been transferred to the Tribunal in June 2001.
But the key point in the ICTY’s reasoning is that the right to
self-defence is not absolute. This reasoning contains a fatal non
sequitur, which destroys the Tribunal’s claim to be acting
lawfully. The simple fact that a general rule may admit of some
exceptions – or the fact that a general legal principle can be limited
and refined by other general statements of principle – does not
invalidate the original rule. Instead, the qualifications render the
general rule more precise. This is what jurisprudence is all about. To
infer, as the ICTY does, from the fact that a right is not “absolute”,
that it can be violated in circumstances not covered by the existing
exceptions is to undermine the very notion of lawfulness itself. In
order for the exceptions or refinements to a rule to count as
justification for a decision to overrule it in a particular case, that
case must be an example of the kind of cases dealt with in the
refinements.
On inspection, it appears that none of the exceptions or refinements
discussed in the ICTY Trial Chamber ruling is relevant to the Milošević
case. As the quotation at the beginning of this report shows, the ICTY
has been unable to find a single precedent for the imposition of
counsel against a defendant’s wishes on the grounds of ill health. The
cases adduced by the ICTY in support of its decision to do so for
Milošević are in fact all different from his, and, as such, legally
irrelevant.
For example, in paragraph 33 of the 22nd September 2004 Decision, the
Trial Chamber states:
“If at any stage of a trial there is a real prospect that it will be
disrupted and the integrity of the trial undermined with the risk that
it will not be conducted fairly, then the Trial Chamber has a duty to
put in place a regime which will avoid that … It is widely recognised
in domestic jurisdictions that, where an accused who represents himself
disrupts his trial by misbehaviour, he may be removed from the court
and counsel appointed to conduct his defence. There is no difference in
principle between deliberate misconduct which disrupts the proceedings
and any other circumstance which so disrupts the proceedings as to
threaten the integrity of the trial. These are simply examples of
circumstances in which the right to represent oneself must yield to the
overarching right to a fair trial.” [Italics added.]
Leaving aside for a moment the astonishing idea that the Trial Chamber,
a body which is supposed to apply criminal law, says there is no
difference between an intentional act and events which are outside a
defendant’s control – a criminal tribunal must surely place mens rea at
the very centre of its focus - it is noteworthy that in paragraph 67 of
the same ruling, the Trial Chamber specifically dismisses the
Prosecution’s claim that Mr. Milosevic had been deliberately not taking
his prescribed medicine in order to manipulate his health to delay the
trial. It therefore discounts the possibility that his ill health is
deliberately caused, or that he is being deliberately obstructive. In
other words, this discussion of what to do with obstructive defendants
is totally irrelevant. Mr. Milošević precisely wishes to conduct his
own defence, not obstruct it.[7]
This deliberate elision of intentionally disruptive behaviour with
unintentional illness is especially egregious in view of the fact that,
in its own ruling of 4th April 2003, the Trial Chamber had specifically
considered a case from the Rwanda tribunal,Prosecutor v.
Barayagwiza(Case No. ICTR-97-19-T) and concluded that the Milošević
trial was “very different”.[8] In paragraph 40 of the 4th April 2003
decision, the ICTY Trial Chamber described as “correct” the Amici
curiae’s explanation of what the difference was. The Amici had stated:
“The issue was whether the ICTR Trial Chamber would allow defence
counsel to withdraw from the case in circumstances where the accused
had instructed defence counsel not to represent him in any respect
during the trial. That Trial Chamber held that the accused was
boycotting the trial, that his actions were obstructing the course of
justice, and that defence counsel should not withdraw. Thus, the Amici
Curiae note that Barayagwiza chose not to attend his trial and,
crucially, that he did not assert his right to self-representation;
whereas the Accused in the present case has consistently asserted his
right to represent himself.” [9]
In other words, it is dishonest for the Trial Chamber now (on 22nd
September 2004) to invoke the imposition of counsel in cases where the
defendant is deliberately disruptive, when its earlier rulings clearly
say that this is not an issue in the Milošević trial.
The Trial Chamber uses the same subterfuge in discussing other
qualifications of the general right to defend oneself in person. It
discusses, for instance, its Decision in the Šešelj case, dated 9th May
2003.[10] That ruling approves the imposition of a “standby counsel” to
assist the defendant, whom it also accuses of being obstructive. It is
logically and legally unacceptable to use such a case (whatever one
might think about its merits) to justify imposing counsel on Milošević,
because the imposition is not of “standby counsel,” but instead of
defence counsel, and in any case the defendant has not been found
guilty of deliberate obstruction.
The Trial Chamber then invokes a European Court of Human Rights ruling
from 1992, Croissant v. Germany.[11] Yet as withBarayagwiza, the Trial
Chamberhad already made clear in the 4th April 2003 ruling that this
was not relevant to the Milošević case. The issue turned on whether a
German regional court had the right to impose a third lawyer on a
defendant who already had two. The irrelevance of this to the Milošević
case is threefold: (1) the defendant did not want to defend himself;
(2) he did not suffer from ill health; and (3) the imposition was of an
additional lawyer, not the removal of the ones he had chosen. The
waters were also muddied by the fact that the case was brought to the
ECHR when Mr. Croissant objected to being forced to pay the imposed
lawyer’s legal costs, following his conviction.
It is true that the European Court of Human Rights, which found against
Croissant, does allow for counsel to be imposed against a defendant’s
wishes “in the interests of justice”, and that this phrase is not
defined. But it is also clear that the ECHR approved the imposition of
a third lawyer because it considered that the complexity of the case
required it. So the case is not relevant to the Milošević case: the
complexity of the case has never been invoked as a reason for imposing
counsel, and Croissant did not want to represent himself.
The ICTY then invokes the US Supreme Court Faretta case, and admits
that that ruling confirmed that it is a “fundamental” constitutional
right in the USA to defend oneself in person. The Trial Chamber again
says that this general rule admits of exceptions, which it lists. Yet
the exceptions include only “serious and obstructionist misconduct” by
the defendant and the imposition of “standby counsel” when requested by
the defendant. In other words, the exceptions in Faretta do not support
the Trial Chamber’s argument in the Milošević trial: they refute it.
The ICTY then further claims that even Faretta was hedged around by
Martinez v. Court of Appeal of California in 2000.[12] The ICTY’s
discussion of this case is so tendentious that it seems that whoever
wrote the 22nd September 2004 Decision is deliberately misrepresenting
the evidence. It says that both Martinez and Faretta agree that the
right to pro se defence is “not absolute”. But Martinez qualified that
right only for appeal hearings following conviction, not for trial
hearings. Worse, the ICTY seems to be practising deliberate obfuscation
when it quotes Martinez thus: “Even at the trial level, the
government’s interest in ensuring the integrity and efficiency of the
trial at times outweighs the defendant’s interest in acting as his own
lawyer.” This sentence is quoted as if it supported the ICTY’s decision
to impose counsel on Milošević “in the interests of justice”. But it is
being quoted out of context, in particular by omitting the previous
sentences which read thus: “We have further held that standby counsel
may participate in the trial proceedings, even without the express
consent of the defendant, as long as that participation does not
‘seriously undermine’ the ‘appearance before the jury’ that the
defendant is representing himself … Additionally, the trial judge is
under no duty to provide personal instruction on courtroom procedure or
to perform any legal ‘chores’ for the defendant that counsel would
normally carry out.” Given that this is the sentence immediately prior
to the statement that “the government’s interest in ensuring the
integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer”, it is clear that
this statement, quoted by the ICTY in support of its own appeal to
“justice” as a reason for imposing counsel, actually refers only to the
obvious fact that a judge cannot be expected waste valuable trial time
coaching an untrained defendant if he elects to represent himself. This
is the conflict of “interest” in question. The statement does not
provide a general rule for the imposition of counsel “in the interests
of justice”. It is simply a misreading of the law, whether deliberate
or accidental, to say that these rulings provide a precedent for the
imposition of counsel on health grounds.
The same applies to the ICTY’s allusion to cases in English and
Scottish law where counsel can be imposed in order to protect witnesses
in rape cases from the trauma of being cross-examined by their alleged
attacker. To bring this into the equation is incredible, for the ICTY
is notorious for proving anonymity for its witnesses, allowing
testimony by video link, and providing other forms of protection for
witnesses, for precisely this reason. These highly exceptional measures
have become (unfortunately) very common in the ICTY, even though they
diminish the defendant’s rights. But nowhere has the issue of trauma
been claimed to be legally relevant to the question of imposing counsel
on Milošević.
The ICTY then makes the extraordinary claim that the jurisprudence of
several civil law countries (France, Germany, Belgium, the Federal
Republic of Yugoslavia) requires the presence of a defence lawyer in
serious criminal trial. The fact that it introduces this apparently
decisive argument right at the end of very length legal reasoning gives
rise to suspicion - a suspicion aggravated by the ICTY’s vague
statement that the justification for these rules “appears to be” that
the state requires defendants to have adequate defence. Why “appears to
be”? Do the authors of the document not know what the justification
is? It certainly seems that they are unfamiliar with the civil law
systems of which they speak: Article 13 of the Criminal Procedure of
the Federal Republic of Yugoslavia provides that a defendant may elect
to defend himself in person, but the ICTY omits to mention this.
In any case, to adduce jurisprudence from civil law systems is a
subterfuge. While it is true that the ICTY procedures contain some
elements from the civil law tradition – the judges can question
defendants and witnesses, for instance – the basic structure of the
Tribunal is overwhelmingly adversarial. In adversarial systems, the
Prosecution is given huge scope to present his case, and this is why
the Defence is supposed to be on the same level as it. In inquisitorial
systems, by contrast, the emphasis is less on prosecution, but instead
on the judge’s professional duty to ascertain the truth. Indeed, it is
impossible to see how a civil law system could function without the
presence of the defendant in court, since the judge will need to
question him. Yet this is what the ICTY proposes to do with Mr.
Milošević.
The key point is therefore this: no legal system in the world
recognises a difference between a defendant being too ill to defend
himself, and too ill to stand trial. If Mr. Milošević is too ill, the
trial should come to an end immediately. The ICTY has invented this
distinction for the purposes of imposing defence counsel on Mr.
Milošević, just as soon as his defence got under way: It asked its
doctors to answer the question whether Mr. Milošević was too ill to
defend himself, not whether he was too ill to stand trial. [BHHRG has
asked to see the medical reports: no reply has been received from the
ICTY so far.] The ICTY has also invented the principle that a defence
counsel may be imposed on a sick defendant, saying that Mr. Milošević
will be tried in absentia if he is too ill to appear in court. No
jurisdiction countenances this, even for defendants who are represented
by counsel.
The point, though, is not to draw attention to the inherent injustice
of overruling a defendant’s right to defend himself in person. It is,
instead, to highlight the logical and jurisprudential flaws in the
ICTY’s reasoning. These flaws call into question the Tribunal’s very
lawfulness. Lawfulness consists in the correct application of
rules. The repetition of the fact that the right to self-defence is not
absolute is quite insufficient as to justify curtailing it beyond those
circumstances laid down in law and precedent. This is what has happened
in the Milošević case. As the ICTY itself admits, there is no precedent
in any jurisdiction for imposing counsel on a sick defendant. In the
absence of any legislator empowered to change the law, or indeed of any
attempt on the part of the ICTY to make any kind of appeal to a body
other than itself (the International Court of Justice, for instance, or
the European Court of Human Rights), the Hague Tribunal should have
applied the law as it currently stands. That it has done the opposite
shows it to be a law unto itself.
[1] “Order on Request for Certification to Appeal the Decision of the
Trial Chamber on Court Assigned Counsel,” 10th September 2004,
http://www.un.org/icty/milosevic/trialc/order-e/040910.htm
[2] http://www.un.org/icty/transe54/040902IT.htm
[3] http://www.un.org/icty/milosevic/appeal/decision-e/041101.htm#47
[4] http://www.un.org/icty/milosevic/trialc/decision-e/040922.htm
[5] It is stated repeatedly in paragraph 1, 8, 9, 39, 41, 42, 43, 45,
49, 50,
[6] http://www.un.org/law/ilc/texts/treaties.htm
[7] It should be noted that the diagnosis of Mr. Milosevic’s health is
itself open to question. The defendant asked for different physicians
to examine him, alleging that the ones appointed were going to
manipulate their reports to fit the imperatives of the Tribunal. BHHRG
has asked the ICTY to provide the doctors’ reports but it has not yet
received a reply. The doctors were asked to rule on whether the
defendant was too ill to defend himself, a loaded question. Defendants
are often said to be too ill to stand trial, in which case the trial
does not take place, or collapses. The distinction between being too
ill to stand trial and too ill to defend oneself in person has been
completely invented for the purposes of this trial.
[8] The ICTR ruled against Barayagwiza’s application for his counsel to
withdraw on 2nd November 2000, on the grounds that he was being
obstructive and refusing to present a case at all. See
http://www.ictr.org/default.htm
[9] Paragraph 15.
[10] http://www.un.org/icty/seselj/trialc/decision-e/030509.htm, see
especially the discussion in paragraphs 20-30.
[11] The judgement can be read
here: http://cmiskp.echr.coe.int/tkp197/
view.asp?item=1&portal=hbkm&action=html&highlight=Croissant&sessionid=99
0462&skin=hudoc-en
[12]
http://tech.clayton.edu/mshapiro/Para%201107%20Criminal%20Litigation/
Martinez%20v%20Court%20of%20Appeal%20of%20California.htm
==========================
2)
[Lettera aperta di G. Louis-Jensen, rappresentante dell'ICDSM in
Danimarca, alla ex procuratrice del "tribunale" dell'Aia, oggi Alto
Commissario dell'ONU per i Diritti Umani, Louise Arbour...]
Da: "Vladimir Krsljanin"
Data: Ven 17 Dic 2004 17:04:57 Europe/Rome
Oggetto: ICDSM: An Open Letter to Louise Arbour
**************************************************************
INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM Sofia-New York-Moscow www.icdsm.org
**************************************************************
Canadian Justice Louise Arbour, who fabricated, on direct orders of the
Clinton administration, during its war of aggression against Yugoslavia
in May 1999, the 'initial indictment' against President Milosevic
before the Hague Tribunal, is now the UN High Commissioner for human
rights. In that capacity, she recently visited Denmark. After her
visit, ICDSM member from Denmark, respected architect Mr. Godfred
Louis-Jensen, continuously engaged in the promotion of the truth on the
the dangerous Hague political farce in judicial robes and on the
struggle of President Milosevic, addressed her with the following Open
Letter:
****************************************************************
OPEN LETTER TO THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS
****************************************************************
Enighedsvej 3
2920 Charlottenlund
D E N M A R K.
UN High Commissioner for Human Rights
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND.
Charlottenlund, 11 December 2004
Dear Louise Arbour,
Re.: The Political Trial of President Milosevic: Open Letter to the UN
High Commissioner for Human Rights
How as a Canadian jurist could you be oblivious of the fact that a
Canadian officer's testimony invalidates the legitimacy of your Initial
Indictment filed while Canada as a member of the NATO was bombing the
F.R. of Yugoslavia, a small nation that in consequence lost its
meaningful capacity to negotiate peace?
On 30th November 2004, when visiting the Danish Institute for Human
Rights (DIHR), speaking at a public meeting you were briefly answering
a couple of questions also on the conduct and progress of the so called
trial against former Yugoslav President, Slobodan Milosevic.
Your answers, as well as my verbal questions are transcribed below (A).
As you were previously the Chief Prosecutor at the International War
Crimes Tribunal in The Hague (ICTY), I ask you to kindly allow me a
couple of comment and further queries:
1) In rather striking contrast to a great many international jurists,
law professors as well as criminal lawyers incl. Bjørn Elmquist, a
former member of the Danish Parliament and current Chairman of DIHR
expressing their alarm and concern over the ICTY's imposition of
counsel on Mr. Milosevic (B), which was decided and executed at the
very start of his defense case in early September this year, you were
concluding that the records of the Tribunal are "absolutely impeccable"
(Sic!).
That would jar on the ears of anyone aware of the facts and the
International Covenant on Civil and Political Rights. Yet as if the
ICTY were affording Mr. Milosevic every occasion for due process and
fair trial - and even "to excess" - you stressed that the former
Yugoslav president has been "allowed to act unrepresented by councel".
Most recently however the Appeals Chamber - without relying on any
authority whatsoever - decided, that what they now would see as
"substantial disruption of the proceedings" does not require any proof
that the accused had the intention of disrupting the proceedings, a
decision which appears to permit the effective removal of Mr. Milosevic
from the courtroom altogether (C).
Thus opening the door to in absentia trial the ICTY has already made a
mockery also of your suggestion that "councel has been made available
to him". Yet, on that day in Copenhagen you proudly were declaring to
"be the first one to champion the right of any person accused of any
crime to defend himself" - including obviously Mr. Milosevic's to
self-representation in his defence too. As in the circumstances at the
DIHR it did not come out clearly what the OHCHR may in fact do to
promote and protect the rights of Mr. Milosevic, I ask you to kindly
let us know in concrete terms when you are going to exercise your
proposed "championship"?
That exercise might indeed provide an opportunity for you to prove the
very profound consciousness of the right of others associated with, and
said even to be ingeniously created by human rights instruments.
2) If the ICTY were not a political construct, the Trial Chamber could
simply restore Mr. Milosevic´s right to self-representation. If on the
other hand the Tribunal were truly an international judicial
institution - as it is suggested by its name - committed to respect the
Rule of Law, then why would it make such an incredible mess of its own
case, the Prosecution's case?
Without commenting further on the ICTY's performance either as
political or criminal, may I ask you if as responsible for the Initial
Indictment (D) against Mr. Milosevic you did somehow follow the
resulting trial proceedings? You may not of course have been reading up
to 32.079 pages of Trial Transcripts, but surely you studied hearings
specifically devoted to the infamous incident at Racak - which
triggered NATO's war?
The "massacre at Racak" in fact is the one and only count in the
`Kosovo case` dating back to the period prior to the start of the NATO
aggression on 23 March 1999. Hence I find it hard to believe that you
are not aware of the testimony of your countryman, Canadian General
Maisonneuve (E) - a former Head of the OSCE's KVM Regional Centre in
Prizren, Kosovo and these days reportedly a NATO Chief of Staff - who
on Wednesday 29 May 2002 was testifying in The Hague that on the 15th
of January, 1999 he did not know that KLA members had been killed at
Racak, nor in fact that civilians had been killed either (F). In
response to Mr. Milosevic insisting that he "had to know that it was
KLA members", this expert witness - who was in fact in command of the
OSCE's verification mission present at Racak - could not even verify
that anybody were killed there on the day of the alledged "massacre".
The evidence of this key witness for the Prosecution includes wounded
people that he did see to the hospital in nearby Stimlje, in the
afternoon - however they were not members of the KLA, but "a lady and a
young girl" (Trial Transcripts, p.5904, l.1). General Maisonneuve
clearly told the court that "on the 15th, he didn't know" of any
killings! And may I ask you:
Which commander would personally see civilians to the hospital, if in
fact he knew that others had been shot and killed under his very
observing eyes?
It is obviously a crucial point in this 'trial' against Mr. Milosevic,
that only by the 16th did the commanding general learn about those 45
persons alledgedly killed at Racak, as in the early morning hours a
number of bodies were "discovered" on a nearby hill. In the hearing
General Maisonneuve was in fact dissociating himself from the infamous
statement of KVM Head, American Ambassador William Walker - but by that
fundamentally challenging the particular count, which has it that i.a.
"villagers attempting to flee from the Serb police were shot throughout
the village", the general's testimony in fact completely undermines
your Initial Indictment against President Milosevic, as well as against
Milan Milutinovic (then President of Serbia), Nikola Sainovic (then
Deputy Prime Minister of Serbia), Colonel General Ojdanic (then Chief
of the General Staff of the VJ) and the late Vlajko Stojiljkovic (then
a Minister of Internal Affairs of Serbia).
At our meeting on 30 November 2004 you appeared to wish to repudiate
the facts with reference to some BBC-reports of "bodies lying on the
ground".
These however did not appear until later, as you well know - and the
schedule of persons killed, which was eventually attached as an
appendix to your Initial Indictment, does not tie up convincingly with
the your account of the incident - which never made sense at all,
anyway.
The testimony of the commander of the OSCE verifiers, your countryman
was never contradicted during the Prosecution's case - suggesting that
on this particular point at least you are entirely wrong.
The NATO's campaign thus started with a lie - and so did your Initial
Indictment. May I summarize this reasoning by suggesting, that the
rights of Mr. Milosevic are in fact set aside in the interest of the
then U.S. President Clinton, the British Prime Minister Blair and other
Western leaders deciding on the NATO war - and even in a presumed
interest of your own international career.
I am not a criminal lawyer, but as an architect I am quite capable of
finding and judging the facts. As a citizen of Denmark - a NATO country
which regrettably did participate also in what is known to some as "the
conflict in Kosovo" - I hereby challenge your claim of any "absolutely
impeccable" records of the ICTY's case against Mr. Milosevic, and in
particular your theory of what happened "in Racak on January 15th,
1999" (G).
May that suffice to suggest that in respect for international law, and
in fairness also to the peoples of Serbia and the F.R. of Yugoslavia,
this 'trial' at The Hague must now lead to an expeditious release of
Mr. Milosevic, who as President dutyfully stood up to defend his
country.
Faithfully Yours,
Godfred Louis-Jensen, architect
PS: The above contents have been transmitted to Danish and
international press as an open letter in abbreaviated form.
C.C:
President Milosevic, c/o SLOBODA Freedom Association, Belgrade
Bjørn Elmquist, Chairman, Council of the Danish Institute for Human
Rights (DIHR)
Morten Kjærum, Executive Director, Danish Institute for Human Rights
(DIHR)
Tiphaine Dickson, Centre for Research on Globalization (CRG)
Lieutenant-General J.O. Michel Maisonneuve, NATO HQ SACT COS, Norfolk,
Va.
Enclosures:
A. Transcript of Questions and Answers given by Mme Louise Arbour on
Tuesday November 30th, 2004:
[transcript starts]
GODFRED LOUIS-JENSEN:
Q. I am Godfred Louis-Jensen, an architect. Not a lawyer, I am a member
of the International Committee for the Defence of Slobodan Milosevic.
My question to you is this: Do you not agree, that Mr. Milosevic does
indeed have the right to defend himself? If so - when are you going to
see to it? What are you going to do about it?
Now, I have a small additional question: A countryman of yours, General
Maisonneuve, was testifying in The Hague that: On the 15th of January,
1999 - when General Maisonneuve actually entered the village of Racak
in Kosovo - he "did not know that anybody were killed" (1).
That testimony completely undermines your Indictment (2). Don't you
agree?
Mme LOUISE ARBOUR:
A. I am not aware of Monsieur Maisonneuve - or whoever he was?
testifying in the trial of Milosevic in The Hague, but if indeed he
testified and if he said that in Racak on January 15th, 1999 he didn't
see that anybody had been killed, he should have turned on the BBC as
there he could see the bodies lying on the ground. He may not be able
to see from that who were responsible for it. But if that is the extent
of his testimony I think that it has been amply contradicted by
otherwise very credible evidence.
As to Mr. Milosevic's right to defend himself, I would be the first one
to champion the right of any person accused of any crime to defend
himself. I think that he has been offered that (...) to excess: He has
been allowed to act unrepresented by councel. Councel has been made
available to him. I do not comment on his performance either as
represented or not, but I think that the records of the Tribunal on
affording him every occasion for due process and fair trial are
absolutely impeccable.
[transcript ends]
B. Lawyers Appeal. ICDSM, 29 July 2004:
http://www.icdsm.org/Lawappeal.htm
C."Substantial Disruption" at The Hague: Will Slobodan Milosevic be
Tried in Absentia?". Global Research, November 2004:
http://globalresearch.ca/articles/DIC411A.html
D. ICTY INDICTMENT, Case No.IT-99-37. Louise Arbour, 22 May 1999:
http://www.un.org/icty/indictment/english/mil-ii990524e.htm
E. On Canadian General Maisonneuve:
http://www.act.nato.int/multimedia/bios/maisonneuve.htm
F. Testimony of Canadian General Maisonneuve. ICTY, 29 May 2002:
http://www.un.org/icty/transe54/020529ED.htm
Excerpts from Trial Transcripts, p.5841, l.14 onw.:
Examined by Mr. Milosevic:
Q. I'm asking you, Mr. Maisonneuve, in view of your obligations as a
verifier - and I assume that there is also your obligation to tell the
truth - you had to know, on the 15th when you entered Racak that it was
KLA members who were killed there. Isn't that right or is that not
right?
A. On the 15th, I did not know that KLA members had been killed. In
fact, I did not know that civilians had been killed either. It was on
the 16th that we discovered the bodies, and I can tell you, from my
observations, that these bodies were civilians. In my assessment, they
were not members of the KLA, the bodies that we found.
G. Excerpts of the ICTY's Initial Indictment, Counts 1 - 4:
98. Beginning on or about 1 January 1999 and continuing until the date
of this indictment, forces of the FRY and Serbia, acting at the
direction, with the encouragement, or with the support of Slobodan
MILOSEVIC, Milan MILUTINOVIC, Nikola SAINOVIC, Dragoljub OJDANIC, and
Vlajko STOJILJKOVIC, have murdered hundreds of Kosovo Albanian
civilians. These killings have occurred in a widespread or systematic
manner throughout the province of Kosovo and have resulted in the
deaths of numerous men, women, and children.
Included among the incidents of mass killings are the following:
a. On or about 15 January 1999, in the early morning hours, the village
of Racak (Stimlje/Shtime municipality) was attacked by forces of the
FRY and Serbia. After shelling by the VJ units, the Serb police entered
the village later in the morning and began conducting house-to-house
searches.
Villagers, who attempted to flee from the Serb police, were shot
throughout the village. A group of approximately 25 men attempted to
hide in a building, but were discovered by the Serb police. They were
beaten and then were removed to a nearby hill, where the policemen shot
and killed them. Altogether, the forces of the FRY and Serbia killed
approximately 45 Kosovo Albanians in and around Racak.