[L-I] URGENT: 50 Lawyers from 12 Countries Appeal against Imposition of Counsel on Milosevic

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P R E S S    R E L E A S E                        29 July 2004
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50 LAWYERS FROM 12 COUNTRIES APPEAL AGAINST THE IMPOSITION OF COUNSEL ON
SLOBODAN MILOSEVIC

Ramsey Clark (USA), Sergei Baburin (Vice-President of Russian Duma), Jacq=
ues
Verges (France), Professor Paech and Friedrich Wolf (Germany), Jitendra
Sharma (India) - President of the International Association of Democratic
Lawyers and Professors Avramov and Cavoski from Belgrade among those
convinced that the intention of the Hague Tribunal must be prevented sinc=
e
it "threatens the future of International Law and the life of the defenda=
nt"
=2E

A letter, signed by 50 distinguished jurists, law professors and
international criminal lawyers from 12 countries has been sent today to U=
N
Secretary General, Security Council and General Assembly, as well as to t=
he
Hague Tribunal, which works under UN auspices. The signers state that "th=
e
envisaged imposition of counsel constitutes an egregious violation of
internationally recognized judicial rights, and will serve only to aggrav=
ate
Mr Milosevic's life-threatening illness and further discredit these
proceedings." In their argument, the lawyers who joined their signatures =
to
this initiative only within last couple of days, refer to the Internation=
al
Covenant of Civil and Political Rights, US Supreme Court decisions, the
Statute of the Hague Tribunal and "Rivonia trials" of Nelson Mandela.

The letter, drafted by the international criminal lawyers from Canada,
Tiphaine Dickson and Christopher Black, engaged also in the International
Committee to Defend Slobodan Milosevic, points as well that the Tribunal
avoids to consider properly the requests for provisional release of Slobo=
dan
Milosevic on the basis of the state of his health and violates his rights=
 in
a way which only contributes to his illness. The petition also warns agai=
nst
the announced "radical reform" of the proceedings, which is supposed to
bring "changes of the rules in the mid-trial to the defendant's detriment=
".
The described behavior of the Tribunal is characterized as "perversion of
both the letter and spirit of international law", which "the United Natio=
ns
should not tolerate".

The petitioners call upon their colleagues from other countries to join t=
he
petition in the coming days in the interest of justice and International
Law.

The full text of the petition with the complete list of signatures is giv=
en
below. It can be also seen on the web site www.icdsm.org     New signers =
can
e-mail their data on [email protected]

For additional information or statements, media representatives are free =
to
contact by phone:
Tiphaine Dickson (Montreal)  +1 450 263 7974
Christopher Black (Toronto)  + 1 416 928 6611
Ramsey Clark (New York)  +1 212 475 3232
Vladimir Krsljanin (Belgrade)  +381 63 886 2301

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IMPOSITION OF COUNSEL ON SLOBODAN MILOSEVIC THREATENS THE FUTURE OF
INTERNATIONAL LAW AND THE LIFE OF THE DEFENDANT

H.E. Mr. KOFI ANNAN, Secretary General of the United Nations,
H.E. Mr. JULIAN ROBERT HUNTE, President of 58th Session of the UN General
Assembly
Romanian (Russian) Presidency of the UN Security Council,
To all members of the UN Security Council, to all members of the UN
Cc: International Criminal Tribunal for the former Yugoslavia

We the undersigned, jurists, law professors, and  international criminal
lawyers, hereby declare our alarm and concern that the International
Criminal Tribunal for the Former Yugoslavia (ICTY) is preparing the
imposition of counsel upon an unwilling accused, Slobodan Milosevic.

This apparently punitive measure is contrary to international law,
incompatible with the adversarial system of criminal justice adopted by t=
he
Security Council in Resolution 808, and ignores the court's obligation to
provide adequate medical care and provisional release to the defendant. T=
he
ICTY, instead of taking appropriate measures to alleviate Slobodan
Milosevic's long-standing medical problems, has compounded them. The ICTY
has ignored repeated requests for provisional  release, to which everyone
presumed innocent is entitled, has imposed unrealistically short preparat=
ion
periods on the defence, and has permitted the introduction of an inordina=
te
quantity of Prosecution evidence, much of which was bereft of probative
value, thereby increasing Mr. Milosevic's level of stress, the principal
trigger of his illness.  Chamber III has been informed of this by their
chosen cardiologist. The defendant has been denied examination by his own
physician, a further violation of his rights..

Now, having brought about the very degradation of President Milosevic's
health of which it had been warned, the ICTY seeks to impose counsel upon
him over his objections, rather than  granting him provisional release in
order to receive adequate and proper medical care, a reasonable measure
reflected in domestic and international law and practice.  The envisaged
imposition of counsel constitutes an egregious violation of international=
ly
recognized judicial rights, and will serve only to aggravate Mr Milosevic=
's
life-threatening illness and further discredit these proceedings.

The right to defend oneself against criminal charges is central in both
international law and in the very structure of the adversarial system. Th=
e
fundamental, minimum rights provided to a defendant under the Rome Statut=
e
of the International Criminal Court, as well as the under the Statutes of
the International Criminal Tribunals for Rwanda and Yugoslavia, include t=
he
right to defend oneself in person. The general economy of these provision=
s
all envisage the reality that rights are afforded to an accused,  not to =
a
lawyer. The right afforded is to represent oneself against charges brough=
t
by the Prosecution and subsidiary to this, to receive the assistance of
counsel, if an accused expresses the wish to receive such assistance.
However, if, as Slobodan Milosevic, a defendant unequivocally expresses h=
is
objection to representation by counsel, his right to represent himself
supercedes a court's or prosecutor's preference for assigning defence
counsel. As stated by the U.S. Supreme Court, with respect to the Sixth
Amendment of the Bill of Rights, which bears a striking similarity to
Article 21 of the ICTY Statute:

"It speaks of the 'assistance' of counsel, and an assistant, however expe=
rt,
is still an assistant. The language and spirit of the Sixth Amendment
contemplate that counsel, like the other defense tools guaranteed by the
Amendment, shall be an aid to a willing defendant - not an organ of the
State interposed between an unwilling defendant and his right to defend
himself personally. To thrust counsel upon the accused, against his
considered wish, thus violates the logic of the Amendment. In such a case=
,
counsel is not an assistant, but a master; and the right to make a defens=
e
is stripped of the personal character upon which the Amendment insists."
Faretta v.California, 422 U.S. 806 (1975)

The ICTY Statute (as well as ICTR and ICC Statutes) similarly grant "defe=
nce
tools," such as the right to be represented by counsel, or the right for
counsel to be provided free of charge, if the accused is indigent. The
essence of the right to represent oneself is  defeated when the right to
counsel  becomes an obligation. As stated in Farretta, supra:

"An unwanted counsel 'represents' the defendant only through a tenuous an=
d
unacceptable legal fiction. Unless the accused has acquiesced in such
representation, the defense presented is not the defense guaranteed him b=
y
the Constitution, for, in a very real sense, it is not his defense."
Id.

Nor would the defence of Slobodan Milosevic be the defence guaranteed him
under international law, were he to have counsel imposed upon him against
his will.

The ICTY's general structure is that of an adversarial system of criminal
justice. Other legal influences have been integrated to the Rules of
Procedure and Evidence, but the nature of the proceedings, which involve =
a
prosecutor and defendant, as parties, presenting evidence before a panel
whose function is that of arbiter, is unquestionably of an adversarial
nature. In the adversarial system, history has eloquently illustrated tha=
t
imposition of counsel on an unwilling accused is the practice of politica=
l
courts, and does not have its place in a democratic system of justice, mu=
ch
less before an institution that will generate precedent for a truly
legitimate international criminal jurisdiction, whose establishment has b=
een
the fruit of half a century of struggle:

"In the long history of British criminal jurisprudence, there was only on=
e
tribunal that ever adopted a practice of forcing counsel upon an unwillin=
g
defendant in a criminal proceeding. The tribunal was the Star Chamber. Th=
at
curious institution, which flourished in the late 16th and early 17th
centuries, was of mixed executive and judicial character, and
characteristically departed from common-law traditions. For those reasons=
,
and because it specialized in trying 'political' offenses, the Star Chamb=
er
has for centuries symbolized disregard of basic individual rights."
Faretta, Id.

Recently, the ICTY has ordered  the Prosecutor, and only the Prosecutor, =
to
provide an opinion with respect to the imposition of counsel in the absen=
ce
of instructions or cooperation from Mr. Milosevic. The Chamber has
repeatedly referred to its obligation to carry out a fair trial, and held=
,
when it acknowledged the right to self-representation in April 2003, that=
 it
"has indeed an obligation to ensure that a trial is fair and expeditious;
moreover, where the health of the Accused is in issue, that obligation ta=
kes
on special significance." Article 21 of the ICTY's Statute  states that t=
he
Chamber must exercise this obligation "with full respect for the rights o=
f
the accused." However,  expediency has become,  as the defendant is set t=
o
present essential and potentially embarrassing evidence, the Chamber's
apparently overwhelming concern.

Imposition of counsel, even "standby counsel", as appears to be presently
envisaged by the ICTY, will not alleviate any of the difficulties facing =
the
process: it will not treat, much less cure, Slobodan Milosevic's malignan=
t
hypertension; it will not provide the defendant with the time and conditi=
ons
to prepare his case; it will not redress the gross imbalance in the
resources accorded the Prosecutor and the defence, a redress required by =
the
principle of equality of arms, which the Court professes to recognize.  I=
f
counsel is imposed, Slobodan Milosevic's basic right to represent himself
will be violated, and he will still have only 150 days to present his
defence, only half of the time allotted to the Prosecution.

It is presently unclear what role an imposed counsel would play. Whatever=
 it
may be, it is certain that there is no benefit to be gained from going
forward with this unprecedented measure. The ICTY Statute provides the
minimum right to be present for one's trial. If Slobodan Milosevic's medi=
cal
condition does not permit him to attend the proceedings, and he does not
waive his right to be present, the ICTY does not have the jurisdiction to
hold hearings in his absence. Adjournments will continue as long as measu=
res
are not taken to treat Mr. Milosevic's malignant hypertension, a conditio=
n
that cannot be treated by further violating his rights, threatening to
remove him from the process, or by transferring his defence to a complete
stranger.

The ICTY assigned three counsel to act as amicus curiae, and whose stated
role is to ensure, inter alia, a fair trial. It is doubtful an imposed
counsel, even a "standby counsel" could provide any additional assistance=
,
without hijacking President Milosevic's defence, or simply silencing him.
Furthermore, any reference to precedent with respect to the imposition of
standby counsel is inapposite. In the case of Dr Seselj, "standby counsel=
"
has been imposed, before the beginning of a trial, and to prevent
"disruption" of the proceedings.

President Slobodan Milosevic does not recognize the ICTY.  He asserts his
innocence, and steadfastly criticizes the ICTY and NATO. He is innocent
until proven otherwise, and has every right to oppose the legitimacy of t=
his
institution. By imposing counsel, the ICTY would not only violate his rig=
ht
to self-representation, but his right to present relevant evidence
demonstrating the repeated violations of Yugoslavia's sovereignty over a
decade. These violations led to NATO's illegal war of aggression against =
and
bombing of Yugoslavia - at  the very height of which an indictment agains=
t
Slobodan Milosevic was confirmed by the ICTY - in a transparent bid to
deprive the Yugoslav people of a voice to negotiate peace and in order to
justify the continuation of that war of aggression.

The trial of Slobodan Milosevic before the ICTY has been adjourned until
August 31st, 2004. The Prosecutor has presented 295 witnesses in as many
days, all of which have been cross-examined by the defendant in person, a=
s
he does not recognize the ICTY as a judicial body, and signals this
non-recognition by refusing to assign counsel. Slobodan Milosevic is a la=
w
school graduate, was three times elected to the highest state offices of
Serbia and Yugoslavia, and has by all accounts ably contested the
Prosecution's case. There is no question as to his mental fitness and
ability to waive his right to counsel.  The ICTY may not enjoy President
Milosevic's criticism. Nonetheless, the public benefits of respecting his
right to self-representation far outweigh whatever embarrassment might be
visited upon the ICTY. Justice demands that Slobodan Milosevic be given t=
he
right to demonstrate that the Security Council institution detaining him =
is
a political weapon against the sovereignty and self-determination of the
people of Serbia and all the peoples of Yugoslavia.

Nelson Mandela represented himself during the infamous Rivonia trials of =
the
1960s. Mandela mounted a political defence against apartheid, yet even th=
e
South African judiciary did not impose counsel to silence him. The ICTY i=
s
poised to threaten the future of international law by doing what even
apartheid-era judges dared not do - gag a defendant and impair his abilit=
y
to respond to a case.  A case, we note, made unwieldy, unintelligible and
inexplicably lengthy by the Prosecutor, with the Chamber's assent, and no=
t
by Slobodan Milosevic. Indeed, most observers of the process have noted t=
hat
the Prosecutor failed to present compelling evidence to support any of th=
eir
charges; rather than stay the proceedings, the ICTY permitted the Prosecu=
tor
to present additional witnesses, in apparent desperation to make somethin=
g
stick.

The right to defend oneself in person is at the heart of the Internationa=
l
Covenant for Civil and Political Rights. The United Nations should not
tolerate these continuing violations of international law in the name of
expediency. Using a detained person's inappropriately treated illness as =
an
excuse to infringe upon his rights and silence him, and embark upon a
"radical reform" of the proceedings-- as the Chamber is now considering, =
by
changing the rules in mid-trial, and to the defendant's detriment-- is a
perversion of both the letter and spirit of international law.

As  jurists, we are deeply concerned that the planned imposition of couns=
el
constitutes an irrevocable precedent, and potentially deprives any accuse=
d
person of the right to present a meaningful defence in the future. In the
case of Slobodan Milosevic, this measure will only increase his hypertens=
ion
and place his life at risk.

The ICTY and Security Council will be held responsible for the tragically
predictable consequences of their actions.

Signed:

Tiphaine Dickson, Lawyer, Montreal, Quebec, Canada

Christopher Black, Lawyer, Toronto, Canada


Professor Smilja Avramov (Former President, International Law Association=
),
Belgrade, Serbia and Montenegro

Sergei Baburin, Doctor of Law, Professor, (Vice-President, State Duma of =
the
Federal Assembly of the Russian Federation), Moscow, Russian Federation

Nicole Bergevin, Lawyer, Montreal, Quebec

Professor Aldo Bernardini, International Law, University of Teramo, Italy

Professor Erich Buchholz, Lawyer, Berlin, Germany

Professor Kosta Cavoski, University of Belgrade, Belgrade, Serbia and
Montenegro

Professor Panayotis G. Charitos, LLD, International Law, Supreme Court
Attorney, Greece

Ramsey Clark, Former US Attorney General, New York, USA

Goran Cvetic, Lawyer, Belgrade, Serbia and Montenegro

Trendafil Danailov, Lawyer, (Former President, Sofia District Court), Sof=
ia,
Bulgaria

Bj=F8rn Elmquist, Lawyer, (Former MP), Copenhagen, Denmark

Professor Peter Erlinder, (past-President, National Lawyers Guild, NYC),
William Mitchell College of Law, St. Paul, MN, USA

Armin Fiand, Lawyer, Hamburg, Germany

Jeff Frazier, Lawyer, Houston, Texas, USA

Dr Mikhail Fomichenko, (Head, Center for Human Rights and Legal Protectio=
n),
Moscow, Russian Federation

Sergei Glotov, Doctor of Law, Professor, (Deputy President, Commission on
Administrative and Organizational Issues of the State Duma), Moscow, Russ=
ian
Federation

Dr Heinrich Hannover, Lawyer, Worpswede, Germany

Professor Yuri Ilyin, Lawyer, Moscow, Russian Federation

Viktor Ilyuchin, State Counselor of Justice of II Order, (Deputy Presiden=
t,
Commission for Security of the State Duma), Moscow, Russian Federation

Strahinja Kastratovic, Lawyer, (Former President, Lawyers' Chamber of
Belgrade), Belgrade, Serbia and Montenegro

Professor Mikhail Kuznecov, Lawyer, (President, Tribunal for NATO Crimes =
in
Yugoslavia), Moscow, Russian Federation

Jennie Lusk, J.D., Lawyer, Albuquerque, New Mexico, USA

Mikhail Menev, Lawyer, (Former President, Sofia City Court), Sofia, Bulga=
ria

Dr Alexander Mezyaev, International Law, (Deputy Head, Department of
Constitutional and International Law, Academy of Busyness, Kazan'; Member=
,
Russian International Law Association; Member, Experts' Council of the
Ombudsman of the Republic of Tatarstan), Kazan', Tatarstan, Russian
Federation

Professor Dimitar Mikhailov, Criminal Law, (Former Member, UN Committee
Against Torture), Sofia, Bulgaria

Oksana Mikhalkina, Lawyer (President, Moscow Lawyers' Association), Mosco=
w,
Russian Federation

Oleg Mironov, Doctor of Law, Professor, (Director, Institute for Human
Rights), Moscow, Russian Federation

Professor Claudio Moffa, Ordinario, University of Teramo, Italy

E. Olof, Lawyer, Zeist, Netherlands

H.E. Schmitt-Lermann, Lawyer, Munich, Germany

Professor Norman Paech, University for Econonomy and Politics, Hamburg,
Germany

Dmitrij Potockij, Lawyer, Moscow, Russian Federation

Professor Enyo Savov, International Law, Sofia, Bulgaria

Dr Heinz Juergen Schneider, Lawyer, Hamburg, Germany

Elena Semenovna, Lawyer, Moscow, Russian Federation

David K. Sergi, Lawyer, San Marcos, Texas, USA

Jitendra Sharma, Senior Advocate, Supreme Court of India (President,
International Association of Democratic Lawyers)

Dr Taras Shamba, Moscow, Russian Federation

Sergei Shtin, Lawyer, Moscow, Russian Federation

Valentina Shtraus, Lawyer, Rostov, Russian Federation

Professor Bhim Singh, Advocate, Supreme Court of India (President, Nation=
al
Panthers Party)

N.M.P. Steijnen, Lawyer, Zeist, Netherlands

L.P.H. Stibru, Lawyer, Zeist, Netherlands

Dr Milan Tepavac, International Law, Belgrade, Serbia and Montenegro

Professor Andre Tremblay, Lawyer, Montreal, Quebec, Canada

Professor Velko Valkanov, (President, Bulgarian Committee for Human Right=
s,
Former MP), Sofia, Bulgaria

Jacques Verges, Advocate at the Court of Appeal, Paris, France

Dr Friedrich Wolff, Lawyer, Berlin, Germany

Professor Ivan Yatsenko (Vice-President, European Peace Forum), Moscow,
Russian Federation

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SLOBODA urgently needs your donation.
Please find the detailed instructions at:
http://www.sloboda.org.yu/pomoc.htm

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)


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