[L-I] URGENT - HAGUE: Imposition of International Dictatorship

HAGUE: IMPOSITION OF INTERNATIONAL DICTATORSHIP

NATO/US/UN "Tribunal" at The Hague decided today to impose a counsel on
Slobodan Milosevic against his will.

This way this para-judicial creation overran the Nazi court which tried
Dimitrov and Apartheid court which tried Mandela.

The decision was made immediately after the opening speech of President
Milosevic, which was the most concentrated presentation of arguments and
historical facts that totally annulled the NATO anti-Serbian war propagan=
da.
This speech also announced the President Milosevic's strategy - to beat t=
he
false indictments by proving the real guilt of those who broke-up, bombed
and abolished the glorious European nation, Yugoslavia.

This is another aggressive crime against this country and its people,
against the International Law and against freedom and sovereignty of
peoples.

At the same time, this is a total denial of the whole international syste=
m
of human rights protection.

Brutal force imposes its own "international law" to silence, convict and
eliminate each political opponent or freedom fighter. This new "law" is a=
n
art of punishing innocent.

Our struggle enters a new phase - phase of open struggle against
international dictatorship which has absolutely no scrupules.

Our struggle, which is people's struggle, remains a struggle for freedom.=
 In
our struggle, truth remains our strongest weapon.

Our main slogan and our imminent goal is:

FREEDOM FOR SLOBODAN MILOSEVIC!

RAISE YOUR VOICE NOW!
LAUNCH A MOST POWERFUL ACTION NOW!

The open dictatorship legitimizes all forms of resistance!

SLOBODA/ICDSM

2nd September 2004-09-02

*****************************************************************

COMPARE YOURSELF THE ARGUMENTS:

ARGUMENTS OF JUSTICE AND LOW THROUGH THE VOICE OF 100 INTERNATIONAL LAWYE=
RS
AND LAW PROFESSORS AND

POLITICAL ARGUMENTS OF THE EMPIRE THROUGH THE VOICE OF MICHAEL SCHARF,
ALBRIGHT'S LEGAL ADVISER AND THE AUTHOR OF ICTY STATUTE.

****************************************************************

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
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

Milena Arezina, Judge (Former President, Comercial Court), Belgrade, Serb=
ia
and Montenegro

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

Dragoslava Backovic, Legal Representative, Belgrade, Serbia and Montenegr=
o

Professor Paolo Bargiacchi, Law of the European Union, University of
Palermo, Italy

Nicole Bergevin, Lawyer, Montreal, Quebec

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

Gen. Dr Nikolai Bezborodov, (Deputy President, Commission for Defense of =
the
State Duma), Moscow, Russian Federation

Pierre de Boucherville, Lawyer, Montreal, Quebec, Canada

Professor Erich Buchholz, Lawyer, Berlin, Germany

Dr Milan Bulajic, International Law, (President, Fund for Genocide
Research), Belgrade, Serbia and Montenegro

Raffaele Cadin, University Researcher, University "La Sapienza", Rome, It=
aly

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

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

Professor Gian Luigi Cecchini, International Law, University of Trieste,
Italy

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

Professor Ivan Cukalovic, International Law, University of Kragujevac,
Serbia and Montenegro

Goran Cvetic, Lawyer, Belgrade, Serbia and Montenegro

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

Jean-Marie Dermagne, Lawyer, Rochefort-Louvain-la-Neuve, Belgium

Professor Stevan Djordjevic, International Law, Belgrade, Serbia and
Montenegro

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

Paolo Gemelli, Lawyer, Italy

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

Piera Graffer Ljubibratic, Italy

Gerry Grainger, Lawyer, Ireland

Veljko Guberina, Lawyer, (Former President, Lawyers Chamber of Yugoslavia=
,
Lawyers Chamber of Serbia), Belgrade, Serbia and Montenegro

Maria Paola Guidace, Lawyer, Italy

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

David Jacobs, Lawyer, Toronto, Canada

Vladislav Jovanovic, (Former Federal Minister of Foreign Affairs of FR
Yugoslavia), Belgrade, Serbia and Montenegro

Zivadin Jovanovic, (Former Federal Minister of Foreign Affairs of FR
Yugoslavia), Belgrade, Serbia and Montenegro

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

Nada Lazarevic-Jovovic, Podgorica, Serbia and Montenegro

Mark Littman, Q.C., London, UK

Dr Djordje Lopicic, International Law, Ambassador, Belgrade, Serbia and
Montenegro

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 Vice President, UN
Committee Against Torture), Sofia, Bulgaria

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

Ilija Milanovic, M.A., (Former Consul and Deputy District Prosecutor),
Belgrade, Serbia and Montenegro

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

Dr Miodrag Mitic, International Law (Member, Legal Council of the Ministr=
y
of Foreign Affairs of Serbia and Montenegro), Belgrade, Serbia and
Montenegro

Professor Claudio Moffa, Ordinario, University of Teramo, Italy

Dr Elvia Muscoli, Jurisprudence, Italy

E. Olof, Lawyer, Zeist, Netherlands

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

Giuseppe Pelazza, Lawyer, Milan, Italy

Vidosava Petkovic, Legal Adviser, Belgrade, Serbia and Montenegro

Dmitrij Potockij, Lawyer, Moscow, Russian Federation

Miljenko Reljic, Lawyer, Australia

Antonio Ricca, Italy

Professor Franco Sabatini, Labor Law, University of Chieti-Pescara, Italy

Edoarda Sanci, Lawyer, Italy

Professor Enyo Savov, International Law, Sofia, Bulgaria

Professor Schirmer, International Law, Woltersdorf, Germany

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

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 Augusto Sinagra, Law of the European Union, University "La
Sapienza", Rome, Italy

Cristiano Sinagra, Lawyer, Italy

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

Professor Zoran Stojanovic, University of Belgrade, Belgrade, Serbia and
Montenegro

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

Professor Andre Tremblay, Lawyer, Montreal, Quebec, Canada

Jakob Tr=FCmpy, Lawyer, Switzerland

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

Anna Lucia Valvo, Lawyer, Italy

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

Sava Vidanovic, Canada

Pasquale Vilardo, Lawyer, Association of the Democratic Jurists, Rome, It=
aly

Milan Vujin, Lawyer, (Former President, Lawyers Chamber of Yugoslavia,
Lawyers Chamber of Serbia), Belgrade, Serbia and Montenegro

Dr Friedrich Wolff, Lawyer, Berlin, Germany

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

Professor Claudio Zangh=EC, International Law, University "La Sapienza", =
Rome,
Italy

**********************************************************

The Washington Post
August 29, 2004 Sunday
Final Edition
SECTION: Outlook; B02
LENGTH: 1413 words
HEADLINE: Making a Spectacle of Himself;
Milosevic Wants a Stage, Not the Right to Provide His Own Defense
BYLINE: Michael P. Scharf

Almost everyone knows the old legal saying: "He who represents himself ha=
s a
fool for a client and an idiot for a lawyer." The trial of former Serbian
leader Slobodan Milosevic suggests a related adage: "A judge who permits =
a
rogue leader to represent himself in an international war crimes trial is
just as misguided."

On Tuesday, Milosevic's trial -- more than two years old and counting -- =
is
scheduled to resume before the International Criminal Tribunal in The Hag=
ue.
The opening act of the trial's new phase will be the judges' announcement=
 of
their decision on whether to allow Milosevic to continue acting as his ow=
n
lawyer.

At the start of the trial in February 2002, the original presiding judge,
Britain's Richard May, ruled that "under international law, the defendant
has a right to counsel, but he also has a right not to have counsel."
Virtually everything that has gone wrong with the Milosevic trial can be
traced back to that erroneous ruling.

The decision has caused the trial to drag on twice as long as anticipated.
Because of concerns about Milosevic's high blood pressure (240 over 120),
the judges have had to scale back the length and frequency of the
proceedings to ensure that the former leader is not "tried to death." As =
a
result, the trial takes place only three times a week as opposed to the
standard five; the number of hours per day has been reduced from eight to
four; and there are frequent lengthy recesses to allow the defendant-lawy=
er
to regain his strength. These delays have taken their toll on justice. Ju=
dge
May recently died of cancer and a replacement had to be found; witness
memories are fading; and the international community is losing interest.

The judges have given Milosevic wider latitude than an ordinary defendant=
 or
lawyer. Normally, the accused addresses the court only when he takes the
stand to give testimony, and he must take an oath to tell the truth.
Moreover, he is limited to offering evidence that is relevant to the
charges, and is subject to cross-examination by the prosecution. By actin=
g
as his own counsel, Milosevic was able to begin the trial with an
18-hour-long opening argument, which included Hollywood-quality video and
slide-show presentations showing the destruction wrought by the 1999 NATO
bombing campaign.

As his own defense counsel, Milosevic has been able to treat the witnesse=
s,
prosecutors and judges in a manner that would earn ordinary defense couns=
el
a citation or incarceration for contempt of court. In addition to regular=
ly
making disparaging remarks about the court and browbeating witnesses,
Milosevic pontificates at length during cross-examination of every witnes=
s,
despite repeated warnings from the bench. Milosevic, who spends his night=
s
at the tribunal's detention center, has no incentive to heed the judges'
admonitions.

Milosevic's caustic defense strategy is unlikely to win him an acquittal,
but it isn't aimed at the court of law in The Hague. His audience is the
court of public opinion back home in Serbia, where the trial is a top-rat=
ed
TV show and Milosevic's standing continues to rise.

Opinion polls have reported that 75 percent of Serbs do not feel that
Milosevic is getting a fair trial, and 67 percent think that he is not
responsible for any war crimes. "Sloba Hero!" graffiti is omnipresent on
Belgrade buses and buildings. Last December, he easily won a seat in the
Serbian parliament in a national election.

In creating the Yugoslavia tribunal statute, the U.N. Security Council se=
t
three objectives: first, to educate the Serbian people, who were long mis=
led
by Milosevic's propaganda, about the acts of aggression, war crimes and
crimes against humanity committed by his regime; second, to facilitate
national reconciliation by pinning prime responsibility on Milosevic and
other top leaders and disclosing the ways in which the Milosevic regime h=
ad
induced ordinary Serbs to commit atrocities; and third, to promote politi=
cal
catharsis while enabling Serbia's newly elected leaders to distance
themselves from the repressive policies of the past. May's decision to al=
low
Milosevic to represent himself has seriously undercut these aims.

May felt he had no choice in the matter because the tribunal's legal char=
ter
stated that the defendant has the right "to defend himself in person or
through legal assistance of his own choosing." But some experts -- and I'=
m
including myself -- are now arguing that May got the law wrong.

The language from the Yugoslavia tribunal statute originally comes from a
human rights treaty known as the International Covenant on Civil and
Political Rights. The negotiating record of the International Covenant
indicates that the drafters' concern was with effective representation, n=
ot
self-representation. In other words, the drafters felt that a defendant
should have a right to either be represented by a lawyer or to represent
himself; they did not state that each defendant must be asked to choose
between the two. Unlike Britain and the United States, most countries of =
the
world do not allow criminal defendants to represent themselves under any
circumstances, and this has been deemed consistent with international law=
 by
the European Court of Human Rights.

Even if May was correct in his reading of the law as providing a right to
self-representation, he was wrong to treat that right as absolute. As
authority for his position, May cited the U.S. Supreme Court's 1975 rulin=
g
in Feratta v. California, which held that there was a fundamental right t=
o
self-representation in U.S. courts. But the high court also added a cavea=
t,
which May overlooked, stating that "a right of self-representation is not=
 a
license to abuse the dignity of the courtroom." U.S. appellate courts hav=
e
subsequently held that the right of self-representation is subject to
exceptions -- such as when the defendant acts in a disruptive manner, whe=
n
self-representation interferes with the dignity of the proceedings or whe=
n
the issues in the case are too complex for a defendant to represent himse=
lf
adequately.

Milosevic's antics and poor health have repeatedly disrupted the trial,
justifying appointment of counsel to represent him in court for the
remainder of the proceedings. There's precedent for taking such a step: I=
n
the trial of former Serbian paramilitary leader Vojislav Seselj, the
Yugoslavia tribunal required Seselj -- over his objection -- to accept
"stand-by counsel," ready to step in as soon as the defendant became
disruptive or the issues became too complex.

In a sense, the tribunal has already appointed standby counsel for Milose=
vic
in the guise of Stephen Kay and the other amicus ("friends of the court")
counsel. While not bound to follow the defendant's directives, their job =
has
been to ensure that legal arguments favoring the defense are presented to
the judges. It would be a small step to transform the amicus counsel into=
 a
full-blown defense team, and instruct it to represent Milosevic for the r=
est
of the trial. The lawyers are already intimately familiar with the case a=
nd
are willing to take on such a role. And unlike Milosevic, they will be bo=
und
to play by the rules.

If, on the other hand, the tribunal rules that Milosevic still has a righ=
t
to represent himself, the precedent will affect other international cases.
Saddam Hussein, whose war crimes trial is set to begin later this year, w=
ill
be able to argue that he, too, has a right to represent himself before th=
e
Iraqi Special Tribunal.

If Hussein were allowed to follow Milosevic's playbook -- using the uniqu=
e
opportunity of self-representation to launch daily attacks against the
legitimacy of the proceedings and the U.S. invasion of Iraq -- this would
seriously undermine the goal of fostering reconciliation between the Iraq=
i
Kurds, Shiites and Sunnis. The historic record developed by such a trial
would forever be questioned. And the trial would transform Hussein and hi=
s
subordinates into martyrs, potentially fueling violent opposition to the =
new
Iraqi government.

Justice demands that Milosevic and Hussein be given fair trials. That can
best be guaranteed by appointing distinguished counsel to defend them, no=
t
by permitting them to act as their own lawyers.

Author's e-mail:

[email protected]

</body>Michael Scharf is professor of law and director of the Frederick K.
Cox International Law Center at Case Western Reserve University in
Cleveland. His latest book is "Slobodan Milosevic on Trial" (Continuum).
***************************************************************

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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)
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