[L-I] Tiphaine Dickson: Star Chamber at The Hague

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ICDSM Legal Spokesperson and long time lawyer of the ICDSM Tiphaine Dicks=
on,
the author of the International Lawyers Petition to the UN against the
imposition of counsel on President Milosevic and of several important pap=
ers
on the ICTY and its process against President Milosevic, was present last
week at The Hague. She held a press conference there (together with ICDSM
Vice-Chairman Klaus Hartmann) and gave several statements and interviews =
to
media. Her article below gives a clear and precise assessment of the rece=
nt
decisions of the Hague "Yugoslavia Tribunal". We also reproduce a short
interview of Klaus Hartmann to the German daily "Junge Welt".
*******************************************************************

The Hague ICTY Tribunal: Star Chamber it Is!
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by Tiphaine Dickson

www.globalresearch.ca  6  September 2004

The URL of this article is: http://globalresearch.ca/articles/DIC409A.htm=
l


Nelson Mandela, charged with being a terrorist and a communist, defended
himself in the infamous Rivonia trials of the 1960's. From the dock Mande=
la
issued a searing denunciation of the South African regime which would
inspire worldwide mobilization in the struggle against Apartheid.

Slobodan Milosevic will not enjoy the right to self-representation afford=
ed
to Nelson Mandela by the Apartheid judiciary, since the ICTY has decided =
to
impose a defence counsel on him against his will. The imposed counsel wil=
l
be entirely responsible for presenting a defence - not Milosevic's
defence -but a respectful, courteous, and ingratiating defence, one mindf=
ul
of the ICTY's dignity, image and reputation. This in contrast to Slobodan
Milosevic's principled non-recognition of the ICTY as a legal body. This
foreign defence will be devised and introduced without the instructions o=
f
the accused and against his will by two British lawyers who had previousl=
y
been assigned by the institution to act as amici curiae or "friends of th=
e
court". Their apparent conflict of interest - known in the UK as
"professional embarrassment" - which they had themselves raised a mere tw=
o
weeks ago when strenuously objecting to imposition of counsel, was
overlooked without comment as they accepted their new appointments.

While South Africa's Apartheid-era judiciary dared not take such a radica=
l
step against Mandela, a UN court has shown no hesitation to violate this
most fundamental of fundamental rights: an accused's defence is his own, =
and
his right to counsel is a right, to be employed if desired, but not to be
inflicted upon him, against his will, by a court, or by the state. It is
evident that in light of these conditions that it can no longer be called=
 a
right, but an imposition, an infringement, and a violation.

The US Supreme Court recognized the inherent injustice of the imposition =
of
counsel against the will of a defendant in Faretta v. California, written=
 in
1975. The Justices pointed out that imposition of counsel had been the
province of the infamous Star Chamber, a political court of mixed judicia=
l
and executive nature, which flourished in England in the late 16th and ea=
rly
17th century. Imposition of counsel, stated the Supreme Court, has been
abandoned as a practice since then.

Today a UN body has steered the future of international law back to those
dark times, and confirmed the accuracy of Slobodan Milosevic's charge tha=
t
the ICTY is an illegal body, established in contravention of the provisio=
ns
of the UN's own Charter.

Over 90 lawyers and law professors from 17 different countries filed a
petition with the UN Security Council weeks ago warning it and member sta=
tes
that the envisaged imposition of counsel violated international law. Mr.
Milosevic was not permitted to read from the petition last Wednesday. (Se=
e
http://www.icdsm.org/Lawappeal.htm )
During the ICTY's "administrative session" held to debate whether counsel
should be imposed - (the Chamber pointedly used of the term "assignment"
rather than "imposition"), the Chamber stated its concern that Mr
Milosevic's medical condition - malignant hypertension - would render him
unfit to defend himself. This assertion was based on medical reports
submitted by ICTY-appointed cardiologists, without the defendant being
granted the right to obtain a second opinion, and in spite of the fact th=
at
physicians aren't really qualified to determine who is fit to represent h=
im
or herself.

Milosevic has represented himself very ably for three years and has suffe=
red
from hypertension for ten. Yet it is only now that the issue of the fitne=
ss
of Milosevic to act as his own counsel has acquired urgency. Only now, th=
at
is, on the eve of his defence presentation - one which he has announced
would establish that the "Balkan Wars" were in fact one war, against
Yugoslavia, and whose apotheosis was NATO's gruesome 78-day bombing campa=
ign
in 1999.

Throughout the administrative hearing, submissions were made by the
Prosecution, the amici (who would go on to become the counsel assigned to
Mr. Milosevic against his will) and the Chamber as to the role that could=
 be
played by an assigned counsel. Their consensus appeared to be that a lawy=
er,
if imposed, would only be required on those occasions when the defendant
would be too ill to carry on the burden of courtroom work. In the result,
the Chamber not only assigned counsel, but imposed the amici - who have
acted since the beginning of the proceedings in the service of the Chambe=
r -
and instructed them to take over the defence.

Among the "duties" the ICTY has instructed the former amici to carry out =
are
the determination of how the case is to be presented, the preparation and
examination of witnesses they deem appropriate, the duty to "endeavour" t=
o
obtain the defendant's instructions, and to "take into account his views
while retaining the right to determine what course to follow." Assigned
defence counsel, it seems, have rights, while the accused merely has
"views", which can be taken into account by counsel he objects to and
refuses to instruct.

This is not a credible framework for the accused's defence. And it points=
 up
once again that this process is not a trial. This is, rather, as reknowne=
d
Canadian trial lawyer Edward Greenspan presciently observed at the
beginning, "a lynching."

Much was made by the Prosecution of Slobodan Milosevic's conduct, his lac=
k
of respect for the ICTY, "the interests of justice", and Milosevic's fail=
ure
to observe "etiquette," to quote lead prosecutor Geoffrey Nice. The rulin=
gs
handed down by the ICTY this past week have done far more harm to the
interests of justice than Mr. Milosevic's legally accurate criticisms of =
the
ICTY could ever do. For half a century, legal scholars have struggled to
establish a truly democratic permanent international criminal court.
Although the ICC now formally exists, the US is not a participant. Recent
events make plain that to exempt the United States from jurisdiction over
war crimes renders the whole exercise of international justice, if not
pointless, then profoundly arbitrary and contrary to universally held
notions of equality before the law.

It was a former US State Department lawyer and reputed professor of
international law, Michael P. Scharf, who in last week's Washington Post
publicly appealed for the ICTY to impose counsel upon Slobodan Milosevic,
evoking the fear that future defendants could employ international and
special courts to accuse the US of war crimes such as the invasion of Ira=
q.
Mr. Milosevic might have been accused of lacking "etiquette," had he, lik=
e
Professor Scharf, recalled that the ICTY had been created in 1993 with th=
ree
objectives: first, to educate the Serbian people about the crimes committ=
ed
by Milosevic; second, to facilitate national reconciliation, by "pinning
prime responsibility on Milosevic" and other top leaders; and third,
to"promote political catharsis" by permitting current Serbian leaders to
"distance themselves" from the policies of the previous governements.

These stated objectives are all transparently political, and geopolitical=
ly
motivated. And in order that they be attained, it appears that counsel mu=
st
be imposed upon Slobodan Milosevic. He must also be prevented from statin=
g
precisely what Scharf averred with bone-chilling clarity: that the ICTY i=
s a
political court.

Whether international law will recover from the hijacking of Slobodan
Milosevic's defence is open to question. However, the true nature of the
Security Council's ad hoc courts clearly resembles much more the Star
Chamber than the scrupulously fair humanitarian legal body to which the
world has aspired since Nuremberg.
***

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Tiphaine Dickson is a criminal defence lawyer specialized in internationa=
l
criminal law based in Montr=E9al. She was lead counsel for the defence in=
 one
of the first UN trials prosecuting genocide before the International
Criminal Tribunal for Rwanda. She can be reached at
[email protected]
http://globalresearch.ca/articles/DIC409A.html

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******************************************************************
>From the German daily "junge Welt", September 3rd, 2004-09-03
URL of the original: http://www.jungewelt.de/2004/09-03/015.php

SLOBODAN MILOSEVIC TRIAL:
MEDICAL ARGUMENTS AS A PRETEXT FOR AN EXPEDITIOUS GUILTY VERDICT?

"junge Welt" spoke with Klaus Hartmann, Chairman of the German Freethinke=
r
Association and vice president of the International Committee for Defendi=
ng
Slobodan Milosevic

Q: Arguing that it has problems with its schedule, the Hague Tribunal
decreed, that former Yugoslav president, Slobodan Milosevic, will no long=
er
be allowed to conduct his own defence. Do the judges now want to seek a
expeditious guilty verdict?

A: The tribunal wants to allot Milosevic only 150 days to present his
defence case, which, in comparison to the almost 300 days for the
prosecution's case, indeed leads one to think, of an expeditious guilty
verdict. This is a clear violation of the internationally recognised lega=
l
principle of equality of means between the prosecution and the defence.
Another fundamental right of the accused is violated by assigning him leg=
al
counsel, against his will. The right to defend oneself is such; that not
even the Nazis questioned it during the Reichstag's fire trial against
Georgi Dimitroff. Neither did the South African Apartheid racists, in the=
ir
trial against Nelson Mandela.

Q: Doesn't this decision also violate even the regulations of the tribuna=
l
itself?

A: Absolutely. The "rules of procedure" established by the tribunal, itse=
lf,
provide for the undeniable right of the accused to assume his own defence.
The precedents of exception, cited by the prosecution, refer to cases whe=
re
the accused was not in a position to be able to understand the proceeding=
s
taking place. Here we have the opposite situation: the defendant dwarfs w=
ith
his intelligence the intelligence of the judges on the bench and the
prosecution.

Q: But aren't the medical arguments to be taken seriously?

A: They are pretexts. For three years, nobody cared about the health of
Milosevic. Only now, as he is about to call his own witnesses, the concer=
n
for his health is taken as pretext to deprive him of his fundamental righ=
ts.
Milosevic, himself, said that this is the panic reaction of the prosecuti=
on,
because they will now soon have to hear the truth out of the witnesses'
mouths.

Q: You were recently present at the trial in The Hague. What impression d=
id
Milosevic make on you?

A: His morale as a fighter is undaunted - which  may have been the reason
why the tribunal and the prosecution decided to resort to these illegal
measures. Milosevic, himself, said that he has the privilege of having th=
e
most important ally on his side: the truth. And that is exactly what the
representatives of this criminal enterprise fear most.

This was indirectly confirmed by the prosecution: "If Milosevic defends
himself," they said, "there is the risk that he, himself, will prepare hi=
s
witnesses." This is an attempt at outright political censorship, such as =
one
would have expected in the Nazi "Volksgerichtshof" under Roland Freisler.

The prosecutor also referred to Milosevic describing the tribunal as
illegal. "It would be unacceptable," he said, "if Milosevic calls his
witnesses, telling them, 'and now please tell this illegal body what you
know.'"

Questions: Peter Wolter
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************
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************

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THE LIFE OF PRESIDENT MILOSEVIC AND THE INTERNATIONAL LAW ARE IN PERIL.

JOIN THE INTERNATIONAL LAWYERS' PETITION:
http://www.icdsm.org/Lawappeal.htm

JOIN THE INTERNATIONAL ARTISTS' APPEAL FOR MILOSEVIC:
http://www.icdsm.org/more/artists.htm

SUPPORT THE ICDSM:
http://www.icdsm.org/

*********************************************************
You can find detailed instructions at:
http://www.icdsm.org/battle.htm
(please also follow the links therein) or
*************************************************************
You can make transfers to ICDSM accounts in Europe:

Peter Betscher
Stadt- und Kreissparkasse Darmstadt, Germany
IBAN: DE 21 5085 0150 0102 1441 63
SWIFT-BIC: HELADEF1DAS

or

Vereinigung f=FCr Internationale Solidarit=E4t (VIS)
4000 Basel, Switzerland
PC 40-493646-5
*************************************************************

*************************************************************
THE ILLEGAL HAGUE PROCESS MUST END.
Statement by the President of the World Peace Council Orlando Fundora (Cu=
ba)
http://www.icdsm.org/more/fundora.htm
*************************************************************
*************************************************************

VIDOVDAN PEOPLE'S RALLY IN BELGRADE ORGANIZED BY SLOBODA
to mark the third anniversary of kidnapping of President Milosevic
http://www.icdsm.org/more/galery2806.htm
**************************************************************

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)
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