[L-I] Substantial Disruption of the International Law by the Hague 'Tribunal' Exposed

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INTERNATIONAL COMMITTEE TO DEFEND SLOBODAN MILOSEVIC
ICDSM           Sofia-New York-Moscow            www.icdsm.org
**************************************************************
SLOBODA/FREEDOM ASSOCIATION - Member of the World Peace Council
Belgrade
www.sloboda.org.yu
**************************************************************

1. SLOBODA Press Release of 2 November 2004
2. Analysis of Me. Tiphaine Dickson, ICDSM Legal Spokesperson of 9 Novemb=
er
2004

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Belgrade, 2 November 2004

PRESS RELEASE

By his extraordinary effort, President Milosevic have reached a win for
International Law and human rights protection. Important part of his
fundamental rights has been restored.

The illegal institution which keeps him in illegal detention was forced t=
o
do that and to further expose its illegal and political character. The sa=
me
institution which is now turning, as a consequence of President Milosevic=
's
struggle, from one of the most important tools for colonization of the
Balkans, into a burden for its creators.

This win should enable the continuation of the victorious struggle he fig=
hts
for truth about our people, for freedom, equality and national dignity.

His effort had the broadest support of the progressive, patriotic and
professional public at home and abroad. Over 100 legal experts and lawyer=
s
from the whole world, Bar Association of Belgrade and other organizations=
,
groups and individuals stood up in defense of the fundamental rights of
President Milosevic.

The fact that the political and illegal Hague institution was forced to
reverse in part its illegal and criminal decisions, does not mean that th=
e
"prosecution", all its Hague assistants and all those who encourage or ba=
ck
them, have gave up from their attempts to imperil the law and even life o=
f
President Milosevic by misuse of the procedure and of his health conditio=
n.

SLOBODA/FREEDOM Association

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

"Substantial Disruption" at The Hague:
Will Slobodan Milosevic be Tried In Absentia?

by Tiphaine Dickson

www.globalresearch.ca 9 November 2004

The URL of this article is: http://globalresearch.ca/articles/DIC411A.htm=
l


In an appellate decision which appears to have been painstakingly devised=
 to
convince public opinion that President Milosevic's rights have been
restored-- or even, as stated by some media, "increased", or exaggerated =
in
the favor of the defendant-- the ICTY has opened the door to in absentia
trials before international bodies, and reduced fundamental trial rights
into mere "presumptions", matters of discretion.

Ominously, this decision is the direct echo of reports that the ICTY will=
 be
shut down quickly by the US, well ahead of the deadline imposed in the UN
Security Council's "completion strategy". The Milosevic case is the last
remaining thorn in the side of the institution whose outright politicizat=
ion
he has exposed. But his defense is far more threatening still: to establi=
sh
that the "Balkan Wars" were in fact one war, against Yugoslavia, waged by
Western powers in their interest. The Appeals Court has now fashioned a
device to prevent that case from being made at the ICTY, which would clos=
e
down, rather than hear the evidence.

The decision handed down by the ICTY's President, Theodor Meron, who also
acts as President of the Appeals Chamber, as well as a Trial Chamber judg=
e,
permits Slobodan Milosevic's effective removal from the courtroom. Indeed=
,
the judgment states that "substantial disruption" of a trial does not
necessarily have to be intentional to justify holding proceedings in the
absence of the accused, and that even the ill health of a defendant can
constitute such a "substantial disruption". In such cases, according to t=
he
ICTY's "court of last resort", both imposition of counsel and removal fro=
m
the proceedings are justified.
The current situation is infinitely worse than that brought about by the
Trial Chamber's ultimately embarrassing ruling imposing counsel against t=
he
wishes of Mr. Milosevic, and granting what were described as "rights" to
assigned counsel who had acted for another party in the proceedings as am=
ici
curiae. Imposed counsel predictably failed to present any meaningful
defense, as scores of witnesses refused to participate in proceedings tha=
t
shared characteristics with the notorious Star Chamber. In fact, most of =
the
recalcitrant witnesses expressed their view that what the imposed counsel
were presenting was not and could not be Mr. Milosevic's defense at all, =
and
that their participation would only serve to further violate his fundamen=
tal
rights.

Playing out as predicted

Presciently, perhaps, the ICTY's designated counsel had themselves argued
against imposition of counsel last August 13th, stating that they were
"concerned that the witnesses to be called by the accused, whilst they ma=
y
be willing to cooperate with him, would in the event of a conflict make
themselves unavailable to the Amici Curiae as imposed counsel." Despite
having expressed this concern almost three months ago, Mr. Steven Kay and
Ms. Gillian Higgins accepted their assignments without objection, and for
two months, the "defense" of Slobodan Milosevic stumbled along gracelessl=
y
from postponement to postponement as only 5 witnesses were called.
Stunningly, counsel failed to object to irrelevant, inflammatory, and
frankly discriminatory if not actually racist cross-examinations by the
prosecution team, who judged necessary to attempt to impugn a witness'
credibility based on his ethnic affiliation (Greek) and religion (Greek
Orthodox). No objection was made to a question posed as to whether the
father of the witness had donated money to a Serbian NGO, the Serbian Uni=
ty
Congress, an organization dedicated to the preservation of Serbian herita=
ge
with chapters in 9 countries. But the question was posed to suggest,
somehow, in an almost educational display of impermissible
cross-examination, that the witness could be tainted by his father's supp=
ort
of what was assumed to be a shadowy Serb outfit. Guilt by association
disguised as cross-examination, but the imposed counsel let it slide. The
Trial Chamber had no comment about this line of questioning, nor did it
upbraid the Prosecutor, Mr. Nice for "wasting time on irrelevant matters"=
,
even during a cross-examination that delved into obscure issues of
comparative theology. Another cross-examination focussed witheringly on w=
hy
Serbs would think they were "so special", and deserve to live on one
territory because they were "historic victims." (800 000 people-- Serbs,
Jews, Roma-- were killed at the Croatian Ustase-run Jasenovac concentrati=
on
camp. These systematic murders constitute one of the tragic chapters of t=
he
Holocaust, and can assuredly be considered to be a "special" part of
Yugoslav history.) It goes without saying that no remotely similar questi=
on
was asked of Elie Weisel, when he testified during Biljana Plavsic's
sentencing hearing in December 2002. Some questions are indecent, and can=
not
be asked. Others, however, equally indecent, and revisionist in their
assumptions are asked, and with full impunity.

Ethics, suddenly

Only a little over that a week ago did the imposed counsel request to be
withdrawn from the case, citing ethical quandaries that should have been
clear to them-- and obviously were, since they had already articulated th=
em,
in detail, last August, in their arguments opposing the imposition of
counsel-- many months ago. Before the Appeals Chamber, on October 21st, t=
hey
complained of the fact that neither President Milosevic nor the witnesses
were cooperating with them, again, a state of affairs they had themselves
predicted, and therefore had reason to believe would play out precisely t=
he
way it did. Mr. Kay made the following submission to the Appeals Chamber,
which could be interpreted as blaming President Milosevic for the
predictable consequences of imposition, and of the "substantial disruptio=
n"
of proceedings caused as a result: ". in terms of a solution, it may be t=
hat
he undertakes his own consequences rather than us wasting resources
believing, and people kidding themselves, making believe that what is
happening here is a proper defense."

Who's to blame?

>From the very first day of the court-appointed defense, it was made clear
who was to be blamed for the dysfunction: Slobodan Milosevic. On Septembe=
r
7th, when the first witness was called by Mr. Kay, he told the court that
he'd failed in his attempts to obtain instructions from his "client".
Patrick Robinson, who presides these proceedings, took pains to have the
record reflect that President Milosevic was responsible for the
non-cooperation. And reminded all that counsel had been imposed because M=
r.
Milosevic was unfit to represent himself, and unfit to question witnesses
before assigned counsel. How, then, could he be expected to be "fit" enou=
gh
to instruct imposed counsel?

When the defendant, on the first day of what should have been his defense=
,
which he had been waiting to make since his dubious "transfer" to The Hag=
ue,
demanded that his right to self-representation be restored, Mr. Robinson
responded that he didn't want to hear the "tired refrain". How "tired" co=
uld
it have been on the very first day of the defense?

There is a simple explanation for the fatigue, and it is that this defens=
e
must come to an end before it begins. Could it be that for this purpose a
two-part strategy was designed? First, impose counsel and let the measure
inevitably "backfire", then feign the re-establishment of the right to
self-representation in a decision permitting the Trial Chamber to proceed=
 in
absentia, for part, or the remainder, of the defense case.

It is important to note that despite a subsequent denial from Washington,=
 US
media recently published comments by Undersecretary for arms control John
Bolton, stating that the last Bush administration was dissatisfied with
proceedings at the ICTY, and wished to see its "completion strategy"
accelerated. In other words, close it down, transfer cases back to domest=
ic
courts, and even grant amnesty. Last June, the ICTY adopted an amendment =
to
its rules of procedure and evidence permitting just such deferrals.
Undersecretary Bolton and other senior State Department officials are sai=
d
to believe that the "ICTY has degenerated into a politicized tribunal", b=
ut
their complaints are aimed solely at Carla Del Ponte, and not at any of t=
he
other equally politicized organs of the institution. Yet the players in
Washington know full that the ICTY is a political body, as they created i=
t
as such. Indeed it has been stated without irony by those closest to its
establishment, such as Professor Michael Scharf, that the institution was
established to "educate Serbs", "pin responsibility on Milosevic", and
"promote catharsis" by permitting "newly-elected" leaders to distance
themselves from the policies of Milosevic. But, in order to accelerate th=
e
completion strategy, someone else must be faulted for the politicization =
of
the ICTY, and who better than the Prosecutor who was perhaps carefully
chosen so that her demise would satisfy everybody: her employers and
detractors as well. Washington also clearly stated its frustration with t=
he
pace of the Milosevic case, which has as of yet failed to produce a
conviction. From Bolton's comments, it is obvious that President Milosevi=
c
would not be a suitable candidate for transfer to the jurisdiction of Ser=
bia
and Montenegro, unlike, for example, Operation Storm's Ante Gotovina, who=
se
indictment-- described as "bogus"-- could conveniently be deferred to
Croatia. Mere days after this article was published in the Washington Tim=
es,
ICTY President Theodor Meron traveled to Zagreb, to discuss the "completi=
on
strategy" with the Croatian government, according to an ICTY press releas=
e.
This, coincidentally, while the Appeals Chamber was deliberating on the
appeal launched against imposition of counsel.

Despite the clear direction this case is taking, the Appeals Chamber of t=
he
ICTY has attempted -- and perhaps succeeded to some extent-- in giving th=
e
appearance of having overturned an unfair decision as a legitimate Appeal=
s
Chamber and a judicial institution.
It has further attempted to appear to provide excessive fairness to the
accused to portray the ICTY as embattled underdog. The fairness afforded =
is
an illusion, and the decision will serve to prevent Slobodan Milosevic fr=
om
presenting his defense.

"Substantial disruption"

The Appeals Chamber decision is signed only by ICTY President Theodor Mer=
on.
In the course of arguments before the appellate body, President Milosevic
argued that he could not present a meaningful defense while represented b=
y
counsel, since this political prosecution, before a political body, requi=
res
a political defense. The ICTY Code of conduct for defense lawyers indeed
forbids counsel from " diminish(ing) public confidence in the Internation=
al
Tribunal (...) or otherwise bring(ing) the International Tribunal into
disrepute." It is thus inconceivable that a defense lawyer could argue th=
e
ICTY's illegality or illegitimacy-- a cornerstone of Mr. Milosevic's
defense-- without breaching the body's ethical rules. President Meron
responded to Mr. Milosevic's arguments with the following statement: "I
really believe, and I believe that all my colleagues very strongly believ=
e
that this trial is not a political trial. It is a legal trial under human
rights and due process to determine, under international law and the
Statute, whether -to determine whether you are guilty beyond a reasonable
doubt or you are not. And we would not have been conducting those
proceedings this way if we were not convinced that this is really not onl=
y a
legal trial, but I believe it is a model of a fair trial."

The Appeals Chamber, reviewing the decision to impose counsel on an
obviously competent law school graduate, made in the course of this "mode=
l
of a fair trial"-- a move unprecedented since the Star Chamber, and not e=
ven
attempted by the Apartheid judiciary against Mandela, nor Nazi Germany
against Dimitrov-- held, without relying on any authority whatsoever, tha=
t
"substantial disruption of the proceedings" for the purposes of stripping=
 an
accused of the right to be tried in his presence, as well as the right to
self representation, does not require any proof that the accused had the
intention of disrupting the proceedings. Ill health suffices to violate a=
n
accused person's most fundamental right, a position contrary to
international law and domestic practice. Illness warrants provisional
release, or an end of the proceedings, not a supplementary violation of
rights. The justification set out by Mr. Meron is the following: "But it
cannot be that the only kind of disruption legitimately cognizable by a
Trial Chamber is the intentional variety. " Not a single case is cited. T=
his
argument states "it cannot be", therefore "it should be". Here, then, is =
the
acknowledgement that this measure is not only contrary to practice, and i=
n
violation of the International Covenant for Civil and Political Rights, b=
ut
predicated on the idea of "illegal but good", or rather "illegal, but
expedient" (and "discretionary").

Unprecedented assault against fair trial rights

The Appeals Chamber has further committed an unprecedented assault on
internationally recognized human rights. The right to
self-representation--described by Mr. Meron himself as "indispensable
cornerstone of justice", "placed on a structural par" with the other righ=
ts
set out at article 21 of the Statute (and article 14 of the International
Covenant for Civil and Political Rights)-- become mere "presumptive right=
s"
that the ICTY Trial Chambers can apply in a discretionary manner:

"As the Appeals Chamber has previously noted, a Trial Chamber exercises i=
ts
discretion in "many different situations - such as when imposing sentence=
,
in determining whether provisional release should be granted, in relation=
 to
the admissibility of some types of evidence, in evaluating evidence, and
(more frequently) in deciding points of practice or procedure." A Trial
Chamber's assignment of counsel fits squarely within this last category o=
f
decisions. It draws on the Trial Chamber's organic familiarity with the
day-to-day conduct of the parties and practical demands of the case, and
requires a complex balancing of intangibles in crafting a case-specific
order to properly regulate a highly variable set of trial proceedings."

So the respect of that right--and, one might conceive, of the other right=
s
"placed at a structural par" with it, those enumerated in Article 20,
paragraph 4 of the Statute-- are no longer "entitlements", to be "enjoyed=
 in
full equality", as set out by Article 20 of the Statute, but a matter of
discretion for the Trial Chamber. Those entitlements constitute the minim=
um
fundamental fair trial rights under international law, and guarantee the
following to a defendant in a criminal trial: the right to be informed
promptly and in detail in a language which he understands of the nature a=
nd
cause of the charge against him; the right to have adequate time and
facilities for the preparation of his defense and to communicate with
counsel of his own choosing; the right to be tried without undue delay; t=
he
right to be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if he does =
not
have legal assistance, of this right; and to have legal assistance assign=
ed
to him, in any case where the interests of justice so require, and withou=
t
payment by him in any such case if he does not have sufficient means to p=
ay
for it; the right to examine, or have examined, the witnesses against him
and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; the right to have the
free assistance of an interpreter if he cannot understand or speak the
language used in the International Tribunal; the right not to be compelle=
d
to testify against himself or to confess guilt.

This remarkable perspective on basic fair trial rights invites discretion=
ary
"adjustments" or "balancing" of the other enumerated rights, since they a=
re
at a "structural par" with the right to self-representation. In other wor=
ds,
if all these rights have the same value, what prevents a Trial Chamber fr=
om
violating them equally, as they have done with the right to
self-representation, which the Appeals Chamber has upheld? This "discreti=
on"
will further be employed to severely curtail the duration, scope and subj=
ect
matter of questions, as well as the very possibility of calling certain
witnesses altogether.

Since the Trial Chamber has been granted the "wise discretion" to deal wi=
th
the "myriad health-related difficulties that may arise in the future", an=
d
the power to craft "an appropriate set of responses to every possible
eventuality", it is entirely plausible, and in fact highly likely that
non-intentional "disruption" will be found to exist, whether for health
reasons or "non-cooperation". Then, this partial "self-representation", a=
nd
even presence at the hearings, will be dispensed with. Considering the
record of the Trial Chamber, in particular judges Robinson and Bonomy, an=
d
their impatient attitude (calling the Mr. Milosevic "petulant" and
"puerile"), the Appeals Chamber decision can be interpreted as an invitat=
ion
to remove the President entirely from the proceedings.

If the ICTY were not a political construct, it could and would simply
restore President Milosevic's right to self-representation. Judicial
institutions are independent bodies who suffer no interference from the
executive branch; they do not rewrite their own rules in mid-trial, they =
do
not emerge from the ether, survive for a few years, then hurry to shut do=
wn
their operations. Criminal courts are committed to an unwavering respect =
for
the Rule of law, which in adversary proceedings means that people can onl=
y
be tried "in an ordinary manner, before the ordinary courts of the land".
Courts do not engage in public relations activities, "outreach programs",
nor do they attempt to influence the policies of foreign governments.

And as Mr. Kay compellingly argues that no lawyer can meaningfully repres=
ent
President Milosevic as assigned counsel, or even as "stand-by counsel"
without violating professional ethics, we see that there can be no defens=
e
at all unless the right to self-representation is restored.

The Appeals Chamber did not restore Slobodan Milosevic's right to
self-representation, but rather provided the Trial Chamber with the tools=
 it
requires to see to it that Washington's completion strategy is carried ou=
t
swiftly. In the process, it has dealt a blow to the fundamental fair tria=
l
rights guaranteed by the International Covenant for Civil and Political
Rights. The ICTY's endgame, as illustrated by the strategy designed to
prevent Slobodan Milosevic from further exposing the institution's politi=
cal
nature, provides a valuable lesson: there is nothing to be gained by
establishing ad hoc political courts, be they in Europe, Africa, or anywh=
ere
else. When justice is used as an instrument to justify the crime of
aggression, and when ad hoc bodies do not even consider aggression within
their jurisdiction, there is no point in calling what emerges from the
exercise "international law." The sole superpower does not agree to be
submitted to the International Criminal Court's jurisdiction yet lays a
gruesome siege on Fallujah. And the sole superpower wishes Slobodan
Milosevic's microphone switched off, once and for all. It is imperative w=
e
at least attempt to ponder why that is.

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D
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. Me. Dickson is a lawyer and legal spokesper=
son
for the International Committee to Defend Slobodan Milosevic (ICDSM).

****************************************************************
TECHNICAL NOTE: After the electricity and water supplies in "Sloboda"
offices have been cut for some days and after the negotiations with
supplying companies ended with the agreement to cover a half of the debt,=
 we
are able to circulate our information again.
***************************************************************

URGENT FUNDRAISING APPEAL

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

After the Hague Tribunal declared war against human rights and
International Law by banning President Milosevic's right to self-defense,
our activities for his liberation and for the restoration of his freedom =
and
for the national sovereignty of the Serbian people need to be reorganized
and intensified.

We need professional, legal work now more than ever. Thus, the creation o=
f
conditions for that work is the imperative at this moment.

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

The petition of 100 lawyers and law professors from 18 countries,
and other related activities of the ICDSM Legal Committee, produced a pub=
lic
effect incomparable to any other previous action by the ICDSM.

President Milosevic has the truth and law on his side. In order to use th=
at
advantage to achieve his freedom, we must fight this totally discredited
tribunal and its patrons through professionally conducted actions which
would involve the Bar Associations, the European Court, the UN organs in
charge and the media.

Our practice has shown that ad hoc voluntary work is not enough to deal
properly with these tasks. The funds secured in Serbia are still enough o=
nly
to cover the expenses of the stay and work of President Milosevic's legal
associates at The Hague (one at the time). The funds secured by the Germa=
n
section of the ICDSM (still the only one with regular contributions) are
enough only to cover minimal additional work at The Hague connected with
contacts and preparations of foreign witnesses. Everything else is lackin=
g.

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

3000-5000 EUR per month is our imminent need.

Our history and our people oblige us to go on with this necessary action.
But without these funds it will not be possible.

Please organize urgently the fundraising activity
and send the donations to the following ICDSM accounts:


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

or

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

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

All of your donations will be used for legal and other necessary
accompanying
activities, on instruction or with the consent of President Milosevic. To
obtain
additional information on the use of your donations or to obtain addition=
al
advice on the most efficient way to submit your donations or to make bank
transfers, please do not hesitate to contact us:

Peter Betscher (ICDSM Treasurer) E-mail: [email protected]
Phone: +49 172 7566 014

Vladimir Krsljanin (ICDSM Secretary) E-mail: [email protected]
Phone: +381 63 8862 301

The ICDSM and Sloboda need to address governments, international human
rights  and legal organizations, and to launch legal proceedings. The ICD=
SM
plans a legal conference at The Hague. Sloboda has just sent to the
patriotic
factions in the Serbian Parliament an initiative to adopt a parliamentary
Resolution
against the human rights violations by the Hague Tribunal and to form an
international team of experts to make an extensive report on these
violations which would be submitted to the UN.

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

For truth and human rights against aggression!
Freedom for Slobodan Milosevic!
Freedom and equality for people!


On behalf of Sloboda and ICDSM,

Vladimir Krsljanin,
Foreign Relations Assistant to President Milosevic

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

To join or help this struggle, visit:
http://www.sloboda.org.yu/ (Sloboda/Freedom association)
http://www.icdsm.org/ (the international committee to defend Slobodan
Milosevic)
http://www.free-slobo.de/ (German section of ICDSM)
http://www.icdsm-us.org/ (US section of ICDSM)
http://www.icdsmireland.org/ (ICDSM Ireland)
http://www.pasti.org/milodif.htm (ICDSM Italy)
http://www.wpc-in.org/ (world peace council)
http://www.geocities.com/b_antinato/ (Balkan antiNATO center)




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