³²²⁶¹

Wednesday, 1 September 2004

[Defence Opening Statement]

[Open session]

[The accused entered court]

--- Upon commencing at 9.05 a.m.

JUDGE ROBINSON: Mr. Milosevic, the concluding part of your opening statement.

THE ACCUSED: [Interpretation] Mr. Robinson, I hope you will bear in mind that we started with a delay.

During the NATO aggression, poisons were not used directly, but consequences similar to those of a chemical war were caused all the same in other ways. For example, by bombing plants and warehouses containing chemicals, oil refineries, chemical factories in Pancevo, Novi Sad, Lucani, Baric. So that a chemical war was also waged against Serbia. The powers that be do not like the sovereignty of Serbia and Kosovo, although it is guaranteed by the conditions of the cease-fire and contained in Resolution 1244, which is not being respected at all. Their interest is to use the territory of Kosovo and Metohija for their geostrategic and political goals; to use the mineral wealth, water resources and other resources of Kosovo. We bear in mind that Kosovo contains the biggest lignite mines in Europe. Close to 14 billion tonnes. And there are also mines at Sink [phoen] and lead mines of enormous value there. On Kosovo and Metohija there are also reserves of cobalt, nickel, which are also very valuable. And the electricity plants in Kosovo are very significant for the energy balance of Serbia. ³²²⁶² All this demonstrates the basest motivation of the so-called fighters for human rights of the Kosovo Albanians from the West. It is evident that the source of the overall crisis in Kosovo and Metohija, which has been going on ever since the Turkish occupation of that area until today, is the wish of Albanian nationalists to create a Greater Albania. They do not conceal this aspiration, and they do not refrain from any means. They don't hesitate to use any means to achieve that goal.

This so-called Prosecution is impudent enough to include in their indictment against me and the Serbs that in the middle of the state of Serbia, on the territory which is the very heart of the medieval Serbian state, that there we wanted to create a so-called Greater Serbia. How can Serbia, great or small, be created in Serbia itself is something that they themselves are unable to explain or prove. And this is best demonstrated by the first part of this operation which you call a trial, which like the remainder of that operation, thanks to the nature and contents of this false indictment, has turned into a simple and pure farce. However, the amount of money set aside is not insignificant. It is not a cheap farce. The money set aside by Saudi Arabia, George Soros, and other ostensibly impartial donors, the US and so on.

Let me add that in 1998 when Holbrooke visited us in Belgrade, we told him the information we had at our disposal, that in Northern Albania the KLA is being aided by Osama bin Laden, that he was arming, training, and preparing the members of this terrorist organisation in Albania. However, they decided to cooperate with the KLA and indirectly, therefore, ³²²⁶³ with bin Laden, although before that he had bombed the embassies in Kenya and Tanzania although he had already declared war. I am convinced that one day all this will have to come to light, these links, and that soon there will be a time when Clinton, Albright, and others will have to be held responsible if not for what happened to the Serbs then at least for what happened to their own people. I will read a quotation and then I will have to move on to other topics. The airstrikes and the unprecedented strikes, terror, sabotage, murders of leading statesmen, the overwhelming attacks on all enemy lines that will take place at a single point in time, this is the war of the future on an unprecedented scale. I assume this reminds you of what the NATO forces did to Yugoslavia in 1999. The aggression that this side whose duty it would be to pay attention to that refuses to do so, but it is not Clinton or Clark who said this, it is Hitler, although it fully describes what they did. This was published in New York in 1940 by Herman Rausching, My Confidential Conversations with Hitler. And this book goes on to say, "No so-called international law or treaties will prevent me from seizing the opportunity that is presenting itself." And then he goes on to speak about how he will enslave France, how he will enter France as their liberator, and how he will convince the middle class that he has come in order to establish social law and order and a just social order. As regards the war in Slovenia and Croatia, to begin with I will only mention briefly that in Warren Zimmerman's book - he was the last US ambassador to the SFRY - on page 173 he makes the following comment on the position of the JNA and the so-called heroic struggle in Slovenia and ³²²⁶⁴ Croatia against the still common and legal Yugoslav army. I quote: "The JNA was in its own country. Its troops were legitimately deployed in all the Yugoslav republics. Even so, after the declaration of independence by Slovenia and Croatia, the troops were treated as occupying troops even when they did not leave their barracks. The Slovenian tactics and later on --" Very well, I will slow down. "The Slovenian and then the Croatian tactics, which cannot boast of any particular heroism, was based on avoiding open conflict and attempting to bring the soldiers in the barracks to a state of hunger and forcing them to leave. The JNA, which until yesterday was a protector of the country and today has been treated as the occupier, had a strong effect on the soldiers who were torn between the two sides."

Further, Zimmerman, bearing in mind all the circumstances, concludes in his book that it is wrong to speak of an attack by the JNA on Slovenia and later on on Croatia. One of the most active anti-Serb activists, Warren Zimmerman, who was then on the spot, is pointing to a well-known fact that it is wrong to speak of an attack by the JNA on Slovenia and Croatia while you here have been given the task of saying that aggression was perpetrated there by the JNA on its own country. Within Yugoslavia the Croatian separatist tendencies did not fully disappear with the defeat and disappearance of the quisling independent state of Croatia in World War II. These tendencies began to be displayed quite openly in the early '70s with the so-called mass movement in Croatia by a part of the republican leadership when demands were put forward for the independence of Croatia and very strong pressure and threats were ³²²⁶⁵ directed towards the Serbian people. Although in post-war Yugoslavia, among the most prominent state leaders, the Croats were given especially significant posts, and they dominated in absolute numbers. Even so, in Croatia and in some other places, the thesis was constantly fabricated that there was so-called Serb hegemony there. What the Serb domination or hegemony looked like we shall see.

From World War II throughout the existence of Yugoslavia, it is very well known that from the end of World War II until his death in 1980, the undisputable leader was Tito, who was a Croat. During the existence of socialist Yugoslavia from 1945 to 1992, over a period of 47 years at the head of the Yugoslav government, 30 years, were Croats. And during the remaining 17 years, it was all the others. Only one of them was a Serb, from 1963 to 1967, and that was Petar Stambolic. When all this is borne in mind, how can we say that it was the Serbs who dominated in the political leadership of the country? As for the army, your own witness described the composition of the top leadership at the time of the break-up of Yugoslavia. There was one Yugoslav and that was the minister of defence, Veljko Kadijevic, from Croatia, from a mixed marriage between a Serb and a Croat woman; two Serbs, one from Serbia, one from Bosnia; eight Croats; two Slovenians; two Macedonians; and one Muslim.

We should add to this that Tito's closest collaborator and the creator of the constitutional system in all its stages was a Slovene, Edvard Kardelja. All this shows quite clearly that the story of some kind of Serbian domination in Yugoslavia is a pure and simple lie as well as ³²²⁶⁶ the statement that the Croats and Slovenians had cause to complain of inequality and insufficient representation. The story of Serb hegemony was only a propaganda tool which went against the truth and which was used to justify secessionist aspirations.

In post-war Yugoslavia, the Ustasha genocide over the Serbs was a topic that was not much talked about. The remaining Serbs on the territory of the former Independent State of Croatia, especially those in the Krajina which the well-known Serbian poet Matija Beckovic described as the remnants of a slaughtered people, tacitly agreed not to talk about the sufferings of their relatives, even not to bury them in a proper way. The mass graves, Jadovnov [phoen], Pribilovci, Golubnjaca were simply covered over with concrete and left to be forgotten, whereas here the thesis has been put forward that the Serbs reburied their dead later on, although these people had never been given a proper burial. Bearing in mind this terrible mass crime from the not so distant past, what could the Serbs in Croatia feel when at in February 1990, at the rally of the HDZ in Zagreb, the president of that party, Tudjman, said, among other things, the Independent State of Croatia was not only a quisling creation and a fascist crime, it was also an expression of the historical aspirations of the Croatian people. What was more natural than for them to respond and to raise their voices before "the Croatian people," in quotation marks, because this was not referring to all Croats but to extremists aided from abroad, before they set out anew to realise their so-called historical aspirations.

All this is information that you have and that you are ³²²⁶⁷ overlooking. This illegal Prosecution was not hindered from speaking in paragraph 94 of its illegal indictment about the HDZ without any qualification, although this was a party which revived the practices and symbols from Ustasha times. While in paragraph 95 of this same false indictment, the pro-Yugoslav Serb Democratic Party is called a nationalist party. This is a manipulation which they permitted themselves in this kind of presentation because they know everything about the chauvinist activities of the HDZ, but they are not allowing a word to be said about it. Everything about the HDZ had to be suppressed, and the SDS had to be blackened.

This shows quite clearly that these activities of the Serbian people -- what they fail to say is that the activities of the Serbian people were activities aimed at defence.

Warren Zimmerman, in his book The Source of a Catastrophe speaks about how in Tudjman's Croatia, in quotes, "The rights of Serbs were seriously violated. They were dismissed from work, asked to sign statements of loyalty." The irony is greater because here they tried to impute that I requested some type of statement of loyalty. Well, they couldn't find then a single person who had to sign this statement of loyalty to me. This is absurd. Their homes and property were attacked, Zimmerman continues, says that Tudjman's ministers called the Serbs by derogatory names.

On page 215 of that book he says that Tudjman played a major role in the violent death of Yugoslavia and the violence in Bosnia and Herzegovina and Croatia. He said that he was said to have a Nazi attitude ³²²⁶⁸ towards the Serbs due to which Croatia turned into an undemocratic and explosive republic, and these are his words.

The anti-Serb path of the new Croatian government is linked to the Nerval Group. Nerval is a place in Canada where the Franciscan monks and Ustashas were situated. These neo-Ustasha groups were assessed by the Canadian government as more extreme than the actual pro-Nazi-Ustasha organisation during Hitler's Independent State of Croatia. In spite of that, the Croatian press is writing about these things but due to a shortage of time I cannot present this to you now. But the gist is in the following: At the time already in 1987, in 1987, as early as that, an approach was made to the future Independent State of Croatia containing this programme containing four main points taken over from information coming from Croatia, from the Croatian magazine Globus. Number one: At any cost Croatia must be an independent state. We must work on having Croatia become ethnically clear and homogenous. In other words, the Serb national community should be reduced to a minimal minority so that they would not be a disruptive factor. The struggling Croatia should be led on one front, and the main opponent are the Serbs. In order to defeat the Serbs, we need to join together with the Communists and the Partisans and in union with them we will win our finer victory. And four: As far as Bosnia and Herzegovina is concerned, such a policy should be conducted which would sooner or later lead to the joining of Western Bosnia to Croatia to have a pure Croatian territory. Martin Spegelj, his defence minister during the time of these events in the Dnevnik on the 28th of October, 2001, said publicly, "If a ³²²⁶⁹ house of a Serb is burned down, he will not have anywhere to return." He said that Gojko Susak said this. Again in Novi List, Spegelj said on the 29th of October 2001 that Tudjman and Susak essentially made a concept of a pure nationalist state after the model of Croatia from World War II. In December, on 8th of December, 1993, the New York Times speaks about 10.000 homes which were blown up with dynamite. I'm not going to quote from that in order not to waste time.

In spite of the pressures, harassment, physical attacks and an overall degradation on the individual and collective level, the Serbian people in Croatia were also discriminated against in a legal way. The Christmas Constitution is well known, which deprived the Serbs of all the rights that they enjoyed prior to that. In The Balkan Odyssey, Lord Owen says on page 61 that they resisted joining the settlements populated by Serbs which generally together formed the military border between the Habsburg and the Ottoman Empires, which was defended from Vienna and not from Zagreb. The sense grew after 1945 because this population was exposed to genocide during World War II by the Croatian Ustashas. A very small number of commentators in 1995 realised or recognised that the Croatian government in attacking Krajina did not liberate this land since the Serbs had inhabited it for over three centuries. This is something that is written by Lord Owen.

Already in mid-1990, there was a series of actions, attacks, and killings, and because of the Serb reaction by placing barricades to the entrances to their settlements, this revolt was called the log revolution. The Croatian authorities interpreted these reactions of Serbs who were ³²²⁷⁰ afraid to remain without any means of collective defence in relation to the recurring Ustasha terror and ideology, considered that to be an attack, an aggression against the Croatian state. Well, I don't know how one can make an attack by placing logs in front of the approaches to their houses.

Spegelj, who said what I quoted before, said the following: "Knin, we will resolve in such a way that we will massacre them. We will massacre them." This is what we have international recognition for. There are numerous proofs of this, that these are not just empty words but that we are talking about dead people here.

In his book The Invasion of Serbian Krajina, Gregory Elich speaks of the following: "In 1990 Tudjman said, 'I'm glad my wife is neither a Serb or a Jew.' [In English] and wrote that accounts of the Holocaust were exaggerated and one-sided."

[Interpretation] I will skip over many of his quotes but mention just some of them. "[In English] During its violent secession from Yugoslavia in 1991, Croatia expelled more than 300.000 Serbs, and Serbs were eliminated from ten towns and 183 villages." [Interpretation] There was a mistake. Yes, that's correct; and 183 villages. And then: "[In English] Tomislav Mercep, until recently the advisor to the Interior Minister and a member of parliament, is a death-squad leader. Mercep's death squad murdered 2.500 Serbs in Western Slavonia in 1991 and 1992, actions Mercep defends as 'heroic deeds.'" [Interpretation] You have here the testimony of Miro Bajramovic, a member of that death squad. I have it on tape, but I don't have time to ³²²⁷¹ show it to you.

Gregory Elich goes on to say: "[In English] Sadly, the Clinton administration's embrace of Croatia follows a history of support for fascists when it suits American geopolitical interests." [Interpretation] Susan Woodward of the Brookings Institution, in the book The Balkan Tragedy 1995, says: "[In English] The Croatian government did little to protect its citizens from vicious outbursts of anti-Serb terrorism saw mixed communities of Dalmatia and interior during the summer months of 1989 when Croat zealots smashed store fronts, fire-bombed homes, and harassed and arrested potential Serbs leader. In many parts of Croatia, Serbs were expelled from jobs because of their nationality. Discrimination was not limited to this early flare-up but increased over the following years."

[Interpretation] How long before this log revolution when this was going on in 1989 and that criminal activity that you are ascribing to the Serbs when they were actually just defending themselves? Chris Hedges, in The New York Times on the 16th of June, 1997, says: "[In English] [Previous translation continues]... 500.000 of 600.000 ethnic Serbs from the country and carried out de facto annexation of largely Catholic region of Herzegovina," et cetera. [Interpretation] I don't have time. They are talking about the Kristallnacht in Zadar, talking about expulsion of tens of thousands of people from their apartments. They're talking about in the Croat papers in Feral, in the Tjednik, new proof about the -- of the crimes in Vukovar, and I'm quoting them, "when the corpses of dead bodies floated down the ³²²⁷² Danube, then in Gospic in the Croatian coastal area," and so on. The magazine Identitet, a Croatian magazine, says that the least work was done to shed light on the crimes in Osijek in 1991 and 1992 when several Serb civilians were killed, and they explain how they were taken away and how they were killed.

When we're talking about Gospic, three officers of the Croatian army applied to testify here about the crimes. They were not given any protection, so the witness Milan Levar, who was supposed to testify against those who committed the Gospic massacre was liquidated. Erdemovic, who admitted that he had killed 100 people in Srebrenica, whom we arrested, who came here because he asked to be brought here, he asked to be extradited to The Hague, and he was not our citizen so he was extradited at his own request, you provided protection for him although he admitted killing 100 people. He admitted that to our investigative organs, and you released him after four years to -- to live unpunished. But you did not protect these other witnesses, but you did extend protection to him so that he can go back to -- I see that I will have to skip some things. The time flies, unfortunately. On one page 182 of his book, David Owen touches upon the following topic and he says: "Mostly the Serbs who remained there didn't have any freedom at all. Many JNA barracks were surrounded by the Croatian army, which was the reason why the JNA reacted so strongly in places like Vukovar." He says "places like Vukovar," but that is actually the only place where the JNA reacted forcefully. But he does explain why this happened. ³²²⁷³ The explanation is also what is being written in the Croatian press now about how many corpses were floating down the river much earlier, before the events in Vukovar.

Vukovar was the only exception and the only place where the JNA responded to being surrounded, to its members being attacked, to civilians being attacked, responded forcefully. So it is without doubt that the war in Croatia was caused and initiated by the Croatian authorities in order to effect a violent and illegal secession, and, as the years that will come would show, to achieve an ethnically clean Croatian state. And arising without doubt from everything is that the Serbs were forced to defend themselves. They had to fight for their survival. So nobody is doubting the existence of individual crimes which were the result of the chaos that had occurred and which this so-called indictment is trying to present as the result of some kind of joint criminal endeavour, although all the facts, the historical, military, and legal facts, speak to the contrary. And they base this on testimonies such as the testimony of Milan Babic, who was in conflict with his very own leadership precisely because of his own extremism and similar witnesses. It is well known that primarily thanks to the efforts of Cyrus Vance but also thanks to the efforts of the Republic of Serbia and my own efforts, the Vance Plan was adopted. The protected zones were created which the Croat army never respected, because it is well known how many attacks there were: Miljevacka, Klatno [phoen], Peruca, Medak pocket, Zemunik, Western Slavonia, Flash, Storm, and so on. How many hundreds of Serbs were killed in each one of those attacks and all that happened. ³²²⁷⁴ Weapons were under a double lock. The Serbs had handed it over, but they took it back when they were attacked in order to defend their very lives and to prevent a massacre.

In view of all the above, Lord Owen in his book says: "The Croatian army equipped itself quickly with planes, heavy artillery. All this came from neighbouring European countries and was bought in the former eastern Germany. When this happened, it was not difficult, as far as the Serbs were concerned, why they resisted demilitarisation and demobilisation. The Serb factor was a consolidating factor, and the Croatian side was a destabilising factor." I am finishing my quote from the Owen book. And he said that the biggest ethnic cleansing in the Yugoslav crisis was the ethnic cleansing in front of which this institution remains unmoved, and that is the expulsion of thousands of Serbs and hundreds killed. When something like this happens to the Serbs, it does not appear to be a crime. I will just say a few words about Bosnia and Herzegovina. It is well known that peace lasted as long as the former Yugoslavia lasted, with a small delay. We had this peace. It was there because the absence of tutors and occupiers finally turned the citizens of this multi-cultural state towards one another.

In the changes of the constitution on the 31st of July, 1991, in Article 1, the drafters wrote that Bosnia and Herzegovina is a democratic, sovereign state, an equal community of all of its citizens - Muslims, Serbs, and Croats of members of other nationalities that live there; and that the Socialist Republic of Bosnia and Herzegovina is within the ^{32275 BLANK PAGE 32276} composition of Yugoslavia. This was written in the new constitution. However, even during this peaceful life among the population in this republic, you can still see -- see on the site of the Bosnian organisation Mladi Muslimani, Young Muslims, organised in 1939, find the oath which they created in the second half of 1947 in which they talk about an uncompromising struggle against everything that is not Islamic, that they will sacrifice everything on the path, including their own lives, if this is in the interests of Islam.

How can you fight in a multi-ethnic community like Bosnia and Herzegovina and Yugoslavia against everything that is not Islamic? And if we keep in mind that the vast majority of the population there is not Islamic. And it happened that precisely these young Muslims had the way open to them and the means placed in their hands in order to conduct a holy war.

The first national political party that was created was the Party of Democratic Action of Izetbegovic. It is characteristic that the founder of the station and Izetbegovic's sponsor, Izet Adil Zulfikarpasic, speaks in his book about Novi Pazar the following: "When we came to Novi Pazar, we were welcomed by a large mass of people. The authorities were quite fair, the police also. Patrol cars made sure that everything passed without any conflict. In the town itself, when we arrived, the police officers withdrew from the streets and we could see only SDA guards everywhere."

But then something happened at this rally that surprised me considerably. There was a rally and this rally was conducted in a sort of ³²²⁷⁷ pro-fascist way. There were hundreds of religious flags on the stadium. And then he continues to speak in his book:

"Whenever we went in a large number, then the imams would appear. They were our hosts. They organised everything. Religious officials joined the party. At some point I requested that the flags be removed, but then people appeared in caftans and dzelabija, which nobody actually ever wore in Bosnia before then."

I'm going to admit some things. Anyway, Zulfikarpasic left the party because he didn't want any part of that.

It is a well-known thing that Izetbegovic, as far back as the spring of 1943, led the Muslim youth of Sarajevo, and in that capacity he was the host of Amin al Huseini, the great mufti from Jerusalem, Hitler's friend who had fled to Germany. And in his book he advocates jihad, a holy war against Christians and Jews. All of this within the Independent State of Croatia of Pavelic. And at Himmler's initiative, and through the mediation of this same Huseini, a Muslim Wafe SS division was established. Not one, as a matter of fact; a Handzar Division, a Kama division, and also a Skenderbeg division consisting of Muslims from Kosovo and Metohija. Unfortunately I have to be very quick and move through this very quickly.

Izetbegovic in 1990 again published his Islamic declaration, and I quote from it:

"The creation of a single Islamic Community from Morocco to Indonesia. Also the fact that non-Islamic institutions cannot co-exist with Islamic institutions. We do not herald an era of piece. We herald ³²²⁷⁸ an era of unrest. People who are asleep can be awakened only by blows. First of all, we have to be preachers and only then soldiers. The Islamic movement can and shall take over power as soon as its numbers rise to the extent that it cannot only topple the existing non-Islamic government but build an Islamic government. Members of the Islamic faith should learn, using the example of Pakistan, what should be done and what should not be done. Nowadays, the aspiration for all the Islamic communities and all Islam believers in the world should be brought together. This is all aimed at an Islamic Community from Morocco to Indonesia, from Europe to Africa."

So you can imagine how people who were not the Islamic faith felt in Bosnia and Herzegovina in view of these promises that they were supposed to live in some kind of European Pakistan. You can imagine what their reaction could have been.

However, as for the allegiance of the -- of Alija Izetbegovic to the Islamic fundamentalist cause, nobody can testify better to that than Islamic fundamentalists themselves. On the 11th of April, 1993, Reuters reports from Dubai that Alija Izetbegovic received an Islamic award in Riyadh in great festivities, and I quote, "for his contribution to jihad, the holy war against non-believers."

So this reward confirmed that Alija Izetbegovic persevered along the road that he had opted for when he was a young man, and in accordance with the oath of allegiance he took in 1947, it meant an uncompromising struggle against everything, especially everything non-Islamic. But it was not only the Islamic fundamentalist circles that knew of this kind of ³²²⁷⁹ nature of the Bosnian-Herzegovnian regime; it is also clearly stated in the republican report in the Senate of the United States of America. This is a document dated the 16th of January, 1997.

I'm going to go through it very, very quickly. It refers to three questions.

First of all, I am going to omit the rest, how it all went. The last sentence in one is:

[In English] "And the departments of state and defence were kept in the dark until after the decision was made."

The second point speaks of: [In English] "The military Islamic network, along with the weapons Iranian Revolutionary Guard and Vivac Intelligence Operatives, entered Bosnia in large numbers along with thousands of Mujahedin, holy warriors, from across the Muslim world. Also engaged in the effort were several other Muslim countries, including Brunei, Malaysia, Pakistan, Saudi Arabia, Sudan, and Turkey, and a number of radical Muslim organisations. For example, the role of one Sudan-based humanitarian organisation..." [Interpretation] This is under quotation:

[In English] "... one relief agency has been well documented." [Interpretation] Point number 3:

[In English] "Islamic character of the Sarajevo regime. This Islamist orientation is illustrated by profiles of important officials, including President Izetbegovic himself. The progressive Islamisation of the Bosnian army, including the creation of native Bosnian Mujahedin units, credible claim that major atrocities against civilians in Sarajevo ³²²⁸⁰ were staged for propaganda purposes by operatives of the Izetbegovic government in suppression of enemies, both non-Muslim and Muslim." [Interpretation] In this document, it is corroborated that they themselves staged attacks against their own citizens. I'm going to skip over some other things.

[In English] The report concluded, page 2: "The Administration's Iranian green light policy gave Iran an unprecedented foothold in Europe and has recklessly endangered American lives and US strategic interests."

[Interpretation] Then there is reference to the presence of Divak, also sleeping agents; then the AID, Izetbegovic's intelligence service that you brought here, rather, you brought their members here to testify against me. "[In English] [Previous translation continues]... point of jointly planning terrorist activities."

[Interpretation] And then it says: "[In English] Clinton gave a green light that would lead to this degree of Iranian influence." [Interpretation] Then they give explanations as to what this is all about and you will have an opportunity to see this document. "[In English] [Previous translation continues]... Islamic revolution in Europe." [Interpretation] And then there is reference to this phoney humanitarian agency. "[In English] [Previous translation continues]... is believed to be connected with such fixtures of the Islamic terror network of Sheikh Omar Abdel-Rahman, the convicted mastermind behind the 1993 World Trade Centre bombing, and Osama bin Laden, a wealthy Saudi immigrant believed to bankroll numerous militant groups." ³²²⁸¹ [Interpretation] And then it says: "[In English] [Previous translation continues] "'... into Bosnia was of great assistance in allowing the Iranian to dig in and create good relations with Bosnian government,' a senior CIA officer told Congress in a classified deposition. And it is a thing we will live to regret because when they blow up some Americans, as they no doubt will before this thing is over, it will be in part because Iranians were able to have the time and contacts to establish themselves well in Bosnia." [Interpretation] Later on they blew them up, the Kenyans, the Tanzanians, and also these crimes that were committed in the Balkans, but I don't have time to speak of that now. I really have to move on very quickly because you've been so stingy with time. I just wish to note that the 31st of March, 1991, in Bosnia-Herzegovina today, or rather in this federation, is an official holiday. It is the Day of the Patriotic League, the military formation that was established by the SDA. The 31st of March, 1991. They organised their party along military lines as well a year before the conflict broke out. And in this year, 1991, when conflicts broke out, half of the Serbs were killed then out of the total number of Serb victims. Analyses show, experts have proven, that Serbs were not prepared for the war at all, whereas these people were preparing for themselves for an entire year.

Owen says in his book the picture of the Bosnian Muslims of being unarmed is not a true one. Even Alija Izetbegovic himself admitted on television that they were armed through secret channels. And he speaks of ³²²⁸² millions of bullets and tens of thousands of bombs, grenades, shells, hundreds of thousands of uniforms, and so on and so forth. And according to the statement made by Sefer Halilovic, the Chief of the Main Staff of the army of Bosnia-Herzegovina, in an interview he gave to Nasi Dani on the 25th of September, 1992 - 1992, gentlemen - the Patriotic League, when the war started, had 103 municipal staffs and 98.000 fighters. 103 municipal staffs. And Bosnia-Herzegovina had a total of 109 municipalities altogether. Everything is clear as far as war preparations are concerned. It is clear to all but you.

The Serb side had three objectives. That can be seen when the entire political situation is analysed. The first one was to preserve the Yugoslav federation. And then, if it is impossible to obtain that objective, to attain their own right to self-determination like the right enjoyed by other peoples in Yugoslavia. So in case that objective is impossible too, then finding ways and means through negotiations to ensure an equitable position for Serbs in Bosnia-Herzegovina. The Serb side advocated the preservation of Yugoslavia, and it was not only the fact that this was in line with domestic and international law but everything else worked in favour of that. Unfortunately, there is no time to discuss all of this now.

How justified the requests of the Serb people were, their calls for an equality of rights, that is deeply rooted because the Serb people have lived in the territory of Bosnia-Herzegovina for over a millennium. So there are deep roots in history.

I have to speed things up. ³²²⁸³ If one looks at the chronology of all events, and we will have the opportunity to deal with this through witnesses, indicates the following: First that what the Serbs did were reactions to what the Muslim side did, that is to say violations of the constitutional rights of the Serbs. And this, what the Serbs did, was only making up for what the other two, the Muslims and the Croats, took away from them. It can be seen that the other side gradually moved away, and finally the Serbs were cornered and agreed to a minimum of their demands. Finally the Dayton Agreement sanctioned their minimal rights, but unfortunately, later on in a fully -- this happened only after a great deal of blood was shed unnecessarily. The last chance of preserving peace in Bosnia-Herzegovina before the war was the Cutileiro plan. Everybody signed the plan, and when Zimmerman talked him into it, Izetbegovic withdrew his signature from the plan. I believe that we are going to have ample documents about this that we will present later.

All of this shows very clearly that the Serb side was not the one that wanted war. It did its best to prevent a war. After the international recognition and after the break-out of the war, and it is no accident that the two coincided, the JNA started withdrawing from Bosnia-Herzegovina in accordance with the previously signed agreement. That is stated in the report of the Secretary-General of the United Nations, Boutros-Ghali, dated the 30th of May, 1992, addressed to the Security Council, in which it is also stated that the army of Republika Srpska, established on the 15th of May, was not under the control of Belgrade. And it also states that a considerable part of ³²²⁸⁴ the territory of Bosnia-Herzegovina was under the occupation of the official forces of the Republic of Croatia. However, the then president of the Security Council, the Austrian Petar van Felner [phoen], concealed or, rather, withheld part of that report of Boutros-Ghali until sanctions were voted for by the Security Council against Yugoslavia. And it is only Croatia that should have had sanctions imposed on it on the basis of the report, by no means the Federal Republic of Yugoslavia. These are all the facts that I managed to present over this short period of time. This is only the tip of the iceberg. And now what have you come up with against these undisputable material facts and historical facts?

In this false indictment, you mechanically compiled in an unnatural way a series of events - and crimes, no doubt - and you branded it a joint criminal enterprise without a shred of evidence. And you only talk about some kind of plan and intention of the Serbs. However, this so-called Prosecution relies on a unique concept called joint criminal enterprise, and that in itself proves that they cannot establish guilt. There is absence of evidence and of any intent, and that is the only thing that could compel one to resort to such a nebulous construction, joint criminal enterprise. In other words, when there is proof and evidence of something someone did and of intent, then an illegal Prosecution does not have to think up some joint criminal enterprise. Then it uses evidence concerning the actual deeds committed and the intent. When a prosecutor does not have evidence and cannot establish guilt, then they resort to that, and then in this way they dodge the ³²²⁸⁵ obligation which is called burden of proof, and that is part of any legal judicial system.

This was conceived so that without proving guilt innocent people can be charged. And of course that is sheer mutilation of justice, nothing else. What it says there are empty words. You explain in these indictments, in these charges, in these alleged indictments, you speak of crimes that we did not commit. And you explain it by intent that we never had. That is your concept. I don't want to go into the question of Bosnia and Croatia again where Serbia did not have any jurisdiction, but we did assist the Serbs. Of course we did. And we would have been the scum of the earth had we not helped them when their lives were in peril. And our greatest wish was to establish peace and the greatest assistance was that in Serbia over all of those ten years there was no discrimination on ethnic grounds against anyone in any way.

When speaking of Kosovo, there is not a single shred of evidence that any crime was committed. Not only on anyone's orders but also with any kind of previous knowledge of the generals in command. And you have indicted four generals. Not a single one of them issued any orders to that effect. Not a single one of them had any knowledge about anything that could have constituted a crime before these crimes actually happened. You have accused the political leadership and the military leadership of Serbia and Yugoslavia, and you have all the evidence showing that whatever happened in Kosovo and Metohija was during the bombing, the day and night bombing, and that the legal authorities brought to justice those who ³²²⁸⁶ committed crimes.

Even your witness here, General Vasiljevic, confirmed the details about a meeting that I had with the top echelons of the military, of the General Staff, and that I personally insisted that all perpetrators should be arrested. And he even quoted me as saying that no one should have it easy and that everyone, including General Ojdanic, who is sitting in this prison, totally innocent, and then further on these four generals who you have indicted, Lazarevic, Pavkovic, Djordjevic, and Lukic, everybody had the same position. And even the leadership, the Supreme Command along the vertical line acted by way of prevention, that is to say forbidding the existence of paramilitary formations.

There are written reports and I have tendered them into evidence -- or, rather, I shall tender them into evidence through the testimony of witnesses. There are hundreds of reports of military courts, of military prosecutors' offices regarding the perpetrators of various crimes. The first reports start already at the end of March 1999 and then they move on.

What else could the executive government have done and the judiciary in any country as well as the chain of command but to categorically insist on the Prosecution of all perpetrators of crimes and to make sure through the reports it gets that this is being done? This is what we did under the most difficult of circumstances, under conditions of daily bombing. Some trials were completed and the perpetrators convicted even before the bombing ended.

In these two years of presentation of evidence, you have not ³²²⁸⁷ presented a shred of evidence to the contrary. Throughout these two years you have not presented a shred of evidence or a single testimony that might indicate a link between a crime that was committed or a criminal with the troop commanders, the generals you have indicted, or the political leadership of Serbia, or me personally. On the contrary, you have evidence that we did our utmost to prevent crimes, and if crimes were committed - and this is possible even in peacetime let alone during wartime and especially during ethnic conflicts - that they should be prosecuted under the law. In Serbia in the Sabac District Court in 1993, the first of these trials was held, and you have information to that effect.

On the other side, you have all the evidence that we were the ones who were the most persistent in achieving peace and who can claim the most credit for achieving peace, that we saved millions of refugees on the principle of non-discrimination, because tens of thousands of Muslim refugees found refuge in Serbia. We freed French pilots and other hostages. You can see what was done to achieve this through materials you yourselves have. And all we could do was insist and beg and exert pressure because we had no other powers. But we succeeded in this. Please look at these interviews, because this is enough for you to understand that all these charges make no sense. On the other side, you can see what evidence you have on the role of the Croatian political leadership in ethnic cleansing and the plan and the achievement of the plan both before and after 1990. You even have stenograms. We received some of these from you, and we were able to see ³²²⁸⁸ them here, from which you can see the fabrication of excuses for the perpetration of crimes during Operations Flash and Storm. You have evidence of the role of the Clinton administration in all this, and you will receive more evidence. You have written evidence about those who made all these decisions, because in each of the stenograms of the so-called VONS, the Council of Defence and National Security, you can see who was present there.

You also have evidence of crimes against the Serbs based on decisions by the Muslim leadership. Kljuc testified here, a former member of the Presidency of Bosnia and Herzegovina, and on the basis of the stenogram I asked him about this because you can see that Izetbegovic knew about the camps where people were illegally detained for years on end, and you will be able to hear more testimony about this. You have everything you need about the Croatian and the Muslim leaderships but not about the leadership of Republika Srpska, the Republika Srpska Krajina, and Serbia. You have evidence from the testimony of your own protected witness who was an important political leader that what Milan Martic said to me was correct, that is that in the Krajina, including in Knin itself, the Croats who remained were being treated as equal citizens and that there is absolutely no discrimination whatsoever.

I think that what I'm going to say now deserves more time, but I will be very brief and simply just touch upon it. And this is the matter of witnesses who reached a plea agreement with this so-called Prosecution, and this is, I dare say, an example of the fabrication of false witnesses. I think that this is an unprecedented event. When one of these ³²²⁸⁹ witnesses, when I asked him how he could have signed that in Srebrenica 7.000 Muslims were shot, he explained that his defence sent a letter in which it promised not to challenge numbers. So you could have written down 70.000. You could have written down whatever you wanted. Before the Bosnia case, I put forward information my collaborators succeeded in collecting which throws serious doubt on your constructions about Srebrenica. In the meantime, we have heard the testimony of General Morillon who testified here that Srebrenica was a trap for Mladic who confirmed that in his opinion, and he knew Mladic well, Mladic could never have issued such an order. And this is in accordance with what I believe. I do not believe Mladic could have issued such an order. His honour would never have allowed him to do such a dishonourable thing. But there will be witnesses called to testify about all this.

And what I want to say is that I think it's in the interests of both Serbs and Muslims that the truth about Srebrenica should come to light rather than a false myth be created. Your fabrication of false witnesses and the pressures of Paddy Ashdown on the leadership of Republika Srpska, which is synchronised with what you are doing, this will not be sufficient to perpetrate this double crime, this double crime which insults both the dead and the living.

Everyone should be interested in establishing the truth about Srebrenica so that those who perpetrated crimes might be punished and those who are innocent might be released and set free of any charges or doubts that they committed such a dishonourable thing. You did not make use of Erdemovic to get information from him. ^{32290 BLANK PAGE 32291} You did not make use of any of the things you could have made use of to establish the truth. I hope, I can only hope that some of the witnesses - I am trying, through my collaborators, because I myself cannot do it, of course - I hope they will throw more light on what happened there. But to go back to this witness or two other witnesses whom you have here who made plea agreements. You then had such protected witnesses, because you had the public testimony of Miroslav Deronjic, and his own mother should not speak to him in view of what he said he did, that he killed a whole village after guaranteeing its security. First, he guaranteed its security and then slaughtered the whole village. You forgave him all of that only so that he would lie against Karadzic. And you have Karadzic's order to the troops in Srebrenica in your hands to the effect that they should look after the civilians and adhere to the Geneva Conventions. This was sent in writing to the troops. And then someone like Deronjic comes along to testify that Karadzic allegedly whispered in his ear that they should all be killed. This does not make sense, and it's not even worth discussing. No normal man could comprehend it, especially when someone signs a document about the shooting of 7.000 men because he's obliged not -- obliged not to challenge any figures. Not to mention other matters that you made use of here. You made use of my speech, you built it into the very foundation of your indictment when you first opened your mouths in 2002, my speech in Gazimestan where I allegedly fanned the flames of Serb nationalism. I am proud of that speech to this day, because it is everything else, but it is certainly not the awakening of some sort of negative atmosphere. On the contrary. But ³²²⁹² you are not the only ones to participate in this. This has been repeated by many Western politicians. There is almost no newspaper that has not written about it. The lie has been repeated innumerable times, but not in '89. To put it correctly, then, it's only ten years later that this happened. I have no time to dwell on this, but I will take it as an example of the way manipulations and lies are perpetrated. Robin Cook, on the 28th of June, 1999, ten years later, says: [In English] ... not to give a message of hope and reform. Instead, he threatened force to deal with Yugoslavia's internal political difficulties, doing so thereby launched his personal agenda of power and ethnic hatred under the cloak of nationalism."

[Interpretation] I have here any number of quotations dating from 1999, 2000, 2001. Look at The Independent, the 1st of July, 2001: "[In English] ... without his agenda, more than a million Serbs; at the battle of Kosovo, 600, anniversary celebration, as he openly threatens force to hold the six-republic federation together." [Interpretation] You have quotations here from Time magazine, even from The Economist. They are all quoting lies. I have now quoted from The Independent, the 1st of July, 2001. Now I will quote The Independent from the 29th of June, 1989. The same newspaper, it says: "[In English] The President made not one aggressive reference to Albanian counter-revolutionaries ..."

[Interpretation] Counter-revolution is a definition put forward by the party leadership in 1981.

"[In English] ... of mutual tolerance, building a rich and ³²²⁹³ democratic society and ending the discord which he said led to Serbia's defeat here by the Turks six centuries ago."

[Interpretation] And then The Independent quotes my words when they report it:

"'[In English] There is no more appropriate place than this field of Kosovo to say that accord and harmony in Serbia are vital to the prosperity of the Serbs and of all other citizens living in Serbia regardless of their nationality or religion,' he said. 'Mutual tolerance and cooperation were also sine qua non for Yugoslavia.'" [Interpretation] And then they quote me:

"[In English] Relations on the basis of equality among Yugoslav peoples are a precondition for its existence for overcoming the crisis." [Interpretation] Therefore, when they received orders that they should lie, they did not even read their own newspapers from the time they first reported. But I have no time to dwell on this now. And the quotations you can find not all that easily, but you have the Lexis Nexis programme on the BBC. You can find my original speech which the BBC translated, and you can find it there even today, where it says, for example, this is taken from the BBC:

"[In English] [Previous translation continues] ... only Serbs living in it. Today, more than in the past, members of other peoples and nationalities also live in it. This is not a disadvantage for Serbia. I am truly convinced that this is an advantage. Citizens of different nationalities, religions and race have been living together more and more frequently and more and more successfully. Therefore, all people in ³²²⁹⁴ Serbia who live from their own work, honestly, respecting other people and other nations, are in their own republic."

[Interpretation] There is no point in taking up my time, using up my time on this. I just wanted to illustrate the scale to which the abuses go, in particular the abuses in a procedure which pretends or aspires to be a legal procedure, because intellectuals, authors, literary critics, publicists, scientists believe it is immoral to take out of context a few sentences. But you did not only take out of context pieces -- sentences, but you took out of context parts of sentences in order to create your constructs. But we will have time later. In any case, this is -- it seems to me it is not something that is difficult to establish. I am not citing that here for any other reason but to show in which way lies are being put forward unscrupulously. You can look at this policy, and I'm talking about national equality as the only principle on which one can proceed further, and it has continuity over ten years. We have the transcript of a party conference in 1998 here, and it's a transcript where we have all the members sitting together from the ruling party, which, amongst other things, the meeting discussed Kosovo. This was not discussed for the newspaper, this was a discussion with the political leadership, including all the ministers, members of government, members of the parliament from the ruling party. I would just like to read only a brief part, my conclusion. And I say, as far as Kosovo is concerned, I'm saying who submitted the introductory remarks, what the majority was, and then I say: "Our policy to resolve the problem of Kosovo is to do it by ³²²⁹⁵ political means," so we're talking about 1998 now, the 10th of June, 1998. "Our policy is to resolve the problem of Kosovo by political means. We are approaching that settlement in view of our conviction and our programme which implies the principle of national equality. We do not want to damage or inflict damage on the Albanians, and we do not want Albanians in Kosovo to be citizens of second class." And then I speak about how many think that perhaps the majority of Albanians are in favour, and I say:

"It is not true that all of them are for it. Perhaps the majority is depending on the pressure exerted on them, what was explained to them, how this explanation was given about their future perspectives and everything else. We must discuss this and we must take this approach. We must have a political resolution on the principles of national equality. We must keep in mind that those who were manipulated in this way, these are unhappy people who are manipulated with just like any poor people in the world are, by the powerful, by the manipulators throughout the world whose objective is to destabilise South-Eastern Europe where they constantly need to have an alibi in order to keep the military forces of the great powers there."

And then at the end I say Dialogue: "The dialogue which was started is not reserved for the state committee and representatives of Albanian political parties," and then I mention them, all those from the state commission, I mention them individually. "The dialogue is not reserved only for them and it is not only the Serb-Albanian dialogue but it is the Serb-Albanian-Roma-Muslim-Bulgarian dialogue. This dialogue ³²²⁹⁶ should be present at all levels; in the municipality, in the local commune, in the formal and informal sense, a formal and informal dialogue, because people need to be mobilised to live."

So ten years of continuity in my commitment for a policy of national equality which preserved half of the former Yugoslavia from entering into any conflict or war throughout those ten years. I'm speaking about how much this -- this whole thing has been turned upside down. And that is why I said that this indictment represents a sum of unscrupulous manipulations, lies, crippling of the law and an unjust presentation of the history.

The individual acts of generals, officials, my own, by way of command responsibility through which you could convict any innocent person because they held a certain post, and now you're trying to bring these generals here. These individual acts I cannot discuss because of a lack of time, and first of all, they've already been challenged in the testimony of your own witnesses and much more, in the biographies and memoirs of participants, and also in scientific studies which were written based on Western sources, documents, and so on. We will leave it up to the witnesses to have the final word when they appear before you here. I would just like to point out a paradoxical situation in which you have brought yourself into by bowing down to the daily merciless policy of the Clinton administration. Reality was falsified in the name of a pragmatic political programme. All three indictments were issued after 19 NATO countries carried out an open aggression against the remaining part of Yugoslavia, Serbia and Montenegro, with banned weapons ³²²⁹⁷ implementing new forms of tyranny through high technology. Is there any greater cynicism? The indictment for Croatia cites ethnic cleansing of Croats, and this was conceived before the 1st of August, 1991, and lasted until 1992. I must say that one has to be extremely arrogant to place such a lie on paper. As is well known, this was a period of mass crimes against Serbs, and the first major exodus of Serbs from Croatia. A hundred and fifty thousand of them, precisely in this time period. The Kosovo indictment was issued, and I am quoting, "because of the expulsion of a substantial number of Albanian citizens from Kosovo." Well, you saw what it says in Clark's book, but you will see many other also more interesting things. You cannot cite one single village from which someone was expelled while Kosovo was under the control of the Serb state organs. And it's a fact that I'm not following --

JUDGE ROBINSON: Mr. Milosevic, bring your statement to an end in three minutes.

THE ACCUSED: [Interpretation] Yes. I will do my best. If not in three then four, but it will not be longer than that. I've had to skip over a lot.

You're not even monitoring official statements by US and NATO representatives who openly state today they needed these games around Kosovo so that NATO could extend its activities beyond its borders. The indictment against Bosnia and Herzegovina was issued for genocide. Please, genocide against Croats and Muslims in Bosnia-Herzegovina, which is also highly insolent when we know that the Belgrade precisely -- Belgrade was the political centre in these evil times. The only centre in ³²²⁹⁸ Yugoslavia during the Yugoslav crisis from which the policy of peace was consistently conducted, the policy of national equality, thanks to which there were no occurrences of discrimination and no occurrences of crimes, and thanks to which throughout the entire decade an unchanged national ethnic structure in Serbia was preserved.

I am aware, gentlemen, that it is illusory to look for logic in a staged process. There were such cases before, the Dreyfuss case or the Dimitrov case regarding the burning of the Reichstag. This process exceeds those because of the depth of the tragic consequences that it entails. I do not even wish to say anything on a personal note in this, but I would like to mention the depth of the tragic consequences where the universal legal order was thoroughly destroyed. Thanks to our past, there were honourable authors who have carved the truth into history so that mistakes would not be repeated and that the generations that come would know what happened. In the true history of this era, this ad hoc justice of yours will be placed or used as an illustration of monstrous events at the changing from one century to another.

Gentlemen, you cannot imagine what a privilege it is, even in these conditions that you have imposed on me, to have truth and justice as my allies. I am sure you cannot even conceive this. Thank you, Mr. Robinson. Unfortunately, I did not have the opportunity to present everything that I wished to, but I believe that I will be given this opportunity perhaps by other means. Thank you very much.

JUDGE ROBINSON: Thank you, Mr. Milosevic. You are right, of ³²²⁹⁹ course, that you will be able to bring your evidence. We're going to adjourn now for 20 minutes, and when we resume we will have the discussion on procedural matters as indicated in the Chamber's order of the 25th of August. We'll begin with the Prosecutor, then the accused, then the amicus, and the subject matter will be the content of the medical reports and the assignment of Defence counsel. I urge parties to confine their submissions to those issues, although the Chamber will hear other matters if it finds it appropriate. We are adjourned.

--- Recess taken at 10.37 a.m.

--- On resuming at 11.00 a.m.

JUDGE ROBINSON: As indicated, we will have submissions now on the two questions set out in our order of the 25th. Beginning first with the Prosecutor. Madam Prosecutor.

MS. DEL PONTE: Mr. President, Your Honours, detailed argument regarding the imposition of counsel have been made in a number of previous Prosecution filings. The arguments made in these filings will be dealt with in full by Mr. Nice. I do, however, wish to make a few general introductory remarks.

This is not the first time that a Trial Chamber of this Tribunal has had to consider the question of imposition of counsel. The Trial Chambers in the cases of both Seselj and Blagojevic have previously ruled that in certain circumstances, counsel may be imposed. The issue has also arisen in the Rwanda Tribunal case of Barayagiza and in both the cases of the accused Norman and Gbao before the Special Court of Sierra Leone. In ³²³⁰⁰ these International Tribunals counsel has been imposed for varying reasons, including the obstructionism of the accused and the Tribunal's right to protect the integrity of the proceedings. National jurisdictions have also recognised the need in some instances to impose counsel. In Israel with the defendant claiming to be a political prisoner but also in the United Kingdom where in sexual offence cases the accused is not entitled to run the totality of his own defence in person. And the United States Supreme Court has observed in the Martinez case, I quote: "[e]ven at the trial level, therefore, the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer."

And the imposition of counsel is entirely familiar to those accustomed to the law and practice of the criminal courts in modern Serbia and Montenegro, and indeed previously in the SFRY and FRY. It is the duty of the Prosecutor and of the Chamber at this Tribunal to ensure that the type of problem being faced can be dealt with in the cases concerned, but as it will also no doubt be a question of concern at other International Tribunals, including the International Criminal Court, we owe a wider duty to developing international jurisprudence it show how such problems can be dealt with. The parties, including the accused, have a right to a fair and expeditious trial, and the responsibility for ensuring a fair trial falls to the Trial Chamber. We submit that the accused should be invited to allow his associates to extend their present behind-the-scenes role of legal ³²³⁰¹ advisors and to assist him with the presentation of his case simply in the courtroom. Should the accused refuse to allow his associates to appear in court, the accused will not have been denied the right to appoint counsel of his own choosing. Rather, having been provided that right, he has failed to exercise it.

This trial has required from the beginning the imposition of counsel, and I have urged this position at every opportunity from the start of the trial. The evolution of the trial in the past year has made this need even more evident.

As mentioned before, the imposition of counsel is something which is now becoming more familiar to the common law tradition. It has, on the other hand, for a long time been familiar to the civil law tradition. The civil law tradition takes the view that an accused lacks the requisite distance and objectivity. The appointment of professional counsel allows for the greater protection of both the accused's right and the wider interests of justice.

This Tribunal draws on both the civil and common law traditions. When faced with problems such as the present one before this Trial Chamber, the Chamber has the privilege and duty of looking to both traditions for solutions. When the solution is found, the Tribunal must have or find the confidence to apply it irrespective of argument, even public argument, however loud, extensive, and apparently well-informed. It is we here who now know the problem. We here who face the problem, and we here who have the duty to resolve the problem in the greater interest of justice. ³²³⁰² I recognise that in the earlier stages of this trial there was little practical experience of this type of problem. The Chamber acted with generosity towards the accused out of the best of intentions and in so many ways to the best effect, but now the need for a more robust approach has been revealed by the accused himself. The trial needs the safeguard of imposed counsel.

Thank you very much for your attention.

JUDGE ROBINSON: Thank you, Madam Prosecutor. Mr. Nice.

MR. NICE: Your Honour, this matter has been extensively argued in written filings, of which there are public versions. I desire today to make a general point and then to summarise our position with some particulars on imposed counsel, to deal with the health issue, and then with one or two other matters, with your leave.

The general point is this: Where a rational and reasonable person finds himself pitted in discussion, argument, or even conflict against someone who is irrational or unreasonable, there is sometimes an almost irresistible temptation on the part of the reasonable one to think that the other is going to behave reasonably, is going to respond to sense or generosity. And that almost irresistible temptation derives from the reasonable person's belief that there will be no chance of progress in the matter at hand without movement by one party or the other and the reasonable person's belief that the other party will never budge. Now, this may be a process that this accused well understands, as it happens, in the very matters into which we are inquiring, but also in this court. ³²³⁰³ And to pick up the last point made by the Prosecutor, this Bench, rational, reasonable in the extreme, has, it may judge, faced some obduracy and obstinacy by this accused over and over again, for example, in time being allowed and, it may be thought, used in an ill-advised way by him leading to his repeated demands or indeed, yesterday, insistence of the Chamber for more time, and the Court always hoping for the best. I would ask you to have that general proposition in mind as we look at the problem we now face, and it is a real problem, given the history of intervention -- not intervention, interruption of the timetable by matters arguably without but arguably within the accused's own control, namely, his health condition.

I turn, then, to some supplementary points about imposing counsel. In domestic court systems, in the vast majority of all criminal cases, those charged comply with the reasonable requirements of the court system in which they find themselves. Do they do it because they respect the law or the judges? If they are, in fact, serious offenders, criminals of one kind or another, it's highly unlikely that they respect the law. That's why they are, in fact, offenders. Nor is it likely that they respect the judges, in truth. But they comply because they recognise that once in the system, their own best interests, acquittal or reduced sentence, will be served by compliance.

In that very, very small minority of cases in domestic courts and in the rather larger portion of cases in this type of court where non-compliance is a feature of a defendant's or accused's conduct, it is because he does not see his own best interests as served at all by ³²³⁰⁴ compliance. His best interests, he judges, are elsewhere. And it is, of course, our argument to this Court, as it has been on earlier occasions and indeed in written submissions, that this accused's interests are arguably, if not unarguably, his ability to address a different audience with his account of events and his understanding of history. For a court facing this problem, compliance will only, it may be thought, be secured if even the accused recognises that his perception of his best interests will be favoured by compliance. And so in this case, without beating about the bush, unless the accused recognises that he will lose his platform for whatever purpose he puts it unless he so conducts his defence as to fit in with the requirements of this Court which has to deliver justice and not to serve the non-forensic purposes of this accused, then we will be in the same unfortunate position we have been in for the last year and more.

For those who haven't read the public filings, in a sentence, our arguments are that there is the power to impose counsel who would be able, if necessary, to conduct the defence case without contact with or without discussion with the accused, and that imposed counsel should be imposed now and be ever-ready to take over the conduct of the defence immediately or at a later stage, that that imposition is required now for all the reasons with which we are familiar; and that once that has been done, then the accused can be invited to make the reasonable decision, given the health history and other matters, to conduct the preparation and presentation of his case through lawyers. If he declines that invitation, imposed counsel will be in a position to do the job for him. ^{32305 BLANK PAGE 32306} Even if he declines the invitation so that imposed counsel takes over the running of the Defence case, as we have proposed in a schedule to our first filing, there are many ways and many stages in which and at which the accused can be invited positively to contribute to the preparation of witnesses -- not so much preparation, identification of witnesses and their presentation in court by being allowed or invited to contribute to the questioning that might otherwise be taken by imposed counsel.

That's our proposal in a nutshell, and we say that the most obvious candidate for imposed counsel should be one of or two of the amici because of their familiarity with the case. We say that their proposal, which would take them far more closely to the accused, is perilous in the extreme for this reason: At the moment they retain, according to one of their recent filings, the detachment of never having been instructed by the accused. They may speak to him but they've never been instructed by him, so that they do not have any relationship of intimacy with the accused as a professional client that would enable him to put them in the position of their being embarrassed and having to withdraw. They would thus always be available to the Court to conduct the defence if things started, yet again, to go wrong. Thus, in our submission, is their proposal a dangerous one, one that should not be followed. In our arguments, and as the Prosecutor has already foreshadowed, we refer to recent developments in common law jurisdictions in relation to sexual offenders, or alleged sexual offenders. I say straight away that in our first filing, which, for reasons of timetable of the Court, was ³²³⁰⁷ prepared in somewhat short order, I missed that material. I was later gratefully later reminded of it by Mr. Ruxton. I missed it. And we worked out from first principles how imposed counsel could and should operate in a case like this.

With a little more time at our disposal after complying with the deadline for the first filing, we reviewed the present state of the law in Scotland, in England and New South Wales and New Zealand, where the practice is developing of imposing counsel in cases of the kind I've described. And it was interesting and indeed heartening to discover that the regimes that are being imposed by statute in those common law countries match extremely closely the model we identified as suitable for this case, working simply from first principles. It may be worth going back to an earlier point in relation to the sex offenders exception in common law countries for this reason: I believe that one of the early stimuli for the change of the law in England was that a sex offender, or alleged sex offender, cross-examined a victim extensively and, as it was judged, not for the proper forensic purpose of establishing his innocence if he could but to gratify himself by further subjecting -- or by subjecting the victim to further punishment. He had an interest outside the interest of the court, and it was because he needed to be deprived of the ability to serve that interest through a court hearing that the change in the law was ultimately made. And so the case, although very different on its facts, of course, than the case at hand, has -- the exception for sex cases is very different for the case at hand, has in common with it the need to ensure ³²³⁰⁸ that accused persons cannot, through court proceedings, serve their own improper and irrelevant purposes.

JUDGE ROBINSON: Did that arise frequently, Mr. Nice?

MR. NICE: No, I think --

JUDGE ROBINSON: Because normally sex offenders would be represented by counsel who would carry out the cross-examination.

MR. NICE: Absolutely so. But on this particular case, if my recollection is correct, it was the case of a sex offender appearing for himself and subjecting the victim to a quite extravagant cross-examination that lead to the inquiry being made by parliament and the change in the law, because they realised that otherwise they didn't have the power to deal with this problem.

There is much in the consultative documents for the Scottish reform of the law that I think matches the arguments that we've made as well as matching in the final practices that have been introduced and those which we recommended.

Can I return again to a point that the Prosecutor has made. We suggest in our filings that this problem is unknown or very rarely known to the common law and that in this area the genius of the common law has to some extent been wanting, and it is to the genius of the civil law that we must turn. And with my remarks so far in mind, would the Court bear in mind what it is that, as the Prosecutor reminded us, is the underlying purpose of the civil law's requirement that counsel be imposed, for it's twofold. It's both to achieve the objective of the court to have justice done, and it is to bring distance and objectivity to the presentation of a ³²³⁰⁹ Defence.

And of course here, if we are right in our characterisation of the accused's defence as being aimed at a different audience, there is the real possibility that he will be missing points that he should be making if looking at the problem in the proper way, and nobody in this court wants any accused to be convicted when he should be acquitted, to be, in the vernacular, over-convicted or over-sentenced. And so the imposition, on the basis of the civil law approach, of counsel would in this case serve those twin objectives that the Prosecutor has identified from her experience and knowledge of the civil law.

Finally on this point, the accused -- or the trial of this accused, facing the problem it does, must not be subject to any special treatment simply because of the gravity of the charges against the accused nor must there be any special leniency in the approach of the Chamber to the problem simply because of the once elevated status of this accused. A problem has been created and we'll turn to it more perhaps in closed session when we look at one or two other issues, that demands immediate resolution if we're not to run the risk of the timetable being out of control, and I use the word "again." In our respectful submission, the detailed proposals we make will work and are likely, if not very likely, to ensure that the accused's future conduct will serve the best interests of justice as well as of himself.

Before I turn to health and as a subsidiary point of what I've said already and before the first witnesses are called, can I make one observation about etiquette, court etiquette, because I have referred to ³²³¹⁰ it on several occasions in our filings.

The Court, for the best of possible reasons, has tolerated what in any other court would be quite unacceptable; that is to be told day after day that it is an illegal court and that the Judges of it and the Prosecutors are acting unlawfully. Were it to be the case that the accused were to be allowed to call his own witnesses without correction as to his manner of conduct in this court, we would be left, would we, with the position where the accused would be using the incorrect form of address to the Court, referring when it suited him to this illegal court and yet expecting his witnesses, who would of course have to take the solemn declaration, to treat the Court with the appropriate respect? It's hard to conceive of a more unsatisfactory way of progressing. It's hard to know how his witnesses would understand what was truly expected of them. Can you really have a litigant being allowed to say to his witness, "Witness, tell this illegal court what you know"? When we see that the accused would wish people with either present or past high office to come here to help you, can we really expect that they would if they know that that is how they're going to be dealt with? And so etiquette is not a trivial matter, in our respectful submission, and it's something that needs to be dealt with. The next issue is health, and although there's been some opening of the health issues, it may be at the moment that the Chamber would prefer us to go into private session to deal with that.

JUDGE KWON: Before going on, Mr. Nice, if you could elaborate on the feasibility that an imposed counsel can start his conduct of ³²³¹¹ examination immediately, without any adjournment.

MR. NICE: Yes. I've -- I've dealt with that in the filings and I'm grateful for the opportunity of repeating our position. It may be urged that if counsel is imposed, he or she, whether an existing amicus or a newly imposed counsel, could not run the Defence case if the accused declines to cooperate because he or she could not be prepared. The answer to that comes in two parts. First, imposed counsel in the circumstances of this case would not be expected and should not be instructed on the basis of and should not be allowed to contemplate conducting a full investigation or any extensive further investigation into the defence case in order to run it, because, A, the position we find ourselves in is largely, if not wholly, of the accused's own creation; and B, because there is an enormous amount of material already and easily available to any counsel, however newly imposed, that would enable him or her to identify and to call the witnesses very quickly but, of course, not immediately. My proposal, and this is the second part of the answer to Your Honour's question, is this: Were the accused absolutely to refuse to cooperate in any way and were the Chamber to have decided to impose counsel, we already have a list of some 70 witnesses that the accused wishes to call, he having, although the order has changed on a regular basis, ordered the first -- I think the latest list is 12 but in fact it's been up from time to time to figures rather more than that. And those, the pro se legal officer assisting him, will know of the logistical arrangements to bring those witnesses here. We know from the 65 ter ³²³¹² summaries in short order what the witnesses are supposed to deal with and it would always be possible, possibly subject to privilege but that will be for detailed consideration, to obtain what notes exist of what the witness is going to be talking about. So the Chamber itself could find, I have no doubt, the power to call witnesses from that list while imposed counsel was being identified and instructed, could get them to give their evidence in the way that witnesses in this court used to give evidence in the earlier days of these proceedings, in the narrative form with questions coming later, and the Chamber could, as I've suggested in our filing, at the end of its examination of the witness, invite the accused to identify topics that haven't been covered that should have been covered to make sure that the evidence he would want from that witness would be before you.

Those first witnesses, the witnesses on his present list, at three days a week would probably take us nearly to Christmas. And in that period of time, identified, retained, appointed counsel, imposed counsel, could be becoming familiar with the case. We know from recent experience that with the records available, reading into this case to become familiar with it is, of course, a heavy task but not a limitless one. So that's our proposal. And to reach that conclusion - and I'm very grateful for being able to think about this and address it - to reach that conclusion, as the Chamber might have to do, which would be a strong and bold decision, would be simply to reflect that the court's authority has been flouted, as we will explore, and the accused has shown himself willing to decline to do what the Court wants, and it's in the face of ³²³¹³ that that the Court would have to be saying to itself, "Yes, getting this case concluded in the reasonable time we have allowed, by next October, is something that we can accomplish, and we can accomplish it with these early witnesses by dealing with them in this way, calling them ourselves, giving the accused the opportunity to fill in the questions we may have missed."

JUDGE KWON: One more query. If counsel is to be imposed in one way or another, during the interim period until he or she can take over the case in full, what kind of danger would there be if the Chamber allows the accused to go on without being represented until that -- until -- as far as he can?

MR. NICE: The real danger would appear to be -- there are several dangers but the principal danger would be that he would still be preparing the witnesses himself and -- we are venturing into something that is probably best dealt with in private session, but taking it shortly, the risk is that we would find ourselves back in the position we were in where the health condition or apparent health condition of the accused simply leads to weeks and months of downtime of the court. There are other risks associated with his preparation and presentation of witnesses. I've touched on the matter of etiquette, but the major risk of doing that, and it's not a risk, it's almost a certainty on the material we have, is that the timetable will not work at all.

JUDGE KWON: Thank you.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, the Chamber was consulting on your ³²³¹⁴ request for a private session to discuss certain matters. Would you like to explain why you think there should be a private session?

MR. NICE: Only out of respect for the privacy that is associated with medical reports. If the Chamber is happy for me to discuss all those medical reports fully in public, I will do so.

JUDGE ROBINSON: I'm going to inquire from the other parties, of course, but as I indicated to the accused when we met in July, the jurisprudence of the Tribunal is that such material is confidential except when it is required for trial purposes in the public interest. The health of the accused is intimately tied up with the pace of the trial which itself is linked to the issue of expeditiousness, and expeditiousness is a requirement of a fair trial. I see it as an issue that is essentially tied to the fairness of the trial ultimately, but I'd like to hear first from the amicus.

Mr. Kay.

MR. KAY: Your Honour, would you like us to deal with the issue of privacy at this stage rather than the full argument?

JUDGE ROBINSON: Yes, just the issue of privacy, yes.

MR. KAY: It very much depends upon what the accused would submit on the matter. Sometimes an accused is happy enough for such issues to be public so that there is a full understanding of what the argument is about, particularly if he has his own view on the matter. Personal details should be avoided being put into the public domain, and by that I mean specifics of medical analyses, and I think we can all understand what I mean about that. But general issues relating to ³²³¹⁵ health when they arise in this manner would be able to be discussed so that the public or -- we're not doing this really for the benefit of the public, we're doing this for the benefit of legal argument in the ordinary course of the -- of the trial and so that there is an understanding what is going on in this trial at this stage.

So if argument was able to be without specific references to personal medical details, which I'm sure that the Court would understand, then that -- that can take place in public, in our submission, but it must be dealt with in general terms rather than anything that might cause embarrassment or anything that might be too revealing. In many respects, it's how far the Trial Chamber wants to go, or any of the parties wants to go on the issue.

JUDGE ROBINSON: Thank you. Mr. Milosevic, on this issue. Do you wish to say anything?

THE ACCUSED: [Interpretation] In connection with my personal health issues to be discussed in a public or private session, is that what you're asking me?

JUDGE ROBINSON: Yes.

THE ACCUSED: [Interpretation] I told you last time when you asked this that I feel that issues of health should be discussed in private session. These are my own personal private matters. They do not concern the public. I think that these are elementary rules.

JUDGE ROBINSON: Thank you. The Chamber will consult.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, yes. On this issue? ³²³¹⁶

MR. NICE: We would, of course, favour the presentation of this material in public to the extent necessary to explain part of the reasoning of our arguments on imposed counsel. We have no desire to go into matters in detail, and indeed the conclusion of the doctors is all we need.

JUDGE ROBINSON: Thank you. Yes. The Chamber believes that Mr. Kay struck the right balance in his presentation on this matter. We will have the discussion in public in general terms, and if a matter comes up that is particularly sensitive, then that can be brought to the Chamber's attention and we will move into private session.

MR. NICE: Your Honour, thank you. Before I move on to the health issue, and going back to Your Honour's earlier question about the introduction of imposed counsel for sexual offence cases, I am very grateful to Ms. Graham for finding the reference that will most help you. It's actually in the New South Wales Law Reform Commission papers in the book of authorities at pages 20 and 21, where they are looking at the then-British experience, or the English experience, and at paragraph 2.26 the commission's report sets out how the England -- or the English -- the United Kingdom Home Office report on the same topic followed two prominent sexual assault cases in which defendants used the opportunity of cross-examination in person to humiliate and intimidate their victims, and it sets out the details of what happened at that paragraph.

JUDGE ROBINSON: Thank you, Mr. Nice.

MR. NICE: On the health issue, I need, I think, only remind the ³²³¹⁷ Court of one fact and take you to short passages in summary from the four latest reports.

The Chamber will recall that in discussions of the time required for preparation of his defence, the accused was always unhappy with the time allowed, reasonable though it undoubtedly was, and required to be allowed until September. In the event, the manifestation of his health problem has brought us to September.

The latest reports with which we need be concerned start with the report of Dr. Tavernier, dated the 24th of July of 2004. On the third page of that report, following a detailed examination and analysis to which I need not refer, he picked up on an earlier suggestion that the accused was not following the drug regime prescribed in his best interests and in order to enable him to be fit for trial with this observation at the end of the paragraph:

"All these observations suggest that the accused is not taking his medication in a strict manner."

Further down that page, the doctor expressed the opinion that based upon the presented clinical condition, the then-lifestyle and poor adherence to proposed therapeutic plan, the accused was not fit, in the opinion of Dr. Tavernier, to represent himself. And he went on to say that he shared the opinion of his colleague, Dr. Dijkman, that the resumption of the trial under the then-conditions would result in a very early -- an early occurrence of very high blood pressure with the inability of the accused to continue to work, which would have a major impact on the trial schedule. ³²³¹⁸ The next report in time comes from the said Dr. Dijkman, is dated the 18th of August, and again on the second page, following careful examination of -- a record of examination of the accused, it says this: "We may conclude that there must be serious doubt over the patient's adherence to this therapy. From the clinical point of view, we have suspected this for some time given the repeated occurrences of sinus tachycardia, which is odd with the continuous and correct taking of a particular drug that he identifies."

But he then goes on, and I think this is the first time this is clear from the reports, to identify something else. He says: "In addition," and he then identifies another drug, "another drug was repeatedly found in the blood, which is odd given the patient's refusals to take benzodiazepines from the United Nations unit's staff." It goes on to suggest that the accused must have obtained and be taking drugs other than those prescribed in some other way. Dr. Dijkman ended this paragraph by saying that, in his opinion, the patient is not fit to defend himself.

"Should the trial be continued in the old way, there will be constant interruptions which will delay the progress of the trial considerably."

Dr. Tavernier's report of the 27th of August, commenting on Dr. Dijkman's report, said at page 2, paragraph 1, subconclusion 2, there is significant doubt about the therapy compliance of the accused, and at the end of that paragraph, dealing with the drug taken that was not being prescribed, said: ³²³¹⁹ "Since this drug is not on his medication list in his medical file, this means that Mr. Milosevic must obtain this drug in another way. This illustrates the unwillingness of Mr. Milosevic to adhere to a therapeutic plan because administration of this kind of drug in a controlled was already suggested but refused."

The doctor then deals with one of the possible complications of detail that we needn't go into.

The last report comes from Dr. Dijkman on the 26th of August, I think, specifically in response to an order of the Trial Chamber, and he sets out in detail - it's a longer report - why it is and the basis upon which he's able to say that there has been a refusal of the accused to comply with the prescribed medical regime and, indeed, why it is clear - I needn't go into the detail of this - that he is taking some other drug. And on page 3, at the end of the large paragraph on page 3 dealing with the other drug that has been taken without prescription and without supervision by the Detention Unit staff, he says this -- well, perhaps one can pick it up two-thirds of the way down the paragraph: "The measurements taken by a colleague," he names the colleague," proves the opposite thus indicating that Mr. Milosevic is providing us with incorrect information about his medication intake, which leads me to doubt also his statements that he is taking the anti-hypertensive medication correctly."

At the end of that paragraph, he says: "The medication is not at all expected to cause a rise in blood pressure. On the contrary. It would be expected indirectly to lower it ^{32320 BLANK PAGE 32321} when this medication has achieved a reduction in stress. This was the reason why I offered it to him in the past. I am at a loss to explain why he has refused it in the past but has now taken it." The drug that was being taken without supervision and prescription would have been of benefit if taken in a controlled way, but apparently was not being so taken. At times -- well, it was not taken in that way. And the overall and unanimous opinion of the experts is that the accused is not fit to conduct the trial himself, that he has not been taking the drugs in the manner prescribed and apparently supervised for no reason that is advanced by the doctors but for reasons that can be all too readily understood by those of us who have seen months of court time wasted; and that in combination with that conduct, he has been obtaining for his own purposes other drugs, no doubt to help himself. This material makes it overwhelmingly clear that the accused will do whatever is necessary to serve his own purposes, in our respectful submission, and that the Court can be quite satisfied that this material, for two reasons, shows that counsel must be imposed; the first being the underlying health condition itself, which will be aggravated to the point of intolerability if he is allowed to continue seeing, preparing witnesses, which is clear on the evidence to be the hard work, but also because the Court might be quite satisfied he has been manipulating this Tribunal.

Your Honour, the only other points I would make, I've been some time --

JUDGE KWON: Mr. Nice, I think I need some clarification on the ³²³²² issue of non-adherence of the accused to the therapeutic plans. It seems to me that both doctors based their conclusion -- their conclusion that he's not fit to represent himself on the very fact that he is not been adhering to the therapeutic plans. Well, then, suppose from now, if he adheres to the therapeutic plan in full, then he will be fit to represent himself. I don't think so. So his non-adherence can be a basis for us to continue while he is sick, which he brought himself, but I don't think it's a sufficient -- can be a sufficient reason to impose a counsel while he's healthy to represent himself.

Can I hear your observation on this?

MR. NICE: Well, several points. The first point is the doctors appear to be of the view that it's his underlying medical condition that makes him unfit, and that, of course, we rely on and that's in itself is sufficient.

To that, the non-adherence is a feature of obstructionism by this accused, to use the words I think used in the Seselj case, that taken together with other aspects of his behaviour and other ways in which it's clear that he's using this Court for purposes that are not properly forensic, show that the civil law's approach to the imposition of counsel is right. You have a man who in one, two, or more ways is acting unwisely, improperly, and for personal reasons outside those of the furtherance of justice, and, says the civil law, you need to protect that man and to stop him doing what he's doing. You need to ensure that his proper defence is advanced. You need to ensure that the administration of justice is not impeded. ³²³²³ And so Your Honour's proposition that merely not to take his prescribed medicines correctly, even to do so with bad intent, is not in itself enough to impose counsel is, if I may respectfully say so, slightly off the point, because imposition of counsel comes in this case and at this stage for a range of reasons of which this is one component part, but it's one component part of a mix of reasons that relate to his conduct and is separate from his underlying ill health which freestanding on its own would justify the imposition of counsel because he's simply not actually physically strong enough and fit enough to prepare and present the case himself.

JUDGE ROBINSON: What are the other reasons? What are the other reasons? You say it's just one component part of a mix of reasons.

MR. NICE: Yes. This accused has shown himself, and we've seen it in the recent speech that he's presented, concerned to take - and we would say to waste - time, valuable, precious time on matters that are not at the heart of this case, indeed completely away from what this case is about. He will continue to do that because he has another objective to serve, both in his -- to some degree in his identification witnesses but certainly in the use he seeks to make of witnesses. And we've seen in the cross-examination exercises how difficult it was for the Court to bring him to matters of relevance. Time after time he would be allowed two hours and he would waste one hour and three-quarters, in our respectful submission, on what was irrelevant, and try hard as His Honour Judge May did to bring him to matters of relevance, it didn't work. Now, the same accused represented by counsel, whether imposed or ³²³²⁴ his own, can be sure to have the correct matters identified and laid before you and the irrelevant omitted. So that's a second way in which it is appropriate to impose counsel.

And a third way, which I have already touched on, is, frankly, etiquette. The time has come when this Court is entitled to be approached on behalf of this accused's defence appropriately, and it should not, in our respectful submission, any longer be tolerating the manner in which this case is being presented.

And can I come back, however, in light of Your Honour's -- His Honour Judge Kwon's question, to what I suspect may be an underlying thought, and I hope Your Honour won't mind if I say temptation, because Your Honour will remember that my first point, which was a general point, was how the reasonable person reacts to the unreasonable and the rational to the irrational by being tempted time and again to expect the best of the other when all the experience is actually to the contrary. And I venture to suggest that Your Honour's question may have allowed within it this thought: Maybe the accused will now buckle down and behave. That would be a perilous approach to take for, in our submission, he has shown himself quite uninterested in bringing this case to a just conclusion, and there is no reason to believe that he will not take whatever course is open to him when it is necessary to have his way. And so in answer to His Honour Judge Robinson's question, there are at least three separate reasons of which non-adherence to the drug regime is a component part which would justify the imposition of counsel. The health condition on its own also justifies it. ³²³²⁵

JUDGE ROBINSON: Thank you.

MR. NICE: Your Honour, I know that time is valuable but this is a very important topic. I have identified in the pleadings, and I don't desire to go through it in detail now, one way in which this accused has shown absolute defiance of this Court. He produced a list of whatever it was, 1.300 witnesses and was required to name all but whatever might be the very small minority to both the Court -- the small minority that will require special protection, to the Court and to the Prosecution. He told you at the last hearing he would give us as many names, basically, as he thought we deserved.

We have drawn to your attention in a couple of pleadings that he has refused to comply with the order although the names were there because they were provided to the Chamber, and it was two days ago, I think, that we got not the majority of the names but -- 600? About. About 900 of them.

JUDGE ROBINSON: 900.

MR. NICE: About 900 in total.

JUDGE ROBINSON: Yes.

MR. NICE: Without apology, without explanation. He was instructed to provide all exhibits. Now, there may be practical problems with exhibits. The first -- that was months ago. The first day we received exhibits, all in B/C/S, was a couple days ago. These -- one can readily understand an instinct to say, oh, let bygones be bygones, let's not look at that; but we have to press the Chamber in making this decision now, realising that if a decision isn't ³²³²⁶ made now it will always be more difficult later, to recognise what is quite apparent from this accused's conduct of this case, namely that he will to the limited -- or to the degree allowed, have it his way, act in defiance of the Court and diminish the standing of this court which has and merits the very substantial of a court, of a lawful court doing its best to deliver justice in a difficult case to this particular accused. Your Honour, I won't say anything more about other matters save just to identify things which I think are on your agenda generally. One is whether the accused should give evidence himself, which of course he will have to do with the solemn declaration, and when. And to draw to your attention that, as I understand it, certainly one of the quotations attributed to a Western leader in the speech of the accused was, as it sounded when I heard it, a complete misquotation, and I will provide you with chapter and verse for correction. And unless I'm in error, unless those informing me are in error, I will be asking the accused personally or through counsel, in due course, to correct an error. There may be other examples of straight misquotations that we've heard in the last day, and they should not be allowed to stand.

JUDGE ROBINSON: If you have that, bring it to the Court's attention, we will bring it to the attention of the accused, and we expect him to take the appropriate action.

Mr. Milosevic, do you have submissions on this matter?

THE ACCUSED: [Interpretation] First of all, there is no need for anyone to make me correct quotations. If it's given wrongly, it's sufficient just to draw my attention to it, and of course I will do that ³²³²⁷ myself. So I am convinced that I did not provide any wrong or misquotations, but if that is the case, I will very easily correct that. That is not a problem.

But as far as the topic is concerned that we're discussing, Mr. Nice has talked here about motives because of which I'm speaking here. There is no mystery there. I have emphasised this on several occasions. I will always speak here any time you make it possible for me because I'm using the opportunity to tell the truth. That is my only motive. I assume that the truth should be also a motive and objective or purpose of any procedure or any debate or any academic discussion, even. Therefore, I don't see why my motive to speak the truth would be in collision with any honourable motive of any side, whatever it is, if it should turn out that that other side wishes to learn the truth and wishes to find out the truth in an as thorough way as possible in the interest of justice.

Mr. Nice speaks about rules. Well, your rules are not such that I have no right to a defence. All international regulations, all treaties and pacts on human rights give me the right to defend myself. In any case, the late Judge May himself, when this was discussed the last time, stressed in particular, and I remember that very well, that my right to defence must not be questioned.

We have an absurd situation here. I'm now talking about the explanations that we have heard from Mr. Nice. I was capable of questioning witnesses of the other side, the hostile side, which it, in the best desire to bring in as many as possible strong witnesses against ³²³²⁸ me, did so. So I was able to question witnesses of the other side. And now suddenly I'm not able to question my own witnesses. And there is this absurd thing here that is cited by Mr. Nice --

JUDGE ROBINSON: Please continue. We adjourn at a quarter past, 15 minutes after.

THE ACCUSED: [Interpretation] Very well. Speaks about the danger - and I don't know how this can have any logic at all - of the danger of mistreating or abusing witnesses if I question them. I did not mistreat any witnesses of theirs. I did not mistreat any witness from the other side. And how can then it be conceivable at all that there be a danger now that I will mistreat witnesses that I have called myself? For goodness sake, is there any logic in that even for any one to consider of any age? It's absurd that I would be in the situation of mistreating my own witnesses.

Mr. Nice said - I even wrote it down - about the danger of preparing my own witnesses. I understand if this were a danger in order to knock down this construct that they have built, but that is precisely what I want to do. It is my right to do so. How can anyone who is in favour of law and justice against me preparing my own witnesses? I -- as far as my witnesses are concerned, in view of the short time that you have given me and in view of the fact that I will be working three days a week, will be able to spend one day at the most with an individual witness. And you know very well that the other side prepared their witnesses for a week or two or more than that with their entire machinery, and this was even in the case of witnesses that they chose not ³²³²⁹ to call to testify. I will have to perhaps even prepare two witnesses in one day. Therefore, the rational use of time is a relative question, whether this is the most rational thing or not. This is something that can be put as a question. But I will be using my time much more rationally than the other side which used much more time in the preparation of their witnesses. This is something that is obvious. Therefore, I think that the whole idea presented by Mr. Nice is to actually shut me up in the process of stating the truth. That's what it's about. He says that I inflicted my health problem on myself. I have suffered from hypertension for ten years now.

Second, it must be clear to everyone that I have been given hundreds of thousands of pages of documents here, different papers, as part of what the other side was doing and not given an adequate amount of time to read them all. Of course this calls for additional efforts. Of course this creates fatigue, and of course this then reflects on higher blood pressure as a result of the fatigue, and this applies in any kind of work; less sleep, a large number of hours spent reading, reviewing, preparing. So it is just not true. Quite to the contrary. Their dynamics and the lack of time is something that is responsible for that. The other claim is that I am not responsible in taking my medication. I will not go into the methods, how this is measured and calculated, but you probably don't know the practice in your own Detention Unit. I take my medication in the presence of guards. I'm given them. I take them in the presence of the guard, and the guard writes down in the book the exact time when I ingested those medicines. Therefore, this ³²³³⁰ assumption can be an assumption. Anyone can assume whatever they want, but this assumption is groundless.

It is true that I had a discussion - this was over a year ago - with the doctors about certain medicines which had some bi-effects which actually caused fatigue, drowsiness, and which prevented me from working. But this medication that I'm talking, I didn't take this medicine because it didn't agree with me and put it to the side. I told the doctor, "I cannot take this medicine because it interferes with my normal functioning." I spoke with my own doctor by telephone, and we coordinated the -- a different regime of medication, and this was approved by this doctor here, and it was suggested by the doctor who has been treating me for more than ten years now. And I have told you about the way that I take these medicines, about the procedure under which I take the medication.

I believe that other factors are at issue here. We're talking about fatigue, that factor, because if I am taking the same medicines the whole time and then over the past month or so my blood pressure has normalised, that is because I have had a rest. I gave precedence to a rest -- a rest for a period when I saw fit to do that in order to stabilise my blood pressure so that I could be physically able to function. I did that at the expense of what I needed to do at that time, but I assume that it was within human bounds and that it's a minimal rest that I needed to give myself. And this was a crucial factor in contributing to me normalising my blood pressure. So if we are taking care to have a regular, normal pace of ³²³³¹ affairs, something that can be maintained, then absolutely there can be no question of it not being possible for me to do what I need to do. It would be very unfair, in the same health conditions, for you to assess that I could go through these past two years of cross-examination of witnesses of the other side and now that it's my time to examine my own witnesses, the other side suddenly panics that I'm not preparing witnesses, that I should not be working with them, that I should not be questioning them. Actually, this seems a panic caused by the lack of desire for the truth to be heard, and this is something that is evident to anybody who is watching.

There are no other reasons for that other than those which were in force at the time when the late Judge May was the Presiding Judge, who said at the time that my right to defend myself cannot be infringed upon. Therefore, I really cannot accept at all that you do not give me the right and the opportunity to voice the truth, and I find it unacceptable to be prevented from having witnesses come, witnesses that I have called, and to have them testify about what they are supposed to testify about, to testify for reasons that they are called to testify for. As far as I know, this number of 900 witnesses that Mr. Nice talked about, as far as I know, this list was given over a month ago containing over 1.100 names. So this is the first time that I'm hearing about it. As far as what was said when this was given, I will accept that. But as far as I know, to my best recollection, you were provided with this list certainly over a month ago.

JUDGE ROBINSON: Mr. Milosevic, we are going to take a break now ³²³³² for 20 minutes.

THE ACCUSED: [Interpretation] I would just like to clarify one thing before we take this break. Each person can fall ill, especially someone who suffers from chronic cardiovascular problems. I'm hearing for the first time that someone, because they can possibly fall ill, should be denied their right to defence, which is guaranteed by all conventions on human rights, rather than if that person is ill not holding a sitting on that day, one day, two days, or something like that for as long as it's needed. But I've never heard that someone, because they are ill and they are in that situation because of the other side that is asking that, that they are then denied the right to their defence for these reasons. This has nothing to do with any sense of logic or morale or law, and it is simply out of the question.

JUDGE ROBINSON: We will take the adjournment now for 20 minutes.

--- Recess taken at 12.19 p.m.

--- On resuming at 12.45 p.m.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] I would just like to add I also think that the explanation of Mr. Nice is quite inappropriate regarding the recognition of the Tribunal. I consider the Tribunal to be illegal. This is not in dispute as far as I'm concerned. But I did state political and legal reasons for my views. I even quoted the book of the former president of the International Court of Justice who believes the two resolutions under which this court was founded are controversial from the point of view of the United Nations. I do have the right to state ³²³³³ political and legal reasons in my assessment of whether this Tribunal is legal or not, especially when I pointed out to the way in which we can get the question of -- on its legality, through the institutions which are authorised within the UN system to decide on that. So it's not logical that I'm insulting anyone in this way, and I don't believe that I even, as far as one witness is concerned, whether there were false witnesses and murderers, I don't believe that I insulted any one of those witnesses during my questioning. But I am stating political and legal arguments which I believe are valid in relation to the illegality of this Tribunal, and this is my right and I do not have any intention of being deprived of that right just because Mr. Nice or anyone else does not like that. Therefore, I request to be allowed that witnesses come regularly, that I am allowed to question them, and that I have the rights in relation to that, the same rights that the other side had when they questioned their witnesses. I ask for no more or no less than that. I actually have less because my conditions for preparation are not as extensive, but that is my problem.

In any event, I request to be allowed that witnesses be permitted to come. They are coming here at my invitation and not at the invitation of somebody that they do not know at all.

And I must say that I do not believe that there is any lawyer who holds to the legal codes, who sticks to essential moral norms who would agree to be imposed as an attorney to somebody who does not accept that. I don't believe that there is anyone like that, but probably everything is possible. ³²³³⁴ So I request to be permitted to be able to question my witnesses. And Mr. Nice, who obviously wished that he himself questions my witnesses personally or through an intermediary, has the same right to cross-examination that I had when he was bringing his witnesses. I did not interfere in his choice of witnesses.

JUDGE KWON: If I can say this to Mr. Milosevic once again, I remember I once mentioned this earlier: Mr. Milosevic, you are saying that you cannot appoint a counsel because you don't recognise this Tribunal. However, in my opinion, recognition of the Tribunal and having the assistance of counsel are two different matters. In fact, your actions have reflected this already. You nominated, by a document signed by yourself, the three legal associates from Belgrade, and during the presentation of the Prosecution's case they have been assisting you, inter alia, by gathering the information and the evidence and preparing the questions you have put to the witness. In essence, I think they have been your de facto Defence counsels without being physically present in the courtroom.

It is with this in mind and given that the presentation of the Defence case requires a higher level of physical exertion than what may be required during the Prosecution's case the Trial Chamber discusses this current issue of imposing or assigning a counsel to assist you. We are discussing this issue to alleviate the burden of yours, not to silence you. If you truly wish to remain loyal to your assertion that you endeavour to present your case for the sake of the truth, I think then it's only rational and in the best interest that you choose to have the ^{32335 BLANK PAGE 32336} assistance of counsel.

I urge you to bear these facts in mind. And if I add to this, we have a clear doctor's message which says that you are not fit to represent yourself. We have to do something in one way or another. But we leave it, as was suggested, we leave it to you to avoid such imposition of counsel at any time by inviting your associates to come into the courtroom to assist you. And if you so wish, there is also room for you for further flexibility by allowing you the opportunity to supplement the examination and re-examination of witnesses by the counsel whom you appoint.

THE ACCUSED: [Interpretation] Mr. Kwon, that is the difference. That is the point. I do not wish to be in a situation to cross-examine my own witnesses. I want to be able to conduct the examination-in-chief of my own witnesses, and that is my right established by you according to your rules, that I do have the right to defend myself. This is a major difference.

Therefore, I request that you permit me to call and examine my own witnesses. This is an elementary right of mine.

JUDGE ROBINSON: Mr. Milosevic, in your earlier presentation before the break, you made reference to Judge May's support of your right to defend yourself. I also supported it, as did Judge Kwon, but there is a decision of the Trial Chamber on that issue, and it clearly states that the Trial Chamber supported that right but that the right was not without qualification. So I ask you to bear that in mind in your repeated references to the earlier ruling of the Trial Chamber on this issue. If you are finished, then Mr. Kay. ³²³³⁷

MR. KAY: Thank you, Your Honours. In our submission, this issue entirely arises as a result of the condition of the health of the accused. We do point out to the Court that rather contrary to some of the submissions from the Prosecution today, that in their submissions of the 26th of July, 2004, at paragraph 29, they conceded that the conduct of the accused was stopping just short of obstructionism. That was not in fact an allegation that was in their mind at that time rather to the extent that it has been presented today.

We all know the issue of the accused concerning the legitimacy of the Tribunal, and the proceedings over the last three years has been conducted with that in mind, and in our submission the Trial Chamber has respected his arguments on the matter whilst ruling against it. There's been no attempt by the Trial Chamber to silence the accused on such an issue. They, in fact, have respected his opinions whilst going about their own business in dealing with the conduct of this case. And it's not meant to be insulting to the Court in any way. There is a freedom of expression available to him. He is not counsel. He has chosen to defend his case himself whilst at all times taking pains to ensure that why he is doing what he is doing is understood within a general context. At the end of the day, the powers and decision-making, we all recognise, lie with this Court and the Judges, and in our submission, the accused isn't being disrespectful in relation to that.

Judge Bonomy.

JUDGE BONOMY: Mr. Kay, I think there are certain limits to how far certain references can be tolerated, and as you must have observed ³²³³⁸ yesterday, I think on two occasions Mr. Milosevic referred to this Trial Chamber as part of a joint criminal enterprise and acting against him. Now that is offensive. And my only reason for not intervening on either occasion was the circumstances that he was making an opening statement, which in my opinion he's entitled to make without interruption, but that was the only reason, I assure you, for not interrupting what I thought was a flagrant insult to the Court.

MR. KAY: It was an opening statement. When he gets down to the matter of dealing with business in terms of witnesses, one will have seen from the record that in fact that's not his approach to the evidence. And he's also been the subject of many barbs and criticisms from the other side. We have heard it today as well. We have at times as well. And this is perhaps when the parties on both sides perhaps get too over-enthused by the legitimacy of their provisions and positions. In our submission, there is no disrespect here intended by the accused. In fact, within the proceedings he has not been obstructive. He's been respectful to the Court subject to certain occasions that Your Honour has pointed out, and his clear intent has been on that line. To start saying whatever faults there may be, that that's a ground for taking away his right to represent himself, in our submission is Draconian and doesn't really cause us to be here today discussing this issue. It's probably a feature of the Prosecution's argument that we can put on one side.

JUDGE BONOMY: I think I also ought to make it clear to you, Mr. Kay, that of course that sort of thing is something that in my opinion ³²³³⁹ the Court ought to deal with as it arises, and I understand what you're saying, that it may well not be an issue in relation to the assignment of counsel. It may in fact be a quite separate matter, and indeed that may be said of the other references that Mr. Nice made to features of the conduct of the accused himself.

The point, however, needs to be made that these things do not go unnoticed. What action is taken is quite another matter.

MR. KAY: Yes, and I'm grateful for Your Honour's comments on that, and we of course are all aware of that, that that's the position of the Trial Chamber.

In relation to issues such as the naming of the witnesses, that appears to have been, which the Trial Chamber I believe know from documents filed, a misunderstanding in communication by those acting on his behalf. The amici curiae on the 9th of August filed a list of numbers of witnesses ex parte and confidential. We've been endeavouring to help as much as possible to try to get a smooth introduction to the Defence evidence in this case, and I believe it was misunderstood by another party about the need for the issuing of the names. When that mistake was recognised, the legal officer for the Tribunal, Ms. Anoya, filed on the 25th of August, I believe, a document that had been constructed with numbers and names together which came from the associates. The Prosecution have known this as well, actually, and to make it as a point now, in our submission that doesn't really give merit to their arguments. They've known what the difficulty was behind that particular matter. Let's get to the real issue, which concerns the health of the ³²³⁴⁰ accused. The amici curiae filed on the 13th of August our submissions in relation to this matter, and we have always argued in support of the right of the accused to represent himself. However, there has been a change in the information before the Trial Chamber and that arises from the medical reports.

In many respects, this is an issue that perhaps can be dealt with in two stages. First of all, do the -- do the Trial Chamber accept from the evidence before it that the accused is unfit fully to represent himself? And there needs to be a second stage, once that finding has been made, that receives the arguments of the parties as to where to go next. The amici curiae have always sought to fulfil their role which requires them to make points in the interest of the accused on matters of law, objections to evidence, and matters of procedure, and that's been our position to date, and we've endeavoured to provide full arguments for his side on the matter, there being no written filings by the accused himself, just the oral argument that the Tribunal has heard today and on other occasions.

In many respects, I've then got to go to the next stage on the basis of what if there is a finding in relation to his representation? There's no point me just standing here and saying, well, that's as far as the matter goes, because it may be that the Trial Chamber makes that finding and then deals with the secondary stage: What happens next. In our submission, there's nothing in the Rules that would prevent the accused from still taking part in the presentation of his defence, and on those occasions where there may be failings in the trial that require ³²³⁴¹ an alternative course of conduct or indeed if the accused to preserve his energy and health and in the delegation of tasks brought about by representing himself, that in those circumstances he should be entitled to use the services of his associates if they wish to take up that position on his behalf or another counsel appointed by Mr. Milosevic or his associates to deal with such matters when they arise. Within the funding of this Tribunal, there are grounds, and indeed within the Rules, that no obstruction to funding being made available for counsel appointed by him or his associates to represent him in this courtroom if the Court went down that route of what we could call a hybrid position of representation. Maybe the phrase in that circumstance of "imposing counsel" is inappropriate. It's assisting Mr. Milosevic in his presentation of the Defence case.

JUDGE ROBINSON: You will have noticed, Mr. Kay, that we haven't used the term "imposing." We have been speaking of assigning in our orders.

MR. KAY: Yes, the amici have noticed that throughout and felt that that was an indication here that the Tribunal were not, in the circumstances, taking away the right of his representation, but as Judge Kwon's questioning earlier this morning posited that there could be a dual function within Mr. Milosevic's team or group for the presentation of his case. And that's a course that we urge be adopted by him as well as by the Trial Chamber. And all lawyers involved in big litigation - and this litigation is as big as it gets - have to delegate roles and tasks, and the leaders of teams involved in this kind of litigation, as we've seen in ³²³⁴² the Prosecution presentation, may I say in a very limited form in terms of the amici curiae, but in all other cases, a delegation of tasks for interviewing witnesses, thinking of case strategies, as well as the presentation of evidence.

We urge that that not be taken away from Mr. Milosevic despite the medical reports, but that it gives him a free hand, if you like, to make his own personal decisions as to what is in his best interest. And it may be, if we're in this stage, too, of his right of unfettered self-representation being curtailed because of the position of the trial at this date, it may be that having passed the one hurdle, that he, aware of the fact that if there is a breakdown in the course of the conduct of the case caused because he has worked himself too hard, then someone else on his behalf within his team, or appointed by him if it's outside his team, would be able to present evidence on his behalf. And then he has to judge how much he does and either delegate more, regulate the amount of work that he does; but to ensure that those aspects of the case that he needs to deal with he can fulfil that role effectively. So if the Trial Chamber does move from the position of unfettered self-representation, we urge him and the Trial Chamber to view that as really the first stop on the issue. The highest priority is that it's someone within his team who is able to share some of the burden within him. And if his other two associates, or three associates now who have been dealing with the preparation of the case are unable to take that on themselves because they're involved in other aspects, that they appoint someone that they want to deal with the supplemental advocacy on those ³²³⁴³ occasions when Mr. Milosevic can't do it or has felt able to relieve some of the burden on himself.

Within the Rules of this Tribunal, that can be funded. There is no reason why there should be an obstruction in the provision of resources that way. And every indication would be so far in the presentation of this trial that the Registry in this building would be supportive of that. But we do urge that that is very much the first stop, to give him the choice once a decision is made, when it's known how this matter is to be dealt with, before the Trial Chamber moves into any other position. Unless I can deal with other issues specifically on behalf of the amici, those are our submissions at this stage.

JUDGE ROBINSON: Thank you very much, Mr. Kay. Mr. Nice.

MR. NICE: Can I reply briefly? On the accused's points, he speaks of our speaking of danger in preparing the witnesses. The danger to which I initially referred was the danger to his health. But there is, in fact, an additional danger. It's the danger of a personal party to litigation being too close to the litigation to prepare witnesses dispassionately, and in this case, of course, some witnesses might actually prefer the practice that exists in many jurisdictions whereby witnesses are not prepared by the litigant himself and have to be prepared by the independent solicitor or other lawyer.

In speaking of his fatigue, the accused did not suggest that he has the physical capacity to both prepare and present witnesses at the ³²³⁴⁴ rate that would be required to guarantee a three-day sitting week, which is the minimum, of course, that the Chamber might regard as acceptable. And indeed, he didn't challenge the medical finding that he is not fit to prepare and present his case wholly himself.

I observe from an interview we've received notice of recently, when the accused speaks of, as it were, his disinclination to have a lawyer act for him, that one of his advisors, in a public interview in a newspaper - I'm afraid it's in German; we'll make it available - Mr. Ognjanovic, has described his role as being only marginally distinct from that of Defence counsel. The next stage is one that, at a minimum, should now be required of him via this accused.

It's said that our initial submissions spoke of behaviour being just short of obstructionist. True. We also referred to the etiquette matter. We have referred regularly and extensively to the wasting of time, and that filing came before we had the recent and very much stronger evidence going to show that what was happening with the medical regime was obstructionist.

JUDGE ROBINSON: You mean before the second report from Dr. Dijkman?

MR. NICE: Yes. That's the earliest filing that came right in July. So insofar as there's been a strengthening of our position, it reflects that.

As for the suggestion that the observations, the recurring observations of this accused are not present to be insulting, that's not a proposition we can accept. Apart from the matters to which His Honour ³²³⁴⁵ Judge Bonomy referred, it is the needless repetition of the points, both as against the Judges and as against the Prosecutor and those prosecuting, that we rely on to reveal the true intention of this accused, which, in our respectful submission, is claimly aimed at showing public respect and being allowed to show public respect to the audience at which his performance is principally directed.

On the topic of the production of statements -- sorry, names of witnesses and exhibits, the Chamber will have the history before it. It was on the 18th of June that the order was made -- or the 17th of June, set in writing on the 18th of June. The Prosecution sought relief on the 29th of June in relation to this and raised the question of non-compliance on the 5th of July, and it was at that hearing that the accused said that he was only going give us so much and he was acting in the identical manner as the other party.

Compliance with that order was made on the 6th of July, and on the 16th of July, the amici requested, as for the accused, 14 days for further compliance, so that would have only taken them until the end of July. The order of the Trial Chamber came on the 28th of July, and whatever misunderstanding there may have been, and I accept that Ms. Anoya spoke of a misunderstanding to the case manager, Ms. Dicklich, on the 25th of August, the fact of the matter is, that despite that history, we got the names on the 20 -- well, two days ago, three days ago, and we don't adjust our position in respect to that at all.

Funding is a separate issue and it's not a matter, I think, upon which we should dwell, save to say this: If the Chamber decided that its ³²³⁴⁶ future conduct of the case were to be conditional on the accused appearing through counsel of his own nomination as part of its overall plan for the future conduct of the case, that decision should come first and the question of funding should come second, it needing to be established, I think, by the Registry, what his financial position is, and that's not a matter for us to trouble you with at this stage. The distinction between imposition and assignment is one we've recognised from the beginning and throughout our submissions, and Mr. Kay's -- my learned friend Mr. Kay's proposal, as we ventured to suggest at the start of our argument this morning, allows for control of the proceedings to be in the hands of the accused, and one has only to look at what happened in Seselj where counsel was made available to him on the basis that counsel would not be removable by him, and the first counsel was. It's all too possible, if you have that kind of relationship, for something to go wrong, which is why we repeat our request to the Chamber to impose counsel and then to allow the accused to make the sensible decision. Imposed counsel might have no function more pleasing than to be on stand-by throughout the rest of the case. He might serve as an alternate Judge serves in courts that appoint such Judges. But his presence or her presence would guarantee two things, first that the progress of the Chamber of the trial would not be further thwarted; and second, in fact, that the accused through his nominated counsel would comply with what was required of him, for imposed counsel would remind him, standing ever so still and ever so silently in the Court -- or sitting ever so still and ever so silently in the Court, would remind him ³²³⁴⁷ that if he returned to conduct that was obstructive in any way by preparation or otherwise, the conduct of the case would be handed over to an independent and objective different counsel.

JUDGE ROBINSON: Thank you.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] This is improper. I would use an even graver word, but there is no need for that. It is highly improper. This proposal made by Mr. Nice is that you should threaten me that I should not fall ill, because in case I fall ill, you will not act as you would act in any other court of law on this planet. You will not say on such and such a day we will not work, but then there will be this threat hanging over me that then some other person would take over my rights to defend myself. That is senseless.

Please, let's be clear on this. Mr. Nice says that I did not challenge the fact that I was ill. Of course I did not challenge it. But I was ill during that case of theirs too. They had 300 days. Three hundred active days and I don't know how many witnesses. Please. And indeed if anybody is watching this, then it's quite clear. At that time, the question of my capabilities was not raised in terms of exercising my rights, the ones that you gave me and that belong to me according to all international conventions. But now when my time has come, all of a sudden the question of my ability to defend myself has been raised. You do not take away somebody's right to self-defence if he gets sick. Then you don't work and that's it. ³²³⁴⁸ Let's get another thing clear too. The right to defend myself is a question of principle. I do not accept any decrease of that right or any renouncing of that right altogether. So I insist that you make it possible for me to question my own witnesses, and I am categorical on that point.

JUDGE ROBINSON: Yes. We have heard your submissions.

[Trial Chamber confers]

JUDGE ROBINSON: We'll take a ten-minute adjournment to consider this matter.

--- Break taken at 1.26 p.m.

--- On resuming at 1.45 p.m.

JUDGE ROBINSON: In the result, the Chamber was not able to arrive at a decision on this matter in the time that we had set ourselves for the adjournment, but in the event that the Chamber should decide to assign counsel, the Chamber would wish the parties to be prepared tomorrow morning at 9.00 to advance submissions on the question of how such assignment should be made, the manner in which such assignment should be made, that is the modalities that would govern such an assignment. Is that sufficiently clear?

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic, yes.

THE ACCUSED: [Interpretation] Please bear in mind the following: For three years, the same doctors have considered me fit from the point of view of health to function, and you yourselves have been able to see that. Even Mr. Nice, in support of his motion that I be given as little time as ³²³⁴⁹ possible, put forward the argument that I have been functioning very efficiently. So for three years the same doctors have considered me fit to function. Then an independent doctor turns up from Belgium, the country which is the seat of the NATO pact, and he says I'm unfit and then the doctors here agree with him.

Allow me to bring into question this kind of deduction of medical evidence. Please consider my motion and let the experts evaluate the situation, but I ask for an expert from Russia, from Serbia, from Greece, and then you can add two of your own, if you like, whom you will appoint, to see what this is about. Things are being mystified here when in fact they are very simple.

I see this as a manipulation aimed at depriving me of my right to speak here and to speak the truth. That is the essence of it all. Mr. Nice says in support of his argument that a lawyer should be imposed on me, counsel should be imposed on me, that I am too involved and am unable to be dispassionate. However, I feel that the other side is too dispassionate when it comes to the truth. I cannot, of course, interfere in how the other side do their job, but they cannot interfere in the way I exercise my rights. That too is a question of principle. Therefore I wish to reiterate: My right to defend myself is something that I will neither accept having diminished nor will I ever waive it. Please bear that in mind. And you can reach your own decisions, but I receive the medicaments given to me by your people, your employees. What is happening here, I don't know, but I can bring the whole floor of the Detention Unit here to testify to what happened when ^{32350 BLANK PAGE 32351} the food I had was exchanged with the food of the person across the passageway, and there was a big to-do about setting things right, although the food apparently was the same. It appeared to be the same. And I did not raise the issue. I don't know what was going on. But please be kind enough to bear in mind that when, for three years, they have been saying one thing and now suddenly they turn around and say something else, I am right in having suspicions. My suspicions may or may not be justified, but they are well grounded.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, on the submission from the accused that he be allowed to bring an expert on the question of his health, do you have any --

MR. NICE: First of all -- first of all, just investigating whether this whole and very late submission by him was the subject of an earlier order of yours that has not been reflected or respected by him, and I'm grateful to Ms. Graham again for having this point in mind because it had eluded me.

Would Your Honour just give me one minute.

[Prosecution counsel confer]

MR. NICE: Your Honour, what I'm concerned about is whether, in fact, there's an order that quite expressly raises these issues for the accused to deal with, and he, it may be thought, declined to deal with them until right at the last minute, maybe when he sees, in the vernacular, which way the wind is blowing. But even if there is no express order in respect of which he is in non-compliance, his approach to ³²³⁵² raising this issue, really, at this stage when he's seen the reports and he had the earlier opportunity to raise the point is not insignificant. Let me see if I can find the order. Apparently not. The amici might be able to assist with the relevant order that we have in mind, and I'm sorry, I've gone through them all recently, chronologically, but I can't find it.

As to the substance of the matter that he raises, no, it's far too late. This issue of his health and of his possible, probable, or certain manipulation of his medical regime has been before him and his associates, who are marginally different from lawyers appearing for him, as one of them has said, for months. They know. The accused is a highly intelligent man who, it may be thought, knows how to play the Court when he has to. They know that that's an issue that is going to come up for consideration and that you need to prepare to deal with it. This allegation about the Belgian NATO-country doctor is absurd and the Chamber should be content with the evidence that it has, the Chamber having been always extremely careful to check medical information against second opinion when it's judged it necessary.

The order that we had in mind is the order dated the 6th of August where the accused and the amici were ordered to file submissions within two weeks on the role that counsel assigned -- I'll check. It's a public order. On the role that counsel --

JUDGE ROBINSON: We only have four more minutes before we have to vacate the court.

MR. NICE: Okay. Ensuring fair representation of the Defence case ³²³⁵³ in the absence of instructions or cooperation with the counsel, and the role which the amici curiae might play. And Your Honour, that order, even if it didn't specifically seek any contrary evidence on medical issues, to any intelligent person let alone to a lawyer appearing for this accused would have raised the need to prepare himself against the eventuality he now concerns himself with.

JUDGE ROBINSON: All right. Mr. Kay.

MR. KAY: Very briefly. There was no order requiring him to posit any alternative medical report the Trial Chamber in our researches into the matter. It has been raised by the accused at a late stage but it is an important matter and the Trial Chamber might like to consider that when dealing with this issue and give the accused, say, seven days in which to respond to the matter.

JUDGE ROBINSON: We're going to adjourn and resume at 9.00. Mr. Milosevic, can you say very quickly, why is this matter being raised so late by you?

THE ACCUSED: [Interpretation] Because it seems to me, Mr. Robinson, that there is a manipulation going on here, because if for three years --

JUDGE ROBINSON: I'm stopping you because the medical reports have been transmitted to you. So you would have had time to consider the matter, and instead you're raising it at the very last minute. It's important that you offer an explanation for the lateness if the request is to be considered.

THE ACCUSED: [Interpretation] Because, Mr. Robinson, until today ³²³⁵⁴ when I heard all these arguments which I feel to be highly illogical and tendentious, it never crossed my mind. I'm probably not as intelligent as Mr. Nice thinks I am. It never crossed my mind that it might be at all possible for counsel to be imposed on me. It didn't even cross my mind. I had in mind a clear-cut position that this was my right which would not be denied me. However, now that I have heard all this, examples of how people are treated who are accused of sexual crimes, which have nothing to do with which we are speaking about here, when I see the arguments constructed by the other side in order to have this right denied to me at any cost, then of course I am beginning to think that there might be some sort of manipulation involved here. I think it's quite logical and normal. It never even crossed my mind that this kind of situation might arise, that you might impose counsel on me. That is out of the question, and I will not accept it.

JUDGE ROBINSON: Mr. Kay, your submission, as I understand it, is that the accused might be allowed a week in which to get this medical evidence.

MR. KAY: Yes. I don't think he's been advised on this issue by his associates, from the information I have, the argument just put by the accused to the Tribunal concerning it never crossing his mind that his right of self-representation may be taken away is probably right. And it may be well be that this issue has not been given the attention that it ought to have been by those advising him.

JUDGE ROBINSON: Thank you. We will adjourn, and we will address these matters tomorrow morning at 9.00. ³²³⁵⁵

--- Whereupon the hearing adjourned at 2.00 p.m., to be reconvened on Thursday, the 2nd day of

September, 2004, at 9.00 a.m.