International Tribunal or Star Chamber?
The ICTY’s decision to impose counsel on Slobodan Milosevic
British Helsinki Human Rights Group - 13 September 2004
On 10th September 2004, the International Criminal Tribunal for the former
Yugoslavia imposed defence counsel on its most famous defendant, Slobodan
Milosevic. This decision overturned previous rulings: the Prosecution had tried,
at the beginning of the trial, to force a lawyer on Milosevic, and the judges
had addressed the issue several times during the hearings.
On 3rd July 2001, the very first day of the trial, the presiding judge, the late
Sir Richard May, said, “Mr. Milosevic, I see that you’re not represented by
counsel today. We understand that this is of your own choice. You do have the
right, of course, to defend yourself.”[1]
On 30th August, Judge May again said, “The accused is entitled to represent
himself.”[2] The judge announced that amici curiae would be appointed in order
to ensure that the trial was fair. May emphasised that the role of the amici
would not be to represent the accused.
Despite these clear statements, the Prosecution again argued that counsel should
be imposed. Although Judge May had already ruled on this, Judge Patrick Robinson
intervened and made the following statement:
“Mr. Ryneveld, I have heard your submission. However, I do not consider it
appropriate for the Chamber to impose counsel upon the accused. We have to act
in accordance with the Statute and our Rules which, in any event, reflect the
position under customary international law, which is that the accused has a
right to counsel, but he also has a right not to have counsel. He has a right to
defend himself, and it is quite clear that he has chosen to defend himself. He
has made that abundantly clear. The strategy that the Chamber has employed of
appointing an amicus curiae will take care of the problems that you have
outlined, but I stress that it would be wrong for the Chamber to impose counsel
on the accused, because that would be in breach of the position under customary
international law.”[3]
(Judge Robinson has since become the presiding judge, following the death of
Judge May.) After Robinson had made his intervention, May returned to the
subject a third time, saying “Let me add this, Mr Ryneveld: Yes, that is the
view of the Trial Chamber, that it would not be practical to impose counsel on
an accused who wishes to defend himself.”[4]
As if this were all not enough, Judge May returned to the subject again on 11th
December. “Mr. Milosevic,” he said, “there’s one matter we want to raise with
you. It’s this: You haven’t appointed counsel to defend you. As you know, it’s
your right to defend yourself if you wish, although you may wish to reconsider
that in the light of the complexity and seriousness of these charges. But that’s
a matter for you.”[5]
The reason why the judges kept to this position is indeed that the right of a
accused person to defend himself is indeed enshrined in the statute of the
International Criminal Tribunal. Article 21.4.d states, “The accused shall be
entitled … to defend himself in person.” No qualification or exceptions are laid
out here. Although the same article also says that the accused is entitled “to
have legal assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case if he does not
have sufficient means to pay for it,” it is quite clear that this article does
not mean the court has right to impose counsel, but instead that the accused has
the right to a lawyer if he needs one. This interpretation is itself used by the
ICTY’s own “Directive on the Assignment of Defence Counsel,” dated 28th July
2004, which reaffirms the right of an accused to defend himself (Article 5).
This Directive makes it clear that the assignment of counsel is a right enjoyed
by the accused, not a right of the court to assign one if the accused wishes to
defend himself.
The right to defend oneself is enshrined in other documents too. Using the very
words which have since been integrated into the ICTY’s own statute, Article
6.3.c of the European Convention on Human Rights states: “Everyone charged with
a criminal offence has the following minimum rights: … to defend himself in
person.” As with the ICTY statute, no exceptions or derogations from this are
provided for. Perhaps the ICTY, being a UN body, does not think it is bound by
the European Convention even though it has direct legal force in many European
states. But even the United Nations’ own documents also provide for this right.
Article 14.3.d. of the International Covenant on Civil and Political Rights also
uses the same language: “In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum guarantees, in full
equality: … to defend himself in person”. No exceptions or derogations are
provided: indeed the right to defend oneself in person is a “minimum guarantee”.
It is a core right.
In spite of this, on 8th November 2002, the Prosecution again applied for
defence counsel to be imposed. It argued that the defendant should have counsel
imposed for health reasons. Again, the Trial Chamber rejected this, in an oral
ruling on 18th December 2002. On 4th April 2003, the Trial Chamber issued a long
document laying out its reasons for refusing to impose counsel.[6] It reviewed
the ICTY’s own statute and concluded rapidly that “A plain reading of this
provision [Article 21.4.d] indicates that there is a right to defend oneself in
person and the Trial Chamber is unable to accept the Prosecution’s proposition
that it would allow for the assignment of defence counsel for the Accused
against his wishes in the present circumstances.”
The Trial Chamber then launched into a long discussion of the relevant law,
drawing on cases from around the world. It argued that the imposition of counsel
was a feature only of inquisitorial systems, not of the adversarial systems used
by the ICTY. In support of its view that the imposition of counsel was
inadmissible, the Trial Chamber quoted the US Supreme Court case Faretta v.
California, 422 U.S. 806 (1975), which states, “We confront here a nearly
universal conviction, on the part of our people as well as our courts, that
forcing a lawyer upon an unwilling defendant is contrary to his basic right to
defend himself if he truly wants to do so.” The Supreme Court held that
imposition of counsel would violate the spirit of the 6th amendment. The ICTY
Trial Chamber commented:
“It [i.e. the Supreme Court] pointed out that only the sixteenth century Star
Chamber in the long history of English legal history adopted a practice of
forcing counsel upon an unwilling defendant in criminal proceedings, and
recounted Stephen’s comment on this procedure: ‘There is something specially
repugnant to justice in using rules of practice in such a manner as to debar a
prisoner from defending himself, especially when the professed object of the
rules so used is to provide for his defence.’ ”
The ICTY Trial Chamber went on, “There is a further practical reason for the
right to self-representation in common law. While it may be the case that in
civil law systems it is appropriate to appoint defence counsel for an accused
who wishes to represent himself, in such systems the court is fulfilling a more
investigative role in an attempt to establish the truth. In the adversarial
systems, it is the responsibility of the parties to put forward the case and not
for the court, whose function it is to judge. Therefore, in an adversarial
system, the imposition of defence counsel on an unwilling accused would
effectively deprive that accused of the possibility of putting forward a defence.”
[emphasis added]. It also concluded that, “The obligation of ‘putting a case,’
i.e. putting forward the defence version of events if it differs from that put
forward by a witness, is reflected in Rule 90 (H) of the Rules. As the Amici
Curiae note, such an obligation cannot be fulfilled by counsel who is not
instructed by an accused as to the defence to put forward.”
The Trial Chamber then reviewed some of the other international documents which
uphold the right of a defendant to defend himself, including the International
Covenant on Civil and Political Rights, mentioned above, the American Convention
on Human Rights (Article 8.2.d), the European Convention on Human Rights
(mentioned aboive), and the Statute of the new International Criminal Court.
(Article 67.1.d) In this statute, the right to defend oneself is limited only
when the defendant behaves in a disruptive manner in the court room. (The Rwanda
tribunal, indeed, has imposed counsel on a defendant for this very reason.) The
Trial Chamber discussed the imposition of counsel in a case in Germany, a case
which went to the European Court of Human Rights,[7] but rightly found this case
to be irrelevant to the Milosevic case because the defendant was not defending
himself. Discussing other cases too, the Trial Chamber concluded that the only
relevant case did not allow for exceptions to the general right to defend
oneself (paragraph 36). “The international and regional conventions (in similar
language) plainly articulate a right to defend oneself in person … In the Trial
Chamber’s view, it is appropriate to be guided by the ICCPR and the Human Rights
Committee’s interpretation of it, which confirms the right to self- defence and
rejects the imposition of defence counsel on an unwilling accused.” (paragraph
37)
The Trial Chamber then turned to practicalities and concluded that imposition of
counsel could simply not work because the defendant would refuse to instruct
counsel (paragraph 38). Winding up its discussion, it says that the imposition
of counsel can occur only when the defendant behaves in such a disruptive manner
that he has to be removed from the courtroom (paragraph 40) and concludes
(paragraph 41) that although the Trial Chamber has the duty to ensure an
expeditious trial, it may do this only by respecting the rights of the accused
as laid out in Article 21 of its own statute, i.e. by respecting the right of a
defendant to defend himself.
All the main points of this reasoning were summarily thrown out of the window
when Milosevic’s defence started. On 10th September 2004, the Trial Chamber
ruled that counsel would be imposed.[8] The reasons given for this astonishing
volte-face are simply disingenuous. Referring to the 4th April 2003 ruling,
Judge Robinson said, “the Trial Chamber, while holding that the accused had a
right to defend himself also held in paragraph 40 that the right to defend
oneself in person is not absolute.” This is disingenuous because the Trial
Chamber explicitly laid down the circumstances in which the right might be
limited (disruptive behaviour leading to expulsion from the court room). Even
though Milosevic’s health had been an issue ever since the trial started in
early 2002, the Trial Chamber made no mention of this as a possible reason for
imposing counsel on 4th April 2003.
In September 2004, the Trial Chamber suddenly adopted the Prosecution’s argument
that Milosevic had not been taking his medicine as prescribed, but it seemed not
to care that it is obviously a basic human right to take medication as one sees
fit - unless the defendant is mentally incompetent either to stand trial or
regulate his medicinal intake. Crucially, the Trial Chamber offered no legal
argument, i.e. by quoting precedent or law, for using the health of the accused
as a reason for imposing counsel. It simply rescinded all its earlier decisions,
which had been grounded in law and precedent; it stated that international and
domestic law provided precedents for imposing counsel, without quoting a single
one; and it said that it was “in the interests of justice” to impose counsel. No
definition was given of these interests. The Trial Chamber concluded, “The
fundamental duty of the Trial Chamber is to ensure that the trial is fair and
expeditious,” but in fact based its decision to impose counsel was grounded
solely on expediency, at the expense of fairness. It should also be remembered
that the bench in the Milosevic trial permitted the prosecution to ramble on for
months with irrelevant “expert” testimony consuming sessions far beyond its
original allotted time while the prosecutors tried to induce someone - anyone -
from Serbia, to plead direct incrimination of Milosevic - all without success.
Even by the appalling standards of the ICTY, the one-sidedness of this decision
to impose defence counsel (after reducing the time available to the defendant’s
case to about half that granted to the prosecution) is shocking. By going
against all its own previous rulings on the matter, the Tribunal’s decision is a
pure example of arbitrary rule. As such, the ICTY has demonstrated itself to be
in contempt of the rule of law. It suggests that achieving a verdict is the
overriding concern of the Tribunal and given that it was the Prosecution which
demanded the imposition of counsel on Mr. Milosevic, it is difficult to avoid
the conclusion that conviction at all costs has become the guiding principle of
the Tribunal.
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[1]
http://www.un.org/icty/transe54/010703IA.htm, page 1
[2]
http://www.un.org/icty/transe54/010830SC.htm, page 7
[3]
http://www.un.org/icty/transe54/010830SC.htm, page 17
[4]
http://www.un.org/icty/transe54/010830SC.htm, page 18
[5]
http://www.un.org/icty/transe54/011211MH.htm, page 149
[6]
http://www.un.org/icty/milosevic/trialc/decision-e/040403.htm paragraph 18
[7] Croissant v. Germany, European Court of Human Rights (“ECHR”), Case No.
62/1001/314/385, Judgement, 25 September 1992 (“Croissant v. Germany”).
[8]
http://www.un.org/icty/milosevic/trialc/order-e/040910.htm
Original URL: http://www.bhhrg.org/LatestNews.asp?ArticleID=47
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