WELCOME TO IWPR'S ICTY - TRIBUNAL UPDATE No. 581, December 12, 2008 DOUBTS RAISED ABOUT RULE LETTING JUDGES IMPOSE COUNSEL Some lawyers say defendants are unlikely to cooperate with a lawyer forced upon them. By Katharina Goetze in London
COURTSIDE LUKIC LAWYER SLAMS COURT OVER BRIBERY CLAIMS Defence counsel for Milan Lukic says prosecution's investigation into bribery claims has prejudiced his case. By Simon Jennings in The Hague COURTSIDE WITNESS CLAIMS SESELJ CASE POLITICALLY DRIVEN Serbian Radical Party member said he thought tribunal investigators wanted to remove accused from Serbian politics. 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For more information about how you can support IWPR go to: http://www.iwpr.net/donate.html **** www.iwpr.net ******************************************************************** DOUBTS RAISED ABOUT RULE LETTING JUDGES IMPOSE COUNSEL Some lawyers say defendants are unlikely to cooperate with a lawyer forced upon them. By Katharina Goetze in London The Yugoslav war crimes court has adopted a new rule allowing judges to force lawyers upon suspects representing themselves, in what observers say is a bid to stop Radovan Karadzic turning his forthcoming trial into a political platform. The amendment - which will allow judges to "assign a counsel to represent the interests of the accused" in the interests of justice - has been introduced in the run-up to the trial of the former Bosnian Serb leader. There has been much speculation that Karadzic, who was arrested in July on charges including genocide, will use self-representation as a means of dragging out his trial. But some lawyers said the rule, which may also be employed in the trials of other high-profile defendants, could backfire as defendants are unlikely to cooperate with a lawyer forced upon them, and could even become more obstructive as a result. "If the client refuses to talk to me [as his or her assigned counsel], what should I do?" asked Michiel Pestman, a lawyer with the Amsterdam firm Bohler Franken Koppe Wijngaarden. Pestman said the tribunal had to find other ways of dealing with defendants who deliberately extended proceedings. "To appoint a counsel is the last resort - it is a sign of desperation," he said. Meanwhile, others pointed out that the new rule was unlikely to change much, as judges at the tribunal have always had the power to allocate lawyers to defendants under certain circumstances. Karadzic is the latest of several war crimes defendants who have insisted on representing themselves. While prosecutors have opposed his request on the grounds that he is untrained in courtroom procedure, Karadzic told the court the task had to be in his own hands so he could establish "the truth about our conflict". "I will defend myself before this institution as I would defend myself before any natural catastrophe," he declared during his first courtroom appearance. According to Harvard law professor Alex Whiting, a former prosecutor at the Hague tribunal, Karadzic's decision to represent himself is "a signal that he does not consider the process legitimate, and will not agree to abide by its procedures". Karadzic has already objected to the pace of proceedings, accusing the prosecution of trying to "rush and muddle" through preliminary hearings. "Men like Karadzic are used to being in charge and he probably thinks that there is nobody better than him to represent his interests in court, both because of his knowledge of the facts and because of his political skills," said Whiting. Other defendants, most notably, the late Yugoslav president Slobodan Milosevic, have been accused of using self-representation as a platform to promote their political views. The former president made it clear from the start that his decision to represent himself was politically motivated. "This trial's aim is to produce false justification for the war crimes NATO committed in Yugoslavia," he told the court, during his first appearance in 2001. He repeatedly questioned the authority of the tribunal, and some observers say he made a mockery of the court by continually obstructing proceedings. Because of Milosevic's ill health, hearings had to be suspended repeatedly, causing a delay of at least six months. When his death in 2006 put an end to his trial before a judgement could be passed, it caused great disappointment to victims of the Balkans wars of the Nineties. The concept of self-defence has seemingly grown in popularity among high-profile defendants at the Hague court - many of whom have also been accused of deliberately disrupting their trials. The former Bosnian Serb politician Momcilo Krajisnik, who was sentenced to 27 years in prison in 2006, defended himself against charges including murder and persecution. Serbian politician Vojislav Seselj, who is also a trained lawyer, continues to do so. The leader of the Serb Radical party, SRS, who is well known for his theatrical behaviour, has been accused of misusing the courtroom to promote his beliefs and abuse his right to privileged communications with his advisors to intimidate and blackmail witnesses. Zdravko Tolimir, the former assistant to Bosnian Serb military leader Ratko Mladic, also intends to represent himself against charges of genocide. Tolimir has been seen to challenge the legitimacy of the court, by referring to his May 2007 arrest as a "kidnapping". He has also held up pre-trial proceedings by refusing to accept documents in Latin script, claiming he could not read them, in spite of the fact that he trained abroad and had already signed various documents written in Latin script. The accused also burst into tears after complaining that he had been denied a special tea to lower his blood pressure. Earlier this year, Judge Kimberly Prost gave him a final warning to stop obstructing pre-trial proceedings as he "has persistently been doing for the past year". Some say the new legislation to impose counsel will make it harder for defendants representing themselves to disrupt their trials. "Up until now, the accused have got too much leeway in their right to self-representation," said Luka Misetic, a tribunal defence lawyer. But others wondered how much use an assigned lawyer could possibly be if the client refused to cooperate. It could also pose an ethical dilemma for the defence counsel instructed. "For me, to represent someone who doesn't want to be represented poses a legal as well as a practical problem," said Pestman, who was previously asked to represent Seselj, but refused. "As a lawyer practicing under European civil law, it would be against my code of conduct, and the client could even file a complaint against me." Yet prosecutors have already imposed lawyers on defendants at the court. In the Milosevic trial, tribunal judges appointed a lawyer to assist with the defence of the accused, when he was deemed not fit enough to defend himself. Meanwhile, prosecutors in the Seselj trial have made several requests to judges to impose counsel on the defendant, accusing him of obstructing proceedings. A decision to assign counsel in the Serb politician's case was overturned when, in late 2006, he went on a hunger strike. After four weeks of refusing to eat, the appeals chamber revoked the ruling in a decision criticised by many lawyers, who saw it as capitulating to the demands of the accused. Thomas Unger, a programme associate at the International Center for Transitional Justice in Brussels, pointed out that the appeals chamber would continue to control any decisions made by the trial chamber to assign counsel. He suggested that counsel would only be imposed in exceptional cases. "If self-representation does not 'substantially and persistently obstruct' the proper and expeditious conduct of the trial, the appeals chamber is unlikely to affirm any trial chamber's decisions to the contrary, the new rule notwithstanding," he said. The introduction of the rule has also underlined the difficulties of balancing the interests of justice - and the right of the accused to self-representation - with the judges' desire for a rapid and orderly trial. Under the tribunal's completion strategy, authorised by the United Nations Security Council, the court must conclude all trials by 2010. Whiting said that the looming deadline, along with the arrest of Karadzic, might have motivated the introduction of the rule. "They want this train to run on time," he said, arguing that after the disappointment of the Milosevic case, prosecutors see in Karadzic an opportunity to redeem themselves. "If they manage to try this big and high-profile case in an orderly and fair way it will also send a signal to advance the goals of international justice." However, some questioned whether the court would be able to apply the new rule in the Karadzic case. The former Bosnian Serb leader has been representing himself in court since September, and the tribunal's rules state that an amendment should not "prejudice the rights of the accused" in any pending case. "Karadzic could have an argument, saying this can only apply for future cases, so that means only for future cases there can be a power to assign counsel in the interest of justice," said Goran Sluiter, a professor of international law at the University of Amsterdam. Misetic, however, doubted that this was likely to happen. "The judges of the tribunal obviously passed this new rule with the intent of using it. Given that only two of the tribunal's indictees remain at large, it cannot be the case that the judges passed this new rule so that it could only apply to the last two fugitives [Ratko] Mladic or [Goran] Hadzic," he said. "I think the judges of the tribunal intended this new rule to be applicable to all accused who are currently on trial and who represent themselves." Tribunal spokesperson Nerma Jelacic, who declined to comment on any specific cases, said the rule "can be applied to any present and future case". "The tribunal functions in such a way that some of its rules are made up as time goes along," Jelacic told IWPR, adding that the rule merely formalised what was already in practise. But Sluiter questioned whether creating this rule was the right step. Instead, he backed the creation of legislation which would outline what is permissible behaviour for defendants representing themselves. He said the court needed "a detailed rule, setting out in detail the procedure, and giving to all involved and also to the [self-represented] accused a clear framework, what is permissible and what is not permissible". Pestman said the ultimate responsibility lay with the judges to tell a defendant when he is going too far. "They have to find other ways of dealing with the accused. They should tell them to shut up when it is not relevant," he said. Katharina Goetze is an IWPR reporter in London. COURTSIDE LUKIC LAWYER SLAMS COURT OVER BRIBERY CLAIMS Defence counsel for Milan Lukic says prosecution's investigation into bribery claims has prejudiced his case. By Simon Jennings in The Hague The defence lawyer for war crimes suspect Milan Lukic this week unleashed a tirade against the Hague tribunal over prosecution allegations that his team attempted to bribe a witness. "The separate entities of this respected tribunal have acted in concert to deprive my client of his right to fair due process and [an] effective preparation for trial," Jason Alarid told the court, claiming that the prosecutor had conducted "a secret ...campaign waged to smear and slander the reputation of [his] defence team". According to Alarid, a confidential contempt of court investigation began in August this year, and was linked to an alleged attempt to bribe prosecution witness Hamdija Vilic. Vilic testified before the International Criminal Tribunal for Former Yugoslavia, ICTY, in November, telling judges that the defendant's legal representatives had offered him 100,000 euro if he signed a prepared statement providing an alibi for Milan Lukic for a day on which he is accused of burning Bosniak civilians to death. The prosecution then alleged on November 18 that Lukic may have intimidated the family of a prosecution witness by telephone from prison in The Hague. The registry cut off Lukic's communication from the detention unit for a period of two weeks, at prosecutor Dermot Groome's request, prompting the defendant, according to his lawyers, to embark on a hunger strike. However, this week, Alarid called for the release of the defendant's telephone transcripts from The Hague prison "so the world can see that Milan Lukic was not intimidating any prosecution witness". According to Alarid, his client was just trying to locate a witness to testify in his defence. Lukic is on trial alongside his cousin, Sredoje Lukic, and charged with war crimes allegedly carried out in the eastern Bosnian town of Visegrad between 1992 and 1994. Among the charges it is alleged that the two men are responsible for burning to death up to 140 Bosniak civilians in separate house fires in June 1992. Although Lukic's defence team was scheduled to start its case this week, Alarid explained that due to the prosecution's investigation into the bribery claims, his team was operating "under a cloud of criminal contempt investigations" which had prejudiced his case. Alarid also claimed that defence witnesses were being intimidated and had received threatening telephone messages from unknown individuals, preventing him from bringing witnesses to The Hague. He suggested that the authorities in Bosnia and Serbia may be involved. "We can tell you [that we have information...] that the Bosnian secret police as well as elements of Republika Srpska and Serbia have an interest in our proceedings," alleged Alarid. Alarid also alleged that the Bosnian secret police "have an interest in bringing about the conviction of Milan Lukic" and suggested the prosecution was working with them to this end. To support his claim, he alluded to confidential Office of the Prosecutor, OTP, filings from August 13 and 29. "We don't know what they are but they must relate to the joint efforts of the OTP and the Bosnian secret police," he said. He claimed witnesses who had arranged to sign sworn statements in defence of Lukic had had their homes raided before losing contact with the defence team. Alarid acknowledged that he did not know all the details, but said it appeared "this was the birth of a plot to blacklist the defence". He also alleged that the OTP had revealed the names of protected witnesses to the Bosnian authorities. "You cannot say that the stigma of this ongoing investigation has not impacted the credibility of the entire defence presentation," said Alarid. "The legal ramifications must be explored before we proceed." Alarid condemned the way the contempt investigation had been carried out, saying it had prejudiced his client's defence. He said that he was unable to give a timely response to certain allegations, because details had not been disclosed to him. He also criticised the fact that the same judges and prosecutors had worked on both the contempt investigation and the main trial. "The sheer number of filings and their very sensitive nature being presented to, and read by, the trial chamber for so long without the defence having notice of or the ability to respond and refute [them is] grossly prejudicial to the defence and how it is viewed by the trial chamber," said Alarid. "We believe the tactics of the prosecution were in reckless disregard of the potential to contaminate [the defence] process." He said the judges, including tribunal President Patrick Robinson, may have to stand down. "We will be exploring... the potential disqualification of the presiding judge or trial chamber based on the co-mingling of this internal criminal investigation and its impact on the nature of fair trial," Alarid told the court. According to Alarid, the tribunal's vice president, Judge O-Gon Kwon, has already made a confidential ruling that the investigation had hindered defence preparations. "We have an ethical and professional obligation to uncover the truth of these accusations and stigma that the prosecution has chosen to utilise to impact the ability of the defence," he said. The defence lawyer mentioned a number of confidential filings made by the prosecution requesting the court to provide it with information about the Lukic defence team, including information on Alarid's co-counsel, Dragan Ivetic. He called for the prosecution's remaining confidential filings to be made public. He said he assumed they also related to the interference with and intimidation of witnesses. Judge Christine Van Den Wyngaert, who was presiding over proceedings in the absence of Judge Robinson this week, explained that the contempt investigations have now been dropped. She also said they would not influence the judges' handling of the case. "What I want to emphasise is that the [confidential] contempt proceedings ultimately led to a dismissal of the [prosecution's motion relating to accusations of contempt] and that the trial chamber has very clearly indicated that we were not going to draw any adversary inferences from that," she told Alarid. Lukic's defence team has been under pressure from judges to start its case, which was scheduled to begin on December 3 after it had already been given additional time to prepare. Amid his volley of allegations this week, Alarid also made a number of pleas for additional time to call witnesses. "It is with great dismay, sadness, and some trepidation that I inform the chamber that I will not be giving any opening statement or presenting evidence this week or next," he said, blaming what he described as unrealistic expectations put in place by the court and the lack of resources provided by the registry to mount his defence case. While the prosecution made no formal oral response to Alarid's allegations this week, it accepted the judges' invitation to file a written response. Alarid was also asked to submit his requests to judges in writing, while Groome took the opportunity to deny all allegations. "Mr Alarid has made dozens of serious allegations," Groome said. "I will demonstrate the fallacy of all of these." "I deny vehemently all applications and misrepresentations made." The parties will reconvene next week. However, as suggested by Alarid, it seems unlikely that the defence will be ready to present witnesses. Simon Jennings is an IWPR reporter in the Hague. COURTSIDE WITNESS CLAIMS SESELJ CASE POLITICALLY DRIVEN Serbian Radical Party member said he thought tribunal investigators wanted to remove accused from Serbian politics. By Simon Jennings in The Hague The Hague tribunal trial of Serbian nationalist politician Vojislav Seselj heard this week from the defendant's former political ally who said that the prosecution's investigations in the case were politically driven. Jovan Glamocanin told the court that in September 2006, he met with tribunal investigator Dan Saxon, who he said wanted to discredit the defendant due to the threat he posed to the political scene in Serbia. According to the witness, he refused to go and meet Office of the Prosecutor, OTP, representatives at their office, so they arranged to come and meet him at his own flat. It was there that Saxon asked him to testify, he said. "I had the impression that Dan Saxon was far more oriented towards implementing politics and the activities of the [United States' Central Intelligence Agency] than his legal functions and court functions," the witness told judges, although he didn't elaborate on this allegation. Glamocanin said that during the meeting, he told Saxon he was not prepared to testify for the prosecution because he "knew of no crimes" that Seselj had committed. This prompted Saxon to push the political line, he said. After these allegations, the prosecutor requested that the witness be warned about possible perjury charges, prompting presiding judge Jean-Claude Antonetti to remind him that he was testifying under oath. "Under oath," repeated Glamocanin. "And the oath makes it incumbent upon me to tell the truth." Glamocanin's assertions were contrary to a statement he gave prosecutors in 2003. Although he signed that statement at the time, he denied in court that it had been translated into Serbian before he did so. The prosecutor insisted it had been translated for him and the witness had signed it to that effect. Seselj is on trial for war crimes and crimes against humanity carried out between 1991 and 1993, when irregular forces under his control allegedly expelled non-Serbs from parts of Croatia and Bosnia. According to the charges against him, the defendant conducted a campaign of persecution, murder, and torture in order to create a "Greater Serbia" - a plan allegedly linked to senior political figures, such as former Serbian president Slobodan Milosevic and ex-Bosnian Serb leader Radovan Karadzic. Glamocanin had been scheduled to appear as a prosecution witness in the trial against Seselj, leader of the Serbian Radical Party, SRS, but later changed his mind and decided to testify for the defence. He came to testify against Seselj only after he had been subpoenaed by judges. During his testimony, Glamocanin also accused the late Serbian premier Zoran Djindjic of asking him to discredit the nationalist politically. He said Djindjic invited him to a meeting in April 2001 and told him that Serbia's new government "had a serious obstacle and that was Dr Vojislav Seselj and the Serbian Radical Party". Addressing his remarks to Seselj, who is defending himself, he said Djindjic had wanted to marginalise the SRS. "Djindjic wanted to use that and use me to keep you at arms length, you and the Serbian Radical Party," he told Seselj. "He suggested various things to me and in return he would promise a good life for me." In court, the witness was questioned extensively by the judges, the prosecution and the defendant. Glamocanin, who fell out with Seselj and left the SRS in 1996, before rejoining the party in March this year, was full of praise for the defendant. "Dr Seselj was not in favour of any kind of violence or revenge, especially not persecution or genocide," Glamocanin, who has a legal and political background, told judges. The prosecution alleges that Seselj recruited volunteers to the SRS to help achieve his goal of a Greater Serbia. According to the indictment, Seselj visited these volunteer units and other Serb forces in Croatia and Bosnia, "instigating those forces to commit crimes". But when questioned about SRS volunteers who fought with Serb forces, Glamocanin said, "Seselj was very strict when it came to infractions and violation of discipline. "In addition to noble behaviour, [Seselj] would always stress the respect the volunteers had to demonstrate and he always insisted on discipline." Asked about Seselj's relationship with Milosevic and Karadzic, the witness said that Milosevic viewed the defendant as a political competitor and that Karadzic "steered clear" of him. "I do not know of any intensive relations between Seselj and Karadzic," he said. In his earlier statement to prosecutors, the witness said Milosevic had supported the SRS and hinted that the late president might even have funded the party. However, in court this week, he was not certain that such a relationship had existed. "I cannot substantiate that with anything. It's difficult to believe [because] Slobodan Milosevic blocked the party [and] incarcerated Dr Seselj," said the witness. In 1994 and 1995, Seselj claims to be have been imprisoned as a result of his opposition to Milosevic. Pressed further on the allegations that Seselj conspired with Karadzic and Milosevic, among others, to drive out non-Serbs, the witness admitted that Seselj "did meet with Radovan Karadzic". The witness was then asked if there were also meetings between Seselj and Milan Martic, a former interior minister and president of the self-proclaimed Serbian Autonomous District, SAO, Krajina in Croatia, whom the prosecution alleges was also part of the conspiracy. In 2007, Martic was sentenced to 35 years in prison after being convicted of war crimes by the Hague tribunal. "I don't know specifically of any particular meeting, but I do know that there had been meetings," he replied. Seselj used his cross-examination to attempt to distance himself from Milosevic, asking the witness to elaborate how the SRS clashed with Milosevic during 1993. "[Milosevic's government] blamed you for engaging in violence and many other negative things and they made it impossible for you to respond to the allegations against you," he said. "He treated you as his most serious political adversary." Both the judges and the defendant also questioned the witness about Serbian politics and the goals of the SRS during the early Nineties. "The objectives [of the SRS] were the preservation of Yugoslavia as a stable multinational community without bringing in to question the interests of each and every one of the Yugoslav peoples... and to establish a position of equality for the Serb people," said Glamocanin. "You were really a man who entered politics wanting to do something good for your people," he told Seselj. Simon Jennings is an IWPR reporter in The Hague. **** www.iwpr.net ******************************************************************** ICTY - TRIBUNAL UPDATE, which has been running since 1996, details events and issues at the International Criminal Tribunal for the Former Yugoslavia, ICTY, in The Hague. These weekly reports, produced by IWPR's human rights and media training project, seek to contribute to regional and international understanding of the war crimes prosecution process. The opinions expressed in ICTY - Tribunal Update are those of the authors and do not necessarily represent those of the publication or of IWPR. ICTY - Tribunal Update is supported by the European Commission, the Dutch Ministry for Development and Cooperation, the Swedish International Development and Cooperation Agency, the Foreign and Commonwealth Office, and other funders. IWPR also acknowledges general support from the Ford Foundation. 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