Stress of MilosevicTrial Brings Its Future Into Question

For about the eighth time since his trial began, Slobodan Milosevic was too ill to come to court, necessitating the cancellation of another day in his year and a half long trial. Presiding Judge Richard May pointed out that 50 or more days have been lost to his illness thus far. With 54 days left in the Prosecution's case and given the already abbreviated schedule to accommodate the Accused's health concerns, the Prosecution may have a hard time ending its case this year.

The Court ordered a full medical and psychological report on the Accused, as well as reports from the Detention Unit about 'his conditions and conduct,' and problems with transportation that allegedly interfere with his rest time. Even without the results of these inquiries, experience over the past year and a half raises the issue of whether and to what extent Mr. Milosevic will be able to continue with his case.

On Tuesday, he requested a two year break to allow him time to prepare his defense case. The Court said it was out of the question. A month recess is about average in current cases before the Tribunal. Mr. Milosevic -- and the Amicus -- have stressed that, unlike other accused, he is representing himself and lacks resources to prepare an adequate defense in the regular time period. While the Trial Chamber recognized his limitations, they also noted they resulted from his choice to represent himself. So far, he has only minimally availed himself of resources the Tribunal could make available to him. The Accused takes the position that he does not recognize the Tribunal, the proceeding he is engaged in is not a trial and he will participate only in the manner he chooses. His taking that position does not make it so. Whether he likes it or not, he is in the custody of the Tribunal, engaged in a trial in which he is accused of war crimes, crimes against humanity and genocide, and the rules of that forum apply. His choice of self-representation cannot be allowed to unreasonably dictate the length of his trial.

Not only is he limited by the rules of the Tribunal, he is also limited by his own physical and psychological health. The reality that the Court is facing, even if Mr. Milosevic is not, is whether he is physically and emotionally able to continue representing himself. To date, the Court has ruled against the Prosecution's suggestion that they impose counsel against Mr. Milosevic's wishes. However, as Judge May reminded the Prosecutor, the matter remains open.

Lead Counsel addressed his concerns and observations to the Court. Based on the past year and a half, Mr. Nice said, the prosecution team has noticed something of a pattern in Mr. Milosevic's illnesses. They generally follow presentation of the most difficult evidence. Other trial observers have noted this as well. Mr. Nice added that he was not suggesting the Accused's illnesses were anything other than genuine. It is generally accepted that stress can cause physical illness.

Mr. Nice suggested that some mechanism be adopted to provide the Accused assistance 'that may relieve him of the worst tension following the most difficult evidence.' He concluded, 'it is hard to see how this can be done without [appointing] counsel or standby counsel.' This is the second time this week that Mr. Nice has recommended the Court consider appointing standby counsel, a procedure adopted by Judge Schomburg in the Seselj case precisely to avoid the difficulties experienced in the Milosevic case where a self-represented accused wishes to use the trial as a forum for his own purposes. [See CIJ Report May 12, 2003, 'Court Appoints Standby Counsel in Seselj Case'] Standby counsel is an intermediate step short of imposing counsel on an accused. Judge Schomburg outlined the role of standby counsel to be present throughout the proceedings so that he or she will be prepared to take over should the need arise, as well as being available to assist the accused should he desire it. Judge Schomburg noted that he would direct standby counsel to take over if the Accused continued to act in an abusive manner after being given a warning.

The Milosevic Trial Chamber is free to formulate its own reasons for and duties of Standby Counsel, if it chooses to appoint one. In this case, the reasons for such an appointment may be less anticipated abusiveness (though Milosevic is not above that and has treated some witnesses shamefully, he generally follows the Court's direction and shows a desire to conduct himself professionally) than anticipated illness. For example, the Court could direct Standby Counsel to question witnesses who might raise his blood pressure, while allowing Milosevic to establish the areas on which he wishes cross examination to proceed.

As the Tribunal has noted in this and other cases, the right of self-representation is not absolute. The Tribunal has an overriding duty to insure a fair trial, which is not only a right of the accused but 'a fundamental interest of the Tribunal related to its own legitimacy,' in the words of Judge Schomburg. The public also has an interest in an expeditious trial. As Judge Schomburg stated further, the Trial Chamber is responsible for 'ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions.' This is not happening in the Milosevic trial, and there is every reason to believe the pattern of delays will continue unless Milosevic is forced to accept assistance in his own interest and that of the public and the Tribunal process.

Judge May indicated that the issue of imposition of counsel -- whether in full or standby -- remains open. Though this Trial Chamber has shown little interest in restricting Mr. Milosevic beyond an absolute minimum, circumstances may yet force it to act -- if the trial is to be completed before Mr. Milosevic or any one of the judges (who are also under significant ongoing stress) are unable to see it through.