Document Type

Article

Publication Year

2005

Journal Title

Georgetown Journal of Legal Ethics

Abstract

On February 12, 2002, Slobodan Milosevic became the first head of state to be brought before an international criminal tribunal. The Milosevic trial was hailed as a momentous event for both the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and international justice as a whole. As one former ICTY official said at the start of the trial, "Milosevic's transfer to the Hague is the capstone of the tribunal's somewhat improbable rise from the margins of the international arena to that of a serious international institution."

Unfortunately, the trial appears to have been more than the ICTY bargained for. The prosecution's case took over two years to complete. The Presiding Judge, Richard May, resigned for health reasons and was replaced. Throughout the proceedings, Milosevic berated witnesses and launched scathing attacks against the legitimacy of the tribunal. His tactics have had some resonance back home as Milosevic's approval ratings have doubled, and he has gone from the most reviled individual in Serbia to number four on the list of most admired Serbs.

The most significant challenge facing the court, however, has undoubtedly been Milosevic's insistence on carrying out his own defense despite his ill health. Because of Milosevic's elevated blood pressure and hypertension, the court cut the number of trial days per week from five to three. The trial has been shut down for entire weeks so as to allow him to rest.

In light of Milosevic's poor health and the court's duty to ensure that the trial is "fair and expeditious," on September 2, 2004, counsel was assigned to Milosevic pursuant to a previous prosecution motion. On September 3, the ICTY Registrar appointed Steven Kay and Gillian Higgins, who had been involved in Milosevic's defense as Amici Curiae, as defense counsel. Not surprisingly, Milosevic refused to cooperate, calling into question the adequacy of the defense being offered. Kay and Higgins have attempted to resign from their post, but the court has forced them to stay.

In Part I of this Note, I will argue that the trial court's decision to assign counsel to Slobodan Milosevic violates both the ICTY statute and international law. Milosevic's ill health does not justify extinguishing his right to represent himself. The decision sets a dangerous precedent for future international criminal proceedings by favoring expediency over justice.

In Part II, I will argue that even if the trial court's decision was not a clear violation of the ICTY statute and international law, the judges could have chosen a different way to expedite the trial. The purpose of the ICTY is not only to try perpetrators but also to contribute to the "restoration and maintenance of peace." Assigning counsel to Milosevic only confirms the perception in Serbia that the trial is "victor's justice" and will not bring about the "political catharsis" the ICTY founders envisioned.

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