Almost everyone knows the old legal saying: "He who represents himself has a fool for a client and an idiot for a lawyer." The trial of former Serbian leader Slobodan Milosevic suggests a related adage: "A judge who permits a rogue leader to represent himself in an international war crimes trial is just as misguided."
On Tuesday, Milosevic's trial -- more than two years old and counting -- is scheduled to resume before the International Criminal Tribunal in The Hague. The opening act of the trial's new phase will be the judges' announcement of their decision on whether to allow Milosevic to continue acting as his own lawyer.
At the start of the trial in February 2002, the original presiding judge, Britain's Richard May, ruled that "under international law, the defendant has a right to counsel, but he also has a right not to have counsel." Virtually everything that has gone wrong with the Milosevic trial can be traced back to that erroneous ruling.
The decision has caused the trial to drag on twice as long as anticipated. Because of concerns about Milosevic's high blood pressure (240 over 120), the judges have had to scale back the length and frequency of the proceedings to ensure that the former leader is not "tried to death." As a result, the trial takes place only three times a week as opposed to the standard five; the number of hours per day has been reduced from eight to four; and there are frequent lengthy recesses to allow the defendant-lawyer to regain his strength. These delays have taken their toll on justice. Judge May recently died of cancer and a replacement had to be found; witness memories are fading; and the international community is losing interest.
The judges have given Milosevic wider latitude than an ordinary defendant or lawyer. Normally, the accused addresses the court only when he takes the stand to give testimony, and he must take an oath to tell the truth. Moreover, he is limited to offering evidence that is relevant to the charges, and is subject to cross-examination by the prosecution. By acting as his own counsel, Milosevic was able to begin the trial with an 18-hour-long opening argument, which included Hollywood-quality video and slide-show presentations showing the destruction wrought by the 1999 NATO bombing campaign.
As his own defense counsel, Milosevic has been able to treat the witnesses, prosecutors and judges in a manner that would earn ordinary defense counsel a citation or incarceration for contempt of court. In addition to regularly making disparaging remarks about the court and browbeating witnesses, Milosevic pontificates at length during cross-examination of every witness, despite repeated warnings from the bench. Milosevic, who spends his nights at the tribunal's detention center, has no incentive to heed the judges' admonitions.
Milosevic's caustic defense strategy is unlikely to win him an acquittal, but it isn't aimed at the court of law in The Hague. His audience is the court of public opinion back home in Serbia, where the trial is a top-rated TV show and Milosevic's standing continues to rise.
Opinion polls have reported that 75 percent of Serbs do not feel that Milosevic is getting a fair trial, and 67 percent think that he is not responsible for any war crimes. "Sloba Hero!" graffiti is omnipresent on Belgrade buses and buildings. Last December, he easily won a seat in the Serbian parliament in a national election.
In creating the Yugoslavia tribunal statute, the U.N. Security Council set three objectives: first, to educate the Serbian people, who were long misled by Milosevic's propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the ways in which the Milosevic regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia's newly elected leaders to distance themselves from the repressive policies of the past. May's decision to allow Milosevic to represent himself has seriously undercut these aims.
May felt he had no choice in the matter because the tribunal's legal charter stated that the defendant has the right "to defend himself in person or through legal assistance of his own choosing." But some experts -- and I'm including myself -- are now arguing that May got the law wrong.
The language from the Yugoslavia tribunal statute originally comes from a human rights treaty known as the International Covenant on Civil and Political Rights. The negotiating record of the International Covenant indicates that the drafters' concern was with effective representation, not self-representation. In other words, the drafters felt that a defendant should have a right to either be represented by a lawyer or to represent himself; they did not state that each defendant must be asked to choose between the two. Unlike Britain and the United States, most countries of the world do not allow criminal defendants to represent themselves under any circumstances, and this has been deemed consistent with international law by the European Court of Human Rights.
Even if May was correct in his reading of the law as providing a right to self-representation, he was wrong to treat that right as absolute. As authority for his position, May cited the U.S. Supreme Court's 1975 ruling in Feratta v. California, which held that there was a fundamental right to self-representation in U.S. courts. But the high court also added a caveat, which May overlooked, stating that "a right of self-representation is not a license to abuse the dignity of the courtroom." U.S. appellate courts have subsequently held that the right of self-representation is subject to exceptions -- such as when the defendant acts in a disruptive manner, when self-representation interferes with the dignity of the proceedings or when the issues in the case are too complex for a defendant to represent himself adequately.
Milosevic's antics and poor health have repeatedly disrupted the trial, justifying appointment of counsel to represent him in court for the remainder of the proceedings. There's precedent for taking such a step: In the trial of former Serbian paramilitary leader Vojislav Seselj, the Yugoslavia tribunal required Seselj -- over his objection -- to accept "stand-by counsel," ready to step in as soon as the defendant became disruptive or the issues became too complex.
In a sense, the tribunal has already appointed standby counsel for Milosevic in the guise of Stephen Kay and the other amicus ("friends of the court") counsel. While not bound to follow the defendant's directives, their job has been to ensure that legal arguments favoring the defense are presented to the judges. It would be a small step to transform the amicus counsel into a full-blown defense team, and instruct it to represent Milosevic for the rest of the trial. The lawyers are already intimately familiar with the case and are willing to take on such a role. And unlike Milosevic, they will be bound to play by the rules.
If, on the other hand, the tribunal rules that Milosevic still has a right to represent himself, the precedent will affect other international cases. Saddam Hussein, whose war crimes trial is set to begin later this year, will be able to argue that he, too, has a right to represent himself before the Iraqi Special Tribunal.
If Hussein were allowed to follow Milosevic's playbook -- using the unique opportunity of self-representation to launch daily attacks against the legitimacy of the proceedings and the U.S. invasion of Iraq -- this would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shiites and Sunnis. The historic record developed by such a trial would forever be questioned. And the trial would transform Hussein and his subordinates into martyrs, potentially fueling violent opposition to the new Iraqi government.
Justice demands that Milosevic and Hussein be given fair trials. That can best be guaranteed by appointing distinguished counsel to defend them, not by permitting them to act as their own lawyers.