di Ian Johnson, coordinatore della sezione inglese dell'ICDSM
"Gentlemen, you cannot imagine what a privilege it is,
even under the
conditions you imposed on me,
to have truth and justice on my side."
Slobodan Milosevic, 1st September 2004
It's a family affair, and it's a big family. It includes the Nato powers that bombed Yugoslavia, and The Hague tribunal that puts the victims of that bombing on trial.
The Western governments, not content with erasing the sovereign state of Yugoslavia from the map of the world, even created, funded and staffed an illegal court to finish things off. The Chief prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) is from North America, as was her predecessor. The so-called `mother' of the tribunal is American, the leading judge in the case against Slobodan Milosevic is British, as was his predecessor, the prosecutor in the case against Slobodan Milosevic is British, the tribunal's 1300 staff are overwhelmingly British and American and it is Nato governments and their intelligence services who are charged with collecting `evidence' and finding `witnesses' to satisfy the court.
Given the above and the fact that the powers behind the creation of this tribunal have a direct stake in the outcome of proceedings, who in their right mind, could possible state that the defendants will receive a fair trial?
The Guardian newspaper in December 2001 asked a British lawyer if the Hague tribunal provides a system of justice which correctly convicts the guilty and acquits the innocent?
The lawyer responded, "… if one was to stand back and look at it, the judgment of any impartial observer would be that it is a forum that provides a fair trial."
That British lawyer was Stephen Kay.
Mr Stephen Kay, with his chambers in London's Grays Inn, has just been appointed as defence counsel for Slobodan Milosevic, against the express wishes of the former Yugoslav president.
Mr Kay became so favoured by the Hague tribunal that he was also selected as defence counsel for its crucial showpiece first trial against Dusko Tadic in 1996. After Mr Kay's defence the court issued a 20-year sentence on Mr Tadic.
Mr Kay has also been active at the Arusha tribunal, the International Criminal Tribunal for Rwanda (ICTR) which is the twin tribunal of the Hague court.
At the Arusha tribunal he acted for Alfred Musema, the first civilian to be charged with genocide. After Mr Kay's defence the court issued a sentence of life imprisonment on the defendant.
The final outcome, therefore, was that both his clients were convicted of the main charges against them.
Mr Kay is no stranger to Mr Milosevic, being part of the court appointed Amicus Curiae (friends of the court) in the prosecution part of the trial. In that position Stephen Kay was made very much aware of Mr Milosevic's insistence on his legal right to conduct his own defence. Despite this knowledge it appears that Mr Kay had no hesitation in being part of the rewriting of international law.
As explained in the letter `IMPOSITION OF COUNSEL ON SLOBODAN MILOSEVIC THREATENS THE FUTURE OF INTERNATIONAL LAW AND THE LIFE OF THE DEFENDANT' which was addressed to the United Nations and has now been signed by over 100 lawyers and jurists it states:
"The right to defend oneself against criminal charges is central in both international law and in the very structure of the adversarial system. The fundamental, minimum rights provided to a defendant under the Rome Statute of the International Criminal Court, as well as under the Statutes of the International Criminal Tribunals for Rwanda and Yugoslavia, include the right to defend oneself in person."
The letter also contains this warning:
"In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law traditions. For those reasons, and because it specialized in trying 'political' offenses, the Star Chamber has for centuries symbolized disregard of basic individual rights." The letter correctly reaches the conclusion that:
".. expediency has become, as the defendant is set to present essential and potentially embarrassing evidence, the Chamber's apparently overwhelming concern."
Prior to Stephen Kay's acceptance of the position of defense counsel, another former amicus curiae at the Hague process, Branislav Tapuskovic, was asked why he would not accept the position of defence counsel.
He replied: "I have respected the provision of Article 21, point 4/d of the Statute of the ICTY, according to which every defendant has the guaranteed right TO BE TRIED IN HIS PRESENCE AND TO DEFEND HIMSELF IN PERSON." (German daily "junge Welt", 30 August 2004).
The newspaper posed a further question:
"Critical voices say that imposing counsel on Mr. Milosevic is an attempt to prevent him from presenting his facts and witnesses. Comment, please."
Mr Tapuskovic answered: " The trial cannot be valid if Slobodan Milosevic does not present his evidence." (Ibid).
A principled response, principles that are obviously not shared by some of his colleagues.
In his new role Stephen Kay will have the assistance of another lawyer, Gilian Higgins.
Although known by this name for some years her actual name is Gilian Kay Higgins. She is the daughter of Stephen Kay. A family affair indeed.
The imposition of defense counsel not only violates Mr Milosevic's legal rights, but is also intended to sabotage the case for the defence.
In his opening statement at the commencement of his defence case Slobodan Milosevic expounded in great detail the repeated violations of Yugoslavia's sovereignty over the last decade, which eventually led to Nato's illegal war, and astounded the court with his breadth of knowledge and his attention to detail, which vividly demonstrated the illegal actions of the western powers. Clearly he had to be silenced.
Ian Johnson