ICTY Appeals Chamber Decision on Slobodan Milosevic's Right of Self-Representation

Michael P. Scharf
November 11, 2004
On 1 November 2004, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia issued its decision on whether Slobodan Milosevic has a right to continue to act as his own lawyer in his war crimes trial at The Hague. [1]   The decision has important implications for the trial of Saddam Hussein before the Iraqi Special Tribunal and future trials involving former leaders accused of international crimes.
The Initial Decision to Permit Milosevic to Act as His Own Lawyer  
At the start of the Milosevic 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." [2]    The decision to permit Milosevic to act as his own lawyer has resulted in significant trial delays.  Because of concerns about Milosevic's high blood pressure and heart condition, the trial could be conducted only three times a week as opposed to the standard five; the number of hours per day was reduced from eight to four; and the proceedings had to be suspended thirteen times for a total of 66 days to allow the defendant-lawyer to regain his strength.  In the midst of these delays, Judge May died of cancer last spring and a replacement had to be found.
The decision to permit Milosevic to represent himself in court also affected the ability of the judges to control the dignity of the proceedings.  Normally, the accused addresses the court only when he takes the stand to give testimony, he is limited to offering evidence that is relevant to the charges, and is subject to cross-examination by the prosecution.  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 digresses 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. [3]
The 22 September 2004 Decision of the Trial Chamber
Judge May felt he had no choice in the matter because the tribunal's Statute provides that the defendant has the right "to defend himself in person or through legal assistance of his own choosing."  On 22 September 2004, with the Milosevic trial about to begin the defense phase, the Trial Chamber (now composed of Patrick Robinson, O-Gon Kwon, and Iain Bonomy) decided to revisit Judge May's ruling.  There were two independent grounds upon which Judge May's ruling could potentially have been reversed.  
First, the Trial Chamber might have held that the language of the ICTY Statute does not in fact give the defendant the right to self-representation.  The language from the Yugoslavia tribunal statute originally comes from an identically worded clause contained in the European Convention on Human Rights and in the International Covenant on Civil and Political Rights (ICCPR). The negotiating record of these treaties indicates that the drafters' concern was with effective representation, not self-representation.  As explained by Professor Cherif Bassiouni, ?The right to self-representation complements the right to counsel and is not meant as a substitute thereof.? [4]  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 confirmed by the bodies that administer the European human rights system [5]
Second, even if Judge May was correct in his reading of the law as providing a right to self-representation, the Trial Chamber could find that he was wrong to treat that right as absolute. As authority for his position, Judge 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 U.S. high court also added a caveat, which Judge May overlooked, stating that "a right of self-representation is not a license to abuse the dignity of the courtroom." [6] 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 or when self-representation interferes with the dignity or integrity of the proceedings. [7]
In its ruling on 22 September, the Trial Chamber focused on this second ground, ruling that Milosevic's poor health, which repeatedly disrupted the trial, justified appointment of counsel to represent him in court for the remainder of the proceedings.  In its view: "If at any stage of a trial there is a real prospect that it will be disrupted and the integrity of the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has a duty to put in place a regime which will avoid that.  Should self-representation have that impact, we conclude that it is open to the Trial Chamber to assign counsel to conduct the defence case, if the Accused will not appoint his own counsel." [8]  
The 1 November 2004 Ruling of the Appeals Chamber
Following the Trial Chamber's decision of 22 September, Milosevic refused to cooperate in any way with assigned counsel.  Believing that they could not adequately represent the defendant without such cooperation, assigned counsel brought an interlocutory appeal to the ICTY Appeals Chamber (consisting of Theodor Meron, Fausto Pocar, Florence Mumba, Mehmet Guney, and Innes Monica Weinberg de Roca). 
Based on the language of the ICTY Statute, the Appeals chamber agreed that defendants have "a presumptive right to represent themselves before the Tribunal." [9]    The Appeals Chamber also agreed with the Trial Chamber that the right was subject to limitations.  According to the Appeals Chamber, the test to be applied is that "the right may be curtailed on the grounds that a defendant's self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial." [10]   Applying this test, the Appeals Chamber concluded that the Trial Chamber had not abused its discretion in deciding to restrict Milosevic's right to self-representation. [11]
However, the Appeals Chamber felt that the Trial Chamber's Order requiring Milosevic to act through appointed counsel went too far, and that the proportionality principle required that a more "carefully calibrated set of restrictions" be imposed on Milosevic's trial participation. [12]   Under these, when he is physically able to do so, Milosevic must be permitted to take the lead in presenting his case -- choosing which witnesses to present, questioning those witnesses, and giving the closing statement, and making the basic strategic decisions about the presentation of his defense. [13]   "If Milosevic's health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate." [14]
Precedential Consequences
It is noteworthy that both the Milosevic Trial Chamber and Appeals Chamber concluded that self-representation was a fundamental (though qualified) right.  In so doing, the Appeals Chamber implicitly overruled the reasoning of the Trial Chamber in the case of Prosecutor v. ?e?elj. [15] .  In ordering that the defendant Vojislav Seselj be represented by "stand-by counsel" in order to rein in his disruptive behavior, the ?e?elj Trial Chamber had taken the position that ICCPR Article 14(3)(d), and similar provisions in regional conventions and its own Statute do not declare that the right to work through legal counsel is subordinate to the primary right to represent oneself.  As the ?e?elj Trial Chamber observed: ?It would be a misunderstanding of the word ?or? in the phrase ?to defend himself in person or through legal assistance of his own choosing? to conclude that self-representation excludes the appointment of counsel to assist the Accused or vice versa.? [16]   In contrast, by interpreting the phrase as creating a presumptive right of self-representation, the Appeals Chamber decision is likely to fuel a spate of cases before the European Court of Human Rights, challenging the practice throughout Europe of requiring defendants to act through counsel.
It is also significant that both the Trial Chamber and Appeals Chamber focused only on Milosevic's health as the source of disruption justifying restriction on his right of self-representation.  Evidently, neither Chamber felt that his trial tactics rose to the level of "substantial and persistent" disruption that justifies appointment of defense counsel.  The stringent test formulated by the Appeals Chamber will make it difficult for judges to maintain decorum in future war crimes trials.  In particular, Saddam Hussein, whose war crimes trial is set to begin in 2005, 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 -- 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 be open to question. And the trial could transform Hussein and his subordinates into martyrs, potentially fueling violent opposition to the new Iraqi government.
About the author:
Michael P. Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve School of Law.  From 1989-1993, he served as the U.S. State Department lawyer responsible for war crimes issues and played a role in the creation of the ICTY.  His publications include Balkan Justice, which was nominated for the Pulitzer Prize in 1998, The International Criminal Tribunal for Rwanda, which was awarded the American Society of International Law's Certificate of Merit for the outstanding work of high technical craftsmanship in international law in 1999, and Peace with Justice, which won the International Association of Penal Law Book of the Year Award for 2003.
[1] Prosecutor v. Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber=s Decision on the Assignment of Defense Counsel, 1 November 2004.
[2] Prosecutor v. Milo?evi?, Case No. IT-99-37-PT, Transcript, 30 August 2001, at 18 (?Status Conference?) (?We have to act in accordance with the Statute and our Rules which, in any event, reflect the position under customary international law, which is that the defendant has a right to counsel, but he also has a right not to have counsel. He has a right to defend himself, and it is quite clear that he has chosen to defend himself. He has made that abundantly clear. The strategy that the Chamber has employed of appointing an amicus curiae will take care of the problems that you have outlined, but I stress that it would be wrong for the Chamber to impose counsel on the defendant, because that would be in breach of the position under customary international law.?). 
[3] Michael P. Scharf, Making a Spectacle of Himself, Milosevic Wants a Stage, Not the Right to Provide His Own Defense, THE WASHINGTON POST, August 29, 2004, at B2 (Outlook Section).
[4] M. Cherif Bassiouni, Human Rights In The Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT'L L. 235, 283 (1993).
[5] Manfred Nowak, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 259 (1993);  Croissant v. Germany, European Court of Human Rights, (1993) 16 E.H.R.R. 135, 25 September 1992, at para 29 (?Croissant v. Germany?), available at http://hudoc.echr.coe.int/Hudoc1doc/HEJUD/sift/321.txt). 
[6] Faretta v. California, 422 U.S. 806, 835 n. 46 (1975).  
[7] Tuitt v. Fair, 822 F.2d 166, 171 (1st Cir. 1987), cert.denied, 484 U.S. 945 (1987); United States v. Mack, 362 F.3d 597, 601 (9th Cir. 2004); United States v. Cauley, 697 F.2d 486, 491 (2d Cir. 1983), cert. denied, 459 U.S. 1222 (1983); United States v. West, 877 F.2d 281 (4thcert. denied, 493 U.S. 959 (1989); United States v. Harris, 2004 U.S. Dist. LEXIS 8849 (D.N.J., 2004). Cir. 1989),
[8] Prosecutor v. Milosevic, Case No. IT-02-54-T, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, at para. 33.
[9] Prosecutor v. Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber=s Decision on the Assignment of Defense Counsel, 1 November 2004, at para 9.
[10] Id. at para 13.
[11] Id. at para 15.
[12] Id. at paras. 17-18.
[13] Id. at para 19.
[14] Id. at para. 20.
[15] Prosecutor v. Vojislav ?e?elj, ?Decision on Prosecution?s Motion for Order Appointing Counsel to Assist Vojislav ?e?elj?, Case No.: IT-03-67-PT, 9 May 2003.
[16] Id. para 29.