Milošević and the Self-Represented Accused’s Right to Justice
Special Tribunal for Lebanon*
When Milošević was transferred to the ICTY, it was not yet known if he would represent himself. His decision to do so forced the ICTY to reconsider and revise its procedures and assumptions for how to conduct a fair and expeditious trial. This chapter reviews the growing challenge faced by the judicial administration of international courts in dealing with defendants who invoke a right to self-representation—a challenge that, in Milošević, was both procedural and interpersonal—and assesses the extent to which these institutions are responsible for ensuring that defendants have adequate means to put their case. The Milošević trial highlights the pioneering work of the Tribunal in addressing these challenges, the lessons the Tribunal learned, about creating a process and an atmosphere of consent and cooperation and the reforms it employed in better supporting self-representation in later complex cases, such as the Karadžić trial.
Whether at the international or municipal level, a judicial system that is designed to try alleged criminals is obliged to ensure that the principles of justice do not vary and are guaranteed at each phase of the process. The consequence of failing to ensure a uniform fair process is a fragmented bond between the spirit of the law and its just application. More practically, a defective process delegitimizes the value of judgment, thus weakening the relationship between a court and the people it hopes will benefit, for example in the context of reconciliation.
One of the mechanisms by which an adversarial legal system ensures consistent and fair process is through the use of professional representatives: Prosecutors are trained lawyers, but most defendants are not, so allowing them to be represented by defense counsel helps to ensure equality of arms. But when a defendant chooses to represent himself, this institutional balancing—and the assumptions that surround it—is thrown into doubt.
To be sure, a self-representing defendant sacrifices a great deal—expertise, perspective, emotional distance—and places a far greater burden on his own abilities; he risks becoming the proverbial “fool for a client.” Arguably there are few incentives to waive one’s right to representation. Still, self-representation has a long history in certain legal traditions, and its own assumptions surrounding it:
A certain unreconstructed mystique has unfortunately shielded the right of self-representation over the years. The iconic image it presents is one of a simple citizen, typically a social outcast or a proud political dissident, pleading for simple justice before a jury of his peers. It is a portrait of direct democracy at work, a self-represented individual throwing off the formal trappings of the state and its lawyers to present an unmediated narrative voice in the courtroom. It heralds the simple force of truth against the overly rationalized power of the state, the freedom to say “no” to both the power and the process of the prosecution. It champions a nostalgic sense of the simple liberties due the common man even in an age of highly regulated complexity.1
Wisely or not, individuals do choose to defend themselves, and once a person’s right to represent himself is upheld by the law, a number of issues arise: What responsibility does the judicial institution have to ensure he is given adequate facilities to allow him to put his case? Are the standards applicable before state courts relevant at international and hybrid criminal tribunals? These issues may seem technical, but they go to the very core claims about legitimacy and efficiency on which a juridical process rests: At minimum, a judicial institution, whether municipal or international, must ensure that the notion of fairness and access to justice are upheld.
The international justice system is designed to handle complex crimes on a theoretical level, but when faced with practical challenges such as trying an accused who waives his right to representation, the system exhibits its weaknesses. How should an international tribunal administer the case of a self-represented accused?2 Does it have an obligation to modify its rules and procedures to serve the needs of an unrepresented accused, especially one who is detained and whose access to people and information is therefore restricted? These were the kinds of questions that arose when Milošević became the first defendant at the ICTY to defend himself—and, moreover, one who did so while denying the legitimacy of the Tribunal and refusing to engage it directly.
This chapter does not address the wider debate surrounding the right to self-representation* and its status in customary international law.† Whatever the wisdom or legal status of self-representation more generally, the ICTY Statute clearly provides for such a right,* as does the Rome Statute and those for other tribunals;3 the opportunities and problems implicit in applying such a right will therefore continue to arise. The aim of this chapter is to review the growing challenge faced by the judicial administration of international courts in dealing with defendants who invoke their right to self-representation, and to assess the extent to which these institutions are responsible for ensuring that defendants have adequate facilities to put their case.4 Through the ICTY’s institutional efforts simultaneously to accommodate that claim of right, and yet also to engage him in the trial process, Milošević ultimately became an active if indirect participant in the process of judicial administration. The Milošević trial highlights the pioneering work of the Tribunal in addressing these challenges, the lessons it learned, and the reforms it employed in better supporting self-representation in later complex cases, such as Karadžić.
Although the [Statute] provided the defendant with the right to self-representation, no mechanisms were in place to allow that to happen in practice.5
When Milošević was transferred to the ICTY in June 2001, it was not yet known that he would represent himself, and consequently the Registry followed its standard admission process.6 Milošević had legal representation before the Belgrade District Court, the Dutch Court, and also the European Court of Human Rights;7 however, he refused to appoint counsel before the ICTY because he argued, as he would also later, that he did not recognize its legality8—implicitly invoking the same argument used against the Nuremberg Tribunal, namely that the ICTY represented victor’s justice.9 Whatever the merits of that view, Milošević’s decision to refuse counsel—which ultimately led to what the Introduction refers to as the self-representation crisis of Milošević—raised an immediate problem: What did it mean to represent oneself at the ICTY?
The ICTY Statute establishes a right to self-representation, but is largely silent about what that right means in practice; the RPE, meanwhile, make no mention of self-representation.10 There was thus a considerable silence—and a gap between the two documents—and so the judges were required to reach beyond the black letter law to address the practical and conceptual challenges that the rules’ application brought to light.11
The RPE are an amalgamation, primarily drawing on adversarial systems, but with some variations borrowed from the civil, inquisitorial system: a hybrid model.12 As a result, the particular solutions to problems that have arisen in cases—as interpretation and revision of the RPE has also been guided by or in response to precedent13—inevitably are marked by laws and procedures from municipal legal systems represented by the mixture of individuals employed at the Tribunal. This accretional codification of the rules has often been favorable to a more efficient and effective judicial process.
Thus although the ICTY had never confronted the question of a self-representing defendant, there were sources and points of reference for the Tribunal to draw upon, much as it did for other aspects of its jurisprudence. In the last 20 years, there has been a dramatic increase in cases of self-representation worldwide, and municipal jurisdictions have been compelled to devise better methods to address this emerging trend.14 After many reports, committees, and commissions,15 state courts began to liberalize and amend their practices, eventually producing “marked improvements in the service provided by courts and … mak[ing] the courts process both more understandable to and more acceptable by self-represented litigants.”16 Today, court administrators argue that if any court “lack[s] assistance to self-represented [litigants it] should develop some level of assistance as soon as possible.”17 Obviously, fairness concerns militate against designing an entirely separate set of rules to support self-represented accused, an observation that has resulted in pressure to streamline juridical processes. For example, the Canadian Bar Association, in a 1996 Report,18 encouraged reform to enhance access to justice by addressing the complexity of the language used in court forms and procedures; the recommendations in the Report recognized this to be a hurdle faced by the self-represented.
The results of these reforms in handling self-represented accused cases, which applied at the state level, did not transfer completely to the international level, however. When Milošević announced that he was going to represent himself, becoming the first defendant at the ICTY to do so, the Chamber and Registry cautiously followed suit by developing new internal practices to manage self-represented accused cases, which we will examine in the next section.
But even as the various institutions of the ICTY began to formulate new practices, it became clear to the Chamber that the provisions in the ICTY’s own Statute were potentially dangerous to the effective administration of the institution. Indeed, the RPE were never amended to reflect the changes made, perhaps due to the inevitable fear that more accused would repeat the unwelcome practice, thus setting a dangerous precedent. Whatever the reasons that civil litigants were increasingly choosing to represent themselves before municipal courts, the structure and incentives in complex international criminal cases may well be entirely different. The ICTY’s institutional actors are not in favor of self-represented accused, as their cases have proved to be a burden on the system; however, they have been forced to accommodate the right, because the Appeals Chamber continues to uphold self-representation.19
The Registry did an excellent job in creating innovative mechanisms to allow Milošević to prepare his case and communicate with witnesses while he was in detention.20
It might have been possible to simply overrule Milošević and impose counsel—as was ultimately done several years later. From the first status conference held in August 2001, the Prosecution argued that Trial Chamber should impose defense counsel, in addition to the Amici Curiae who were assigned.21 In November 2002, the Prosecution made a formal submission requesting that the Chamber appoint counsel because of Milošević’s disruptive behavior and recurring illness. At that early stage, the Prosecution proposed appointing the Amici as assigned counsel.22 But the Chamber quickly decided that imposing counsel on an accused who does not want any would infringe on his right to put his own case.23
As the Chamber recognized that there was no easy way to ignore a right enshrined in the Statute, and given the unarticulated contours of self-representation in the RPE and the Tribunal’s practice, what processes should the ICTY adopt? Judge May, presiding over the Pre-Trial Chamber and later the Trial Chamber, was faced with the challenge of respecting Milošević’s right but at the same time ensuring that a fair and expeditious trial was achieved.24 This was a continuing concern: the question often posed by Judge May in between court hearings—while waiting for trial to resume—was “how do we ensure defense witnesses appear before the bench to give their evidence?” or “how do we ensure exhibits are tendered or witnesses come to court?” These questions all go toward the heart of managing a case with a self-represented defendant. They were genuine concerns expressed by a highly experienced judge and shared by others at the ICTY, especially within the Registry.
One option available was to apply the lessons learned from the national systems, in particular those outlined in the Canadian Task Force Reports, by simplifying procedures and using plain language when amending the Rules. This would allow for not only an accused who was not legally trained to participate, but also a counsel who might not be familiar with the particularities of the ICTY’s hybrid structure.* But such a procedure was not adopted as it would not necessarily address the complexity of trials such as those before the Tribunal, which require experienced and vigilant lawyers to represent accused.25
Another option was to maintain the existing procedural system, with all its complexity, but establish an institutional presence that would provide support to a self-representing defendant by acting as a conduit between him and the judges, Prosecution, and the Amici, who later became the Court Assigned Counsel.26 This was the option eventually adopted, leading to the pioneering establishment of the ICTY’S Registry Pro Se Office. The Pro Se Office was initially set up during the Milošević trial’s defense phase, on an ad hoc basis; and I was appointed to serve in it as liaison to Milošević, but it was only in September 2008 that the office was formalized to assist four additional defendants who chose to self-represent.* But its work during the Milošević trial, including its application of lessons learned from state systems and its creation of a “go-between” the accused and the court, established the contours of the self-representation system now in use by the Registry.
Before the latter option was fully embraced, however, a third was adopted.27 In August 2001, Judge May ordered the designation of Amici Curiae, noting that “the accused has informed the Registrar of the International Tribunal in writing that he has no intention of engaging a lawyer to represent him.”28 The Amici were of course formally there to assist the Chamber, but the intention that they serve as a kind of shadow defense counsel was inescapable. Still, this was not a clearly satisfactory approach. Not only had Milošević rejected representation—making it awkward to be seen to be imposing counsel by the backdoor—it was not clear that the Chamber itself was sure how the Amici could serve in that role. Although the Tribunal had experience with appointing amici,29 it had never done so as a way of managing a self-represented accused case nor, as we have seen, did it have the requisite procedures in place.30
These were concerns that the newly appointed Amici themselves pressed on the Chamber, requesting that Milošević be provided with adequate facilities to enable him to prepare for his case;31 with the filing of their initial brief in March 2002, the Chamber became engaged in questions relating to the facilities that should be provided to the Accused.
The Amici requested that the Chamber direct the Registry to establish a more flexible regime than was already in place for defendants who were represented by counsel. They suggested Milošević be allowed to: (1) appoint a lawyer who could assist him as an adviser and be paid by the Tribunal; (2) consult with his appointed adviser; (3) have access to photocopying facilities; (4) receive and forward documents to his adviser; (5) review video evidence; (6) access computer facilities; and (7) be assisted by his advisor to liaise with the Prosecutor in relation to disclosure of exculpatory information.32
Later in March, the Registry also submitted a report on facilities being provided to Milošević33—a report that demonstrated the absence of a well-developed, preexisting system for dealing with self-represented accused. Milošević had requested to communicate “with a number of persons who could possibly provide him with legal advice regarding his detention and indictment at the Tribunal … and legal interests in the Federal Republic of Yugoslavia.”34 The Registry applied its standard policy without any exceptions: He was allowed to meet with a maximum of five attorneys or law professors,35 and the meetings were not privileged.36 The standard practice was that only once an accused had selected an advisor and informed the Registry would the meeting be considered a privileged communication with the legal representative. The Registry initially misadvised the Chamber that Milošević’s request to receive legal visits from Ramsey Clark and John Livingston meant that he wanted these two individuals to be his advisors.37 In November 2001, the Trial Chamber issued an Order acknowledging the two individuals as the persons with whom the accused was allowed to communicate on a privileged basis. Later, in April 2002, two Serbian attorneys, Zdenko Tomanović and Dragoslav Ognjanović, were formally appointed as Legal Associates to Milošević, joined by a third, Prof. Branko Rakić, in October 2003.38
As he did not recognize the Tribunal, Milošević resisted receiving filings and refused to make written submissions to the Chamber. However, during the Prosecution phase, when Milošević rejected a position, he would make oral submissions at the next opportunity he had to face the Chamber. In addition to the filings and transcripts served to him, the Prosecution also regularly disclosed exculpatory material, which he would read. He reviewed the witnesses’ statements, and duplicate disclosure packages would be provided by the Prosecution case manager on repeated occasions, in order to ensure Milošević had the necessary documents to prepare his cross-examination. The volume of documents was massive, and often he would complain about not having space at the United Nations Detention Unit, or UNDU, to review and organize them.39
Initially, Milošević refused to receive documents from the Registry. The UNDU kept the filings he rejected boxed in a separate cell for many months until Milošević’s Legal Associates were appointed. Once the Associates were assigned, they requested the Registry to transfer the boxes in the UNDU to their office and also to begin copying all filings and transcripts to them. It was a rocky beginning, but eventually we fell into a routine: Milošević would select what he wanted to read and what he would ask his Legal Associates to review. The early operations were chaotic to say the least, but eventually the Legal Associates appeared to have cultivated a system, as information began to be communicated more efficiently and smoothly. The relations with Milošević were becoming more familiar and comfortable, which proved to be essential for the next chapter of the case: the defense phase.
During the prosecution phase, Milošević, as his own attorney, had had an active but circumscribed role—cross-examining Prosecution witnesses, raising objections and the like, but in response to the other side’s case. Now, as the prosecution phase drew to a close, the Chamber confronted the looming question of how to manage a self-represented defendant presenting his own case. It became evident at an early stage of the Milošević defense phase that it would be managed differently than the prosecution phase.
In September 2003, the Chamber issued an Order regulating the Milošević defense case.40 The September Order served many purposes, one of which was to satisfy UN auditors that the additional resources to support the case were actually required and ordered by the Chamber. In particular, it set forth the Chamber’s expectation that the Registry would ensure certain procedures set out in the RPE were followed, which implied that the Chamber was not going to deviate from the standard practice; however, the Chamber also considered “that these procedures must be adapted to the fact that this Accused is representing himself, is detained in the UNDU and has limited resources at his disposal.”41
With the September Order, the relationship between Milošević and the Registry was expanded. The Chamber ordered the Registry to provide Milošević with facilities, in a privileged setting, to confer with witnesses and others relevant to his defense and to review and work with documents and other materials; logistical support with regard to witnesses; and facilities to prepare for the presentation of his case.42 Throughout the defense phase, the authority of the Registry to justify providing the self-represented accused additional services and facilities continued to be derived from the September Order; the Chamber did not issue any further orders regarding the adequacy of the facilities, only adding that the same requirements continued to apply.43
Still, after the closing of the Prosecution’s case,44 the replacement of Judge May with Judge Bonomy, and the appointment of Judge Robinson as Presiding Judge,45 a new approach emerged, evident both for the bench and Milošević. For example, the Chamber required Milošević to file a list of witnesses he intended to call, including a summary of the facts on which each witness would testify,46 and a list of exhibits he intended to offer; he was also obliged to supply the Prosecutor with copies of the exhibits.47 This requirement surprised many, including Milošević. How could a self-represented accused, who did not recognize the legitimacy of the Tribunal and who had never submitted a filing before the Tribunal—as it would contradict his position—be realistically expected to satisfy such an order?
The change in tactics required the Registry to become much more closely involved with the administration of Milošević’s case. The Registrar, Hans Holthuis, along with David Tolbert, the Deputy Registrar, commissioned a proposal from the Court Management and Services Section, or CMSS, to provide the Chamber with a solution: CMSS proposed designating a Registry liaison officer to assist with the management of the self-represented case, listing the services the liaison would provide.48 In March 2004, I was named the Pro Se Legal Liaison Officer, but on an ad hoc basis—and not before Holthuis visited Milošević at the UNDU to seek his acceptance of the services to be provided. Holthuis understood that without the agreement of Milošević, the rationale for a liaison would fail. To our surprise, Milošević accepted the proposal, but only on the condition that he knew who Holthuis would assign as the Registry liaison officer. Holthuis advised Milošević that I would be the liaison officer, and he agreed.
I would be the primary channel of communication between the Accused, relevant sections of the Registry, the Trial Chamber, and the Prosecution in the preparation and presentation of the defense case. The communication between Milošević and me was achieved through meetings at the Tribunal before or after court proceedings, telephone calls during the working hours of the Tribunal, and meetings at the UNDU, particularly when court was not in session. I was assigned to also play a coordination role by providing information related to the RPE, the expected Trial Chamber procedure, or any administrative practice. The most important task that evolved during the process, however, was to assist Milošević by indirectly making written submissions to the Chamber. I was not permitted to provide legal advice.
The role of liaison officer turned out to be a challenging one both inside and outside the institution. The model was arduous for some Tribunal officials to accept: Some argued that because Milošević had chosen to represent himself, he should deal with the consequences. (The same sentiments seem to have been shared within state systems prior to their reforms.49) As an official of the court, I dealt with Milošević directly, often daily. Although the Pro Se Office was a part of the Registry, it was mandated to support the Defense impartially. Yet I was exposed to Milošević’s stories, concerns, and circumstances, and had to resolve administrative, often more technical problems—where possible—while at the same time trying not to get involved.
Through the years of the trial, familiar habits began to emerge in my interactions with Milošević. Stressful mornings were interrupted with melodies of Frank Sinatra or jokes about the prosecution. (Ironically, Geoffrey Nice would also often enter the courtroom humming a jazz tune.) Once he discovered my origins, Milošević chose to focus on them: He often introduced me to his witnesses as an Iraqi-Assyrian, forgetting to mention the American part of my split identity. I would joke with him about my split identity, which he for some reason did not believe existed—he would repeat that I was an Assyrian from Iraq. As one might expect, identity was an important topic for Milošević. He often expressed frustration that with the expansion of the EU, Serbian identity would be diluted to an imagined memory of what it once was. But he was also angry about the invasion of Iraq. The SFRY and FRY had had a history of good relations with Iraq, perhaps because of the common Western enemy against which they battled. Milošević spent many hours explaining to me how much he loved Iraq and its history—an especially frequent topic in 2004, just before I made my first trip back to the country since 1979. He reminded me of how glorious Baghdad had been, including the famous al-Rashid Street. He would generally mention the people, not the leadership, though it became clear to me that much of his discovery of historical Iraq was through Saddam Hussein’s eyes.
As I am a nonsmoker, court breaks and visits to the UNDU were the hardest because our meetings would be engulfed with smoke; I would return to the office reeking of the wretched smell. During court breaks, most of the participants would run to get their coffee; I would do the same and then run back to the small holding cell room next to Courtroom One, the main courtroom at the ICTY, to see if Milošević needed anything from me for the next hearing. Through the years, he would make random observations about my graying hair or suggest I should not drink coffee. “It’s not good for you, Evelyn,” he would say with a smirk. Once, after receiving his unsolicited advice, I told him I would quit drinking coffee if he would quit smoking. No deal was brokered.
On another occasion, I was preparing to return home to California, as I always did during the court recess, and Milošević asked for a favor: He wanted me to indulge in some cabernet sauvignon from the Jordan winery for him; he said that Jordan’s cabernet sauvignon was one of his favorite wines. He would later seek permission from the UNDU Commanding Officer to have a glass of red wine with his meal every evening; he argued that it would assist in lowering his blood pressure, but the Commanding Officer was not persuaded.
Seven years have passed; it is difficult to reflect on the more substantive exchanges in our relationship, as the strictures governing privileged communications continue to bind the institution to which I remain loyal. So, these informal exchanges—for me, these memories—signify the commonplace engagement between two persons, unexpectedly brought together at a time of great significance to history, which marked my relationship to Milošević.
As the trial progressed, it became evident that it was of utmost importance for me, as the liaison officer, to maintain neutrality at all times—the more so as I became, involuntarily, the face of the Accused and therefore had to confront challenges behind the scenes. Colleagues who did not know me well questioned my neutrality. The Chief of the Victims and Witnesses Section channeled her anger toward me because resources were being diverted from her budget; seemingly, she did not comprehend that the Chamber had ordered her section, as a part of the Registry, to support the Accused in bringing witnesses. She was not alone; most people in the Registry did not understand how to manage this very complicated situation. I heard passing references to the Stockholm syndrome directed toward me. I never shared my personal thoughts with my colleagues; instead I bartered and debated with those individuals who, I felt, did not understand the principles behind the service-oriented section to which they belonged.* I kept silent when it came to my strategy to build Milošević’s trust.
A liaison must act as a reliable and useful conduit. This is the basic strategy used by negotiators, and court officials need the same skills in trying to encourage a self-represented accused—suspicious, demonized in the media, and unwilling to recognize the institution’s legitimacy—to participate in the trial process; I certainly saw myself as playing a similar role. The cultivation of a conduit role has both an advantage and a disadvantage for the judicial institution: The liaison establishes a unique level of communication, and precisely for that reason, is expected to channel information to other parties, but the accused also knows this, and therefore the cultivation of a conduit role depends on the meshing of personalities.
So, it is not enough to establish an institution with a mandate to be impartial and neutral—it is essential that the other participants believe it. Did Milošević believe it when the Registry informed him that its services would be provided to him by a neutral, impartial conduit? The role of the emissary is vital to ensuring the trial process moves forward; however, if that person does not build a relationship of trust, the method will not work. Milošević appeared to develop a level of detached trust in me—trusting me without allowing himself to get too close—and perhaps he knew that I stood fast to my neutrality. Yet the very fact of neutrality—which implies not being a partisan for either side, and therefore not for the Accused either—makes it difficult to establish full trust. Milošević could trust his Legal Associates’ loyalty, but I am not convinced that, as liaison, I could have achieved that. The process is therefore about the significance of the relationship and of designing a line of communication that builds off respect for each other, with a mutual understanding of matters on which both may not always agree.
All of this takes time. For two years, before I was designated the Liaison Officer, I was the Registry Court Officer assigned to the case, working directly, intensively, and cordially with Milošević, and without this prior connection it is doubtful that my role as a conduit could have become operational nearly as quickly, or even that Milošević would ever have accepted the new arrangement. That actual work had been more typical of the Registry—transmitting copies of exhibits, transcripts, court filings—but here it was directed to the Accused rather than to counsel. Often, when he intended to tender documents as exhibits, the court officer would also facilitate the submission of the document for translation to the language department, something not done in represented cases, but necessary here because the judges refused to admit documents without having them first translated. As Milošević did not recognize the Tribunal, he also required his Legal Associates to work through me and not directly with the Chamber. With their trust and assistance, I was successful in helping bring order to what Milošević often termed “organized chaos.” The liaison system proved to be successful in getting valuable information before the Chamber, especially as the Chamber did not expect him to be actively engaged in the defense phase. As Liaison Officer, I would transmit documents or lists of witnesses to call, for example, often cross-referencing materials with whatever Order to which the Accused was responding. This was the only way the material could be formally filed before the Chamber, so those participating in the proceedings could be seized of the information. At times, at Milošević’s instruction, I submitted certain information to the Chamber, but not the Prosecution.
As a result of the Chamber’s strict expectations, the questions and concerns about how to ensure a fair and efficient trial, which Judge May had raised early in the trial, appeared to be resolved. I eventually requested to be assigned an administrative assistant and a deputy liaison officer. With the two additional staff members, the Pro Se Office was created, albeit on an ad hoc basis. The Office spent many hours collating, labeling, and organizing Milošević’s thousands of exhibits, all with the goal of ensuring that the material was in proper form to be disclosed to the Prosecution and Chamber. At the time, it was accepted that without this administrative support, the Prosecution and the Chamber would not have received the case material.
This cooperation was reciprocal. Even though the Pro Se Office’s liaison work was with the Accused, without having a strong, cooperative Prosecution team, the model would have collapsed. And, although the Prosecution insisted on having counsel imposed upon Milošević, behind the scenes, due to the work of an excellent trial support team, the machinery functioned without a hitch. Countless hours were spent by the Prosecution’s case managers patiently communicating with the Pro Se Office, disclosing material to the Accused, often repeatedly, without any frustrating glares because it was silently understood that the work needed to be done with flexibility. The Office also facilitated communication with the Victims and Witnesses Section; as a result, it was necessary to contact witnesses on Milošević’s list, organize their travel, and identify the material Milošević intended to tender into evidence for each witness, in order to satisfy the disclosure obligations. These reciprocal aspects highlighted the implicit dual purpose of the liaison process, which was both to bring Milošević into the trial process and to do so in a way that made the defense function coequal with the Prosecution and Registry.
Finally, the liaison relationship also proved to be important when Assigned Counsel—the former Amici—were appointed in September 2004.50 The Chamber instructed the Registry to provide the same assistance and information gathered from the Accused and his Associates directly to the Assigned Counsel. Milošević refused to cooperate with the Assigned Counsel, but he did not object to the information already disclosed to the Liaison Office being provided to them.51 Although the Assigned Counsel subsequently filed submissions on his behalf, Milošević refused to speak to them except indirectly through the Liaison Officer or his Legal Associates.52
The decision to establish the Pro Se Office and its work in assisting with the administration of the defense case remain in the shadows because the work of the Office was conducted behind the scenes. Its work remains invisible in another way too: Although the trial was nearly over when Milošević died, there was no final judgment, and so it remains unclear whether the ad hoc system put in place was a success. Yet today, though still based on jurisprudence repeatedly upholding the right to representation, the model tested in the Milošević trial has evolved into a basic set of principles about what facilities and access to justice should be available to a self-represented accused. Since Milošević, its precedent has been applied and extended in four subsequent cases: Krajišnik, Šešelj, Tolimir, and Karadžić.53 In the Karadžić case in particular, the procedure has evolved into a multifaceted approach to representation—a more complex model that applies the lessons learned from Milošević, especially from the perspective of the Accused.
After Milošević’s death, the Pro Se Office was dismantled, its materials boxed away for archiving. Yet, shortly after the arrest and transfer of Radovan Karadžić in July 2008, the Registrar reactivated the office, this time formalizing it within the Registry section.* Although this Office is in many ways the same one that served in the Milošević trial, many variations are at play, which affect its role and effectiveness.
For one, the directness, immediacy, and visibility of peripheral legal support for self-representing accused have all increased. In the Milošević trial, the Legal Associates had been prohibited from participating directly or visibly in the trial process; any communication from them to the Judges always went through the Liaison Officer and not through written submissions. The approach in Karadžić is more complex and integrated; indeed, it seems that both Karadžić and the Chamber are applying the lessons learned from the Milošević trial. Karadžić’s legal advisor engages directly with the Chamber, in particular, on legal issues, and the team supporting Karadžić is organized as a traditional defense team, with Karadžić as lead counsel.54 The Karadžić team has also recruited international lawyers—some former ICTY senior legal staff—as pro bono experts.
Karadžić’s own interactions with and arguments before the Chamber are quite different from Milošević’s, which often angered the judges; this too has affected the work of the Pro Se Office. The ICTY was surprised by Karadžić’s cooperative approach; indeed, the initial assumption was that he would follow Milošević’s more detached, uncooperative example. Yet from the beginning, when he was first placed in custody and later made his initial appearance, Karadžić was, unlike Milošević, willing to speak to Tribunal officials, be served with the indictment, and sign any necessary documents, which made the work of court officials much more straightforward and reduced the need to conduct work indirectly through the Pro Se Office.
Other differences involving the financing of trials have made the Registry’s role more rather than less salient. When an accused chooses to self-represent, the ICTY’s usual models for legal aid and assignment of counsel do not apply. As Milošević did not seek legal aid, that aspect of the Registry’s services was never challenged, except when it came to the costs for the Amici and Assigned Counsel,* so the complexities of funding legal support for a self-represented accused did not arise—as they did in the Krajišnik, Šešelj and Karadžić trials.† In Krajišnik, the Appeals Chamber dealt with the issue of whether a self-represented accused is entitled to legal aid, and held that an accused faced a binary choice: “An accused who chooses to self-represent is not entitled to legal assistance. Hence, he is not entitled to the subsidiary right … to have legal assistance paid for by the Tribunal if he is indigent.”55 Nevertheless, the Chamber went on to state that the Registry “should adequately reimburse the legal associates for their coordinating work and for related legal consultations.”56
In the Krajišnik Appeal case, the Registry established the Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused;57 the Remuneration Scheme was later amended to reflect the Pre-Trial Chamber’s findings in Karadžić.58 In addition to addressing the payment for services provided to indigent, self-represented accused, the Remuneration Scheme relaxes the eligibility requirement for a Legal Associate.59 Legal Associates are also granted privileged access to the accused, but all team members are required to sign a confidentiality undertaking before receiving access to protected information, and legal associates are required to undertake to comply with the same standards that apply to full counsel appearing before the ICTY.‡ Although the Remuneration Scheme applies only to indigent, self-represented accused, the model would have proven to be of great assistance to Milošević, as he often only had one Legal Associate at the ICTY at one time due to a lack of funding. (I can count on one hand periods when all three Legal Associates were at the ICTY at the same time; they would travel on a rotational basis, as two of them ran successful law firms in Belgrade and were representing high-profile clients there as well.)
Finally, the new, integrated model of self-representation produces a different dynamic for dealing with courtroom discipline; a responsive model was first developed in the Milošević trial, but not tested until subsequent cases. In Milošević, the challenge faced by the Chamber was how to ensure that a self-represented accused could be held accountable if he violated the Tribunal’s rules or orders. The Code of Conduct and the Directive on Assignment of Counsel60 did not apply explicitly or automatically to someone providing legal advice to a self-represented accused informally outside the courtroom process; the Chamber, with the assistance of the Registry, tried to go beyond normal practice by treating the Legal Associates as counsel and thus requiring them to sign confidentiality undertakings, which they did.61 The problem, of course, was that the lead counsel—the Accused himself—was not required to sign the same undertaking, yet he was in essence the head of the team, and the person with the authority to instruct the others. As it happened, there was no breach of confidentiality during Milošević, and so the model was not tested until the Šešelj trial.
While on trial, Vojislav Šešelj, representing himself, was held in contempt for disclosing protected information to the public and thus putting the life of the protected witnesses in danger—the first time the Chamber had applied its inherent contempt power to hold a self-represented accused accountable.* Even though Šešelj had not signed an undertaking, the Chamber recognized that it was nonetheless implicitly essential that a self-represented accused also abide by protective orders, and that it was therefore appropriate to condition his access to confidential documents on such an undertaking.†
This is a vital development considering that a self-represented accused has full access to material that is often under very strict protective measure provisions. As the authority to grant access to protected material is at the discretion of the judges, often the protective measure orders lay out the obligation not to disclose the information; however, as with any counsel or staff representing an accused, there should be an added requirement to sign a confidentiality undertaking, rather than relying on the contempt power alone. Currently, the requirement is imposed only on Legal Associates and the staff who are also assigned to assist the defense team; short of full contempt proceedings, however, it is difficult for the institution to hold pro bono staff accountable, and in such cases, the Registry has requested that these individuals be given access only to public materials.62
Even though there was no significant breach of confidentiality in Milošević, this kind of more assertive approach by the Chamber to a self-represented accused’s prerogatives and obligations would have had a more general impact. Had such a procedure been in place (or had it been thought possible to invoke it) during his trial, Milošević—who was frequently combative—could have been prosecuted under inherent contempt powers, and this might have dramatically altered the balance of forces that contributed to the length and difficulty of the proceedings. Whether this would have constituted a better approach is, of course, a separate question.
The initial concept of developing an administrative system to support a self-represented accused at the ICTY was the vision of the late Judge May. While presiding over the prosecution phase of the trial, he often appeared frustrated and stern when Milošević continually challenged the Chamber. Outside of the hearing environment, he would often voice his concerns in a different register, trying to work out how Milošević would technically put forth his defense case. Indeed, that was a problem for the institution, especially when, at the time, Milošević was refusing to cooperate with or recognize it. Judge May understood at a much earlier stage that without Milošević participating integrally in the trial process, there would not be a defense case, and this would impugn the integrity and fairness of a final judgment and the trial as a whole.*
What does integral participation mean to the Tribunal? It means more than technically competent preparation, though that is essential too: the real challenge for the institution was to secure Milošević’s consent to the process, even if only implicitly. The Chamber first appointed Amici and then Assigned Counsel to assist with the case, but because Milošević did not cooperate and refused to communicate with those individuals, it ordered the more integral involvement of the Registry through the newly designed Pro Se Office. Although the Office did much technical work, its key role was in trying to establish the basis for that consent and cooperation.
With the Pro Se Office, the ICTY introduced a more coordinated system for self-representation by allowing Milošević to have adequate access to justice through the Registry. The Chamber understood that it was essential to build this bridge behind the scenes; only in this indirect way could the Pro Se Office secure Milošević’s cooperation with the Tribunal. This took time, but this is less of a problem if the role of the Pro Se Office is complementary to an existing defense team, as in the Karadžić trial.
Is this a model to be used by all international or hybrid tribunals? The answer depends on whether the defense is represented by an independent pillar, as it is at the Special Tribunal for Lebanon.† The liaison model fits more logically within a dedicated Defence Office, as it would clearly fall in line with its general mandate.63 At the ICTY, this fourth pillar does not exist. Likewise, at the ICC, the responsibility to provide facilities to the defense remains the responsibility of the Registry as a neutral organ. Although it is possible for the model to function adequately if it remains under the authority of the Registrar, as it did in the Milošević trial, in such a case the boundaries between the Pro Se Office and a self-represented accused must be clear to ensure that neutrality of Registry is not compromised.
At the ICTY, the pro se liaison system succeeded in establishing clear boundaries for communicating with self-represented defendants, but this system also involved the building of relations, albeit indirectly, with all three organs of the Tribunal, which provided an inherent balance and a measure of interdependence. This process does not work if there is a belief or practice that only one of the organ’s work matters to achieve justice, and especially if the equal, autonomous value of the defense component is not recognized. As a trial progresses, the Chamber, Prosecution, and Registry develop a dependency on each other, often resulting in the exclusion of the self-represented accused. The goal of the liaison system, first developed in Milošević, is therefore not only to bring the self-represented defendant into the trial process, but to ensure that he is incorporated into it on equal terms as well. These elements of balance will be easier to achieve in an institutional setting that incorporates the defense bar as a coequal element of the trial process.
Self-representation may or may not be a good idea—it does certain things for defendants, but has real costs to them and the institutions—but in many ICL contexts, it is a statutory right (and for some a customary right), so courts have to be ready for the possibility. The ICTY had that obligation, but the system was not ready at the outset when Milošević invoked his right, and the initial response was piecemeal, applying standard practices with only minimal efforts at being flexible. Eventually, the Registry’s approach shifted with the Trial Chamber’s orders to the Registry to ensure that the adequate facilities were provided in a way that responded to the practical needs of a defendant representing himself. The Milošević trial was the first such effort, and it has been followed by a more clearly articulated set of integrated policies. But in building on Milošević’s lessons and adopting a flexible approach, international tribunals and courts will only be applying lessons already learned in municipal systems that encourage the integral participation of defendants: A fair judgment can only be guaranteed by a just process.