ANALYSIS: Milosevic Running Out of Steam

Although he was facing a marathon, Slobodan Milosevic got off to sprint start. And for a time, it seemed (at least to his supporters) that the defendant was way ahead of the tribunal prosecuting team.

But five weeks and 22 working days on, Milosevic is facing the consequences of opting for the wrong tactics, which for a marathon racer could be classed as suicidal.

His strength is wearing out, he is becoming exhausted, and not surprisingly he succumbed to a flu-like virus, which he will need time to recover from.

Unlike his supporters in the Belgrade "Freedom Association", who accused the tribunal of using a "guided virus" to infect their idol, Milosevic appears aware of the true cause of his health problems.

He has realised that no one can keep up a sprinter's pace in a marathon and he will have to conserve his strength and energy. Through his Belgrade attorneys, he announced that when he recovers and returns to the courtroom on April 8, he will insist on two or three days of rest after every seven or eight days of hearings.

According to his Belgrade lawyer Dragoslav Ognjanovic, he is "exhausted by this very intensive trial".

This will create more headaches for the judges, who are already urging all the parties, especially the prosecution, to interrogate their witnesses as quickly and efficiently as possible in order to finish the trial in two years as planned.

The plan, though, is unrealistic. Seven working days have already been lost over the last six weeks (six from Milosevic's illness and one for a canteen fire). Five more were lost this week. Even before this interruption, Milosevic's extensive cross-examinations had put the prosecution case well behind schedule.

The call for longer pauses between hearings will be added to other requests he has made of the court, chiefly concerning his defence preparations. Even before he got the flu, the judges asked the tribunal's registry for a report on practical facilities available for the latter.

The report was delivered last week. It might as well have been called, "How to defend Milosevic in spite of himself... and at the same time preserve interests of justice in a fair, efficient and speedy trial?"

On the one hand, the report stated that "an accused who is in detention and unrepresented will face many difficulties...which will most probably make it next to impossible to defend himself alone in a case as substantial as that against the accused".

On the other, after referring to the European Convention on Human

Rights - which Milosevic constantly refers to, claiming that his rights are

being violated - the registry emphasises that "the rights of the accused to

defend himself are not determined by the rights of the accused only, but

also may be restricted by the interests of justice in general, and in

particular by the high-ranking concerns of witness protection".

Thus, Milosevic's right to defend himself must be weighed against the

interests of an efficient trial, witness protection and legitimate security

interests.

The defendant's rights, it is stressed, are subject to the interest of

conducting the trial effectively; the fact that Milosevic receives no

professional legal help "severely affects the course of the trial, by

delaying or interrupting it, or by rendering the presentation of evidence

uncoordinated or incoherent."

This has been made perfectly obvious in the first five weeks of the trial and will become more so when Milosevic starts presenting his case and evidence, unless he changes his mind and accepts professional help.

For one thing, the defence is not only obliged to show "respect for specific witness protection measures, but also for the integrity of witnesses not under protective measures".

This, Milosevic and his associates have signally failed to do. Concerns over

witness protection, the registry report says, "have been highlighted by

news reports that a certain 'Freedom Association' based in Belgrade... has

set up an office divulging witness contact details to the public". Such an

action, it concludes, "could be presumed to be directed at intimidating

witnesses".

Finally, the right to defend oneself is subjected to "justified

restrictions based upon legitimate interests of security... to

guarantee the presence of the accused for trial and the undisturbed

personal security of the accused, other detainees, the tribunal's judges

and staff".

The defendant's communications to persons other than his counsel or other legal representatives "are regularly monitored, mainly in order to

prevent escape, interference with witnesses, interference with the

administration of justice, or disturbance of the maintenance of security

and good order at the detention facility."

Milosevic can presently communicate with the world from within the UN

detention unit and from the holding cell in the tribunal, where he spends

trial session breaks. He received a PIN-code to make telephone calls or

send and receive fax messages in hearing breaks, and he will also have

access to a photocopying facility during a trial session break.

His detention cell is equipped with a VCR, so he can review

video evidence and the same will be done in the holding cell in the

tribunal building, if he requests it. He will be allowed to install a

printer for his lap-top computer in his detention cell. The registry says

this "satisfies the technical requirements of a defence conducted by an

accused himself".

But the adequate defence of such a complex case includes more than

"technical requirements" and the registry maintains that "effective

external assistance" might be the solution.

This, it says, would "facilitate the procedural rights of the accused in a

proper fashion, while at the same time maintaining the interests of proper

administration of justice, of witness protection and security".

For that purpose, it concludes, the defendant should be allowed to maintain

contact with two persons of his choice, who must be qualified professional attorneys or law professors. They would be named by Milosevic but subject to the tribunal's code of professional conduct while assisting the accused, the registry report says.

They would have access to the defendant in the UN detention unit and in the tribunal's main building during hearing breaks. During sessions, they would enjoy "access to the public gallery and, if so requested, to the

courtroom".

It is just another version of the idea that Milosevic should be allowed to

select two legal advisers, who would come under the tribunal code of

professional conduct, or ethics. The Hague tried this last November,

when the defendant requested contact with Ramsey Clark and John Livingston. The court formally acknowledged them as Milosevic's legal advisers with the right to communicate with the accused on a privileged basis.

Milosevic refused to accept this, claiming the court was "forcing"

attorneys he did not want on him. At the same time, he refused to say who he wanted. He will probably react the same way to idea presented in the registry report last week.

Just possibly, Milosevic will come to realise in time that he needs expert

help in organising his defence, just as he has now realised that sprinting

is not the way to win a marathon.

Mirko Klarin is IWPR senior editor at the war crimes tribunal and editor-in-chief of SENSE News Agency.