³³³²⁴

Thursday, 11 November 2004

[Open session]

[The accused entered court]

--- Upon commencing at 9.05 a.m.

JUDGE ROBINSON: Mr. Nice or is it Mr. Kay?

MR. NICE: Your Honour, with Your Honour's leave, I would seek to add to the arguments I made yesterday. In anticipation of making the application to be able to add arguments, I served on -- well, I attempted to serve on Mr. Kay last night a skeleton argument. In fact, I gather he didn't receive it until this morning, and I made it available to your legal officer, and the skeleton argument has been made available to the accused this morning.

The topic that we are dealing with is extremely --

JUDGE ROBINSON: We have to consider that.

MR. NICE: Yes, of course.

MR. KAY: May I say, I've read the skeleton argument this morning, and in my view it's highly significant in the content and material that is to be put before the Trial Chamber by the Prosecutor, and I have no objection.

JUDGE ROBINSON: And has it been served on the accused?

MR. NICE: This morning it has, yes.

MR. KAY: I think if Your Lordships, Your Worships -- bad day. There are so many different courts, I suppose, you -- and I haven't been in a rural traffic court for many years, so where "Worships" came from I don't know. Your Honours, I don't know whether -- I think time should be ³³³²⁵ taken to read the skeleton argument before deciding anything because it is of great importance.

JUDGE BONOMY: But it deals largely with the issue of further procedure rather than the assignment of counsel, with the exception of a couple of sentences at the end, doesn't it?

MR. KAY: No. It's rather looking at the whole problem that we're -- we're dealing with and the expression of it by the Prosecutor may well assist us in having to deal with the issues contained within it.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, we have considered the matter. We'll hear you on it briefly. We had the advantage of reading it, and you need not spend too much time on it. I would say ten minutes, and then we'll hear from Mr. Kay and the accused, if he has anything to say on it.

MR. NICE: I'm grateful. The stimulus for this additional argument was the broadening of the discussion yesterday and the sensation that, although there was much to say, I wasn't able to take Your Honours to a conclusion that was really helping you, and I know at the end of the argument I may have been saying things that weren't fully understood, partly for reasons of limitations of time. And I suspect that, to use a cricketing analogy, my eye was off the ball because I'd been disturbed by -- not disturbed. Because of the timing of the serving of Mr. Kay's letter. Had it been served before the appeal hearing, then the Trial Chamber would have faced the situation that that created. Had it come immediately after the appeals hearing, we would have looked at the appeals hearing in isolation. As it is, we've been looking at the application ³³³²⁶ itself.

In summary, for those who haven't had advantage of reading the skeleton argument, it seems clear to us that the order of the Appeals Chamber so emasculates the original order of this Trial Chamber for assigned counsel that assigned counsel really can have almost no function. And I've set out that. To some degree I argued that yesterday.

JUDGE BONOMY: Mr. Nice, that may well be a sound argument - I don't mean to begin to pre-judge it - but in paragraph 5 of your skeleton proceeds on the basis that it's something rather unforeseen. But my recollection of the debate, the original debate about the assignment of counsel, was that what the Appeals Chamber has put in place was more or less what the Prosecution suggested at that stage.

MR. NICE: I think that what we suggested at that stage was the modalities as ordered by the Trial Chamber. We checked that following the hearing and following a question by Your Honour. But of course, the -- the precise questioning of witnesses was not associated with the full control of the case by the accused. Not at all. It was always envisaged by us, on the issue of imposition of counsel, that counsel would be running and managing the case even if, in court, the accused would be involved, whether first or second, in the questioning of witnesses, and it was never envisaged that the whole control of the case would lie with the accused.

Now --

JUDGE BONOMY: Well, I have to say that -- and no doubt you'll correct me if I'm wrong, but my impression is that stand-by counsel was ³³³²⁷ more or less the arrangement you were proposing, that someone would come in if things broke down at a later stage. And even the Prosecution position wasn't -- wasn't as firm as that that was ultimately taken by the Trial Chamber.

MR. NICE: Your Honour, I think -- I would, I think, differ. Our position was that there should be stand-by -- imposed counsel -- counsel should be imposed and should be completely in charge. Now, Your Honour's recollection of the way we put it may be a reflection of this: That we said that being the default position, it would always be open for the accused to say, "Well, can I actually have my own lawyers?" It's always be open for the Court to say, Well, stand-by counsel is running this -- not stand-by counsel. Imposed counsel is running this, and the next question is what witnesses are to be called, but the accused can take part in that, if he wishes, and to try and engage him. At the time when witnesses were called, it was always envisaged in our model that it would be possible for him to take part in the questioning of witnesses, but this was under the overall fully imposed counsel. That was our intention. And I think and I hope that our pleadings bear that out, and Ms. Graham will either take me to them or correct me if I'm wrong.

So when the order of the Chamber came out, it was indeed our understanding and interpretation that you had indeed pretty well followed what we were asking. So recollections may differ, but that's certainly ours.

And had it been known at that stage that the modalities as ordered ³³³²⁸ by the Trial Chamber were unacceptable to the Appeals Chamber in the circumstances of this case, we would, I hope and indeed I'm sure, have considered alternatives, because the modalities as ordered and interpreted leave almost no authority in the hands of assigned counsel. And as I suggested in one of the paragraphs, even if there come periods of time in which, in theory, assigned counsel could take over, he would in practice be thwarted by the accused's witnesses or by the accused, and the -- to pick up the analogy that's been used yesterday, it will be a permanent change of drivers in the driving seat, which is completely unacceptable. And so the modalities as ordained by the Appeals Chamber really make assigned counsel not a useful concept, which therefore brings us back to how, in light of the particular problems manifested by the accused, in particular his ill health but everything else, I suppose, how can we get to a satisfactory conclusion of this trial at a time scale when the Court won't find itself facing almost all people who have never been involved in the trial from the beginning? Because that's the real risk we're facing. This trial has, in our respectful submission, to be brought to an end in a reasonable time.

Now, our conclusions, and I'll leap straight to those because of the time limitations, our conclusions are that if assigned counsel can offer no real use under the ordained, permitted modalities of the Appeals Chamber, the better course is -- or may be -- the better course may be to fix times in one of two different ways which I've articulated and to say to the accused, it's up to you. Use this time as you can. Now, it would be, for example, by my calculations and if the Court ³³³²⁹ were to say to a defendant representing himself, an accused representing himself, you've got a year from now, five days a week, up to you how you use them. But if you choose to have lawyers doing the work and just using the court days, you'll have about 180 days.

The reality is -- or the unreality is that it is absurd for somebody in a case of this scale to think that he should be allowed a timetable that enables him to prepare witnesses and to take them and do everything else. As I explained in the skeleton argument, Prosecution doesn't do that. It has lawyers to do all the preparation, and I take the witnesses in court, typically.

The accused has lawyers. He's not without lawyers. It's up to him what resources he chooses to deploy. It's up to him what reasonable decisions he makes.

And so he could either be given, in our respectful submission, a year and given the responsibility that he says he craves. He doesn't need to be - and this is a word I haven't notified the interpretation booths of in advance - he doesn't need to be mollycoddled. He can be trusted to get on with it himself. And if within a finite period of time he works himself, knowing full well what his medical condition is, too hard and suffers the consequences, that's his choice. If, on the other hand, he makes the sensible decision to delegate work in a way that any other person facing the trials he faces would, then he will have more efficient use of his time.

But what's likely to happen, in our respectful submission this was rather visible yesterday, is that one way or another, the accused will now ³³³³⁰ expect indulgence of time so that he can do the unrealistic, namely to prepare witnesses and call them himself, he will drive the Chamber to a timetable of one or two days a week, and this case will become quite unacceptably long by any measured standard.

And so, Your Honours, our respectful submission to the Court, and I'll try to stick within my ten minutes, is that the appropriate question to ask now is, one, bearing in mind Mr. Kay's application, in light of the modalities as approved by the Appeals Chamber, is there any realistic, useful function that may be served by assigned counsel? Depending on the answer to that question, the Chamber is faced with the original question it asked of all parties about the future conduct of the trial, and in our respectful submission, the answer to that question may be one of the two answers that I've proposed; namely, fix the time, make court available subject to the accused giving notice of how much of that available time he will use, and do not allow an extended period of time, he being intelligent enough, able enough, and in all ways potentially equipped enough to make sensible and best use of that time. Your Honours, the only other two points I make, as Your Honour Judge Bonomy observed, were matters of detail, and that is that -- so there's the one quotation from Mr. Kay that you can see at paragraph 21.1, where he dealt with the Code of Conduct point and where he said that his priority as a source of his function was the order of the court. And I make a point about the approach that may have been in the minds of the Bar Council of England and Wales should this Chamber be concerned about what Mr. Kay has said about their reaction. But those are ancillary matters. ³³³³¹ In our respectful submission, the time has come to ensure that this accused is given a clear understanding of how much longer this trial is going to last.

I don't know if I can help further.

JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Kay, and then the accused, if he has anything to say.

MR. KAY: Thank you. Your Honours, the issue presented this morning by the Prosecution we see great merit in this Court following. The Court will remember we did file a document when we were amici curiae, asking for directions as to where the amici curiae went at the end of the Prosecution case, and it was envisaged at that stage that we would have a limited performance and function and not the function that had been to the same extent that we had during the Prosecution phase of the case when we were dealing with issues concerning their evidence and case presentation. Submissions made by Mr. Nice this morning that hands the entire case over to the accused with responsibility to him and his advisors is entirely consistent with the position that we have always presented to this Trial Chamber and the Appeals Chamber in relation to the conduct of his Defence.

When the Prosecution raised the issue yesterday who is running this Court, we felt that that was an unhelpful statement. It's who's running his case that is the issue before the Court. That has to be decided. Who is running this Court puts a pressure on Your Honours in a form of public statement that has been cited against the accused as him making public statements that -- it's the two of them doing -- making ³³³³² statements about issues and each blaming each other. That is not helpful. Who is running this Court? It is Your Honours who are running this Court, and we acknowledge that quite firmly, and we believe that when the issues are considered that we present before you, that on the two issues, first the issue of our withdrawal and then the future of assigned counsel, that what we have said and put before you as to the future conduct of the case enables you to run your Court appropriately, properly, and fairly.

We were concerned yesterday about statements concerning the Code of Conduct and it not being applicable to assigned counsel. In yesterday's argument, Mr. Nice started from that position, but by the end of the morning, he had considerably resiled from that. I believe he was perhaps thinking about what the consequences were. It is quite right, I have received advice from my Bar Council. That came in yesterday afternoon, after the adjournment, in the form of a letter to me, and I would like to direct Your Honours' attentions to a couple of issues within the Code of Conduct that I have to work under. And I turn your attention first of all to the International Practice Rules, which are found at page 39425 in the bundle put before the Registry.

JUDGE ROBINSON: Mr. Kay, I'm sorry to interrupt you. Let me tell you how I see the issue.

MR. KAY: Yes.

JUDGE ROBINSON: There are Codes of Conduct, and of course they're applicable to you. The question is how the codes are to be interpreted in ³³³³³ the light of substantive law as it develops.

The Trial Chamber has a right and an obligation under the Statute and customary international law to ensure a fair and expeditious trial. It has been determined that a Trial Chamber has the right to assign counsel even against the will of an accused person. The codes do not specifically address that situation, but the codes still remain applicable to you. It is a matter for the Court to determine how to interpret the codes in the light of the substantive law, that it is proper and right for a Court, in certain circumstances, to assign counsel against the will of an accused. That's an ordinary function of a Court. A Court's main function -- a lawyer's main function, in my view, is an interpretative one. The fact that the codes do not address it doesn't mean that there is no answer. And in my estimation, the interpretation, the fundamental guide to the proper interpretation is the right and duty of the Court to ensure a fair and expeditious trial. Arising out of that right and duty, the Appeals Chamber has decided that it is lawful to assign counsel in the circumstances of this case, and in those circumstances that decision must be implementable in some way. I mean, whether the Trial Chamber chooses to implement it is another matter. There is no order from the Appeals Chamber to implement it, yet the Appeals Chamber made what can be called an enabling order. It is for the Trial Chamber to determine how to implement it.

So I don't understand Mr. Nice to have been saying that the codes don't apply to you. What he said I think followed upon an intervention that I made that the codes have no explicit provision on the question of ^{33334 BLANK PAGE 33335} assignment against the will of an accused, and I think that is generally true. But there is no lacuna, because the Court has to discharge its interpretative function, and that is what will provide the answer in these circumstances; how the codes are to be interpreted in light of the substantive law that it is proper and right in certain circumstances for a Trial Court to assign counsel against the will of an accused. Because if that is so, if it is proper and right to do so in certain circumstances, then it must be envisaged, since it is being done against the will of an accused, that the assigned counsel will nonetheless have some function notwithstanding the failure of the accused to communicate with you or to give instructions to the assigned counsel.

So I think if you are going to cite provisions in the code which, when you read them, put certain obligations on you, to my mind that is not helpful to me. It's not taking me any further. The question is how are those provisions to be interpreted in the light of the substantive law, because they don't exist in a vacuum.

And Mr. Nice referred you to several passages in Blagojevic where the Appeals Chamber expressed its view on issues that are similar to the ones that we face here today where an accused person did not instruct or failed to communicate with assigned counsel, and the Appeals Chamber nonetheless held that there was no breach of the -- there was no breach of the code in those circumstances.

MR. KAY: As I mentioned yesterday, and there was an exchange between the Bench and myself, that the Court is not bound by assigned counsel at this stage in considering issues in the future conduct of the ³³³³⁶ case. As Your Honour has rightly observed, all the Appeals Chamber have said is that -- it's given a judgement that's an enabling provision for assigned counsel. As I said yesterday, you're entitled to go back and review the whole system of the future conduct of the trial, whether you have stand-by counsel, amici, or whatever.

But the Blagojevic case, which arose because the accused wanted a different co-counsel in the case and lead counsel didn't accept that the co-counsel could join the case and therefore there was a dispute between them, and he'd never criticised the function of his lead counsel, was an entirely different set of facts to the issues that we have before us. And that counsel in Blagojevic never raised the ethical issue for consideration. He was so far down the line, he may have thought he didn't have to.

In Barayagwiza, the assigned counsel didn't raise the ethical issue although there was comment about it.

The issue of the codes is of more importance to us than maybe Your Honours because it determines our function within the system. In my International Practice Rules -- because it's the only Bar I'm a member of. There isn't a Bar like we have in the UK for the ICTY; we're assigned as counsel. It says at paragraph 2 of my International Practice Rules at page 39425: "In connection with any international work, a barrister must comply with any applicable rule of conduct prescribed by the law or by any national or local Bar of the place where the work is or is to be performed or the place where the proceedings are unless such rule is inconsistent with any requirement of part 3 of this code." ³³³³⁷ And the fundamental principles of the UK Bar are set out at page 39436, and those articles cite that I mustn't diminish public confidence in the legal profession, administration of justice, must promote and protect fearlessly and by all proper and lawful means the lay client's best interest, owe my primary duty between the lay client and any professional client.

307: "A barrister must not: (a) permit his absolute independence --" and it's the independence that may be a fundamental issue here. "... must not permit his absolute independence, integrity, and freedom from external pressures to be compromised; (b) do anything ... in such circumstances as may lead to any inference that his independence is compromised; and (c) compromise his professional standards in order to please his client, the Court, or a third party." If there is no code for me under the International Practice Rules, I have to look to my Bar code, which is the accepted practice everywhere in the international tribunals.

JUDGE BONOMY: And what you were given, Mr. Kay, was a complete authority to run the case in absolutely consistently with the principles that are fundamentally stated there by English and Welsh Bar.

MR. KAY: But it states that I must withdraw from a case and return instructions if my instructions are withdrawn or my professional conduct is being impugned.

JUDGE BONOMY: No, you may. Sorry. It says you may, not you must.

MR. KAY: Well, I'm exercising that option. I am exercising that ³³³³⁸ option.

JUDGE ROBINSON: Yes, but the question is whether you're doing so on reasonable grounds.

MR. KAY: Article 9 of the code here says --

JUDGE ROBINSON: -- got to determine.

MR. KAY: Article 9 here gives me a right to terminate.

JUDGE ROBINSON: And how is that right to be determined? It must be determined in accordance with ordinary principles of law. It's a question of reasonableness.

MR. KAY: Yes, but --

JUDGE ROBINSON: It's a question of whether the exercise of your discretion in those circumstances is reasonable and proper. It's a matter for the Court to determine.

MR. KAY: If we are saying that I'm bound by the Code of Conduct here, there is no difficulty with that and that is not in conflict with my Bar, because we have a Code of Conduct, it's a proper Code of Conduct, it has fundamental principles consistent with what I have in the UK, and that is a matter that I am subject to.

If I don't have a Code of Conduct here, I'm subject to this Code of Conduct here. And when it says "may," it is my exercise of my decision whether I withdraw or not, the Judge may not accept it, but I can still withdraw. The Judge may then report me to my Bar Council and they will investigate the matter and decide whether I'm right or wrong. I'm actually confident in my position on this issue.

JUDGE ROBINSON: You can withdraw on whimsical grounds? ³³³³⁹

MR. KAY: That is why within our code it says that I must stand up to a Court at times.

JUDGE ROBINSON: I'm asking you, can you withdraw on whimsical grounds?

MR. KAY: It's not whimsical grounds. The full papers of this matter have been provided to my Bar Council, and I have been in receipt of advice. And as I say, I am subject to a Code of Conduct.

JUDGE ROBINSON: Mr. Kay, if I understood what you just said, are you then saying that the Court has no jurisdiction in the matter of withdrawal?

MR. KAY: It's a personal decision. And if the barrister decides to take that course of conduct, he can be reported. And if he is reported, there is a hearing and the matter is investigated. Many times Judges disagree with a position of counsel and there is a referral to the Bar Council. And the authority is exercised by the Bar Council and the Judge's complaint may be substantiated or may be refused.

JUDGE ROBINSON: So then you need not have gone to the -- to the Registrar.

MR. KAY: I do need to go to the Registrar because I'm subject to the Code of Conduct here. But if you're saying I'm not subject to the Code of Conduct here, then I only have this Code of Conduct, which is under the international rules of my Bar, the one that would apply.

JUDGE ROBINSON: I have no difficulty in saying you're subject to a particular Code of Conduct. It's a question of how the code is to be interpreted in the light of substantive law. A code, in my view, is very ³³³⁴⁰ much like subsidiary legislation. It's like a regulation: At all times it has to be construed in the light of what the substantive law is. It can't disallow you to do something which substantive law allows you to do.

MR. KAY: We have many --

JUDGE ROBINSON: You can't deny your right which you have under substantive law. It has to be intra vires substantive law.

JUDGE BONOMY: Can I be clear about this? Are you saying you don't need authority to withdraw?

MR. KAY: Yes. We'll look at Article 9 --

JUDGE BONOMY: So why are you here?

MR. KAY: Well, there are two routes of doing it. There's withdrawal which can be consensual, and then there's termination, which is without consent. There are two ways of doing it when you look at Article 9. But I have to start now with the English code, because I have to know what code I'm acting under. If I'm not under the Code of Conduct --

JUDGE BONOMY: So you're starting the argument afresh from the beginning again, are you? We're starting on a different basis from the basis on which we heard this yesterday?

MR. KAY: No. We're -- I'm putting the issues before this Court --

JUDGE BONOMY: On the same basis as yesterday or on a different basis?

MR. KAY: On both bases, Your Honour. Sometimes these issues arise and the Court disagrees, and then you say, well, as a result of what's happened, my position changes. And I heard the accused yesterday. ³³³⁴¹ It often comes to that.

If you are in your UK court and you make an application and you say, "Judge, I'd like you to consider this," and he either agrees or disagrees, and then you have to make your professional decision. But the position we're in, if we're not subject to the Code of Conduct here, as I have told the Court, I have to be subject to a Code of Conduct. It is not subsidiary regulation. It's how I have to function. And without it, there aren't lawyers. All courts require this form of regulation, and it's to do with the independence of the Bar from the judiciary. That is why all the codes cite integrity, independence, and deal with the issue in a way that permits counsel to exercise his judgement, because sometimes, if there are positions that are not understood by the Courts, you have to exercise your own personal judgement.

But I've pointed out to you there the position in relation to my obligation under my Bar, and that I have to put before this Court. If we look at the Code of Conduct here, then, and go back to Article 9, which is the basis of the application, the Court will be aware that we sought advice from the Association of Defence Counsel, and they have filed a document with the Registrar. Again, I received a signed copy after the close of proceedings yesterday. I believe this may have gone to the Trial Chamber. I don't know. It's an important document. Perhaps I can hand it ...

JUDGE BONOMY: I would like to know its status, first of all, Mr. Kay.

MR. KAY: This document is drafted by the Association of the ³³³⁴² Defence Counsel, which practices before the International Criminal Tribunal. It is officially recognised by the Registrar. It has a disciplinary council, and it has, in the same way that any Bar Council has, a constitution, and it is mandated under its constitution to provide advisory opinions.

JUDGE BONOMY: Can you imagine circumstances in which you would present a document like this in a court in England?

MR. KAY: Yes.

JUDGE BONOMY: You would?

MR. KAY: Yes.

JUDGE BONOMY: The Bar Council writes whatever this is --

MR. KAY: Advisory opinions.

JUDGE BONOMY: -- and that's presented in the course of argument by counsel?

MR. KAY: Yes. They write advisory opinions. They're available for consultation by members of the Bar. They have an entire department working on these issues daily. They frequently receive, during the course of proceedings on ethical issues, a communication either by telephone or letter for a consultation.

We have had a consultation in London some weeks ago.

JUDGE BONOMY: And then they present a document to the counsel involved who can take it into court and use it as part of his argument.

MR. KAY: Yes. Yes. And it's a perfectly proper form of procedure, in our view, because it is an essential part for understanding the appropriateness and correctness of the position of counsel. ³³³⁴³ Otherwise, you may think I'm just coming here with a particular issue that might not be recognised by others in practice or others who have a duty and an obligation under a constitution to review disciplinary issues.

JUDGE BONOMY: So it's not your practice for an office bearer of the Bar to be instructed by the counsel involved or to come into court and represent him so that the matter can be properly debated and the Court can be satisfied that all relevant factors have been taken into account.

MR. KAY: You may seek an advisory opinion from the Bar and call for the guidance of an officer. Our professional conduct committee at the Bar of England and Wales is a committee of 46 comprising of all level of practitioners, a professional staff, meeting regularly. All reports and issues are discussed.

The entire issue in this case, all the papers, all the transcripts, were submitted before them on our behalf, including the letter to Mr. Holthuis.

JUDGE KWON: Mr. Kay --

MR. KAY: Full documentation.

JUDGE KWON: Mr. Kay.

MR. KAY: Yes.

JUDGE KWON: Their opinion is not that one which tells you that you have to resign, but even if you resign, it would not be in breach of the Code of Conduct.

MR. KAY: Yes. What it says is there are grounds to assert that an irreconcilable conflict exists between Mr. Kay and Mr. Milosevic such that the request to withdraw is a course of action which is fully ³³³⁴⁴ consistent with the ethical obligations imposed on counsel.

JUDGE KWON: They are not saying that there are grounds, but there are grounds to assert.

MR. KAY: Yes. "In such circumstances, the disciplinary council is of the view unanimously that by withdrawing from this case, Mr. Kay would not be in breach of the Code of Professional Conduct of counsel appearing before the International Tribunal."

You will know that they have been produced with all the documentation that was sent to Mr. Holthuis. They were copied on the issue.

As I said, my Bar would view me as being subject to this Code of Conduct, and that is the one that operates. Otherwise, if I'm not subject to this Code of Conduct, I would have to be subject to their code. And if this Court felt it necessary to call or receive for themselves an advisory opinion on the issue, then that would be available. As I say, I'm putting this before the Court on the basis initially of withdrawal, allowing the Court to consider that matter. Termination's another issue down the road, and that is a personal issue. The issue for this Court is the withdrawal.

But these are the kind of appropriate steps, in our submission, that should be expected of us, given our consideration of the issues that have arisen in this case. And it's in the light of what took place during the eight weeks of the phase of the Defence case, and indeed what was said by Mr. Milosevic yesterday, that puts us in this position.

JUDGE BONOMY: Can I ask you a specific question about Article 9. ^{33345 BLANK PAGE 33346} You'll see that (c) of Article 9 anticipates leave from the Chamber in either circumstance, either termination or withdrawal. Or perhaps not. Perhaps that's leave in the context in which I'm going to ask you the question.

MR. KAY: Yes.

JUDGE BONOMY: "That counsel shall not either terminate or withdraw until a replacement counsel is engaged by the client or assigned by the Registrar, or the client has notified the Registrar of his intention to conduct his own Defence."

MR. KAY: Yes.

JUDGE BONOMY: Now, let's apply that to this case where the Trial Chamber has decided that counsel should be assigned.

MR. KAY: Yes.

JUDGE BONOMY: And let's assume for the moment that we believe that should remain the position --

MR. KAY: Yes.

JUDGE BONOMY: -- albeit the modalities are different. The effect of that, if we did allow a withdrawal would be that you would remain here until a replacement was found; is that right?

MR. KAY: Absolutely. As I said, I do not want to breach anything within this code. I would follow every requirement.

JUDGE BONOMY: Can I supplement that, then, on a different area, but it is related.

If we were to follow one of the suggestions made by the Prosecution this morning, it would be necessary for Mr. Milosevic to make ³³³⁴⁷ use of assistance, not in court but out of court, and we know that there are associates available. You also have a team. At least, there are four on the Defence bench today, I think there may have been five at one stage in the course of this week. To what extent would they be available to him as a resource?

Now, I assume the answer is simple in relation to at least three of your team, and that includes one that's missing. What about counsel? Should he be seeking to make use of you as a resource in preparing for witnesses?

MR. KAY: Yes. Perhaps I should explain the team. They're interns who have worked with us over -- since September. One B/C/S speaking, another who worked on the Blagojevic case. Another of the interns has had a bereavement and has had to return to America yesterday. There's also a pro bono member of the English Bar who has flown over to help us out in case preparation. So the team is volunteers, but I'm -- I can't speak for them in that they're not under my employ, but I'm sure they would obviously help. I'm not sure -- well, perhaps I shouldn't speak for them, but they are such good, willing people, in my experience, and I would be very surprised if they refused to help anyone out.

JUDGE BONOMY: Well, what's your position, then, in relation to doing that job?

MR. KAY: I would certainly help until someone was appointed. It depends on Mr. Milosevic, in relation to Ms. Higgins and myself, whether he wanted us behind the scenes.

JUDGE BONOMY: I quite understand -- ³³³⁴⁸

MR. KAY: Yes.

JUDGE BONOMY: -- what you say about that, but if the reality is that because time is significant here and there's an allocated period for use of court and, therefore, other assistance must be utilised without of court, what you're indicating is a willingness to, for example, proof witnesses in advance of their giving evidence, subject to getting instructions from Mr. Milosevic to do that.

MR. KAY: If the terms and conditions were right and appropriate, and one always has to consider that, it may well be that my services could be used. It's very much a matter for him. I mean, at the moment, we are in conflict so I'm not sure that would happen. It's a matter for him, but if the terms and conditions were right, we could be engaged. And I've always said that, that I would be available if he wanted to engage me and the terms and conditions were right.

We believe that, in relation to our position under Article 9, B (iii), "the client fails to substantially fulfil an obligation to counsel regarding counsel's services ..." I don't know in what context that particular Article should be considered. It may be the provision of instructions. It may be communicating. It may be providing information as to case objectives. But we feel that (iv) "other good cause for termination or withdrawal exists," and that is because of the conflict that has offended us in the way that we have offended him over the last eight weeks.

So what criticism we have been subject to, which you've seen throughout the other codes, have been to impugn one's professionalism - ³³³⁴⁹ that's within the English code - matters such as that. We have a complaint filed by him with the Dutch Bar. We have criticism of our conduct, we have a lack of a relationship between attorney and client, we have a refusal to cooperate, an inability to advise him, a statement that I know nothing about Yugoslavia.

So all those criticisms, we feel, in any case would amount to good reasons for saying this is not a relationship that is going to work. It's a breakdown of the overall position between us.

JUDGE BONOMY: Mr. Kay, I appreciate that you're your own man and that comparisons can be invidious, but every one of the points you've mentioned there, with the exception of the complaint to the Dutch Bar, and I don't have anything to indicate that a complaint has been made against him, but every other one of these complaints was made against Mr. Karnavas by Blagojevic, and he remained throughout the trial and completed it.

MR. KAY: He had a successful relationship as attorney and client and had instructions. The issue arose because the accused wanted a co-counsel into the case, and Mr. Karnavas to sack the co-counsel --

JUDGE BONOMY: I do not know the facts, but on these issues there isn't anything to choose here.

MR. KAY: I think there is. Mr. Karnavas didn't take the ethical point, and that was for him. And that has been a subject of debate, but that was for him. He'd invested time and effort in that case and did not take -- I've had to discuss these issues with the ADC and learn more about problems in cases and how far they've gone in setting my position before them. ³³³⁵⁰

JUDGE BONOMY: But the outside observer might say that there's a lot more to be said for his position than what might be said to be the rather weak position that you're displaying.

MR. KAY: I think criticism from Mr. Milosevic as the accused in this case is of such an important feature when he's conducting his own Defence, that it is a matter of great importance. In Blagojevic, of course, it was to substitute a counsel. And as I said yesterday, in the UK he would have -- that may have happened, or if not, he would have been told to represent himself. He would have been down in 9(3)(c), representing himself. And that's how they would do it, rather like the position Mr. Nice has put before the Court today which, in my view, there's a lot to be said to say that the Court has provided as much as it has but he so wants his own responsibility and his own belief in the justness of his cause and his ability to handle these issues he doesn't need my services. He doesn't care whether I file as an amici on issues of the law or -- I suppose he did need my services for the appeal over the instant matter, but in the conduct of his case. And this Court can make a decision about that and say, "Right, it's down to you." And on a personal level, we can't advise him, we can't consult with him, we can't give him direction. We've had none of that with him. As he said yesterday, there never was a relationship. The position of the amici was entirely different. It was more of a service to the Court on his behalf that managed, over the three years, to somehow work, and it got us to the end of the Prosecution case.

The issue that we now face is a breakdown in this counsel position ³³³⁵¹ that is very unfortunate, and no doubt it was tried with the best will in the world to make his Defence work and this case to work. But we have to come now, whatever issues of foreseeability there may have been, to say that the experiment has not worked. The Court made decisions that we feel caused a breakdown that have put us here. And if we would have been able to have approached it in a different matter -- a different way, maybe this would not have arisen. But the whole structure of this case, the liaison office that was provided to enable a channel of communication, systems of working that were set up to assist by using assigned counsel, his Defence case, a great deal of effort that went into that, but absolutely foundered because of a breakdown in -- in the approaches and his wishes and desires. And that, as I said, leaves us in a tortuous ethical position. I know Mr. Karnavas didn't take the issue, but there has been debate about this and there is debate about it.

JUDGE ROBINSON: What did you mean when you say the issue wasn't taken, wasn't addressed in Blagojevic, the ethical issue, as you call it?

MR. KAY: He wasn't raising these ethical issues nor sought advice from the ADC.

JUDGE ROBINSON: I asked the question because it seems to me that once the Court was passing on the question of the consistency of counsel's conduct with the code, it was in effect passing on the ethical question, even if it wasn't raised.

MR. KAY: He wasn't citing it in his defence. He was keeping the case. He wasn't relying on it. And again, it's a question of how you -- it's not criticism in the sense of saying, oh, this didn't go well or that ³³³⁵² -- this is a breakdown. This is a hostility to us that is simply, in my position, unacceptable, and it -- the Court --

JUDGE ROBINSON: Well, Mr. Milosevic said it's wrong to characterise it as a breakdown because it never existed.

MR. KAY: Yes.

JUDGE ROBINSON: But that's a simplistic approach. In Blagojevic, the Court clearly said that an accused person does not have a unilateral right to take action that leads to a breakdown in relationship. Well, clearly that also applies to an accused person taking action which does not lead to the creation of the kind of relationship that should exist between counsel and an accused.

MR. KAY: And the difference being in that Blagojevic, of course, he wanted another counsel in and wanted the Registry to have to fund that, and he wasn't saying he was going to represent himself, which thereupon the issues may have well have been different. Probably would have been in those circumstances if the counsel had raised these matters. Again in Barayagwiza, the new ones came in, thanked the Court for allowing them to be a part of the historical media trial but didn't actually think of the interests of the accused. The interests of the accused within this code require me to acknowledge what he wants, and what he wants is us out of it. Assigned counsel is not the route. A way round all this, which was raised yesterday and we gave it thought overnight, is that Your Honour Judge Robinson said, well, the codes are deficient in these matters, is the code for Defence counsel isn't deficient. What you need is a code for stand-by counsel. ³³³⁵³

JUDGE ROBINSON: I never said that they were deficient, I simply said that they had no express provision dealing with the assignment of counsel against an accused person. But that does not mean that we are at a loss as to what to do, because a lawyer's function is 95 per cent an interpretative one.

I believe, Mr. Kay - I don't know whether Judge Bonomy has a question - but I think we have been at this issue for a very long time, and for my own part, I think I have heard enough.

MR. KAY: I was going to close it down, Your Honour, but we got into Blagojevic again and that tends to send us off, as you will have noticed, because there are issues about it.

JUDGE ROBINSON: Well, thank you very much, Mr. Kay, for your submissions.

Mr. Milosevic. Just on the issues that were raised by Mr. Nice, because the right of response really belonged to Mr. Kay. But since Mr. Nice raised some additional issues, you may wish to address them briefly.

THE ACCUSED: [Interpretation] Of course, Mr. Robinson. Mr. Nice, during the appeals proceedings, pathetically put the question of who is running this Court. This was wrong, and at the time I said that was not the question that needed to be put but the question needed to be put is who is running the Defence. It is obvious from what Mr. Nice is reiterating this morning that he has pretensions to run the Defence.

JUDGE ROBINSON: Mr. Milosevic -- ³³³⁵⁴

THE ACCUSED: [Interpretation] I quoted yesterday --

JUDGE ROBINSON: I'm stopping you, and I'm going to address both Mr. Nice and yourself. I have noticed a tendency that is developing into a kind of hostility between Mr. Nice and yourself, and I want to let you know that I will not have it. The proceedings in the Court will be conducted with the decorum that is appropriate proceedings of this kind. And counsel on both sides will display courtesy to one another. The language is important. I find inappropriate the language that you just used in relation to Mr. Nice. And I want to let Mr. Nice know that the same thing applies to him when he's making submissions that affect you. Proceed.

THE ACCUSED: [Interpretation] Very well, Mr. Robinson. As far as Mr. Nice's observations are concerned, you could have warned him countless times before, but this is not something that is important to me. I would like to quote what you cited in your decision of November 2nd: "To the least, the regime must be based on an automatic assumption that when he's physically able to do so, Milosevic has the main word in producing evidence, questioning witnesses, and so on." The passage ends, "and to make basic strategic decisions in presenting the Defence case." Therefore, it is not in dispute and it cannot be in dispute of who is running the Defence. The decision is there. I don't know on which basis Mr. Nice is now attacking the decision which has been adopted contrary to his view, but it's a decision that should be respected. And what are we facing now? Attempts to evade this decision by combining and manipulating with time and calculating the time that you ³³³⁵⁵ have set aside. You have set aside 150 days to hear witnesses, but not 150 calendar days. And this absurd proposal being put forward by Mr. Nice is counter to not only what has already been allotted, these 150 days, but also to the elementary role. And I would say many other things, but I do not want to be too harsh. Because as you know, Mr. Nice used 300 days to present his case, and during those 300 days we did not see any worthwhile evidence because there is none. And that is why they are making up some kind of phantom idea about joint criminal enterprise and so on, because they don't have evidence. A Prosecutor who had evidence would have no need to resort to such things. But this is going to the merit of the case. I'm talking about something else now.

You have told me, Mr. Robinson, as far as I can recall, in any case I think it was one -- a Judge from the Trial Chamber, but I think that it was you. When I was protested why I was only being given 150 days while Mr. Nice had 300 days available, I was told that it was calculated exactly how many minutes Mr. Nice used during those 300 days and that I would be given exactly the same time.

Those minutes, of course you yourself know that, I know that, everybody else knows that, do not include many days and weeks of preparations of Mr. Nice's witnesses. Mr. Nice is asking now here that days in which I will be preparing the witnesses be included in these 150 days given to me. And he's also asking that days when the witnesses were not available should be discounted from these days. And then he also asks you to set a date by which I need to be finished, and then I could within that time period do whatever I wanted. But it all boils down to an ^{33356 BLANK PAGE 33357} attempt to manipulate time in order to thwart the Defence. If the idea of taking away my right to question and call my own witnesses did not work, now we are trying to see how we can eliminate the time required to do this and to thwart the Defence in that way.

I think that what is written here, I will try to have this published, to have a record of this, this manner in which such absurd proposals are used in order to try to prevent the truth from coming out before this Court. And therefore, I hope, gentlemen, that you will reject these constructions and this type of maths which I think would in every way and by everyone, not only by well-meaning and neutral observers but by everyone would be interpreted as something that is farcical. Therefore, I have an intention of asking you for an extension of these 150 days to bring my witnesses here. Of course, I will do that when I think that that is reasonable and when I believe that also you would see that such a request is reasonable. I don't believe that I have made any unreasonable requests here which you could interpret as being unreasonable.

It is therefore completely logical that if my right has been restored to me to call witnesses, to question witnesses, to have a closing statement and to make other decisions, I believe that all of this is a part of that, and I have an intention to exercise that right in the most efficient way that I know how, and I hope that I will do this. This is in relation to this matter, but I do have a couple of other administrative matters for which I requested some time yesterday. Actually, yesterday I didn't request time for both of these matters, but I ³³³⁵⁸ do have some matters, and you can tell me whether I can go ahead and do that now or if I can do that later.

JUDGE ROBINSON: Thank you, Mr. Milosevic.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, we'll hear now the other administrative matters that you have to raise.

THE INTERPRETER: Microphone, please.

THE ACCUSED: [Interpretation] I have two additional matters for today. Yesterday, the liaison officer, who is performing a very useful function, which I would like to emphasise here, informed me when we were going over the list of witnesses that I intend to call that I need to ask for your permission in order to call a witness whom I have placed on the list. We are talking about Franz-Josef Hutsch, who was already heard here and who needs to be recalled because there are some very crucial facts that we need to hear from him.

I would like to say right away quite openly that I wanted to call again some witnesses who have already been called. But in order to save time, I'm hoping that some things that they were not in a position to say I will be able to compensate for that through witnesses who I intend to call in the future.

But when we're talking about Mr. Hutsch, I have no options to augment his testimony in different ways other than to recall him, because he's a person who was present in Kosovo and in Bosnia. And in view of his military training, because as you heard, he attained the rank of major in the army, he was competent to make assessments, and because of his ³³³⁵⁹ journalistic work, he also acquired some important information. And for this reason, I would like to call him again so that he could give answers to questions I wish to put to him in respect to his personal knowledge about important things which are very relevant for the things that happened in Kosovo and also for some things relating to events in Bosnia and Herzegovina.

JUDGE ROBINSON: Is it important to your case that he be called now as against sometime -- sometime later?

THE ACCUSED: [Interpretation] I think that it would be useful to call him now. He doesn't have to be the first or second witness to be called. I will coordinate the timing. He's in Germany, after all, it's quite close, and there are no problems if he -- for him to come. I have already spoken to him, and he's prepared to come. I will not keep him here all day, and I think that I would need a couple of hours to complete my questioning of him.

JUDGE BONOMY: Mr. Milosevic, does that actually mean you're ready to deal with him so that he could be dealt with next week?

THE ACCUSED: [Interpretation] I have to check. I have to check. I'm hoping that you will give me the seven days that I requested. So it would be, then, the week after that. With the exception of Professor Markovic, who would be here next week as planned. So for that part, I would cut down this time period of a week that I requested. But of course, the week after that I would be in a position to do so, unless he's travelling somewhere.

[Trial Chamber confers] ³³³⁶⁰

JUDGE ROBINSON: Yes, Mr. Milosevic. The Chamber will allow you to recall that witness.

THE ACCUSED: [Interpretation] Thank you.

JUDGE ROBINSON: What is the other point?

THE ACCUSED: [Interpretation] I mentioned it yesterday. On the 20th of February of this year, I provided a list of witnesses to the liaison officer for whom I would like -- whom I would like the Court to summon to testify. We're talking about William Clinton, Madeleine Albright, Anthony Blair, Gerhard Schroeder, and Rudolf Scharping in the first group. I provided 17 names, but for the dynamics of my presentation, out of those 17 witnesses whose names I gave, these five names I would ask you to issue an order now for them to be heard, if possible, before the Christmas recess. If it's not possible to question them before Christmas recess, then afterwards. But these witnesses, Clinton, Albright, Schroeder and Scharping, are important in order to provide a general overview of the situation, and they pertain to all of the issues that are dealt with in the indictment.

JUDGE ROBINSON: It is not clear to me what you are saying, what you are requesting. Are you requesting the Chamber to call them as Court witnesses or to subpoena them on your behalf?

THE ACCUSED: [Interpretation] To order them or to summon them to appear before you as witnesses. This is what I'm asking, to subpoena them. I also mentioned Clark. I'm sorry, I failed to say that. He already testified here, but I think you'll recall, at least as far as you, Mr. Robinson and Mr. Kwon will recall, I was not permitted to ask him any ³³³⁶¹ questions about the war, which was incredible, because he was the NATO Supreme Commander at the time, or to ask him any questions about his book, which is also incredible because this is where he discussed his view of the events. And for this reason, I would like you to subpoena these witnesses to appear.

Many months have passed from February until now. The correspondence went back and forth. They will obviously not appear based on letters and requests channeled through the embassies, so I would like you to issue an order for them to appear in order to respond to questions which I would like to put to them.

JUDGE ROBINSON: And, Mr. Milosevic, you very well know that a subpoena is not issued lightly. You, of course, were present during the Prosecution case. The Prosecution made several applications for subpoenas. There are procedures to be followed.

First you have to show that you yourself have made an effort to contact the witness, to get the witness, and the witness is not willing to come. Then you have to satisfy us as to the evidence that the witness is going to give, that it is going to be useful and relevant evidence. If you wish, what you should do is look at the procedures followed by the Prosecution in relation to requests for subpoenas. They followed the procedure in which they outlined the efforts that they had made to get the witnesses and showed the unwillingness of the witnesses, because they may be willing to come, in which case the Court would not issue a subpoena. So you have to make a submission on it. And I told you this when you raised it first several months ago, and the position is no ³³³⁶² different. You will not be treated any differently. A subpoena is not issued lightly. The Appeals Chamber has said so. In any event, that's the law. So you follow the procedure, and we will consider the application and rule on it when the application is made in the right and proper form.

If you need help, you may request help from your associates, from Mr. Kay, or from anybody. But there are procedures that you have to follow if you wish to have a subpoena issued.

THE ACCUSED: [Interpretation] I would just like to say, Mr. Robinson, that what you say I need to do has already been done. Letters have been sent out, information has been passed through the embassies. They asked for clarification of the reasons why they are being asked to testify. They received those clarifications, and this was sent to them. Therefore, it is obvious, as professionals in the legal profession would say, by conclusive action it has been shown that they are not willing to appear.

JUDGE ROBINSON: You must make a written submission. I am not going to issue any subpoena on your oral statement. You must make a written submission setting out the circumstances which show that they're unwilling to come and setting out the evidence that you want them to give. That is what the Prosecution had to do, and that is what you will do. So you must set about that.

Mr. Kay.

MR. KAY: To assist the Court on the matter, I had a meeting Tuesday afternoon with representatives from the US embassy on just this ³³³⁶³ issue. I have a continuing duty, of course, to work on the case, and that was part of my function. And it was indicated to me that they would not obstruct any witnesses coming to this Court to give evidence but that an outline of testimony, in the same way that the Prosecution provided to the US embassy in relation to state officials called by them, would have to be given to show the topics that were to be covered by the witness so that they could consider any issues of state secrecy, confidentiality, the manner and means of testimony, and contact the individuals and make arrangements for them to appear as witnesses. But the phrase used to me, which will be very important for Mr. Milosevic to understand, is that they would not treat the Prosecution any differently from the Defence, and that meant in relation to access to witnesses as well always the terms upon which they were to be brought before the Court. They also wish to consider issues of relevance.

JUDGE ROBINSON: In any event, it is not for the USA, it's for the Court. The Court will determine whether they come. And you're quite right. Mr. Milosevic, as he well knows, will have to make a written submission. He will have to satisfy the Court, as I said before, that the witnesses are not willing to come, because if it is not necessary, why should a Court issue a subpoena? Then he has to satisfy us as to the evidence that they will give, not just to satisfy the USA. He has to satisfy the Court.

So, Mr. Milosevic, in this regard my advice to you is to follow the procedures used by the Prosecution in securing subpoenas. They had several subpoenas that were issued. You follow that procedure and your ³³³⁶⁴ applications will receive appropriate consideration.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice.

MR. NICE: Two things, please. The accused said that he wishes to make public the skeleton argument served this morning. I have no objection if he does, but it should be clear that publication of documents served at Court is not a matter for the parties, it's a matter for which there is a regulated process through the Registry. It cannot be right to start a practice where documents served at Court, whether exhibits or anything else, are made available to the public by one of the parties, and I would ask the Court to ensure that the normal procedures are followed. Second, Your Honour observed there was a tendency to discourtesy. I'm afraid that's something I cannot accept. For two and a half years, I have listened to the accused say extremely discourteous things to me as well as the Bench on many occasions, and I have maintained my courtesy to him. I have recently been much more straightforward and blunt in my description of him and in the Prosecution's assessment of what he is doing, because it is my judgment and the judgement of the Prosecution that the time has come to set things out clearly as they are. Discourteous I have not been. If I have left --

JUDGE ROBINSON: Mr. Nice, what I had in mind was I see developing an atmosphere which I don't like, an atmosphere of animosity. I come from a system which is quite accustomed to and familiar with vigorous submissions, submissions being made with total vigour, and I understand that. But I don't like the atmosphere of animosity that is developing, ³³³⁶⁵ and that's what I want to nip in the bud.

MR. NICE: I quite understand that. I have no intention to create such an atmosphere. I certainly am not discourteous. I will review the transcript carefully, but I'm afraid I will continue, because I think it is now appropriate, to describe the position that we find ourselves in in straightforward terms when it seems to us appropriate to do so. But I will of course reflect on Your Honour's observations.

JUDGE ROBINSON: Thank you very much.

[Trial Chamber confers]

JUDGE ROBINSON: The court will adjourn for 20 minutes.

--- Recess taken at 10.39 a.m.

--- On resuming at 11.28 a.m.

JUDGE ROBINSON: Many important and difficult issues are raised by the application by Mr. Kay for withdrawal. The Chamber will take time to consider these issues and will give a decision shortly. In the meantime, we express our gratitude to Mr. Kay for indicating his willingness to carry out any reasonable request made of him by the accused, and a good example of the way in which his services could be used is in the work necessary to present applications for subpoenas so as to enable the accused to present arguments before the Court for their issuance. Beyond that, counsel will be required to act in accordance with the modalities order as revised by the Appeals Chamber. The trial will resume on Tuesday next to hear the witness Markovic and thereafter on Monday the 22nd at 2.15 p.m. Thereafter, the 150 days set aside for the Defence will be utilised on the basis of three days per ³³³⁶⁶ week for the presentation of the Defence case, and all work connected with the preparation of the Defence case and witnesses must be done at other times.

Mr. Milosevic, if you choose to use the time set aside by the Court for sitting to carry out proprietary work, or if for any other reason for which you are responsible the court does not sit at the time allocated, the period lost will be regarded as falling within the 150 days. The position in relation to health will be considered if and when it arises.

We adjourned until next Monday -- next Tuesday.

--- Whereupon the hearing adjourned at 11.31 a.m., to be reconvened on Tuesday, the 16th day of

November, 2004, at 9.00 a.m.