The Milosevic case: Amicus Curiae as a remedy to a non-collaborative approach

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Nome e licenza foto: Slobodan Milošević, foto di UN International Criminal Tribunal for the former Yugoslavia, licenza CC BY 2.0, Flickr.com
“Slobodan Milošević”, di UN International Criminal Tribunal for the former Yugoslavia, licenza CC BY 2.0, Flickr.com

On May 25th 1993, the U.N. Security Council passed Resolution 827, which established, and approved the Statute of, the International Criminal Tribunal for the former Yugoslavia (ICTY)[1], aimed at «[…] prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia […]»[2].

The Statute of the ICTY did not contain any provision as to the acceptance of Amicus Curiae briefs during the proceedings[3]. Such possibility arose out the discretionary power the Court itself exercised while issuing its Rules of Procedure and Evidence[4], whose Rule 74, expressly titled “Amicus Curiae”, provided that «[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber»[5]. It results that an Amicus Curiae may intervene in the course of a ICTY proceeding either on the basis of a direct invitation issued by the Court or by its own spontaneous application to be discretionarily approved by the judges.

In the proceedings conducted against him, Slobodan Milosevic always contested the legitimacy of the judicial body he was prosecuted by. Officially showing to enforce its right to self-defence pursuant to Article 21(4)(d) of the ICTY Statute[6], actually the accused not only did not appoint any counsel to manage its defence, but more peculiarly often refused to undertake an active role both in written and oral proceedings and with regards both to substantial and procedural issues[7]. In order to ensure that the trial be «[…] fair and […] conducted with full respect for the rights of the accused»[8] and concretely to bypass defendant’s refusal to defend against its charges and to remedy the delay such behaviour was causing, the Trial Chamber finally ordered that an Amicus Curiae was appointed, pursuant to Rule 74 RPE, «[…] not to represent the accused but to assist in the proper determination of the case […]»[9]. In detail, that Amicus had to assist the Court by undertaking four principal tasks: «(a) making any submissions properly open to the accused by way of preliminary or other pre-trial motion; (b) making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate; (c) drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and (d) acting in any other way which designated counsel considers appropriate in order to secure a fair trial […]»[10]. It is surely agreeable that a fair and adequate defence of the accused constitutes an inherent part of a fair trial, but as the same it seems hard to question that these tasks do represent the basic duties a defence counsel is required to perform and therefore to honestly argue that such an Amicus (Curiae or Rei?) was to assist the Court and “not to represent the accused”. Such inspiration about the inner role the Amicus was to perform was further confirmed in the development of the proceeding. After the appointment of three Amici[11], their role was further expanded in January 2002 to two more tasks: «(1) drawing the attention of the Trial Chamber to any defences, for example, self-defence, which may properly be open to the accused to raise on the evidence; and (2) making submissions as to the relevance, if any, in this trial of the NATO air campaign in Kosovo.»[12]. In October 2003, the Amici were authorised to «receive such communications as the Accused may make to them and to act in any way to protect and further the interests of his Defence»[13], particularly in light of «[…] the recurring medical conditions of the Accused […] and the desirability of the amici curiae giving greater assistance to the Accused»[14]. It results that the Amici themselves were aware of the hybrid and, to a certain extent, confused role they had been asked to perform. Mr. Wladimiroff, on October 29th 2001, expressed the view that «[…] the amicus curiae […] should not raise issues that have not been raised by the accused. That’s for the very reason that we do not want to replace him in terms of raising issues. It’s for the accused to raise the issue and we are there to comment on that by assisting the Court in supplying legal reasoning for the argument raised by the accused»[15]. Judge Robinson replied: «I understand what you have said, but in my view, it is perfectly open to the amici to raise any arguments that they wish so long as it will assist the Chamber […]. […] I think it is important that you understand that your role is a bit wider than that. It is not simply to react to arguments raised by the accused. You are there to assist the Chamber in the consideration of this case»[16]. Such confusion of roles became critically evident when the Amici proposed appeal against a decision of the Trial Chamber[17]. Rule 73 RPE sets forth that only parties to the proceeding may seek relief as expressed in Rule 73(B). This evident inconsistency is only implicitly addressed by the Chamber asked to grant certification for interlocutory appeal, stating the Court that «[…] the Amici Curiae are mandated by the Trial Chamber to, inter alia, act in any way which they consider appropriate in order to secure a fair trial and […] this Request falls within that mandate […]»[18]. The certification was indeed granted, but the Appeals Chamber did not fail to raise the point as a problematic one again[19]. Contrary to the Trial Chamber, the Appeals Chamber addressed in an explicit manner the problem arising out of the Amici not being a party pursuant to Rule 73 RPE[20] and clearly stated that, on a pure juridical basis, the Amici were deprived of the right to bring appeal against a Trial Chamber decision[21]. The Appeals Chamber nonetheless bypassed the obstacle, adopting the same factual consideration relied upon by the Trial Chamber in granting certification of appeal[22] and relying upon the argument of the “coincidence of interests” between the self-defending accused and the Amici[23]. On the basis of defendant’s statements in which he protested against the decision which the Amici sought relief to, the appellate Court found that «[…] amici’s present request is aligned with that of the Accused, and […] the Appeals Chamber’s consideration of this appeal would not infringe his interests»[24] and therefore accepted to hear the appeal, which was finally dismissed nonetheless. The appropriateness of subordinating juridical findings to factual considerations was actually harshly questioned in the Separate Opinion of Judge Shahabuddeen[25], who highlighted that, only a party having the right to bring an appeal, an Amicus Curiae could in no way be considered as such[26]. Considering that in no other way could the appeal be found to have been properly proposed[27], the judge concluded that the Appellate Chamber should have refused to hear the appeal[28].

The ICTY can surely be said to have adequately taken into consideration the Amicus Curiae device and to have recognised the positive outcomes that such institution is able to produce in pursuing the fairness and accuracy of the judgments. The Tribunal has shown to rely upon Amici providing both factual and juridical evaluations. Also the inner flexibility and adaptability of this legal tool have been recognised and consciously exploited to remedy the severe consequences that the non-collaborative approach of the most famous accused appeared before the Tribunal was likely to produce. The quasi-counsel the Amicus has become in the Milosevic case is not only quite divergent from the original common law institution of an impartial third-party advising the court and the court solely[29], but also from the evolved “litigating Amicus Curiae” grown up in the American context. If an axiological evaluation of this peculiar, and however circumscribed, evolution bears probably little importance, it is worth noting that such further utilisation of the Amicus once again testifies its extraordinary inherent versatility, which is therefore proved to represent probably the real fundamental characteristic of the institution and the reason of its academic attractiveness.

 

[1] The general information about the ICTY can be found within the official website of the Tribunal, at http://www.icty.org .

[2] United Nations Security Council Resolution No. 827 of May 25th 1993.

[3] See e.g. William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge University Press, 619 (2006); Sarah Williams, Hannah Woolaver, The Role of the Amicus curiae before International Criminal Tribunals, 6 Int’l Crim. L. Rev. 151, 154, 155 (2006).

[4] Power granted to the judges pursuant to Article 15 of the ICTY Statute.

[5] U.N. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Rules of Procedure and Evidence, adopted on 11 February 1994, Part Six, Section One, Rule 74.

[6] Article 21(4)(d) of the ICTY Statute provides that «(4) In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: […] (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it [.]»; on the matter, see e.g. Michael P. Scharf, Christopher M. Rassi, Do Former Leaders Have an International Right to Self-Representation in War Crimes Trials?, 20 Ohio St. J. on Disp. Resol. 3 (2005); Michael P. Scharf, The Perils of Permitting Self-Representation in International War Crimes Trials, 4 J. Hum. Rights (2005); Göran Sluiter, Fairness and the Interest of Justice: Illusive Concepts in the Milošević Case, 3 J. Int’l Crim. Just. 9 (2005); Nina H. B. Jørgensen, The Problem of Self-Representation at International Criminal Tribunals: Striking a Balance between Fairness and Eeffectiveness, 4 J. Int’l Crim. Just. 64 (2006); Michael P. Scharf, Self-Representation versus Assignment of Defence Counsel before International Criminal Tribunals, 4 J. Int’l Crim. Just. 31 (2006); Jarinde Temminck Tuinstra, Assisting an Accused to Represent Himself: Appointment of the Amici Curiae as the Most Appropriate Option, 4 J. Int’l Crim. Just. 47 (2006).

[7] See Williams, Woolaver, The Role of the Amicus curiae…, supra at fn. 3, 162; see also Schabas, The UN International Criminal Tribunals…, supra at fn. 3, 621.

[8] See Prosecutor v. Slobodan Milosevic, IT-02-54, Order Inviting Designation of Amicus Curiae of August 30th 2001 (consulted at http://www.icty.org/x/cases/slobodan_milosevic/tord/en/10830AO516194.htm); see also Article 20(1) of the ICTY Statute.

[9] Ibidem supra at fn. 8.

[10] Ibidem.

[11] Idem supra at fn. 8, Order of the Registrar Designating Amicus Curiae of September 6th 2001. See also idem, Press Release of September 6th 2001 (available at http://www.icty.org/sid/7956). The Amici Curiae finally appointed were Mr. Steven Kay, Mr. Branislav Tapuskovic and Prof. Misha Wladimiroff. What is interesting, and indicative of the authentic nature of the tasks they were appointed to perform, such Amici were said to be bound by the provisions of the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal.

[12] Idem, Order Concerning Amici Curiae of January 11th 2002 (consulted at http://www.icty.org/x/cases/slobodan_milosevic/tord/en/20111AO517099.htm).

[13] Idem, Order of Further Instruction to the Amici Curiae of October 6th 2003 (consulted at http://www.icty.org/x/cases/slobodan_milosevic/tord/en/031006.htm).

[14] Ibidem.

[15] Idem, Transcript of October 29th 2001, 31 (consulted at http://www.icty.org/x/cases/slobodan_milosevic/trans/en/011029MH.htm).

[16] Ibidem.

[17] Idem, Amici Curiae Request for a Certificate Pursuant to Rule 73(B) to Appeal Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case of September 17th 2003.

[18] Idem, Decision Granting Request by the Amici Curiae for Certification of Appeal Against a Decision of the Trial Chamber of September 25th 2003 (consulted at http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/030925-2.htm).

[19] See idem, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case of January 20th 2004 (consulted at http://www.icty.org/x/cases/slobodan_milosevic/acdec/en/040120.htm).

[20] See ibidem, para. 4.

[21] «Not being a party to the proceedings, the amici are not entitled to use Rule 73 to bring an interlocutory appeal.», ibidem.

[22] See ibidem supra at fn. 18; see also infra at fn. 23.

[23] «However, as the Trial Chamber observed, there is an identity of interests between the amici and the Accused with respect to the issue presented in this appeal.», ibidem supra at fn. 22, para. 5.

[24] Ibidem.

[25] Ibidem, Separate Opinion of Judge Shahabuddeen.

[26] Ibidem, para. 5.

[27] Judge Shahabuddeen noted that the appeal could not be found to be brought by the accused by himself nor by the accused acting through the Amici as his counsel, see ibidem, paras. 7-11, 12-20;

[28] See ibidem, para. 21.

[29] As recognised also by Williams, Woolaver, The Role of the Amicus curiae…, supra at fn. 3, 166.