Hague Tribunal - Refusal to Testify

ICTY-Response to Steven Kay's Letter to Sara Flounders

20 Oct 2004

Steven Kay, QC
goodnightvienna@btopenworld.com

Dear Steven Kay,

Thank you for your response to my letter refusing to testify at the trial of President Milosevic under the present conditions set by the ICTY.

I realize, as you explain, that the Appeal Hearing against the decision of the Trial Chamber assigning counsel to Mr. Milosevic is scheduled for tomorrow Thursday.

In your letter you review all that you have done to technically appeal this ruling that denies President Milosevic the right to represent himself. However you are ignoring your own responsibility of continuing to represent someone against their will and when you have an obvious conflict of interest. You are also ignoring your own ability to take an action that would stop this legal farce.

As I stated in my letter: “You were not compelled to accept the "assignment" as his counsel and against his wishes. In addition to violating the express will of President Milosevic, your representation is a direct conflict of interest, since previously you served as a friend of the court – amicus curie… You are part of the problem. President Milosevic’s rights could be restored quite simply and immediately by your refusing to continue in this assignment. By remaining in the position as his false counsel you are preventing this trial from continuing. As long as you remain his defense cannot take place. If you had any sense of propriety and honor you would step down immediately.”

I urge you to make the only ethical and honorable decision – refuse to continue in this “assignment”. The choice is yours.

Sincerely,
Sara Flounders

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 Dear Ms. Flounder, You might be interested to know that the Appeal hearing against the decision of the Trial Chamber assigning counsel to Mr. Milosevic is scheduled for tomorrow Thursday 21/10.04 at 9.00 am.

This is the appeal filed by myself and Ms. Higgins to overturn the decision of the Court. If we had not taken such steps then the arguments on his behalf would not be possible. If you don't appeal you don't get a chance to change the ruling. I have consistently argued from the start of the process for his right of self-representation. You may care to look up the transcripts containing the passages and the documents as they are public and a matter of record. You might even have been able to attend some of the conferences at which I have spoken over the last 3 years in support of these rights. Furthermore, you might like to know that all the points being raised by you and others are in fact recycling the arguments and particular words used by me in the first place. Indeed I believe I have put into the arena even more reasons! In fact, you might like to know that Mr. Milosevic and his lawyers are deeply appreciative of this work.

So please don't insult me.

Furthermore, I have been to the Professional Conduct Committee of the Bar Council in London, who have advised that I am not in breach of my Code.

Yours,
Steven Kay QC  

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STEVEN KAY QC
25 Bedford Row
London, WCIR 4HB, ENGLAND
Tel: 0044 (0)207-067-1500
Fax: 0044 (0)207 067 1507
EMAIL: goodnightvienna@btopenworld.com

19 October 2004
Dear Mr. Kay,

I received your letter dated 5 October 2004.

My decision in regard to the testimony I was planning to present to the ICTY on behalf of the defendant Slobodan Milosevic is unchanged. It is not possible for me to participate in the trial in the circumstances under which the trial is now proceeding. This is also true for the overwhelming majority of witnesses who had agreed to testify in President Milosevic’s defense. The ICTY's decision violates basic legal and ethical norms. The ICTY has violated its own rules. Under Article 21, paragraph 4 of the Statute of the ICTY, a defendant is entitled to certain "minimum guarantees," including the right "to defend himself in person or though legal assistance of his own choosing."

If all of the witnesses that President Milosevic had planned to bring were able to testify freely there is no question that he would be acquitted and the real guilt of those who brought about the tragic violence would be fully exposed.

The rights of President Milosevic have been usurped, not only by the Tribunal, but also by you. You were not compelled to accept the "assignment" as his counsel and against his wishes. In addition to violating the express will of President Milosevic, your representation is a direct conflict of interest, since previously you served as a friend of the court – amicus curie. This is especially a conflict of interest because of the open hostility of the court to the rights of President Milosevic. Your conduct is a violation of your Bar code of ethics as well as the Statute o the Tribunal to represent someone who does not wish to be represented. You are part of the problem. President Milosevic’s rights could be restored quite simply and immediately by your refusing to continue in this assignment. By remaining in the position as his false counsel you are preventing this trial from continuing. As long as you remain his defense cannot take place. If you had any sense of propriety and honor you would step down immediately.

It is true that some of my testimony, if I had an opportunity to present it, would be considered expert testimony in light of the first hand information I acquired and studied during my previous visits to Yugoslavia and the books and articles I have written. I am also a fact witness. I was in Serbia during the U.S./NATO bombing and have personal and direct fact testimony. It is also true that I met with President Milosevic at his request in June 2004 to discuss the relevant testimony that I could present. I have reviewed my documentation and evidence and I am fully prepared as a witness on behalf of the defense.

Please check your records to confirm that you have received my letter of 12 September 2004. This letter, which I jointly authored and signed with three other prospective witnesses, was sent to President Slobodan Milosevic and a copy to the ICTY Registry. In that letter I stated my decision that I would not appear as a witness in this case as long as President Milosevic’s rights to choose and conduct his own counsel were usurped by the court. I have not changed my mind on this matter. For the same reasons, I refuse your offer to discuss the method and content of my testimony at this time. I will make ready an expert witness report along with the documentation, both written and on video, to be presented as part of my testimony in the event that Mr. Milosevic’s rights to self-defense are fully restored to him and the defense case can resume under legitimate conditions.

I believe that my decision best serves the interest of justice and is upheld by democratic legal standards. As I have previously stated, I am fully convinced that the charges against President Milosevic are false and that they represent a continuation of the war against Yugoslavia and the Serbian people by the U.S. and its NATO allies. I remain ready and very willing to appear as a witness in the event that Mr. Milosevic’s rights to self defense are restored to him and his will in these matters is not abrogated by any arbitrary decision of the court.

To proceed in any other way would be unethical and illegitimate.

I am attaching to this letter a copy of my previous letter of 12 September 2004.

Sincerely,

Sara Flounders

cc.: Evelyn Anoya, Pro Se Legal Liaison Officer, Officer of the Registry of ICTY, Fax #: 31 (0) 70 512 8637; Tel. #: 31 (0) 70 512 5661, e-mail: anoya.icty@un.org

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President Slobodan Milosevic

12 September 2004

Dear President Milosevic,

We, the undersigned, are outraged by the decision of the Hague Tribunal (ICTY) to impose counsel on you against your will and to deprive you of your lawful and fundamental right to self-defense. Although we previously had agreed to testify in your defense, under these conditions we cannot and will not participate as witnesses in these proceedings.

Not only does the Tribunal's decision violate basic legal and ethical norms, it brazenly disregards its own rules. Under Article 21, paragraph 4 of the Statute of the ICTY, a defendant is entitled to certain "minimum guarantees," including the right "to defend himself in person or though legal assistance of his own choosing." The Statute furthermore states that a trial should be conducted "with full respect for the rights of the accused." We can only comment that our understanding of the word "guarantee" evidently differs markedly from that of the Court's.

We can assure you that we remain ready and willing to appear as witnesses in the event that your right to self defense is restored to you and you choose to invite us. We stand united in our belief that the charges against you are false and that they represent a continuation of the war against Yugoslavia and the Serbian people by the U.S. and its NATO allies. We are sending a copy of this letter to the court to inform them of our decision.

Signed,

Gregory Elich
Sara Flounders
Barry Lituchy
Michael Parenti

cc.: ICTY Registry, The Hague