Even counsels in ICC need permission to withdraw


FORMER Yugoslav president Slobodan Milosevic had a lengthy and complex list of indictments, or charge against him. The indictments were finally consolidated for a single trial before the International Criminal Tribunal for the former Yugoslavia (ICTY), which began on February 12, 2002.

Throughout the preliminary proceedings before the ICTY – and well before his actual trial began – Milosevic insisted on his right to represent himself, rejecting all suggestions that counsel should be appointed to represent him. The trial chamber of the ICTY duly recognised Milosevic’s right to do so, saying “the accused has a right to counsel, but he also has a right not to have counsel” which right is not absolute though.

Over the course of the trial, Milosevic’s health problems posed difficulties for both him and the trial chamber. In the face of his mounting health problems, the trial chamber opined that it was necessary to relieve him of the burden of conducting his own case “with a view to stabilising his health to ensure, so far as possible, that the trial proceeds with the minimum of interruption in a way that will permit the orderly presentation of the accused’s case and the completion of the trial within a reasonable time in his interests and the interests of justice”. In other words, to secure for him a fair and expeditious trial.

Accordingly, the trial chamber ordered that Milosevic be assigned counsel. Steven Kay QC and Gillian Higgins were duly assigned as counsel to Milosevic following their agreement to act.

Upon their appointment by the registrar, both endeavoured to secure the attendance of witnesses to testify on behalf of Milosevic, managing to call five witnesses to testify from a list of 140 witnesses. Other witnesses resisted being called, refusing to attend because they disagreed with the decision of the trial chamber to assign defence counsel to Milosevic, contrary to his wishes.

Hard pressed, they wrote a letter to the registrar seeking withdrawal from their position as defence counsel. The request was referred to the trial chamber as a motion of assigned counsel to withdraw.

The trial chamber heard submissions from assigned counsel and Milosevic as well the prosecution. The trial chamber took time to consider the matter, following which it ruled that “good cause justifying withdrawal of counsel has not been established.” The trial chamber considered the presence of assigned counsel was essential to ensure the fair and expeditious conduct of the proceedings. It was in the interests of justice that counsel should remain assigned to Milosevic and should not be permitted to withdraw.

Accordingly, the motion to withdraw as counsel was denied.

So, it is not unprecedented that lawyers in criminal cases who are counsel on record are not allowed to discharge themselves.

Counsel has three main duties. Counsel’s duty to the court is first and paramount. – August 30, 2022.

* Hafiz Hassan reads The Malaysian Insight.



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