Kosovo Specialist Chambers – Part 3: Peculiar Features of the Statute

This is the third post in my series on the Kosovo Specialist Chambers (“KSC”), a hybrid internationalized set of chambers set up to try grave transboundary and international crimes committed during the aftermath of the war in Kosovo.

In my previous post, I focused on some of the fundamentals of the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”), including the general structure of the tribunal, the composition of the chambers, and the jurisdiction and applicable law of the KSC. In this post, I focus on some of the peculiar features of the KSC Statute. I will not be providing a full article-by-article analysis of the KSC Statute. Rather, I will merely highlight some of the more interesting provisions – especially those not found in the statutes of the other international(ized) tribunals and courts – without getting too far into the weeds. Specifically, I will address: venue, amnesties, the rights of the accused, the appointment and assignment of Judges, the powers and responsibilities of the Specialist Prosecutor, detention and arrest matters, the Court of Appeals Panel’s power to enter convictions on alternative modes of liability, and extraordinary legal remedies. To avoid redundancy, some aspects of the KSC Statute I would normally discuss here will be discussed in the next set of posts dealing with the KSC Rules of Procedure and Evidence (“RPE”).

Venue

A preliminary matter, causing some confusion, is the venue of the proceedings. Article 3(6) of the KSC Statute provides that the KSC “shall have a seat in Kosovo” and, as provided for by agreement with the Host State (the Netherlands), “shall also have a seat in the Host State outside Kosovo, but may sit elsewhere on an exceptional basis if necessary and in the interests of proper administration of justice.” Article 3(7), on the other hand, provides that “the Specialist Prosecutor’s Office shall have a seat in the Host State, but may also have a seat in Kosovo.” Article 3(8) provides the conditions for changing the venue:

a.  the President of the Specialist Chambers, the Specialist Prosecutor, Specialist Counsel or Victims’ Counsel may at their discretion invoke a change of venue to the Host State of a trial, any part of a trial or any particular stage or stages of the criminal process under this Law;

b.  the Specialist Prosecutor, Specialist Counsel, Victims’ Counsel, or any other party or person with standing to do so under this Law may file or tender any court papers, filings, documents, motions, applications or other items at the Specialist Chambers’ seat in the Host State;

c.  the Specialist Prosecutor or the Presiding Judge of the Specialist Chamber of the Constitutional Court may also at their discretion invoke a change in venue to the host state for the Specialist Chamber of the Constitutional Court so that it also sits, deliberates and receives filings and submissions at the Specialist Chambers’ seat in the Host State;

d.  in the event of an invocation of a change in venue to the Host State the President of the Specialist Chambers shall issue an administrative decision relocating the proceedings, or any part or phase thereof, to the Host State and shall order all necessary steps to give effect to this decision.

In January 2016, the Dutch government released a statement specifying that “[t]he decision to locate the court in The Hague was made following consultation between the EU and Kosovan and Dutch authorities.” The Host State Agreement between the Netherlands and Kosovo, done on 15 February 2016, names the KSC and the Specialist Prosecutor’s Office “the Kosovo Relocated Specialist Judicial Institution” (“KRSJI”). Article 3 of the Host State Agreement provides that the KRSJI “shall have a seat in the Host State.” Article 4 provides that the Netherlands undertakes to host the KRSJI “for the sole purpose, and for the duration, of the relocated criminal proceedings in the Netherlands.”

However, on 30 March 2017, in a memorandum (without reasons), the Presiding Judge of the Specialist Chamber of the Constitutional Court (“SCCC”) invoked a change of venue for the SCCC pursuant to Article 3(8)(c) so that it could deliberate in The Hague. The KSC President confirmed the change of venue under Article 3(8)(d), specifying that the change of venue was “invoked in relation to the specific proceedings for review of the Rules currently before the SCCC.”1   KSC-CC-2017-02, Decision on the Location of Proceedings Before the Specialist Chamber of the Constitutional Court for the Review of the Rules of Procedure and Evidence Pursuant to Article 19(5) of the Law, 12 April 2017.

The KSC President’s decision did not address the venue of the proceedings in general, though we can more than assume that the proceedings will be conducted in The Hague, as the Dutch government confirmed that the KSC will be housed in the former Europol building.  From my understanding, the Dutch Government is footing the bill for renovating the building and constructing state of the art courtroom facilities – expectedly to be used (rented out) by other courts and tribunals that may be located in or use this venue in The Hague.

Amnesties

Article 18 of the KSC Statute concerns amnesties, i.e. the “complete and lasting forgetfulness of wrongs and offences previously committed.”2   Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum Vol. 2 (transl. by Joseph H. Drake, Oxford 1995), para. 989. Amnesties can be a useful tool in promoting peace and reconciliation post-conflict: let bygones be bygones. An amnesty is distinct from a pardon, in that a pardon forgives a sentence imposed after a trial and resulting conviction. By contrast, when an amnesty is granted, there is no trial, no conviction, and no sentence imposed. Though evidence may exist that crimes were committed and the amnestied person may be criminally responsible for those crimes, guilt is not established.

Some of the international(ized) tribunals and courts have express provisions barring the application of amnesties. Article 10 of the Statute of the Special Court for Sierra Leone (“SCSL”) provides that “[a]n amnesty granted to any person falling within the jurisdiction of the Special Court in respect of crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.” Article 10 of the SCSL Statute does not include crimes committed under Sierra Leonean law. At the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), Article 40 new of the Establishment Law3   Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (“ECCC Establishment Law”). provides that the Royal Government of Cambodia shall not request an amnesty for crimes within the ECCC’s jurisdiction, but provides that the scope of any amnesties granted prior to the enactment of the Establishment Law “is a matter to be decided by the Extraordinary Chambers.” Article 6 of the Statute of the Special Tribunal for Lebanon (“STL”) provides a categorical rejection of amnesties: “An amnesty granted to any person for a crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution.”

Article 18 of the KSC Statute, like Article 6 of the STL Statute, is also categorical: “Any amnesty granted to any person for an international crime, a crime that resulted in grievous bodily injury or death, or a crime under Article 15(2), if falling within the jurisdiction of the Specialist Chambers, shall not be a bar to prosecution or punishment.”

While the validity of domestic amnesties is a matter of domestic law, it remains unclear as to the validity of domestic amnesties granted for jus cogens crimes or peremptory norms of international law – “norm[s] accepted and recognized by the international community of states as a whole … from which no derogation is permitted[.]”4   Vienna Convention on the Law of Treaties, Art. 53. As I have previously discussed in detail, the question of amnesties has been litigated before the SCSL and the ECCC, with both courts declining to uphold amnesties granted to the accused by national authorities.5   See Prosecutor v. Kallon & Kamara, SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, paras. 67-74; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), 3 November 2011, D51/15, paras. 53-55.

Rights of the Accused

Article 21 of the KSC Statute provides the laundry list of rights accorded to the accused. Similar to the statutes of the international(ized) tribunals and courts, Article 21(4) provides that the accused before the KSC are entitled to:

a.  be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her;

b.  be informed promptly of his or her rights according to the law;

c.  have adequate time and facilities for the preparation of his or her defence and to communicate with Specialist Counsel of his or her own choosing;

d.  be tried within a reasonable time;

e.  be tried in his or her presence, and to defend himself or herself through Specialist Counsel of his own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have Specialist Counsel assigned to him or her, in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;

f.  examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

g.  have the free assistance of an interpreter if he or she cannot understand or speak the language used in the Specialist Chamber; and

h.  remain silent and not to be compelled to testify against himself or herself or to admit guilt.

Article 21(5) is unique among the international(ized) tribunals and courts, requiring mandatory legal representation (no self-representation):

a.  at hearings on detention on remand and throughout the time when an accused is in detention on remand;

b.  from the filing of an indictment, if the indictment has been brought the accused for a crime punishable by imprisonment of at least ten (10) years; and

c.  in all cases when an accused seeks to enter into an agreement to plead guilty to a crime punishable by imprisonment of one (1) year or more.

This requirement stems from Kosovo law, requiring mandatory legal representation in similar circumstances.6   See Kosovo Criminal Procedure Code, Law No. 04/L-123, 28 December 2012 (“Kosovo Criminal Procedure Code”), Art. 57(1). Such mandatory legal representation is customary in civil law systems.7   Gideon Boas, The Right to Self-Representation in International and Domestic Criminal Law – Limitations and Qualifications on That Right, in Hirad Abtahi, Gideon Boas (eds.), The Dynamics of International Criminal Justice: Essays in Honour of Sir Richard May (Martinus Nijhoff 2005), pp. 50-52 (discussing the imposition of defence counsel in civil law countries on accused charged with serious criminal offenses). In the Kosovo legal system, when a mandatory defence is not required, Counsel is only appointed at public expense when the charges can lead to a sentence of imprisonment of eight years or more or in the interest of justice if the accused is unable to pay the cost of his or her defence.8   Id., Art. 58(1).

Unclear, however, is whether Article 21(5) prohibits self-representation through Standby Counsel. Accused at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) have a “presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.”9   Prosecutor v. Milošević, IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 11. But this right is not without limitation. For example, Standby Counsel have been appointed at the ICTY to assist the accused in their defence when the accused’s “self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.”10   Id., para. 13. The modalities governing the imposition of Standby Counsel are different from that of Counsel assigned to a case under normal circumstances, in that the accused takes the lead in presenting his or her case – “choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense”11   Id., para. 19. – functions normally performed by Counsel rather than the accused.

Appointment and Assignment of Judges

The appointment and assignment of Judges to the KSC is done differently than the other international(ized) tribunals and courts (rightly so), with emphasis placed on judicial experience and competence in criminal law. It seems that some lessons have been learned from the experiences of the international(ized) tribunals and courts where the quality of judges selected has come under fair criticism.12   See Michael Bohlander, The International Criminal Judiciary Problems of Judicial Selection, Independence and Ethics in Michael Bohlander (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (Cameron, 2007), pp. 326-62.

At the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”), Judges are selected by the United Nations (“UN”) General Assembly from a list submitted by the Security Council.13   Statute of the International Criminal Tribunal for the former Yugoslavia (“ICTY Statute”), Art. 13(1) bis; Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”), Art. 12(1) bis. The Statute of the SCSL provides for split panels, with some Judges being appointed by the government of Sierra Leone, and others being appointed by the UN Secretary General.14   Statute of the Special Court for Sierra Leone (“SCSL Statute”), Art. 12(1). At the ECCC, the Cambodian Judges are selected by the Supreme Council of the Magistracy while the UN Secretary General submits a list of judicial candidates from which the Supreme Council of the Magistracy makes appointments.15  ECCC Establishment Law, Art. 11 new. At the International Criminal Court (“ICC”), Judges are elected by secret ballot by the Assembly of States Parties from nominations put forward by the States Parties.16   Rome Statute of the International Criminal Court (“Rome Statute”), Arts. 36(4), 36(6)(a). At the STL, both the Lebanese and International Judges are appointed by the UN Secretary General.17   Statute of the Special Tribunal for Lebanon (“STL Statute”), Art. 9(3).

The selection process of judges at these international tribunals has been criticized. Judge Patricia M. Wald, former Chief Judge of the United States Court of Appeals for the District of Colombia Circuit and Judge of the ICTY, remarked that the ICTY had too many diplomats and academics who lacked judicial experience: “Of course we need a mix, but you wouldn’t put a judge who has never been in court in charge of a big conspiracy case…. You wouldn’t take a professor of anatomy and put him into an operating theatre and say, ‘Now perform this brain surgery.’” The International Crisis Group similarly criticized the ICTR: “The poor output of the Tribunal is linked to the mediocre productivity of the judges, some who are incapable of running criminal trials … the selection of judges should be more rigorously organised and … candidates who have not had solid experience as a judge in criminal affairs should be rejected.”

By contrast, Judges at the KSC are appointed from a Roster of International Judges by the European Union Common Security and Defence Policy Mission (“Appointing Authority”), based on the recommendations of a Selection Panel,18   Law on Specialist Chambers and Specialist Prosecutor’s Office, Law No.05/L-053, 3 August 2015 (“KSC Statute”), Art. 28. with emphasis placed on judicial experience and competence in criminal law. Nominations for the Roster were put forward by countries that are funding the KSC.

The Selection Panel is “composed of three international members, with at least two members being judges with substantial international criminal law experience” and one international appointee.19   Id., Art. 28(2). After conducting interviews and assessments of judicial candidates, the Selection Panel forwards its list to the Appointing Authority, who appoints the Judges to the Roster.20   Id., Art. 28(3).   In order to make it onto the Roster, the Judges must have “established competence in criminal law and procedure or relevant parts of international law and constitutional law as appropriate, with extensive judicial, prosecutorial or defence experience in international or domestic proceedings.”21   Id., Art. 27(1). Based on the Selection Panel’s recommendations, the Appointing Authority also appoints the President and Vice-President of the KSC.22   Id., Art. 32(1).

The appointment process seems to have worked out rather nicely, with many highly qualified and experienced Judges being appointed to the Roster, most of whom have domestic and / or international judicial experience. The President of the KSC is Judge Ekaterina Trendafilova, a former ICC Judge, and the Vice-President is Judge Keith Raynor, a former Circuit Court Judge of the Woolwich Crown Court in London and an International assistant Co-Prosecutor at the ECCC (and might I add from personal experience, an exceptional trial advocate whose skills have been honed from being in the trial pit; a rarity these days).

One cautionary note worth pondering on the use of the Roster of Judges (something also adopted by the Mechanism for International Criminal Tribunals),23   See Statute of the International Residual Mechanism for Criminal Tribunals, Art. 8(1)-(4). especially having seen how decisions and judgments tend to be drafted at the international(ized) tribunals and courts. The Roster of Judges provides flexibility but also comes with noteworthy vulnerabilities.

Essentially, Roster Judges are ad litem Judges. Putting on hold whatever they are doing once called upon to sit at the tribunal and being allowed to work remotely,24   KSC Statute, Art. 26(2): “The Judges shall only be present at the seat of the Specialist Chambers as necessary at the request of the President of the Specialist Chambers to exercise functions requiring their presence. In so far as possible, and as decided by the President of the Specialist Chambers, the functions may be exercised remotely.” they parachute into cases or proceedings on an as-needed basis. Sounds reasonable and cost-efficient. Yes, but it could also result in having the Senior Legal Officers (“SLOs”) acting as shadow judges, since they will most likely be the ones most familiar with the KSC’s day-to-day affairs, its jurisprudence, the facts of the cases, etc. Having the SLOs driving the process and results risks having the proverbial tail wagging the dog, as opposed to vice versa. Inconvenient or distasteful as I may be, truth be told, most Judges at the international(ized) tribunals and courts heavily rely on their SLOs to feed them the law and ghost-write their decisions. Many SLOs’ have enormous influence – especially if they have been around for a while and come to see themselves as both gatekeepers and lawmakers – preserving advancements on any law they may have been involved in shaping, and / or promoting their agenda of where they think the law ought to be or what facts ought to be found as proved and thus effecting a result of their liking. Also, it is no secret that some Judges are unschooled, disinterested, or lazy. Yes, there are such Judges at these august institutions, and it is they who usually outsource their judicial functions to their SLOs, depending on them to see through the morass of facts and complexities of the law, much like a blind person relies on a seeing eye dog.

Another criticism I have with the KSC Statute concerns Article 33, governing the assignment of Judges to the Panels. I see potential risks that have come to light from other international(ized) tribunals and courts, most notably the Appeals Chambers of the ICTY / ICTR (both courts share the same Appeals Chamber).

Article 33(1) provides that the KSC President assigns Judges from the Roster to the Panels in accordance with the Rules on the Assignment of Specialist Chambers Judges. In assigning Judges to the Panels, Rule 4 of the Rules on the Assignment of Specialist Chambers Judges provides that the President must be “objective and transparent” and “guided by objective criteria such as experience, expertise, seniority, gender and geographical representation, as well as by the preferences of individual Judges and their availability at the time of commencement of the specific proceedings.”

While Rule 4 provides some objective criteria for the assignment of Judges, Article 33(1) effectively allows the President to select Panels with predetermined outcomes in mind, since the President is likely to know where the other Judges stand on particular legal issues. This is particularly significant when it comes to the selection of the Appeals Panel. The ICTY appeals Chamber (which is the same Appeals Chamber for the ICTR) employed a similar assignment process,25   ICTY Statute, Art. 14(3); ICTR Statute, Art. 13(3). which was similarly criticized. As one commentator aptly noted: “[T]he case law of the ICTY remains in a state of flux and fragmentation on the specific direction issue – so much so that the guilt or innocence of specific accused will very much depend on which judges get assigned to their Appeals Chamber.”

Power and Responsibilities of the Specialist Prosecutor

Article 35 of the KSC Statute, governing powers and responsibilities of the Specialist Prosecutor, is interesting in that it provides for a police force within the Specialist Prosecutor’s Office. The inclusion of a police force is an essential feature that other international(ized) tribunals and courts lack. While the statutes of the ICTY,26   ICTY Statute, Art. 18(2). the ICTR,27   ICTR Statute, Art. 17(2). the SCSL,28   SCSL Statute, Art. 15(2).   and the STL29   STL Statute, Art. 11(5). give the Prosecutors the authority to question witnesses, victims and witnesses, collect evidence, and conduct on site investigations, they must rely on national authorities to assist in carrying out police powers to further the investigation. While the ICC Office of the Prosecutor has the authority to “[c]ollect and examine evidence” and “[r]equest the presence of and question persons being investigated, victims and witnesses,”30   Rome Statute, Art. 54(3)(a)-(b). it must either execute a request for assistance to the national authorities under Part IX of the Rome Statute, or seek the Trial Chamber’s authorization.31   Id., Arts. 54(2)(b), 57(3)(d). An exception is the ECCC, which provides for a Judicial Police force responsible for serving summons, executing warrants of arrest and detention orders, carrying out the preliminary investigations (executing searching warrants and gathering evidence), and taking suspects into custody.32   ECCC Internal Rules, Rules 15(1), 41(3), 45(2), 50(2)-(3), 51(1).

At the KSC, the police working in the Specialist Prosecutor’s Office are appointed by Appointing Authority and “have the authority and responsibility to exercise powers given to the Kosovo Police force under Kosovo law,”33   KSC Statute, Arts. 35(3), 35(9). including the authority to:

–  Gather information from persons;

–  Perform inspections of vehicles, passengers, and their luggage;

–  Restrict movement;

–  Take necessary steps to establish the identity of persons and objects;

–  Organize searches to locate an individual or object;

–  Search buildings and the premises of public entities and to examine documents belonging to them;

–  Confiscate contraband or objects which may serve as evidence;

–  Provide for the physical examination of an injured party;

–  Detect and preserve traces of evidence from the crime scene and order forensic testing of evidence;

–  Interview witnesses or potential suspects;

–  Take necessary steps to prevent an emergent danger to the public;

–  Take necessary steps to locate a perpetrator and to prevent him or her or the accomplice from fleeing; and

–  Take other necessary steps and actions provided under Kosovo law.34   Kosovo Criminal Procedure Code, Art. 70(3).  

In providing for a police force within the Specialist Prosecutor’s Office, the KSC will be able to carry out investigations without heavy reliance on national authorities. This at least avoids some of the cooperation issues that arose at the ICC. For example, in the Kenyatta case, the Trial Chamber found that the Republic of Kenya had failed to comply with its obligation to execute requests for cooperation from the ICC by failing to take any meaningful steps to compel the production of certain financial records of Uhuru Kenyatta.35   Prosecutor v. Kenyatta, ICC-01/09-02-11-1037, Second decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, 19 September 2016, p. 18.

The extent to which the Kosovo national authorities will cooperate with the Specialist Prosecutor on other police-related matters, such as the execution of warrants of arrest (arresting and detaining suspects) remains to be seen.36   See Rules of Procedure and Evidence Before the Kosovo Specialist Chambers, Rule 52(5): “Kosovo authorities shall comply with a warrant, detain and transfer the person concerned without delay and under the conditions set. They shall not afford the person concerned any means of relief not expressly ordered in that warrant.” There is a reason why these cases are not being handled by the local courts in Kosovo, or the European Union Rule of Law Mission in Kosovo (“EULEX”).37   See also Statement of the Chief Prosecutor of the Special Investigative Task Force (“SITF”), 29 July 2014, p. 1, noting that the SITF “faced challenges due to a climate of intimidation that seeks to undermine any investigations of individuals associated with the former Kosovo Liberation Army[.]”

Detention and Arrest

Article 41 of the KSC Statute concerning detention and arrest matters also contains some interesting provisions, guaranteeing that all arrests and detentions done by the KSC complies with Kosovo law and the Constitution.

Article 41(3) provides that any person arrested without an order from the KSC must be brought before a KSC Judge within 48 hours, who will decide on his or her detention or release. The decision to detain or release a person must be made within 48 hours from the moment the detained person was brought before the court. Article 41(4) requires informing the detained person of:

– The reasons for his or her arrest;

– The right to legal assistance through Counsel of his or her own choice, and to have Counsel assigned free of cost if he or she lacks funds to pay for a lawyer; and

– The right to notify or have notified a family member or other person about the arrest.

Article 48(6) provides that the KSC or Specialist Prosecutor can only order the arrest and detention person when there is a “grounded suspicion” that he or she has committed a crime within the KSC’s jurisdiction, and there are “articulable grounds to believe that” that the person (i) is a flight risk; (ii) may hide, change or forge evidence, or otherwise obstruct the progress of the investigation; or (iii) will be a repeat offender or attempt to complete a crime which he or she has threatened to commit.

All persons arrested and detained by the KSC have the right to challenge the lawfulness of their arrest or conditions of detention, and to have such challenges “decided speedily” by the KSC under Article 41(2).

Court of Appeals Panel’s Power to Enter Convictions on Alternative Modes of Liability

Article 46(6) of the KSC Statute explicitly grants the Appeals Chamber the power to enter convictions on alternative modes of liability when it overturns the Trial Panel’s findings of guilt on one mode of liability and the Trial Panel fails to make findings on alternative modes of liability. Under Article 46(6), the Court of Appeals Panel must “consider the evidence contained in the trial record, as well as any other Trial Panel findings, to determine whether to enter convictions under an alternative mode of liability.” Alternatively, Article 46(6) allows the Court of Appeals Panel to remand the case to the Trial Panel to determine whether to enter findings of guilt on alternative modes of liability, “if the Trial Panel is available and could more efficiently address the matter.”

This power is not explicitly provided for in the statutes of the other international(ized) tribunals and courts, and was a contentious issue at the ICTY.

In Blaškić, the Trial Chamber Trial Chamber convicted Blaškić for “ordering” the use of detainees as human shields,38   Prosecutor v. Blaškić, IT-95-14-T, Judgement, 3 March 2000, para. 743. a mode of liability under Article 7(1) of the ICTY Statute. The Trial Chamber made no findings under Article 7(3) of the Statute (covering command responsibility), and the Appeals Chamber declined to consider whether a conviction under Article 7(3) could be entered on appeal.39   Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004, para. 647. However, while the Appeals Chamber overturned the Trial Chamber’s findings for “ordering” the use of civilian detainees as human shields, it considered “whether the Appellant’s criminal responsibility for endorsing the use of human shields is better expressed as an omission,”40   Id., para. 662. and found Blaškić guilty under Article 7(1) for his omission relating to the use of human shields.41   Id., para. 670.

In Dragomir Milošević, the Appeals Chamber overturned the Trial Chamber’s findings regarding “ordering and planning” a campaign of sniping incidents under Article 7(1) of the ICTY Statute.42   Prosecutor v. D. Milošević, IT-98-29/1-A, Judgement 12 November 2009, para. 277. The Trial Chamber did not perform any analysis of whether Dragomir Milošević could be held liable under Article 7(3) for command responsibility. The Appeals Chamber quashed the convictions for planning “ordering and planning” and replaced them with convictions under Article 7(3).43   Id., para. 282. The Appeals Chamber reasoned that the Trial Chamber had made the necessary findings for establishing responsibility under Article 7(3),44   Id., para. 281. but did not address the Appeals Chamber’s general authority to enter convictions on appeal for alternative modes of liability.

In Gotovina et al., the Appeals Chamber reversed the Trial Chamber’s findings regarding the existence of a Joint Criminal Enterprise (“JCE”) and quashed all of Gotovina and Markač’s convictions.45   Prosecutor v. Gotovina et al., IT-06-90-A, Judgement, 16 November 2012, para. 99. The Trial Chamber made no findings on alternative modes of liability, and following a hearing, the Appeals Chamber ordered the parties to make submissions on the possibility to enter convictions on appeal for alternative modes of liability.46   Id. The Appeals Chamber held that it has the authority to enter convictions on appeal in certain circumstances and that authority is not dependent on whether the Prosecution appeals.47   Id., para. 107. It reasoned that Article 25(2) of the ICTY Statute allows the Appeals Chamber to “revise” a Trial Chamber’s decision, and that entering additional convictions on appeal did not violate an appellant’s fair trial right per se.48   Id. However, it qualified this authority, holding that “[t]he Appeals Chamber will not enter convictions under alternate modes of liability where this would substantially compromise the fair trial rights of the appellants or exceed its jurisdiction as delineated in the statute,” namely, to review “errors of law which invalidate a decision and errors of fact which occasion a miscarriage of justice.”49   Id., para. 108.

Judge Pocar dissented on this issue, pointing out that “revising an appellant’s conviction for a certain crime from one mode of liability to another is not equivalent to entering a new conviction on appeal.”50   Id., Dissenting Opinion of Judge Fausto Pocar, para. 33. While he agree that Article 25(2) of the ICTY Statute allows the Appeals Chamber to “revise” a Trial Chamber’s decision, it did not give the Appeals Chamber the authority to enter new convictions on appeal.51   Id., para. 34. He pointed out that the in the cases relied upon by the Majority (including Blaškić), the Appeals Chamber was either affirming a conviction or revising a conviction, rather than entering a new conviction.52   Id., para. 33. In his opinion (which I find to be correct), to enter a new conviction on appeal would violate Article 24(2) of the ICTY Statute, requiring the ICTY to apply the fundamental principles of international human rights law enshrined in the International Covenant on Civil and Political Rights, which guarantee the right to review of a conviction and sentence by a higher tribunal.53   Id., para. 37 quoting International Covenant on Civil and Political Rights, Article 14(5): “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

Article 47 of the KSC Statute seems to avoid the dilemma illustrated by Judge Pocar, since (as I pointed out in my previous post) it grants the accused the right to third instance appellate proceedings before the Supreme Court Panel.

Extraordinary Legal Remedies

As I also briefly mentioned in my previous post, Article 48 of the KSC Statute covers extraordinary legal remedies before the Supreme Court Panel, such as the reopening of criminal proceedings,54   KSC Statute, Art. 48(1). extraordinary mitigation of punishment,55  Id., Art. 48(5). protection of legality,56   Id., Art. 48(6). and other extraordinary legal remedies provided under the Kosovo Constitution or the European Convention on Human Rights (“ECHR”).57   Id., Art. 48(8). These extraordinary remedies generally track those provided for in the Kosovo Criminal Procedure Code.58   See Kosovo Criminal Procedure Code, Art. 418(1)-(3). In addition to a third instance of appellate review, these extraordinary legal remedies provide the accused further opportunity to challenge their convictions or other decisions by the KSC Panel, though some of these extraordinary remedies can also cut against the accused, and be granted in favor of the Specialist Prosecutor.

Article 48(1) provides that any party may request the reopening of criminal proceedings. Article 48(2) provides the specific grounds upon which proceedings terminated by a final judgment may be reopened:

a.  The judgment rests on a forged document or false statement of a witness, expert witness, or interpreter;

b.  The judgment “ensued from a criminal offense committed by a judge or a person who took investigative actions”;

c.  New facts or evidence, not previously discoverable through the exercise of due diligence, have been discovered which would have been a decisive factor in reaching a decision and fundamentally altered the balance of evidence in the case, leading to a miscarriage of justice if ignored;

d.  “[A] person was tried more than once for the same offence or several persons were convicted of the same offence which could have been committed only by a single person or only by some of them.”

Article 48(3) provides a reopening of proceedings on the grounds listed in Article 48(3)(a) (forced documents or false statements) or 48(b) (the criminal actions of a judge or investigator) can only be granted in favor of the accused. However, reopening of proceedings based on these two grounds can be granted in favor of the Specialist Prosecutor where “the circumstances have been a result of a criminal offence committed by the accused or someone acting on his/her behalf or in his/her interest against a witness, expert witness, interpreter, prosecutor, judge, other official of the Specialist Chambers or Specialist Prosecutor’s Office or those close to such persons[.]”

Article 48(4) provides that after a preliminary examination, the Supreme Court Panel may either dismiss the request or reopen the criminal proceedings. If the Supreme Court Panel reopens the proceedings, it may reconvene the Trial Panel or determine the matter itself.

Article 48(5) covers extraordinary mitigation of punishment. Under Article 48(5), “[a] party may request the extra-ordinary mitigation of punishment at any time during the period being served in imprisonment, but not during the last six (6) months of imprisonment.” Under Kosovo law, an extraordinary mitigation of punishment reduces the severity of a sentence imposed where “circumstances occur which did not exist when the judgment was rendered or, although they existed, were unknown to the court at the time, and such circumstances would obviously have led to a less severe punishment.”59   Id., Art. 429.

Article 48(6) provides that “[a] party may request protection of legality within three (3) months of the final judgment or final ruling against which protection of legality is sought.” A protection of legality must be based on a violation of the substantive criminal law in the KSC Statute or a “substantial violation” of the procedures in the KSC Statute or RPE.60   KSC Statute, Art. 48(7). 

Article 48(8) provides that requests for extraordinary legal remedies may be filed on the basis of rights provided in the Kosovo Constitution or the ECHR. The Kosovo Criminal Procedure Code does not provide a similar article, and the Kosovo Constitution does not specify which (if any) extraordinary legal remedies are available based on constitutional rights. Though, as I’ve noted, the European Court of Human Rights is unlikely to be available as a court of final resort for accused before the KSC.

Concluding observations

The KSC Statute has many unique and interesting features. While some of these features stem from the requirements of Kosovo law (arrest and detention matters), others, as I have already noted in the previous post, seem to build on the experience of the other international(ized) tribunals and courts. As we will see in the next post, the KSC is heavily tilted towards the civil law system, though for all intents and purposes, this hybrid system maintains the necessary adversarial features to make it party-driven as opposed to judge-controlled.

Next posts

I will next discuss the RPE.  It too has borrowed from and to some extent improved upon the RPEs from other international(ized) tribunals and courts. And as we will see, the drafters have done a laudable job, despite some rules having been found by the Specialist Chamber of the Constitutional Court.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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