Kosovo Specialist Chambers – Part 6: The Rules of Procedure and Evidence (The Proceedings)

This is the sixth post in my series on the Kosovo Specialist Chambers (“KSC”), a hybrid internationalized set of chambers founded to try war crimes, crimes against humanity, and other crimes under Kosovo law committed during the aftermath of the conflict in Kosovo (1998-2000).

In my previous post, I discussed the Rules of Procedure and Evidence (“RPE”) governing investigations, arrests, and detention. In this post, I focus on the proceedings from pre-trial to appeal. While the KSC’s procedure is similar to that of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), it also cherry picks here and there some of the more civil law modalities from the Rome Statute of the International Criminal Court (“ICC”). If the initial ICTY procedure leaned too far towards the adversarial mode – gradually adjusted by introducing modalities inspired by civil law principles – the KSC RPE has a distinct civil law flavor, no doubt because of the influence of some of the civil law Judges involved in the drafting. Despite this influence, it is sufficiently adversarial for those of us who prefer robust advocacy through the use of cross-examination with leading questions – “the greatest legal engine ever invented for the discovery of the truth.”1   California v. Green, 399 U.S. 149, 158 (1970) quoting John Henry Wigmore, Evidence § 1367 (3d ed. 1940).

My intention in this post is not to go over every provision in the RPE concerning the proceedings, but just to comment on some of the more interesting or innovative Rules. My overall impression is that the KSC reflects many of the lessons learned from other international(ized) criminal tribunals and courts, promising – on paper at least – to set the standard for future ad hoc tribunals or tribunals based on the Mechanism for International Criminal Tribunals model.

General Provisions

Abuse of the Proceedings

Rule 60 is a unique provision, permitting the Panel to issue sanctions from the bench if Defence Counsel or the Specialist Prosecutor Counsel is offensive, abusive, or otherwise obstructs the proceedings. The Panel can impose a fine up to €500, refuse the right of audience, and/or determine that the lawyer (Defence Counsel or Specialist Prosecutor Counsel) is no longer eligible to represent the client or participate in the proceedings. This approach is similar to that of United States Courts.2   For example, in Principe v. Assay Partners, the Court imposed a sanction of USD $1,000 on an attorney for abusive and sexist comments made during a deposition. Partners, 586 N.Y.S.2d 182 (Sup. Ct. 1992).

Rule 60 sanctions should be used exceedingly sparingly and with the greatest caution. Zealous (even aggressive) representation by the Defence should not be viewed as obstructing the course of justice.  To quote a United States District Court:

[T]he Court must be mindful of the distinction between the studied disregard for the orderly processes of justice, and an attorney’s [z]ealous representation of his or her client. Sanctions … should be applied against dilatory [and vexatious] practices and should not serve to deter ardent advocacy.3  Northwest Indus. Credit Union v. Salisbury, 1986 U.S. Dist. LEXIS 18942, *4-5 (W.D. Mich. Oct. 17, 1986) (internal citations and quotations omitted).

Since the KSC must comply with the jurisprudence of the European Court of Human Rights,4   Article 3(2)(a) of the KSC Statute mandates that the KSC comply with the Kosovo Constitution, which requires that “human rights and fundamental freedoms … be interpreted consistent with the court decisions of the European Court of Human Rights.” Constitution of Kosovo, Article 53. Article 3(2)(e) of the KSC Statute also expressly incorporates the European Convention on Human Rights in the KSC’s applicable law. in imposing sanctions the Panel must ensure that the penalty does not have a “chilling effect” on the legal profession.5   See Kyprianou v. Cyprus, ECtHR, Application No. 73797/01, Judgment, 15 December 2015, paras. 370-83, 531, 537. In Kyprianou, a lawyer was sentenced to five days of imprisonment for overreacting and acting inappropriately when a Judge interrupted his cross-examination. The European Court of Human Rights found that the penalty was disproportionately severe, reasoning that “[t]he imposition of a custodial sentence, would inevitably, by its very nature, have a ‘chilling effect’, not only on the particular lawyer concerned but on the profession of lawyers as a whole.” Put differently, the sanctions should not be unnecessarily severe or overused so as to temper or inhibit Defence Counsel from zealously representing their clients.

Ineffective Assistance of Counsel

Here, for the first time, we see a specific Rule concerning ineffective assistance of Counsel. In the United States6   See Strickland v. Washington, 466 U.S. 668 (1994). Strickland is the seminal case on ineffective assistance of Counsel in the United States. In Strickland, the accused sought post-conviction relief on the basis of ineffective assistance of counsel, arguing that his Counsel was ineffective at his sentencing proceeding because he failed to move for a continuance, request a psychiatric report, investigate and present character witnesses, present meaningful arguments to the sentencing Judge, investigate medical reports, and cross-examine medical experts. The United States Supreme Court concluded that the District Court properly declined to issue a writ of habeas corpus, holding that a claim of ineffective assistance of Counsel requires a showing “that counsel’s representation fell below an objective standard of reasonableness” and “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 694, 701A. and at the ICTY,7   See Prosecutor v. Krajišnik, IT-00-39-A, Judgement, 17 March 2009. While Krajišnik was self-represented, the Appeals Chamber appointed an Amicus Curiae Counsel to assist the Appeals Chamber by making “submissions to the Appeals Chamber to those which a party would make.” Id., para. 8. The Amicus Curiae Counsel argued that Krajišnik’s representation was ineffective at the pre-trial and trial stages. A part of this ground, the Amicus Curiae Counsel argued that Krajišnik’s Counsel failed to “obtain proper instructions from Krajišnik prior to the commencement of the trial to determine an appropriate defence strategy.” Id., para. 65. The Appeals Chamber rejected this argument, finding that the Amicus Curiae Counsel failed to “indicate any specific acts and/or omissions of Counsel from which to infer gross negligence in relation to the strategy of the Defence.” Id., para. 66. ineffective assistance of Counsel is normally raised for the purposes of post-conviction relief. Remarkably, Rule 61 allows the Judges to intervene and determine that Counsel is no longer eligible to represent the accused where “the representation is ineffective to the extent that equality of arms may no longer be met.”

I welcome Rule 61

I welcome Rule 61. Where it is obvious that Counsel are ill-prepared or lack the requisite skills, such instances call for intervention. The Judges are there to protect the rights of the accused and to ensure that justice is done. That said, ineffective assistance is not always so obvious. Strategy and tactics may give the false impression of a lack of diligence – second guessing Counsel who is more familiar with the facts and presumably has advised the client and has received instructions can be hazardous.

Adopting the wrong or less optimum strategy or miscalculating on the tactics in executing the strategy does make for ineffective assistance.  At times, the best defence is no defence, the best cross-examination is no cross-examination. It all depends. In any event, the standard for ineffective assistance of Counsel tends to be rather high. The ICTY, for instance, requires that “[a]mong other things, an appellant must demonstrate ‘gross incompetence’ on the part of assigned counsel.”8   Prosecutor v. Blagojević and Jokić, IT-02-60-A, Judgement, 9 May 2007, para. 23. Proving “gross incompetence” is extremely difficult, especially when considering the potential strategies and tactics involved. It will be interesting to see what standard the KSC adopts – though I would guess it will be something akin to gross incompetence.

Presence of the Accused

As a general rule, Rule 65(1) requires that “[t]he Accused shall be tried in his or her presence, except otherwise provided in the Law and the Rules.” This is similar to what is provided for in the Statutes of other international(ized) criminal tribunals and courts, where the accused has a right to be tried in his or her presence.9   ICTY Statute, Art. 21(4)(d); International Criminal Tribunal for Rwanda (“ICTR”) Statute, Art. 20(4)(d); Special Court for Sierra Leone (“SCSL”) Statute, Art. 17(4)(d); Rome Statute of the International Criminal Court (“Rome Statute”), Art. 67(1)(d). The exception is the Special Tribunal for Lebanon (“STL”), where trials are conducted in absentia,10   STL Statute, Art. 22. which I find to be an aberration, providing neither legitimate nor fair trials without the presence of the accused.

A non-detained accused who fails to attend a hearing risks being arrested (Rule 65(3)), whereas if a detained accused refuses to attend a hearing, the Panel may conduct the proceedings in the his or her absence if:

(a) the Accused has made his or her initial appearance;

(b) the Accused has been duly notified that he or she is required to be present at the proceedings;

(c) the Accused voluntarily and unequivocally waived, or has forfeited, his or her right to be tried in his or her presence;

(d) the interests of the Accused are represented by his or her Specialist Counsel who attends the hearing in person; and

(e) the Panel is of the opinion that the presence of the Accused is not necessary for the specific hearing.11   Rules of Procedure and Evidence Before the Kosovo Specialist Chambers (“KSC RPE”), Rule 65(4).

If the accused opts not to attend the proceeding, the Registrar must verify that decision on a weekly basis and the accused must be permitted to return to the proceeding at any time.12   Id., Rule 65(5). Where the accused is detained, but not physically fit to be present at the proceedings, Rule 65(6) requires the Panel to take appropriate measures to allow for the accused to participate in the proceedings from outside the courtroom. The Specialist Chamber of the Constitutional Court (“SCCC”) commented that before ordering a continuation of the trial proceedings without the accused, the Panel must ensure that the accused is still fit to participate in the proceedings from the outside.13   KSC-CC-PR-2017-01/F00004/, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, 26 April 2017 (“Judgment on KSC RPE”), para. 129.

Expedited Proceedings

Rule 69 appears to be a cost-saving measure, calling for expedited proceedings concerning offenses against the administration of justice. It allows the Panel to reduce the time limits and take others measures to speed things along.14   See KSC RPE, Rule 69(2). However, the Panel cannot set unduly harsh deadlines that would prejudice the accused’s fair trial rights.

Perhaps the drafters of the KSC RPE had in mind the Bemba et al. Article 70 case at the ICC, which has gone on for almost four years since the accused’s first appearance in November 2013, appeals still pending. As I commented when it came to revisiting the ICC’s legal aid policy, such cases are generally, but not necessarily, less complex and can require significant resource and time expenditures.

Indictment and Pre-Trial Proceedings

Amendment and Withdrawal of the Indictment

Rule 87 allows the Specialist Prosecutor to amend the indictment up through the trial proceedings. This could potentially lead to significant delays to give the Defence an opportunity to prepare and recalibrate the strategy and tactics – a bit too late in the game to fiddle with the theory of the defence – and no doubt will be highly contested leading to claims of an abuse of the accused’s fair trial rights. While it has some similarities with “recharacterization of charges”15   Recharacterization does not appear in the Rome Statute, but was added as an afterthought in the Regulations of the Court in 2004. Under Regulation 55 of the ICC Regulations of the Court, the Chamber can change the legal characterization of facts “to accord with crimes … or to accord with the form of participation of the accused … without exceeding the facts and circumstances described in the charged and any amendments to the charges.” Regulation 55 only changes the “legal characterization” of the facts, but does not change the statement of facts. For example, in Lubanga, the Trial Chamber recharacterized the conflict in the Democratic Republic of Congo from an international armed conflict to a non-international armed conflict. See Prosecutor v. Lubanga, ICC-01/04-01/06-2205, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court.” See also Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, 4 April 2012 (“Lubanga Trial Judgment”), para. 527. as seen in Lubanga16   In Lubanga, the Pre-Trial Chamber recharacterized the conflict in the Democratic Republic of Congo from a non-international armed conflict to an international armed conflict. The Trial Chamber, using Regulation 55 of the ICC Regulations of the Court, again recharacterized the conflict to a non-international armed conflict. See Prosecutor v. Lubanga, ICC-01/04-01/06-803-tENG, Decision on the Confirmation of Charges, 14 May 2007, paras. 200-04; Lubanga Trial Judgment, para. 527. and Katanga17   In Katanga and Ngudjolo, the Trial Chamber recharacterized the applicable mode of liability more than six months after the end of the trial from indirect co-perpetration to common purpose liability. Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-3319-tENG/FRA, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, 21 November 2012, para. 7. at the ICC – and misapplied at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”)18    At the ECCC, the Co-Prosecutors effectively sought recharacterization of the law. The Co-Prosecutors used recharacterization as a vehicle to get the Trial Chamber to consider JCE III as an alternative mode of liability (i.e. to determine that JCE III was part of customary international law between 1975 and 1979), contrary to a decision reached by the Pre-Trial Chamber. While the Trial Chamber found the Co-Prosecutor’s request admissible, it thankfully upheld the Pre-Trial Chamber Decision. See Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Co-Prosecutors’ Request for the Trial Chamber to Consider JCE III As An Alternative Mode of Liability, 17 June 2011, E100; Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ(PTC35), Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, D97/14/15; Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on Applicability of Joint Criminal Enterprise, 12 September 2011, E100/6, para. 38. – adding new facts into the mix in the middle of a trial is remarkably different than fine-tuning what the charges should be based on the facts as were known when the charges were drawn. For more on recharacterization at the ICC and ECCC see my blog post here.

The Specialist Prosecutor may also withdraw the indictment or any charges under Rule 88, though it appears that such withdrawals will be used restrictively. The SCCC, commenting on Rule 88, considered that Articles 25 and 27 of the Kosovo Constitution “impose positive procedural obligations upon the Specialist Prosecutor and the Specialist Chambers to ensure effective protection of the most fundamental of human rights, namely the right to life and the right to be protected against ill-treatment,” which “require … effective investigation into the allegations of violent death, ill-treatment, or disappearances in life-threatening circumstances.”19   Judgment on the KSC RPE, para. 150. “Trial Panels should not, under any circumstances, be prepared to allow life-endangering offences to go unpunished.”20   Id., para. 152. Remarkably, and unfortunately, the SCCC made no reference in its analysis of Rule 88 to the other provisions of the Kosovo Constitution concerning fair trial rights.

Plea Agreements

Rule 91 allows the Specialist Prosecutor and the Defence to reach a plea agreement “at any time before the closing of the case.” Plea agreements can save time and resources better spent on contested cases.  However, in the civil law system, where the objective of the trial is to reach the material truth, they are generally seen as an anathema.21   See Jenia Iontcheva Turner, Plea Bargaining and International Criminal Justice, 48 U. Pac. L. Rev. 219, 224-26 (2007). The preferred approach in civil law systems is to sentence bargain, meaning that the accused pleads to the charges in exchange for a reduced sentence as opposed to reducing the charges and having the sentence reflect the revised charges.22   See Michael G. Karnavas, Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?, 30 August 2016. See also Criminal Procedure Code of Bosnia and Herzegovina, Official Gazette of BiH No. 72/13, 2013, Art. 231(2): “In plea bargaining with the suspect or the accused and his defense attorney on the admission of guilt … the Prosecutor may propose an agreed sentence of less than the minimum prescribed by the Law for the criminal offense(s) or a lesser penalty against the suspect or the accused.”

Initially, the ICTY RPE did not provide for plea agreements,23   In 2001, the ICTY RPE were amended to include Rule 62 ter, which provides a procedure for plea agreements. and the Tribunal adopted an awkward, civil law approach, which I characterize as truth in pleading and sentencing, where the accused had to plead to what the evidence shows are proved crimes, and agree to a sentence reflective of the crimes and attendant mitigating factors.24   See Prosecutor v. Erdemović, IT-96-22-A, Judgment, paras. 2-3; Prosecutor v. Erdemović, IT-96-22, Change of plea hearing, 14 January 1998, T. 22. At the ICC, where the accused makes an admission of guilt, the Trial Chamber must be satisfied that the admission is supported by the facts, and may require the Prosecutor to present additional evidence or order the trial to be continued under the ordinary trial procedures.25   Rome Statute, Art. 65(1)-(2). At the ECCC, the Internal Rules do not provide for plea agreements, and in Case 001, what could have been a plea agreement turned into a slow change of plea hearing with all the theatrics and flourishes of a show trial. For more on plea bargaining in international(ized) criminal tribunals and courts, see my blog posts here and here.

Victims’ Participation

After the confirmation of the indictment, persons claiming to be victims can file an application for admission as a victim participating in the proceedings under Rule 110. Victims’ participation is a feature of civil law systems, also reflected in the Kosovo Criminal Procedure Code.26   See Kosovo Criminal Procedure Code, Law No. 04/L-123, 28 December 2012, Art. 23(3): “The pre-trial judge shall be competent to receive requests from the state prosecutor, defendant, victim advocate and injured party and to render decisions and orders based upon those requests, in accordance with the present Code.” While the more adversarial based ICTY and International Criminal Tribunal for Rwanda (“ICTR”) did not provide for victims’ participation, the more civil law inspired ICC and ECCC have allowed victims to participate, applying different modalities. At the ICC, victims are permitted to participate in the proceedings “[w]here the personal interests of victims are effected,” subject to the modalities set by the Trial Chamber.27   See Rome Statute, Art. 68(3); Prosecutor v. Katanga & Ngudjolo, ICC-01/04-01/07-1788-tENG, Decision on the Modalities of Victim Participation at Trial, 22 January 2010 (Victims were permitted to make opening and closing statements, participate in the entire proceedings, and with the Chamber’s leave, question witnesses or call victims to give testimony). At the ECCC, victims are known as “Civil Parties,”28   ECCC Internal Rules, Rule 23. and enjoy, for the most part, the same rights as the Prosecution and the Defence.

Where victims are granted the right to participate in the KSC proceedings, the Registrar will assign a Victims’ Counsel to the group of victims.29   KSC RPE, Rule 110(7). Victims’ Counsel have the right to make opening and closing statements, and, where the Panel considers it necessary to protect victims’ interests, be present at the pre-trial and trial proceedings.30   Id., Rule 111(1). Victims’ Counsel have access to confidential material (unless the Panel or RPE provide otherwise)31   Id., Rule 111(3). and may, under the Panel’s control, make oral and written submissions and question witnesses.32   Id., Rule 111(4). Victims’ Counsel may also request the Panel to order the parties to submit relevant evidence or call witnesses where the parties have produced insufficient evidence that “does not adequately address the impact of the alleged crimes on the personal interests of victims.”33   Id., Rule 111(5).

Trial Proceedings

Presentation of Evidence

Unless the Panel directs otherwise, the sequence of the KSC trial proceedings is:

– evidence for the Specialist Prosecutor;

– evidence for the Defence;

– evidence called by the Panel;

– Specialist Prosecutor evidence in rebuttal (with leave); and

– Defence evidence in rejoinder (with leave).

Rule 124(3), regulating the order of witness questioning, explicitly uses the terms “direct examination” and “cross-examination,” contrasting with the neutral terminology in Article 67(1)(e) of the Rome Statute: “[t]o examine, or have examined.” The vague by and for all all language of the Rome Statute has resulted in different ICC Trial Chambers adopting disparate witness examination practices. Some ICC Trial Chambers have forbidden the use of leading questions.34   Prosecutor v. Lubanga, ICC-01/04-01/06-T-104-ENG, Transcript, 16 January 2009, p. 37, lines 8-24; Prosecutor v. Bemba, ICC-01/05-01/08-1023, Decision on the Directions of the Conduct of the proceedings, 19 November 2010, paras. 13, 15. Others have taken a common law approach, allowing the parties to conduct classical direct and cross-examination as generally understood and permitted in common law systems.35   Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-1665-Corr, Corrigendum Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, 1 December 2009, para. 68-81; Prosecutor v. Ruto and Sang, ICC-01/09-01/11-847-Corr, Decision on the Conduct of Trial Proceedings (General Directions), 9 August 2013, para. 15. And then there is one particular ICC Trial Chamber that has taken a middle ground, or more appropriately, a confusing, muddled, and unorthodox approach.36   Prosecutor v. Bemba et al., ICC-01/05-01/13-T-10-Red-ENG, Transcript, 29 September 2015, p. 6, line 21 to p. 7, line 14.

While Rule 124(3) of the KSC RPE has adopted the common law terminology of “direct examination” and “cross-examination”, it also allows the Judges to question the witnesses, a feature of civil law systems.

Dismissal of Charges

Within 10 days after the close of the Specialist Prosecutor’s case-in-chief, the Defence may apply for a dismissal of charges (also known as a judgment of acquittal) under Rule 127. After a hearing, the Trial Panel may dismiss all or some of the charges by oral decision, “if there is no evidence capable of supporting a conviction beyond reasonable doubt.”37   KSC RPE, Rule 127(3).

This standard tracks the current ICTY Rule 98 bis: “no evidence capable of supporting a conviction.” The previous version of ICTY Rule 98 bis (amended in 2004) permitted the Trial Chamber to enter a judgment of acquittal if “the evidence is insufficient to sustain a conviction on those charges.” As I have remarked before, the current ICTY Rule 98 bis effectively defeats the purpose of a judgment of acquittal, heightening the threshold in favor of the Prosecution, turning the Rule 98 bis proceedings into a re-confirmation hearing of the indictment.

Clarification of Final Trial Briefs

Rule 132(3) is noteworthy, explicitly allowing the Panel to request clarification on any matters raised in the final trial briefs. Although practically, it can be done at other international(ized) criminal tribunals and courts, from my experience, it never has been done, likely, because the Judges do not bother to read the briefs.

Rules of Evidence

Burden of Proof vs. The Trial Chamber’s Power to Call Evidence

the footprint of the civil law Judges

Here is where we see the footprint of the civil law Judges that drafted the RPE, as well as some cherry-picking of modalities from disparate procedural systems.

Let’s start with the burden of proof. Rule 137 states that “[a] Panel may find an Accused guilty where guilt is proved beyond a reasonable doubt.” Understood in the adversarial sense, this means that the Specialist Prosecutor has the exclusive duty to prove the charges. Put differently, the Judges should not be calling witnesses or gathering evidence to serve as the Specialist Prosecutor’s midwife in delivering a conviction – gathering the requisite proof the Prosecution failed to collect to establish guilt beyond a reasonable doubt.38   Even in common law systems, Judges can question witnesses and call witnesses on their own initiative, but many are generally reticent to do so in order to avoid even the appearance of partiality. See e.g., United States Federal Rules of Evidence, Rule 614.

Rule 137, however, cannot be read in the abstract. When read in context with other rules conveying the Panel’s authority and duties, it appears that the burden of proof might perhaps be shared with the Judges.

Rules 129 and 134(1) give the Judges the power to request the parties or call additional evidence on their own initiative when they consider it “necessary for the determination of truth.” Rule 124(3), as noted above, allows the Judges to question witnesses. When read together, these rules provide support for an interpretation that the Judges – much like in civil law systems – have an obligation to ensure that all evidence that may be obtainable and relevant for the decision should be considered so that the truth can emerge, irrespective of what is adduced by the parties. The onus would thus be on the Judges to be persuaded that they have done all that is necessary to prove or disprove the charges, despite the Specialist Prosecutor having the burden of proof.

Considering Rules 124(3), 129, and 134(1), whose burden of proof is it anyway? Can the Trial Panel exercise its authority to determine the truth without effectively commandeering the Specialist Prosecutor’s duty to meet his burden of proof under Rule 137?

Common law Judges may be more inclined to let the parties do what is expected of them, holding the Prosecution to meet its burden of proof. Civil law Judges may not be so inclined to take such a passive role as their common law brethren, considering the procedural DNA of their systems and their understanding of their duty to find the material truth. After all, the RPE seem to provide them with the authority and responsibility to be active truth-seekers and not mere passive observers / fact assessors. Looking to Rules 124(3), 129, and 134(1), civil law Judges could dominate the proceedings, seeking and admitting evidence they think is necessary for the truth, and intrusively intervening in the questioning of witnesses, soliciting evidence that ensures the accused’s guilt.

Hypothetically, such hyper-engagement by a Trial Panel in one case, when juxtaposed against a placid and non-interventionalist Trial Panel in another case, should cause concern. From the Defence perspective, it certainly could raise issues of lack of fairness and impartiality. From an equality of arms perspective, the Defence is inherently at a disadvantage, regardless of whether the trial proceedings are conducted in a more adversarial or more inquisitorial fashion. Unequivocally, the Specialist Prosecutor (also assisted by Victims’ Counsel) is in no real need of any help from the Judges.

Admissibility of Evidence

Rule 135(1) sets the standard for the admissibility of evidence, providing that unless challenged or proprio motu excluded, evidence will be admitted if it is “relevant, authentic, and its probative value [is] not…outweighed by its prejudicial effect.”39   KSC RPE, Rule 135(1) (emphasis added).

Rule 135(2) tracks the exclusionary rules of other international(ized) criminal tribunals and courts,40   See ICTY RPE, Rule 95; ICTR RPE, Rule 95; SCSL RPE, Rule 95; STL RPE, Rule 162. particularly the ICC,41   Rome Statute, Art. 69(7). providing that evidence obtained in violation of the Statute, RPE, or international human rights shall be inadmissible if: “(a) the violation casts substantial doubt on the reliability of the evidence; or (b) the admission of the evidence would be antithetical to or would seriously damage the integrity of the proceedings.” It is unclear what “antithetical” or “seriously damage the integrity of the proceedings” actually means. No international(ized) criminal tribunal or court to date has provided any clear criteria, though some have given some indicators. At the ICTY, for example, Judge Robinson considered that he “would never sanction the admission of evidence which is derived from a confession that is procured by intimidation or by force,” as this conduct “would seriously damage the integrity of the proceedings.”42   Prosecutor v. Kordić & Čerkez, IT-95-14/2, Transcript, 2 February 2000, T.13684, lines 17-23.

While torture-tainted evidence would unquestionably be considered “antithetical” and damaging to the integrity of the proceedings, Rule 135(3) provides a separate ground for excluding “[e]vidence obtained under torture or any other inhumane or degrading treatment[.]” Unfortunately, the SCCC did not provide any guidance as to how Rule 135(2) or (3) should be interpreted.

Assessment of Evidence

In reaching a judgment, Rule 136(2) requires that the Trial Panel assess each piece of evidence in light of the entire body of admitted evidence and holistically evaluate and weigh the evidence “as a whole.” Interestingly, Rule 136(5) explicitly deals with circumstantial evidence, providing that such evidence must “be assessed with caution.” When a Panel bases its conviction solely or to a decisive extent on circumstantial evidence, Rule 136(5) requires that the Panel provide a reasoned opinion “in particular regarding the consistency and intrinsic coherence of such evidence.”

It appears that Rule 136(7) was intended to complement the rigid exclusionary rule under Rule 135(2), by requiring the Panel to consider “the manner in which the evidence was collected and the effect that this might have on the course and fairness of the proceedings.” While illegally obtained evidence may not necessarily be excluded, Rule 136(7) seems to require the Panel to consider whether it would be fair to rely on such evidence. Realistically, once the evidence is admitted, how it was collected will do little in diminishing the weight ascribe to it – unless the collection process compromises the integrity (quality) of the evidence.

Sequestration of Witnesses

Rule 138(4) provides for sequestration of witnesses, prohibiting a witness from being present during the testimony of another witness. The rule is intended to avoid witnesses coloring or tailoring their testimony after hearing other witnesses. However, even if a witness has heard the testimony of another witness, this does not mean that he or she is automatically disqualified. The sequestration rule does not apply to expert witnesses. Similarly, a person who took part in a party’s investigation is not precluded from being called as a witness “on the ground that he or she has been present in the courtroom during the proceedings or has otherwise followed the proceedings.”

Examination of Witnesses

Rule 140 provides detailed guidance on examination of witnesses – for example, guidelines for refreshing a witness’s memory with documents, criteria establishing a witness’s credibility, limits on the scope of cross-examination, and the Judge’s authority to control the mode and order of questioning. While such detailed rules are generally lacking in the RPE of other international(ized) criminal tribunals and courts, they would normally be found in practice directions or Trial Chamber directions.

Questioning of Anonymous Witnesses

Rule 144 provides for the possibility to question anonymous witnesses if there is a risk to their life or mental health, or in the interests of national security. At the ICTY, the Tadić Trial Chamber granted partial anonymity to several of the Prosecution’s witnesses,43   Prosecutor v. Tadić, IT-94-1-T, Decision on Prosecution Motion for Protective Measures for Witnesses, 10 August 1995, pp. 38-40. but the practice of using anonymous witnesses did not continue post-Tadić. The ICC RPE provide for protective measures, including the use of a pseudonym and voice alteration,44   ICC RPE, Rule 87(3). but generally do not prevent the parties from knowing the identity of the witnesses. Such restrictive measures may be necessary at the KSC considering the “climate of intimidation” in Kosovo.

Where anonymity is granted under Rule 144, the Panel will transmit the parties’ questions to the anonymous witness so his or her identity is not revealed, and provide the parties with the transcript of the witness’s answers.45   KSC RPE, Rule 144(2)-(3).

Testimony of Co-accused

Rule 147 is interesting, allowing for the Defence to call a co-accused as a witness (with his or her consent) in multi-accused cases. The parties can also use the previous testimony of a co-accused during cross-examination of another accused or witness.46   KSC RPE, Rule 147(2). If the testimony of the co-accused differs from another accused, the Panel may question that co-accused or proceed with a confrontation between the two co-accused.

Pronouncement of the Trial Judgment

Finally, some trial judgment deadlines

Finally, here we see some deadlines concerning the pronouncement of the trial judgment. This is a positive change from other international(ized) criminal tribunals and courts, which lack concrete deadlines. For example, in Prlić et al. the Trial Chamber took two years to issue the judgment, and another 13 months to translate the judgment from French to English.

At the KSC, the trial judgment must be pronounced within 90 days after the closing of the case, unless the circumstances require additional time (maximum 60-day extension).47   KSC RPE, Rule 156(1). However, a further extension is possible “if absolutely necessary.”48   Id.

Sentencing

Similar to the RPE of other international(ized) criminal tribunals and courts, the KSC RPE have fairly detailed provisions concerning sentencing. Rule 160 lists possible mitigating and aggravating circumstances,49   KSC RPE, Rule 160(1)(a)-(b). provides for concurrent sentences,50   Id., Rule 160(4). and provides for credit for time served in detention.51   Id., Rule 160(6). Noteworthy, Rule 161 imposes a 30-day deadline for the sentencing judgment, with the possibility of a 30-day extension. If the Judges decide they need an extension, they must provide a reasoned decision.

Appeal Proceedings

The Rules concerning appeal proceedings generally track what is provided for in the RPE of other international(ized) criminal tribunals and courts. Nothing too ground-breaking here, but worth a general discussion.

Rule 173 follows the appeal procedure at the ICTY and ICTR,52   ICTY RPE, Rule 108; ICTR RPE, Rule 108. requiring the parties to file a notice of appeal within 30 days of the trial judgment or sentencing judgment, setting out the grounds of the appeal, and presumably, identifying specific errors in the judgment. I find this preferable to ICC’s appeal procedure, which merely requires the party to specify whether the appeal is directed at the judgment in whole or in part.53   See ICC Regulations of the Court, Regulation 57. As the purpose of a notice of appeal is to provide notice to the parties and the court as to what exactly is being appealed, the ICC’s notice of appeal has never made sense to me – I appeal all errors in the judgment, all of them! (but which ones in particular?)

The KSC Statute lists three grounds for appeal: errors of law, errors of fact, and errors in sentencing,54   KSC Statute, Art. 46(1). which presumably are based on factual or legal errors. While the RPE do not detail the standard of review for substantiating such errors, it is reasonable to expect that the KSC will follow the jurisprudence of other international(ized) criminal tribunals and courts. Generally, to avoid summary dismissal, the appealing party’s arguments must be presented “clearly, logically and exhaustively,”55   Prosecutor v. Strugar, IT-01-42-A, Judgement, 17 July 2008, para. 16. meaning that the party cannot simply repeat arguments advanced during trial or make blanket statements without any references to the trial record.56   Id.; Prosecutor v. Lubanga, ICC-01/04-01/06-1321-Red, Judgment on the appeal of Mr Thomas Lubanga Dylio against his conviction, 1 December 2014 (“Lubanga Appeal Judgment”), para. 30. Legal errors require a showing that the Trial Panel misinterpreted the applicable law and that its decision would have been substantially different had it not been for the error.57   Lubanga Appeal Judgment, para. 32; Prosecutor v. Ngudjolo, ICC-01/04-02/12-271, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute”, 27 February 2015 (“Ngudjolo Appeal Judgment”), para. 22 (internal citation omitted). Factual errors require the appealing party to identify specific factual findings, explain why the Trial Panel’s findings were unreasonable, and show how the decision would have been different had it not been for the error.58   Ngudjolo Appeal Judgment, para. 22 (internal citation omitted). This means concretely showing that the Trial Panel misinterpreted facts, took into account irrelevant facts, or failed to take into account relevant facts.59   Lubanga Appeal Judgment, para. 32.

Concluding Observations on the RPE

The RPE show maturity, borrowing from, and building upon the experiences of other international(ized) criminal tribunals and courts. Having a higher instance review of the RPE by the SCCC to ensure the constitutionality of the rules – drafted by the Judges who will be applying them – is an essential feature which I wholeheartedly welcome and recommend. Not only are some of the unconstitutional kinks worked out (ensuring a higher standard of fair trial rights), but the SCCC’s reasoning is helpful in interpreting the rules, effectively serving as an official commentary.

Next Post

In the next and final post in this series, I will discuss the KSC Code of Judicial Ethics.

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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.