A Call for an Independent Representative Body for KSC Counsel: structure and suggestions – Part 2

Structuring KSC Counsel’s Independent Representative Body: a template

In Part 1 I shared some thoughts and offered suggestions for the working-group and Counsel qualified to appear before the Kosovo Specialist Chambers (KSC) to consider on whether to form an Independent Representative Body (IRB) tailored to their needs and expectations. In this post I will suggest a possible structure for the IRB and will provide a template for the Constitution. Suffice it to say, I am immeasurably grateful to many colleagues who over the years have enriched me with ideas on the structuring and functioning of professional associations. Continue reading “A Call for an Independent Representative Body for KSC Counsel: structure and suggestions – Part 2”

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A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1

A prince should always seek advice, but only when he wishes and not when others wish. He must discourage everyone from offering advice unless he asks for it. However, he should inquire constantly, and listen patiently about those things of which he inquired…

Niccolò Machiavelli, The Prince

To paraphrase the Virginia Slims marketing slogan, we’ve come a long way, baby.

For some time, the Kosovo Specialist Chambers’ (KSC) Registrar (assuredly with the blessings of the President) has reached out, repeatedly, to Counsel on the List to represent to suspects, accused, and/or a group of victims before the KSC, encouraging them to establish an association. This is consistent with the intent of the KSC Statute, even though Article 19(4) makes references to an “independent representative body of Specialist Counsel,” with Article 34(7) defining “Specialist Counsel” as Defence Counsel, as distinct from Counsel representing a group of victims, which under Article 34(6) are labeled as Victim’s Counsel. Obviously, the KSC Statute (and the spirit of the drafters) envisages one association for all Counsel (see generally Part 2 of my series on the KSC), as clearly reflected in the Registrar’s letter of 29 May 2018 calling for the establishment of an “Independent Representative Body” by “Counsel”. To suggest otherwise would be to assume that the drafter intended to disenfranchise Victim’s Counsel from providing their input on matters that, among others thing, directly impact their clients, despite Article 22(5) which provides that victims’ groups are assisted and represented by a Victims’ Counsel as provided by the Registry’s Victims’ Participation Office. Moreover, it would not make sense to have two associations, and as briefly noted below and more expansively in the next post, one association, properly structured, can accommodate all Counsel, including in matters when Specialist Counsel’s and Victims’ Counsel’s interests diverge. Continue reading “A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1”

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Reflections on 2017: past is prologue

In 1788, Robert Burns, Scotland’s prodigious poet who is universally loved for his simple yet penetrating versus, penned the words to Auld Lang Syne – a song usually heard the world over on New Year’s Eve. Hard to find a Scot who does not know the words to and meaning of Auld Lang Syne (or the lines to most of Bobby Burns’ poems for that matter). But in case you have ever wondered, it basically means “a long time ago,” “days gone by,” or “for old times’ sake.”

In 1788 the Robert Burns sent the poem ‘Auld Lang Syne’ to the Scots Musical Museum, indicating that it was an ancient song but that he’d been the first to record it on paper. 1https://www.scotland.org/features/the-history-and-words-of-auld-lang-syne

The poem/song is about looking back at old memories and friendships, reminding us to cling to these special moments and bonds as we are about to forge ahead into the New Year. But it is not so much about not letting go, as opposed to not forgetting – about cherishing past friendships and the past.

Caught in the moment of singing along (or trying like the devil to remember the lines we have mechanically mumbled through in previous years) as we celebrate the coming of the New Year and make our soon-to-be unkept resolutions, we tend to unconsciously ignore the biddings of Auld Lang Syne to reflect on the year passed. Imprudently, we habitually delude ourselves into thinking that looking in the rearview mirror is a superfluous indulgence that risks impeding our desire (and perhaps necessity) of letting go of the past for the sake of moving on.

With time waiting for no one, we have already started pressing into 2018. Unquestionably, 2018 promises to be an interesting year – if for no other reason than because of 2017. Hard to predict what is in store over the next 12 months, though much like examining a treasure map or a crossword puzzle, reflecting on some of the events over the past 12 months provide us with abundant clues. Not intending to present a summary of world affairs (such as The Economist, Time Magazine, and others do every December), I will merely refer to some of the events I have posted on, primarily limited to international criminal law (ICL) matters. And for anyone interested in what I have posted in 2017, here is a chronological list.  You can also check the archives section of my blog. Continue reading “Reflections on 2017: past is prologue”

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Kosovo Specialist Chambers – Part 7: The Code of Judicial Ethics

This is the final 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).

For those of you who are just picking up on this series, a brief recap before diving into the Code of Judicial Ethics for Judges Appointed to the Roster of International Judges of the Kosovo Specialist Chambers (“KSC Code of Judicial Ethics”).

The KSC was established on 3 August 2015 with the passing of the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”) and an amendment to the Kosovo Constitution by the Kosovo Assembly, following a report by the Council of Europe and investigations by a Special Investigative Task Force into alleged organ harvesting and various war crimes and crimes against humanity committed in the fallout of the conflict in Kosovo. Soon after being sworn in, the Judges adopted the KSC Code of Judicial Ethics on 14 March 2017, and on 27 March 2017 submitted the Rules of Procedure and Evidence (“RPE”) to the Specialist Chamber of the Constitutional Court (“SCCC”) for review – the Chamber responsible for interpreting the Kosovo Constitution as it relates to the KSC.1   KSC Statute, Art. 49(1). The SCCC found nine of the RPE to be unconstitutional, and a new draft of the RPE was referred back to the SCCC on 31 May 2017; judgment pending. Continue reading “Kosovo Specialist Chambers – Part 7: The Code of Judicial Ethics”

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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”). Continue reading “Kosovo Specialist Chambers – Part 6: The Rules of Procedure and Evidence (The Proceedings)”

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Kosovo Specialist Chambers – Part 5: The Rules of Procedure and Evidence (Investigations and Arrest and Detention)

This is the fifth 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 the previous post, I discussed general and structural matters regulated by the Rules of Procedure and Evidence (“RPE”). In this post, I will focus on investigations, arrests, and detention matters. Continue reading “Kosovo Specialist Chambers – Part 5: The Rules of Procedure and Evidence (Investigations and Arrest and Detention)”

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Kosovo Specialist Chambers – Part 4: The Rules of Procedure and Evidence, General and Structural Matters

This is the fourth 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 the first post, I provided the context and events leading up to the establishment of the KSC. In the second and third posts, I provided my observations on the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”). In this post, and in the following posts, I focus on the Rules of Procedure and Evidence (“RPE”). Continue reading “Kosovo Specialist Chambers – Part 4: The Rules of Procedure and Evidence, General and Structural Matters”

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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”). Continue reading “Kosovo Specialist Chambers – Part 3: Peculiar Features of the Statute”

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Kosovo Specialist Chambers – Part 2: Fundamentals of the KSC Statute

In my previous post, I discussed the events leading up to and reasons for the establishment of the Kosovo Specialist Chambers (“KSC”): a hybrid internationalized set of chambers, located in The Hague and staffed by international judges and prosecutors, with a Registry staffed by international legal and administrative officers and personnel. As “specialist chambers” within the Kosovo justice system, the KSC is mandated to try grave trans-boundary and international crimes committed during the aftermath of the war in Kosovo, reported in a 2011 Council of Europe Parliamentary Assembly Report and investigated by a Special Investigative Task Force. In this post, I discuss the fundamentals of the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”) – the general structure, composition of the chambers, jurisdiction, and applicable law of the KSC. Continue reading “Kosovo Specialist Chambers – Part 2: Fundamentals of the KSC Statute”

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Kosovo Specialist Chambers – Part 1: its Statute and Rules of Procedure and Evidence in a nutshell

A new internationalized tribunal, the Kosovo Specialist Chambers (“KSC”), is poised to open its doors for business: indicting, arresting, prosecuting and so on. The KSC was established to try crimes against humanity, war crimes, and other crimes under Kosovo law committed by persons of Kosovo/Yugoslav citizenship or against persons of Kosovo/Yugoslav citizenship between January 1, 1998 and December 31, 2000 in the territory of Kosovo.1   See Law on Specialist Chambers and Specialist Prosecutor’s Office, Arts. 6-9, 13-15. Though located in The Hague, the KSC is a specialized chamber within the Kosovo Judiciary, much like the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) which is an extraordinary chamber within the Cambodian judiciary.2   “Unlike the other United Nations and United Nations-assisted tribunals, the Extraordinary Chambers in the Courts of Cambodia forms part of the national court structure. It is a Cambodian national court, based on the French civil law system, with special jurisdiction, and with United Nations participation. It is an example of a special chamber within a national jurisdiction…. [It] is a national court of Cambodia.” United Nations Security Council, Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy of the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results, U.N. Doc. S/2010/394, 26 July 2010, pp. 42-43. The KSC is hybrid in that it has common law and civil law modalities, applying both Kosovo law and international law.   Continue reading “Kosovo Specialist Chambers – Part 1: its Statute and Rules of Procedure and Evidence in a nutshell”

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