JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg1  Jurisprudence on JCE – Revisiting a Never Ending Story 

 

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

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JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)

The writer has referred to an error of the Tribunal, to which he was a party; it concerns the question whether joint criminal enterprise was customary international law insofar as it permits of a conviction without proof of intent…. [T]wo rival theories – joint criminal enterprise and co-perpetratorship – hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law.

Judge Mohamed Shahabuddeen1 Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprisein Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010). 

Judge Mohamed Shahabuddeen presided over the Tadić Appeals Chamber,2 Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement). the progenitor of one of the most controversial legal issues at the ad hoc tribunals (the ICTY and ICTR) and elsewhere3Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf. – the individual mode of criminal liability known as joint criminal enterprise (JCE), claimed to be a form of “commission” reflected in customary international law (CIL).4 The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)”

Footnotes[+]

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JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)

This common purpose involved the commission of the crimes of persecution, imprisonment, arbitrary detention, other inhumane acts, cruel treatment, torture, murder and enforced disappearance. Its existence and contours are indicated by: (i) early public statements of the [Kosovo Liberation Army (KLA)], preceding the period of the charges; (ii) communiqués and political declarations of the KLA General Staff, public statements of KLA General Staff members, as well as other KLA publications, during the period of the charges; (iii) regulations, structures, directions and orders drafted, issued or approved by the Suspects; (iv) the pattern of crimes committed at the locations indicated under Counts 1-10; and the personal participation of the Suspects and other senior KLA/[Provisional Government of Kosovo (PGoK)] members in the commission of the crimes.

Prosecutor v. Thaçi et al., KSC-BC-2020-06/F00026/RED, Public Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020 (“Confirmation Decision”), para. 454 (footnotes omitted).

In the heavily redacted 235-page public decision issued by the Kosovo Specialist Chambers (KSC) on 30 November 2020 confirming its first Indictment, the Specialist Prosecutor’s Office (SPO) lays out a cascade of crimes. A four-year trial lies ahead. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)”

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The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency, an article by Michael G. Karnavas, has been published in the International Criminal Law Review.

The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given by Michael G. Karnavas on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.

For an earlier discussion of the Kosovo Specialist Chambers, see Michael’s seven-part series:

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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”

Footnotes[+]

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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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