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:
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…
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”
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.”
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”
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).
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).
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”