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.

The composition of the KSC is particularly interesting because, as we shall see later in this post, it tracks the various stages of litigation that are available in Kosovo, as they were also available in the former Yugoslavia. This is particularly noteworthy. Other international(ized) tribunals and courts to date (with the exception of the International Military Tribunals of Nuremberg and Tokyo, which only had one instance with no possibility to raise errors of law or fact on appeal) have had only two instances of review, a Trial Chamber and Appeals Chamber. With the KSC being – for all intents and purposes – a Kosovo judicial institution, all available remedies afforded in Kosovo at regular (non-specialist) courts, must, in keeping with the Kosovo Constitution, be also afforded by the KSC – irrespective of where it sits or its jurisdictional contours. By having all the extra safety valves for reviewing errors of law and fact, the KSC appears to accord more rights and protections to the accused appearing before it than to the accused tried in other international(ized) tribunals and courts.

Now, to the fundamentals.

General Structure

As noted, the KSC are “specialist chambers” within the justice system of Kosovo((   Law on Specialist Chambers and Specialist Prosecutor’s Office, Law No.05/L-053, 3 August 2015 (“KSC Statute”), Art. 1(2). )) and are attached to each level of the court system in Kosovo.((   Id., Art. 3(1). )) Accordingly, the KSC are composed of a Basic Court Chamber, a Court of Appeals Chamber, a Supreme Court Chamber, and a Constitutional Court Chamber.((   KSC Statute, Art. 24(1)(a). ))

For those who are unfamiliar with the court structure of civil law systems (Kosovo’s is representative of the various layers found in many civil law counties), the Basic Court is the court of first instance; the trial court.((   Law on Courts, Law No.03/L-199, 22 July 2010, Art. 11(1). )) The Court of Appeals is the second instance court, having jurisdiction to review errors of law, fact, and procedure appealed from decisions of the Basic Court.((   Id., Arts. 17(1), 18(1). )) The Supreme Court is the highest judicial authority in Kosovo, responsible, among other tasks, for adjudicating requests for extraordinary legal review of final decisions of the Kosovo courts and revisions of second instance decisions on contested issues.((   Id., Arts. 21(1), 22(1). )) The Constitutional Court is the final authority on the interpretation of the Kosovo Constitution and the compliance of laws in Kosovo with the Constitution.((   Constitution of the Republic of Kosovo, as amended August 2015 (“Kosovo Constitution”), Art. 112.))

A unique feature of the KSC is that the Specialist Prosecutor’s Office – unlike the Office of the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia (“ICTY”),((   Statute of the International Criminal Tribunal for the former Yugoslavia (“ICTY Statute”), Art. 11(b). )) the International Criminal Tribunal for Rwanda (“ICTR”),((   Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”), Art. 10(b). )) the International Criminal Court (“ICC”),((   Rome Statute of the International Criminal Court (“Rome Statute”), Art. 34(c). )) the Special Court for Sierra Leone (“SCSL”),((   Statute of the Special Court for Sierra Leone (“SCSL Statute”), Art. 11(b). )) and the Special Tribunal for Lebanon (“STL”)((   Statute of the Special Tribunal for Lebanon (“STL Statute”), Art. 7(b). )) – is not an organ of the tribunal.((   KSC Statute, Art. 24(2). )) It is an independent office responsible for conducting the investigation and prosecution of persons within the KSC’s jurisdiction.((   Id., Art. 35(1). )) It appears that by not making the Specialist Prosecutor’s Office an organ of the tribunal, the drafters wished to emphasize the principle of independence:

Independence is one of the fundamental and guiding principles of the [Specialist Prosecutor] and the [Specialist Prosecutor’s Office] and is guaranteed by the Kosovo Law and by the constitutional amendment that made the Law possible. Kosovo Law demands that the [Specialist Prosecutor’s Office] act independently from the Specialist Chambers and all other prosecutors in Kosovo. The Law instructs the [Specialist Prosecutor] and those working for him not to seek or receive instructions from any government or other source. The [Specialist Prosecutor] and the staff of the [Specialist Prosecutor’s Office] take very seriously their role as guardians of the independence of the prosecutor.((   Specialist Prosecutor’s Office, Role of the SPO, https://www.scp-ks.org/en/specialist-prosecutors-office/role-spo.))

The KSC is administered by the Registry. Unsurprisingly, like most Registries at the international(ized) tribunals and courts, the KSC Registry has its fingers in just about every pie

that is outside the Chambers’ and Prosecutor’s remit. It not only is responsible for managing the administration of the KSC,((   KSC Statute, Art. 34(1). )) but also has a Defence Office, a Victims Participation Office, a Witness Protection and Support Office, a Detention Management Unit, and an Ombudsperson’s Office.((   Id., Art. 24(1)(b). )) As optics go, the Registry is awash in conflicts of interests, though such conflicts never gave pause at other international(ized) tribunals and courts. Somehow, for the most part, having autonomous (as opposed to independent) sections or offices seems to work moderately well. Practice will tell just how effective the Registry will be, especially when it comes to the allocation of resources to the Defence, the legal aid scheme, and other defence related matters.

The moniker of the offices tells us all we basically need to know:

• The Defence Office administers a list of Defence Counsel eligible to appear before the KSC and the legal aid regime for indigent or partially indigent suspects / accused.(( Id., Art. 34(7). ))
• The Victims Participation Office administers the system of victims’ participation, including the financing of victims’ representation and the provision of assistance and advice to victims who participate in the proceedings before the KSC.(( Id., Art. 34(6). ))
• The Witness Protection and Support Office arranges protective measures and security arrangements provided to witnesses and others who may be at risk due to the testimony of a witness.(( Id., Art. 34(8). ))
• The Detention Management Unit is responsible for managing / administering the detention facilities of the KSC, ensuring that they comply with international standards and the KSC Statute.((  Id., Art. 34(12). ))

The exception is the Ombudsperson’s Office, something not found in other international(ized) tribunals and courts. It is responsible for monitoring, defending, and protecting the fundamental rights and freedoms guaranteed under the Kosovo Constitution of “persons interacting” with the KSC.((   Id., Art. 34(9); Rules of Procedure and Evidence Before the Kosovo Specialist Chambers, Rule 28(2). )) The Ombudsperson may make recommendations to the President of the KSC or the Specialist Prosecutor’s Office when it finds that there are violations of human rights by the tribunal or public authorities.((   KSC Statute, Art. 34(9); Kosovo Constitution, Art. 135(3). )) The Ombudsperson may also refer questions of constitutional compatibility to the Constitutional Court.((   KSC Statute, Arts. 34(9), 49(5); Kosovo Constitution, Arts. 113(2), 135(4). )) The KSC Ombudsperson is independent from the Ombudsperson of Kosovo (currently Hilmi Jashari),((   Republic of Kosovo Ombudsperson, Hilmi Jashari, Biography, http://www.ombudspersonkosovo.org/en/ombudspersonnn.)) and will be selected by the Head of the European Union Common Security and Defence Policy Mission.((   KSC Statute, Arts. 28(3), 34(9). )) Including the Ombudsperson’s Office in the KSC should ensure, in principle, that the highest standards of human rights will be applied at the KSC.

The Registrar also acts on behalf of Defence Counsel and Victims Counsel where there are proposed changes to the Rules of Procedure and Evidence (“RPE”).((   Id., Art. 19(4). )) However, Article 19(4) of the KSC Statute provides for the Registrar to “consult with the independent representative body of Specialist Counsel for this purpose.” This seems to indicate that the KSC Statute envisages an association for Specialist (Defence) Counsel, such as the Association of Defence Counsel Practising before the International Courts and Tribunals (“ADC”). As I discussed in an earlier post, the Association of Defence Counsel Practising before the International Criminal Tribunal for the former Yugoslavia (“ADC-ICTY”) amended its Constitution, transforming it into an association of Defence Counsel practicing before international tribunals and courts. In my opinion, the ADC can and should play a role in catering to the needs of Defence Counsel at the KSC.

Noteworthy, the drafters of the KSC Statute did not adopt the STL model, where the Defence Office is an organ of the tribunal, independent of the Registry.((   STL Statute, Art. 7(d). )) As I have commented in the past, I find the STL model to be an aberration based on fanciful thinking of “independence.” It may have come into existence because the accused at the STL are tried in absentia, warranting more oversight over the work of Defence Counsel. Query whether the Defence Office can be truly independent when its budget is controlled by or subject to the predictions or budgetary needs of other tribunal organs?

Composition of the Chambers

Article 25(1) of the KSC Statute lays out the composition of the Chambers:

1.  Subject to Article 33, the Chambers shall be composed as follows:

a. individual judges as necessary performing the functions of a pre-trial judge;

b. Trial Panels composed of three (3) judges and one (1) reserve judge;

c. Court of Appeal Panels composed of three (3) judges;

d. Supreme Court Panels composed of three (3) judges;

e. Constitutional Court Panels composed of three (3) judges; and

f. individual judges as necessary performing other functions required under this Law.

The Pre-Trial Judge reviews the indictment and rules on preliminary motions, including challenges to the indictment and jurisdiction, and makes “necessary orders or decisions to ensure the case is prepared properly and expeditiously for trial.”((   KSC Statute, Art. 39(1). )) The Pre-Trial Judge has the authority to issue arrest warrants and other orders that may be necessary for the Specialist Prosecutor to conduct its investigations, including orders pertaining to special investigative opportunities or special investigative measures.((   Id., Art. 39(3). )) If the Pre-Trial Judge determines that the Specialist Prosecutor has established a “well-grounded suspicion,” he or she will confirm the indictment, sending the case forward to trial.((   Id., Art. 39(2). )) Otherwise, the Pre-Trial Judge will dismiss the indictment.((   Id.)) The Specialist Prosecutor, however, is not precluded from requesting the confirmation of the indictment based on additional evidence.((   Id.)) If the indictment is confirmed, the Pre-Trial Judge is responsible for reading the indictment to the accused, ensuring that the accused understands the indictment and supporting material.((   Id., Art. 39(5). ))

After preliminary motions have been resolved, and if the Pre-Trial Judge determines that that the case is ready for trial, the KSC President will constitute a Trial Panel, which will be responsible for conducting the trial proceedings.((   Id., Art. 40(1). ))

The Trial Panel ensures that the “trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”((   Id., Art. 40(2). )) At the conclusion of the trial, the Trial Panel will render its judgment and impose a sentence on those adjudged guilty.((   Id., Art. 43(1). ))

The Court of Appeals hears interlocutory appeals from the accused or Specialist Prosecutor.((   Id., Art. 45(1). )) Interlocutory appeals from decisions or orders relating to detention on remand, or any preliminary motion challenging the KSC’s jurisdiction, lie as a matter of right.((   Id., Art. 45(2). )) Other interlocutory appeals require leave by the Pre-Trial Judge or Trial Panel.((   Id.)) The Court of Appeals also hears appeals against judgments by the Trial Panel from convicted persons or the Specialist Prosecutor based on errors of law, errors of fact, and errors of sentencing.((   Id., Art. 46(1). ))

The Supreme Court Panel serves as a third instance of review, hearing appeals against judgments of the Court of Appeals Panel if the Court of Appeals Panel modified an acquittal and instead entered a conviction or when the Trial Panel or Court of Appeals Panel imposes a sentence of life-long imprisonment.((   Id., Art. 47(1). )) The Supreme Court Panel also hears extraordinary legal remedies such as the reopening of criminal proceedings,((   Id., Art. 48(1). )) extraordinary mitigation of punishment,((   Id., Art. 48(5). )) protection of legality,((   Id., Art. 48(6). )) and other extraordinary legal remedies provided under the Kosovo Constitution or the European Convention on Human Rights (“ECHR”).((   Id., Art. 48(8). )) I will cover the specifics of these extraordinary legal remedies in the following post.

The Specialist Chamber of the Constitutional Court (“SCCC”) is the final authority on the interpretation of the Kosovo Constitution as it relates to the work of the KSC and the Specialist Prosecutor’s Office.((   Id., Art. 49(1). )) The Judges of the SCCC are also responsible for determining the internal organization, decision-making process, and other organizational issues that may arise during the KSC’s tenure.((   Id., Art. 49(6). )) The KSC Statute and Kosovo Constitution expressly incorporate the ECHR,((   See KSC Statute, Arts. 3(2)(e), 12, 44(2)(c); Kosovo Constitution, Art. 22(2). )) requiring the SCCC to apply European human rights law. Article 53 of the Kosovo Constitution also requires that “[h]uman rights and fundamental freedoms guaranteed by this Constitution … be interpreted consistent with the court decisions of the European Court of Human Rights.” Dr. Arbëresha Raça Shala, a Kosovo Public Prosecutor and lecturer at the University of Pristina, argues that Article 53 mandates the Kosovo Constitutional Court to apply European Court of Human Rights (“ECtHR”) jurisprudence.((   Dr. Arbëresha Raça Shala & Musa I. Bajraktari, The Effect of European Convention and the European Court of Human Rights within Constitutional Order of Kosovo and their Relationship, 6 Mediterranean J. Soc. Sci. 41, 45 (2015), available at http://www.mcser.org/journal/index.php/mjss/article/view/7910.)) This contrasts with the ICTY, which has held that it is not bound by ECtHR jurisprudence.((   In the Case Against Florence Hartmann, IT-02-54-R77.5-A, Judgement, 19 July 2011, para. 159; Prosecutor v. Prlić et al., IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning Into Evidence, 23 November 2007, para. 51.))

Despite the incorporation of the ECHR, the ECtHR is unlikely to be available as a court of last resort for accused convicted by the KSC. Kosovo is not a signatory to the ECHR. It is also no longer considered part of Serbia, such that the ECtHR would have jurisdiction in that regard. In Azemi v. Serbia, a Kosovo national applied to the ECtHR, arguing that his complaint (based on the non-enforcement of a Kosovo court decision) could be attributed to Serbia because it exercised sovereignty and de facto control over Kosovo.((   Azemi v. Serbia, ECtHR, Application No. 11209/09, Decision, 5 November 2013, paras. 31, 37.)) The ECtHR found the application inadmissible, holding that Serbia could not be responsible under Article 1 of the ECHR (which requires signatories to secure human rights within their jurisdiction) for the non-enforcement of the Kosovo court decision, considering: Kosovo’s 17 February 2008 declaration of independence, subsequent recognition by at least 89 states, the adoption of a Constitution, the end of “supervised independence” by the United Nations Mission in Kosovo in 2012, and the Serbian domestic courts’ confirmation that they had not been exercising effective control in Kosovo since 1999.((   Id., paras. 46-49.)) The ECtHR, however, qualified that its decision was “without prejudice to the status of Kosovo.”((   Id., fn. 1.))

Even though the KSC has a seat in the Netherlands, the ECtHR would still likely decline to review applications based on the KSC proceedings. In Blagojević v. the Netherlands, Vidoje Blagojević (an accused before the ICTY whom I represented), complained that the ICTY’s refusal to replace me with another lawyer violated his right to counsel of his choosing.((   Blagojević v. the Netherlands, ECtHR, Application No. 49032/07, Decision as to the Admissibility of Application No. 49032/07 by Vidoje Blagojević against the Netherlands, 9 June 2009, para. 28.)) The ECtHR held that it lacked jurisdiction over complaints directed against the ICTY since its acts and omissions are imputable to the United Nations, “an intergovernmental international organisation with a legal personality separate from that of its member states,” which itself is not a signatory to the ECHR.((   Id., paras. 35-36.)) The ECtHR also held that the sole fact that the ICTY has its seat in The Hague was insufficient to attribute any potential violations to the Netherlands, considering the specific context of the complaint.((   Id., para. 46.))

As I’ve noted earlier, by providing a third instance of appellate review, and constitutional review, the KSC Statute accords the accused more fair trial rights and certainly more opportunities to correct errors resulting in manifest injustice than the international(ized) tribunals and courts.

The lack of a third instance of appellate review was a contentious issue at the ICTY. In Mrkšić and Šljivančanin, the ICTY Appeals Chamber entered a new conviction for Šljivančanin, based on a new factual finding relating to Šljivančanin’s mens rea for aiding and abetting in the murder of 194 prisoners.((   Prosecutor v. Mrkšić and Šljivančanin, IT-95-13/1-A, Judgement, 5 May 2009, paras. 63, 103.)) Šljivančanin then filed an application for review of the Appeals Chamber’s judgment, based on additional evidence, arguing that the additional conviction be quashed.((   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Review Judgement, 8 December 2010, para. 5.)) Following a pre-review hearing, the Appeals Chamber granted Šljivančanin’s request for a review hearing, explaining that:

the new information provided by Panić concerning the Conversation constitutes a “new fact” (“Panić New Fact”), that, if proved, could fundamentally alter the balance of evidence relating to this case, eliminating the basis for the Mrkšić and Šljivančanin Appeal Judgement’s conclusion that Šljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war.((   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010, p. 3.))

On review, the Appeals Chamber found that Šljivančanin’s new fact had been proved, and vacated his additional conviction.((   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Review Judgment, 8 December 2010, para. 32.)) However, the Appeals Chamber did not address the general issue of whether it had the power to enter additional convictions on appeal. Judge Pocar, dissenting, argued that the Appeals Chamber did not have the power to impose a new sentence higher than that imposed by the Trial Chamber.((   Id., Partially Dissenting Opinion of Judge Pocar, para. 3.)) He reasoned that Article 25(2) of the ICTY Statute requires the Appeals Chamber to apply the fundamental principles of human rights in the International Covenant on Civil and Political Rights, which guarantee a right to review by a higher tribunal.((   Id. See also International Covenant on Civil and Political Rights, Art. 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.”)) “Accordingly, the right to appeal a sentence should be granted to an accused before the Tribunal in all situations, which is not the case for the new sentence imposed on Šljivančanin.”((   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Review Judgment, 8 December 2010, Partially Dissenting Opinion of Judge Pocar, para. 3.))

Jurisdiction

The KSC has jurisdiction to try crimes against humanity, war crimes, and other crimes under Kosovo law.((   KSC Statute, Arts. 6, 13-15.)) Articles 13 and 14 of the KSC Statute provide a laundry list of crimes against humanity and war crimes, similar to those applied at the other international(ized) tribunals and courts. Article 15(1) provides that the KSC may also try crimes under the substantive criminal laws that applied during the conflict in Kosovo, incorporating the Criminal Code of the Socialist Federal Republic of Yugoslavia of 1976 and the Criminal Law of the Socialist Autonomous Province of Kosovo of 1977. Article 15(2) incorporates the current Kosovo Criminal Code concerning offenses occurring during the proceedings before the KSC, including offenses against the administration of justice,((   Kosovo Criminal Code, Law No. 04/L-082, 20 April 2012, Arts. 384-86, 388, 390-407.)) offenses against public order,((   Id., Arts. 409-11, 415, 417, 419, 421.)) and corruption / abuse of official authority.((   Id., Arts. 423-24.))

Like the Extraordinary Chambers in the Courts of Cambodia (“ECCC”),((   The temporal jurisdiction of the ECCC is limited to crimes committed between 17 April 1975 and 6 January 1979. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Art. 1.)) the ICTR,((   The temporal jurisdiction of the ICTR is limited to crimes committed between 1 January 1994 and 31 December 1994. ICTR Statute, Art. 1.)) and the STL((   The STL has jurisdiction “over persons responsible for the attack of 14 February 2005.” However, if the Tribunal finds that other attacks occurred in Lebanon between 1 October 2004 and 12 December 2005, that are connected to and of a similar nature and gravity to the 14 February 2005, it will also have jurisdiction over those crimes. The STL Statute also leaves open the possibility for the United Nations and the government of Lebanon to amend the Statute, with the consent of the Security Council, to include crimes occurring after 12 December 2005. STL Statute, Art. 1.)) – and unlike the ICTY,((   The temporal jurisdiction of the ICTY is open ended, with the Tribunal having the power to prosecute and try persons for crimes committed since 1991. ICTY Statute, Art. 1.)) the SCSL,((   The temporal jurisdiction of the SCSL is open ended, with the Tribunal having the power to prosecute and try persons for crimes committed since 30 November 1996. SCSL Statute, Art. 1(1). )) and the ICC((   The ICC has jurisdiction to try crimes committed after the entry into force of the Rome Statute. Rome Statute, Art. 11(1). )) – the temporal jurisdiction of the KSC is limited. Under Article 7 of the KSC Statute, jurisdiction is restricted to crimes committed between 1 January 1998 and 31 December 2000, though it also has jurisdiction to try certain offenses committed during the proceedings under Article 15(2). The territorial jurisdiction of the court is also limited, being restricted to crimes that were either commenced or committed in Kosovo.((   KSC Statute, Art. 8.)) The KSC’s personal jurisdiction is unique in that it covers persons of Kosovo/FRY (Federal Republic of Yugoslavia) citizenship as well as persons who committed crimes within the KSC’s subject matter jurisdiction against persons of Kosovo/FRY citizenship.((   Id., Art. 9.))

Applicable Law

Article 3(2) of the KSC Statute sets out the applicable law:

2. The Specialist Chambers shall adjudicate and function in accordance with,

a. the Constitution of the Republic of Kosovo,

b. this Law as the lexspecialis [sic],

c. other provisions of Kosovo law as expressly incorporated and applied by this Law,

d. customary international law, as given superiority over domestic laws by Article 19(2) of the Constitution, and

e. international human rights law which sets criminal justice standards including the European Convention on Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, as given superiority over domestic laws by Article 22 of the Constitution.

Article 3(3) gives guidance on the use of customary international law, providing that the Judges may make use of the jurisprudence of the international(ized) tribunals and courts in determining the customary international law at the time the crimes were committed. Article 3(4) specifies that any Kosovo law, regulation, custom, or practice not expressly incorporated into the KSC Statute does not apply. It also gives primacy to the KSC Statute over contrary provisions of Kosovo law.

Article 16 of the KSC Statute provides the applicable modes of individual criminal responsibility. Article 16(1), applying to war crimes and crimes against humanity, provides that:

a. a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of such a crime shall be individually responsible for the crime.

b. the official position of any accused person, including as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

c. the fact that any of the acts or omissions were committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

d. the fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Specialist Chambers determines that justice so requires.

Article 16(1) seems to lift verbatim the modes of liability contained in Article 7 of the ICTY Statute. Notably absent, however, is any reference to Joint Criminal Enterprise (“JCE”). Article 16(1) also does not provide a specific mode of liability for collective responsibility, such as co-perpetration under Article 25(3) of the Rome Statute of the ICC. As I have argued before the ECCC, if the drafters intended for JCE to apply, they would have included it in the tribunal’s founding documents. While the KSC Judges are responsible for drafting and amending the RPE,((   Id., Arts. 19(1), 19(4). )) and may consider including JCE, they cannot exceed what is provided for in the Statute.((   Id., Art. 19(3): “The Rules of Procedure and Evidence shall be consistent with this Law, in particular with Articles 21-23 which protect the rights of the accused, victims and witnesses. Special measures shall be included for the involvement of minors, vulnerable witnesses and victims of sexual and gender-based violence.”)) Be that as it may, nothing would prevent the Specialist Prosecutor from arguing that crimes were committed as part of a common plan or in concert by several accused, though without the odious stench of JCE III (under JCE III, a member of the JCE could be held responsible for crimes falling outside the common plan, where it was foreseeable that such crimes might be perpetrated and the member willingly took that risk).((   Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 204-29. In Prosecutor v. Brđanin, the ICTY Appeals Chamber went further and held that a member of a JCE can be held liable for crimes committed by non-members of the JCE. Prosecutor v. Brđanin, IT-99-36-A, Judgement, 3 April 2007, para. 413. In my amicus brief submitted before the ECCC Supreme Court Chamber in Case 002, I meticulously addressed why JCE III does not exist in customary international law. On 23 November 2016, the ECCC Supreme Court Chamber rejected JCE III, finding that it did not exist under customary international law at the time of the charges or as a general principle of law. Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Appeal Judgement, 23 November 2016, para. 810. I commended the ECCC Supreme Court Chamber for bravely doing away with the fiction of JCE III.))

Article 16(2) of the KSC Statute specifies that for crimes falling under Article 15(1) – crimes under Kosovo law committed between 1 January 1998 and 31 December 2000 – Kosovo laws concerning individual responsibility that were in force at the time of the crimes apply. Article 16(3) specifies that for crimes committed during the proceedings, such as offenses against the administration of justice under Article 15(2), the modes of individual responsibility in the Kosovo Criminal Code of 2012 apply.

Under Article 44(2) of the KSC Statute, in considering the sentence to be imposed for war crimes or crimes against humanity, the Specialist Chambers must consider:

a. the sentencing range for the crime provided under Kosovo Law at the time of commission,

b. any subsequent more lenient sentencing range for the crime provided in Kosovo Law, and

c. Article 7(2) of the European Convention for Human Rights and Fundamental Freedoms and Article 15(2) of International Covenant for Civil and Political Rights as incorporated and protected by Articles 22(2), 22(3) and 33(1) of the Constitution of the Republic of Kosovo, and the extent to which the punishment of any act or omission which was criminal according to general principles of law recognised by civilised nations would be prejudiced by the application of paragraph 2 (a) and (b).

Under Article 44(3), in considering the sentence to be imposed for domestic crimes under Article 15(1), the Specialist Chambers must consider the sentencing range provided under Kosovo law in force at the time the crimes were committed and any subsequent more lenient sentencing ranges provided under Kosovo law. Article 44(4) provides that, in imposing sentences for crimes under Article 15(2), the sentences must be in line with the punishments for those crimes set out Kosovo Criminal Code of 2012.

General Impressions

The KSC Statute is intriguing. Building on the experience of the other international(ized) tribunals and courts, and grounding the KSC to the existing justice system in Kosovo, the Statute goes further in ensuring and protecting the rights of the accused and convicted persons. The added instances of review will no doubt prolong the finality of cases, a price worth paying. Also, by providing for an Ombudsperson to defend the human rights of persons “interacting with” the KSC, the proceedings, being constantly monitored, are likely to yield fair, legitimate and accepted results. Considering the controversy in setting up the KSC, imbedding an Ombudsperson in the KSC was masterful.

Next Post

Without going too deep into the weeds, I will next highlight some of the more specific peculiarities of the Statute, setting up the discussion on the RPE.

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