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.(( 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.
As I have discussed throughout this series, the KSC Statute and RPE provide for a unique procedure, incorporating and building upon the procedures of other international(ized) criminal tribunals and courts. Being a specialized set of chambers within the Kosovo Judiciary, the KSC’s structure tracks the court system in Kosovo, providing, notably, a third instance of appellate review and constitutional review of the RPE.(( Id., Arts. 3(1), 24(1)(a). )) The RPE show the hybrid nature of the tribunal – a mix of common law and civil law modalities cherry-picked from the RPE of other international(ized) criminal tribunals and courts – and the influence of the Judges who drafted the RPE.
In this final post, I will discuss the KSC Code of Judicial Ethics. It too builds on the experiences of other international(ized) criminal tribunals and courts. Here are my general observations.
KSC Code of Judicial Ethics
The KSC is the first international(ized) criminal tribunal to adopt a Code of Judicial Ethics concurrent with its establishment, showing that the KSC is serious about judicial ethics from the outset, which, unfortunately, hasn’t been the case with other international(ized) criminal tribunals and courts. The KSC Code of Judicial Ethics is also the most comprehensive of the Codes of Judicial Ethics of international(ized) criminal tribunals and courts; with 23 articles covering 12 pages, it certainly stands out in its detail. Kudos to the KSC; let’s hope other international(ized) criminal tribunals and courts will follow suit.
As it approached the final year of its existence, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) adopted its Code of Professional Conduct for the Judges of the Tribunal (“ICTY Code of Judicial Ethics”) in 2016, more than 19 years after the adoption of its Code of Professional Conduct for Counsel and 16 years after the adoption of its Standards of Professional Conduct for Prosecution Counsel. Comparing the timing of the adoption of the Code of Professional Conduct for (Defence) Counsel with those of the Prosecution and the Judges, it is embarrassingly obvious that only the Defence was initially perceived by the ICTY as the ones to guard against when it comes to ethical misdeeds. A startlingly arrogant and myopic point of view.
It is utterly bizarre that the ICTY would finally get around to adopting a Code of Judicial Ethics right as the tribunal was preparing to wind up its activities and hand over its responsibilities to the Mechanism for International Criminal Tribunals (“MICT”). Baffling. The MICT had already adopted its Code of Professional Conduct for the Judges of the Mechanism (“MICT Code of Judicial Ethics”) in 2015, so it can hardly be said that the ICTY Code of Judicial Ethics was intended to hold over for the MICT. And for some inexplicable reason, the ICTY Code of Judicial Ethics is much shorter than the MICT Code of Judicial Ethics, leaving out articles concerning the Judges’ conduct during the proceedings, public expression and association, extra-judicial activities, and observance of the Code.(( MICT Code of Judicial Ethics, Arts. 7, 8, 9, 10.))
The International Criminal Tribunal for Rwanda (“ICTR”) and Special Court for Sierra Leone (“SCSL”) never adopted any Code of Judicial Ethics,(( The sum total of a judicial canon for ICTR and SCSL Judges can be found in the pithy refrains of their Statutes. See ICTR Statute, Art. 12: “The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices.” Article 13 of the SCSL Statute is identical but further adds: “They shall be independent in the performance of their functions, and shall not accept or seek instructions from any Government or any other source.”)) though both had Codes of Professional Conduct for Defence Counsel and Prosecution Counsel.(( See ICTR Code of Professional Conduct for Defence Counsel, adopted on 8 June 1998, last amended on 14 March 2008; ICTR Standards of Professional Conduct for Prosecution Counsel, 14 September 1999; SCSL Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, adopted on 14 May 2005, last amended on 13 May 2006 (applicable to both Defence Counsel and Prosecution Counsel). )) The Extraordinary Chambers in the Courts of Cambodia (“ECCC”) adopted its Code of Judicial Ethics in 2008, almost two years after the Judges were sworn in. The Special Tribunal for Lebanon (“STL”) has also just recently adopted its Code of Professional Conduct for the Judges in 2016, more than five years after its joint Code of Professional Conduct for Counsel Appearing Before the Tribunal, which applies to both Defence Counsel and Prosecution Counsel. The International Criminal Court (“ICC”) adopted its Code of Judicial Ethics in April 2005, two years after becoming operational. While the ICC had adopted a Code of Professional Conduct for Counsel (Defence Counsel and Victims’ Representatives) in December 2005, it wasn’t until 2013 that the Court adopted a Code of Conduct for the Office of the Prosecutor.
Comparing the KSC Code of Judicial Ethics to the Codes of Judicial Ethics of other international(ized) criminal tribunals and courts only highlights the meagerness of the other Codes.(( ICTY Code of Judicial Ethics is a mere two pager with six articles. The MICT Code of Judicial Ethics has 10 articles on four pages. The ECCC Code of Judicial Ethics has nine articles on two pages. The STL Code of Professional Conduct for the Judges (“STL Code of Judicial Ethics”) has 10 articles on three pages. And the ICC Code of Judicial Ethics (the most detailed but for the KSC) has 11 articles on six pages.)) They cover very little in comparison to the KSC, and whatever is covered is deliberately phrased in broad-brush principles: independence, impartiality, integrity, confidentiality, diligence, and competence. Some of the Codes of Judicial Ethics go a bit further and include guidance on public expression and extra-judicial activities, but none cover judicial misconduct or provide a disciplinary procedure like the KSC.
Of course, it goes without saying that in the absence of a Code of Judicial Ethics specific to an international(ized) criminal tribunal or court, the Judges would still have to abide by their national Codes of Judicial Ethics. But this also assumes that all the Judges are actually Judges in their national jurisdictions – which, as we all know, is hardly the case; many of the Judges are former academics and diplomats.(( Judge Patricia M. Wald, former Chief Judge of the United States Court of Appeals for the District of Colombia Circuit and Judge of the ICTY, remarked that the ICTY had too many diplomats and academics who lacked judicial experience. Marlies Simons, An American With Opinions Steps Down Vocally at War Crimes Court, N.Y. Times, 24 January 2002, available at http://www.nytimes.com/2002/01/24/world/an-american-with-opinions-steps-down-vocally-at-war-crimes-court.html. Others have also complained “that the selection of judges for service at the ICTY produced undesirable results to the effect that there were too many judges with little or no trial or judicial experience hearing complex criminal cases which was said to be a reason for the long and cumbersome proceedings before the war crimes tribunal.” Michael Bohlander, The International Criminal Judiciary – Problems of Judicial Selection, Independence and Ethics, in Michael Bohlander (ed.), International Criminal Justice, A Critical Analysis of Institutions and Procedures 325, 326 (2007). Judge Bohlander, who was appointed to the KSC Roster of Judges, also conducted a survey of ICTY/ICTR Judges, wherein he found that eight out of 25 Judges (almost one-third) of the Judges at the ICTY and the common ICTR Appeals Chamber had no prior criminal experience. Id., pp. 332-54.)) Addressing the problem of judicial fitness, the KSC requires that Judges have “established competence in criminal law and procedure or relevant parts of international law and constitutional law as appropriate, with extensive judicial, prosecutorial or defence experience in international or domestic proceedings.”(( KSC Statute, Art. 27(1). For more on the selection of Judges at the KSC, see my blog post here.)) In any event, having a detailed Code of Judicial Ethics certainly puts everyone on notice what is expected of the Judges.
Now a few words on the substance of the KSC Code of Judicial Ethics.
Preamble
The Preamble refers to several inspirational/aspirational sets of principles on the judiciary, such as the United Nations Basic Principles on the Independence of the Judiciary, the Bangalore Principles of Judicial Conduct, and the Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States on Judges: Independence, Efficiency and Responsibilities. These principles likely served as a starting point for developing the KSC Code of Judicial Ethics. Notably, the Preamble also makes reference to “international and domestic rules and standards relating to judicial conduct and the right to a fair trial,” making clear that the Judges’ conduct must at all times be consistent with their obligation to ensure the accused’s fair trial rights. Another noteworthy feature of the Preamble is that it explicitly mentions that Judges can be dismissed by the Plenary, which I will discuss in more detail below.
Public Expression and Association
As is the case with any Code of Judicial Ethics, the KSC Code of Judicial Ethics enshrines the three “I’s” – Impartiality, Independence, and Integrity.(( KSC Code of Judicial Ethics, Arts. 3-5.)) Ensuring these three principles, Article 9 prohibits the Judges from expressing views which would call into question their impartiality or “undermine the standing and integrity” of the KSC.(( Id., Art. 9(2)-(3). )) While the ECCC, ICC, and MICT Codes of Judicial Ethics have similar provisions relating to public expression, the KSC goes a bit further, requiring the Judges to seek the President’s approval prior to making any KSC-related statements to the public or press.(( Id., Art. 9(4). )) I am not sure I agree with muzzling or censoring Judges, though there may be reasons.
Article 9 may be a response to the Harhoff matter at the ICTY, where Judge Frederik Harhoff circulated an email(( ICTY Judge Frederik Harhoff’s Email to 56 contacts, 6 June 2013, available at http://www.bt.dk/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf.)) to 56 recipients expressing his suspicion that some of his judicial brethren at the ICTY had succumbed to political pressure, calling into question the integrity of the tribunal. In his email, Judge Harhoff surmised that ICTY President Theodor Meron was pressured by powerful states (namely, the United States and Israel) to influence a change in direction in the ICTY’s jurisprudence by lobbying among his colleagues in deliberations.(( Id., p. 3.)) Leaked to the press, Judge Harhoff’s email set off a cascade of criticism, including legal submissions resulting in his disqualification. Though there was no formal disciplinary procedure against Judge Harhoff, the fact that his assignment to any Chamber at the ICTY was discontinued can be deemed as an “informal punishment.” For more on the Harhoff matter, and more generally, Judges’ ethical duties of independence and impartiality, see my blog posts here and here.
Had Judge Harhoff been a Defence Counsel, he would have been subject to harsh disciplinary sanctions. Defence Counsel Toma Fila was subject to disciplinary sanctions after being found to have brought the Tribunal into disrepute by stating to the media: “[t]he main aim [of the ICTY] has been achieved, Serbia has been demonized.”(( In the Matter of Mr Toma Fila, IT-13-93-Misc.1, Decision of the Disciplinary Panel, 23 October 2012, para. 3.)) In its decision, the Disciplinary Panel expanded Counsel’s duty to refrain from bringing the Tribunal into disrepute into “a positive obligation on all counsel to protect the reputation of the Tribunal,” extending to “counsel’s conduct outside the Tribunal.”(( Id., para. 70. On appeal, the Disciplinary Board remained silent on whether the Disciplinary Panel’s interpretation of the ICTY Code of Professional Conduct for Counsel was correct, thus embracing this obligation placed on Defence counsel practicing at the ICTY. See In the Matter of Mr Toma Fila, IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board, 8 July 2013.))
But what happens when Judges go around giving speeches, commemorating crimes or events while also deliberating on cases concerning those events? For example, two short months after sitting on the Appeals Chamber in Krstić, which primarily concerned genocide in Srebrenica,(( Prosecutor v. Krstić, IT-98-33-A, Judgement, 19 April 2014.)) Judge Meron gave a speech commemorating “genocide” in Srebrenica.(( Judge Meron has also given other speeches commemorating genocide in Srebrenica. See President Theodor Meron to Attend Srebrenica Genocide 10th Anniversary Commemoration at Potocari Memorial, 21 June 2005; and more recently, President Meron addresses Srebrenica Genocide 20th Anniversary Commemoration at Potočari Memorial, 11 July 2015.)) He then went on to sit on appeals dealing with the events in Srebrenica.(( Judge Meron sat on the Srebrenica-related appeals in Blagojević and Jokić (2007), Perišić (2013), and Tolimir (2015). )) Would his public statements not “affect confidence” in his independence or impartiality? I would say more than probably. Unfortunately, these types of speeches are rather commonplace and Article 9 is unlikely to prevent them so long as they fit the narrative – holding “war criminals” accountable.(( For years I have drawn attention to and have sought to have removed from the ICTY lobby the banner which greeted all visitors: “Bringing war criminals to justice and justice to the victims.” Hardly a welcoming sign of a judicial institution that is supposed to presume all accused innocent and guarantee fair and just proceedings.))
Diligence
I welcome this provision. The duty of diligence in Article 7 requires the Judges to make decisions in a timely fashion. This requirement is consistent with the RPE, which set out concrete deadlines for delivering judgments.(( See KSC RPE, Rules 156 (setting a 60-day deadline for the pronouncement of the trial judgment) and 161 (setting a 30-day deadline for the pronouncement of the sentencing judgment). )) Defence Counsel are required to be diligent in representing their clients and comply with deadlines imposed by the Judges;(( See e.g., ICTY Code of Professional Conduct for Counsel, Art. 11: “Counsel shall represent a client diligently and promptly in order to protect the client’s best interests.”)) it is only reasonable that the Judges act promptly in delivering their decisions.
Conduct of the Proceedings
While the Judges’ power to control the conduct of the proceedings is normally regulated in the RPE, it is also prudent that it is included in the Code of Judicial Ethics – like wearing a belt and suspenders. Under Article 8 of the KSC Code of Judicial Ethics, the Judges must “exercise vigilance in controlling the manner of questioning of witnesses or victims,” and “ensure that any person participating in the proceeding refrains from comments or conduct which is degrading.” While the RPE give the Judges the inherent authority to control the conduct of the proceedings, the Judges must be careful not to abuse their authority. For instance, and this is welcoming, under Article 5(3), “Judges shall treat other Judges, Parties, participants in the proceedings, staff members and others with dignity and respect, and shall not engage in any form of discrimination, harassment, including sexual harassment, and abuse of authority.”
I appreciate the part about treating the parties with dignity and respect, something that the ECCC Judges should pick up on, especially Judge Nil Nonn, the President of the Trial Chamber, who routinely switches off Defence Counsel’s microphones to silence them.(( See Michael G. Karnavas, Bringing Domestic Cases into Compliance with International Standards, Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level, 1 Cambodia L. & Pol’y J. 46, 65-66 (2014). See also Stuart White, Cambodia’s Leaders Called out at Khmer Rouge Court, Phnom Penh Post, 1 August 2012, reporting that the International Co-Lawyer for the Accused Nuon Chea had his microphone turned off by the Trial Chamber three times during the examination of a witness.)) There are numerous instances where the ECCC Trial Chamber Judges have done this, preventing Defence Counsel from responding to objections,(( See, e.g., Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 23 July 2012, pp. 75-76.)) explaining lines of questioning,(( Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 30 May 2012, pp. 30-31.)) making submissions on international case law,(( Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 15 February 2012, pp. 87.)) and responding to allegations of interference with the client’s medical assessments.(( Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 20 March 2003, pp. 84-86.)) Not only is it disrespectful, but it prevents Defence Counsel from exercising their duty in zealously representing their clients. For instance, by attempting to silence Defence Counsel when raising objections or when posing relevant questions to witnesses, it prevents Defence Counsel from making the record and perfecting grounds for appeal. It also creates a perception that the Trial Chamber is not genuinely committed to upholding the fair trial rights of the accused. Article 5(3) should temper KSC Judges from engaging in such behavior.
Judicial Misconduct
The KSC Code of Judicial Ethics distinguishes between “serious” and “less serious” types of misconduct, though I am not too keen on the distinctions that were made. Serious misconduct under Article 13 can result in a dismissal from the Roster of Judges (a decision which must be made by the absolute majority of the Plenary, but we’ll get back to this),(( KSC Code of Judicial Ethics, Art. 21.)) while less serious misconduct under Article 14 can result in other disciplinary measures, the most severe of which is a year suspension from being assigned to a KSC Panel or a fine of €2,000 (essentially a slap on the wrist).(( Id., Art. 22.))
Article 13 considers as serious misconduct, conduct which “is incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice[,]” and conduct of a “grave nature that causes or is likely to cause serious harm to the standing of the KSC.”
Conduct “incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice” includes:
– Disclosing facts for information learned in the course of proceedings;
– Concealing or withholding information which would have precluded the Judge from holding the office; or
– Abusing the judicial office to get favorable treatment from authorities or professionals.
“Grave” conduct “that causes or is likely to cause serious harm” to the KSC’s standing includes:
– Committing a criminal act which reflects adversely on the Judge’s honesty and trustworthiness; and
– Engaging in harassment, abuse of authority, dishonesty, fraud, deceit or misrepresentation.
Article 14 considers as less serious conduct, conduct that “causes or is likely to cause harm to the proper administration of justice” such as:
– Unduly attempting to influence another Judge, the President, the Specialist Prosecutor, or the Registrar;
– Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or the President;
– Communicating with the press or media on KSC-related matters without the President’s authorization; and
– Concealing or withholding information about disciplinary or workplace investigations in other jurisdictions.
Minimizing undue influencing
Disciplinary Procedure
The most innovative aspect of the KSC Code of Judicial Ethics is that it provides for a disciplinary procedure, which is certainly lacking in other international(ized) criminal tribunals and courts.
Complaints against Judges can be made by almost anyone appearing at the KSC under Article 15: Judges, staff members, parties or participants, the Registrar, or “any other person alleging that their rights or interests have been substantially affected by an alleged misconduct.” The President may also initiate disciplinary proceedings proprio motu.(( Id., Art. 15(2). )) If the President considers that the complaint is “vexatious, misconceived, frivolous or lacking in substance” or untimely, she will dismiss the complaint.(( Id., Art. 17(1). )) If the complaint may have some merit, the President will forward the complaint to the impugned Judge,(( Id., Art. 17(2). )) who has a right to be represented by Counsel (at his or her own cost) and respond to the complaint within two weeks of its receipt.(( Id. Art. 16.)) After hearing from the impugned Judge, the President will summarily dismiss the complaint if it is “manifestly ill-founded” or “not-substantiated.”(( Id., Art. 17(3). )) If not, the President will designate a Disciplinary Board under Article 18(1) to rule on the merits of the complaint.
The Disciplinary Board consists of three Judges. Interestingly, in choosing two members of the Disciplinary Board, the President can draw from Judges of international(ized) criminal tribunals and courts, or Judges of domestic courts who have “extensive experience in ethics or in the investigation of professional misconduct.”(( Id., Art. 18(2). )) The third member “may be a senior appointee of the European Union.”(( Id.))
If the Disciplinary Board concludes that the impugned Judge committed one of the allegations in the complaint, it will then report to the Plenary of Judges(( Id., Art. 20(1). )) for a determination of whether to remove the Judge from the Roster of Judges or impose disciplinary measures. To remove a Judge from the Roster of the Judges for serious misconduct under Article 13, the Plenary must vote for removal by absolute majority.(( Id., Art. 21.)) Think about it. It only takes a Trial Panel of three Judges to put an accused away for life,(( KSC Statute, Art. 25(1)(b). )) but it takes a Plenary of 19 Judges to remove a Judge from the Roster for serious misconduct. Sheer hypocrisy.
Conclusion
I have always seen the need for a detailed Code of Judicial Ethics for Judges sitting in the international(ized) criminal tribunals and courts. The common perception is that if you place the word “international” in front of something, it is automatically operating at a higher standard. Actually, the standard of justice in the international(ized) criminal tribunals and courts, including the standards to which we hold Judges, can be quite low, especially when compared to well-functioning national systems. As I have noted, distinguished and respected (or not) diplomats and academics are appointed as “professional” international Judges, even when they may never have set foot in a courtroom and may never have practiced law (let alone criminal law) before donning the judicial robe. Yet, the myth persists – once one puts on the crimson judicial robe and takes the oath, he or she is instantly imbued with judicial knowledge and temperament, while feet of clay are magically transformed to unimpeachable perfection. Hardly.
I commend the KSC for adopting a detailed Code of Judicial Ethics. It is a major achievement. It shows that the KSC is serious about judicial ethics, that it is determined to learn from and build upon the lessons and failures of other international(ized) criminal tribunals and courts. Adding a disciplinary procedure for judicial misconduct is a positive step towards transparency, uniformity, and consistency.
I close by suggesting that the KSC do what I have advocated with other international(ized) criminal tribunals and courts, especially the ICC: (a) introduce a judicial training program for all KSC Judges before the proceedings begin; and (b) create a Bench Book to ensure that the proceedings are uniform. Both such projects must include broad input from experienced practitioners – Judges, Prosecutors, administrators and, yes, Defence Counsel.
Parting Thoughts
In theory, the KSC looks promising. The real judgment comes when it starts operating as a fully functioning court. Much will depend on the practical application of the Statute and RPE, the quality of the decisions, and the actual judicial temperament of the Judges once the proceedings get heated with the parties aggressively pursuing their aims while vying for advantage. Though the Roster of Judges is impressive, there is no guarantee that the KSC will succeed. Parachuting Judges will need to rely heavily on the Senior Legal Officers – who, by being in situ, will be ahead of the knowledge curve on both the facts and procedure (if not law as well). This could call into question the authorship of the decisions. Some will find reason to ask who is pulling the levers behind the curtain in the Land of Oz. Practice will tell, but if we can glean anything from the Statute, RPE and Code of Judicial Ethics, thus far the KSC seems off to a good start.
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