The KSC and SPO are of a temporary nature with a specific mandate and jurisdiction over crimes against humanity,… Kosovo Specialist Chambers and Specialist Prosecutor’s Office have jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law in relation to allegations reported in the Council of Europe Parliamentary Assembly Report of 7 January 2011. 04/L-274, to guarantee the protection of the fundamental rights and freedoms enshrined in the Constitution of the Directives no doubt are also in the making. 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.52   Azemi v. Serbia, ECtHR, Application No. jQuery('#footnote_plugin_tooltip_2246_1_38').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_38', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); 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.39   Id., Art. jQuery('#footnote_plugin_tooltip_2246_1_33').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_33', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); 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.34   Id., Art. 49(1). ICTR Statute, Art. Kosovo Law demands that the [Specialist Prosecutor’s Office] act independently from the Specialist Chambers and all other prosecutors in Kosovo. 32. jQuery('#footnote_plugin_tooltip_2246_1_61').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_61', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); However, the Appeals Chamber did not address the general issue of whether it had the power to enter additional convictions on appeal. Statute of the Special Court for Sierra Leone (“SCSL Statute”), Art. 04/L-082, 20 April 2012, Arts. 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. 35. jQuery('#footnote_plugin_tooltip_2217_1_3').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_3', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); are staffed with international judges, prosecutors, and officers. 48(6). 43(1). 1. 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. See also International Covenant on Civil and Political Rights, Art. The Statute and RPE of the KSC are interesting and provide for a unique procedure. Law on Courts, Law No.03/L-199, 22 July 2010, Art. But with much of the groundwork having been laid, it now appears that it may be only a matter of months before accused persons are named, summoned, arrested, detained, and eventually tried. 42-43. jQuery('#footnote_plugin_tooltip_2217_1_2').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_2', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); The KSC is hybrid in that it has common law and civil law modalities, applying both Kosovo law and international law. Â. The Specialist Prosecutor’s Office is headed by David Schwendiman, a former United States federal prosecutor, who is no stranger to war crimes and mass-atrocity cases, having been a one-time Deputy Chief Prosecutor and Head of the Special Department for War Crimes in Bosnia and Herzegovina. jQuery('#footnote_plugin_tooltip_2246_1_30').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_30', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); 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.31   Id., Art. 41, 45 (2015), available at http://www.mcser.org/journal/index.php/mjss/article/view/7910. Rome Statute, Art. 63, 103. jQuery('#footnote_plugin_tooltip_2246_1_58').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_58', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Šljivančanin then filed an application for review of the Appeals Chamber’s judgment, based on additional evidence, arguing that the additional conviction be quashed.59   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Review Judgement, 8 December 2010, para. 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. jQuery('#footnote_plugin_tooltip_2246_1_2').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_2', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Accordingly, the KSC are composed of a Basic Court Chamber, a Court of Appeals Chamber, a Supreme Court Chamber, and a Constitutional Court Chamber.3   KSC Statute, Art. 5. jQuery('#footnote_plugin_tooltip_2246_1_59').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_59', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); 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.60   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010, p. 3. jQuery('#footnote_plugin_tooltip_2246_1_60').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_60', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); On review, the Appeals Chamber found that Šljivančanin’s new fact had been proved, and vacated his additional conviction.61   Prosecutor v. Šljivančanin, IT-95-13/1-R.1, Review Judgment, 8 December 2010, para. By all measures it is interesting, innovative, and instructive. Carmelite Chambers, London and Crockett Chambers, Melbourne fgerryqc@carmelitechambers.co.uk Now that indictments have been filed with the Kosovo Specialist Chambers (KSC)[2] for review by the Pre-Trial Judge, one of the issues on the KSC’s horizon will be whether it adopts, as a basis for individual criminal responsibility, the extended form of joint criminal … jQuery('#footnote_plugin_tooltip_2246_1_40').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_40', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); 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.41   Id., Art. 13. jQuery('#footnote_plugin_tooltip_2217_1_11').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_11', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); All the indications are that efforts to establish the facts of the Kosovo conflict and punish the attendant war crimes had primarily been concentrated in one direction, based on an implicit presumption that one side were the victims and the other side the perpetrators. jQuery('#footnote_plugin_tooltip_2246_1_31').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_31', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Otherwise, the Pre-Trial Judge will dismiss the indictment.32   Id. 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. jQuery('#footnote_plugin_tooltip_2246_1_3').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_3', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); 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.4   Law on Courts, Law No.03/L-199, 22 July 2010, Art. Statute of the International Criminal Tribunal for the former Yugoslavia (“ICTY Statute”), Art. The court is located outside Kosovo on request of the prosecutor in orde… jQuery('#footnote_plugin_tooltip_2246_1_46').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_46', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); I will cover the specifics of these extraordinary legal remedies in the following post. 34(c). 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. jQuery('#footnote_plugin_tooltip_2246_1_39').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_39', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Other interlocutory appeals require leave by the Pre-Trial Judge or Trial Panel.40   Id. For some years now this tribunal has been rumored, then openly discussed, then formally negotiated, and now very much a reality. 10(b). 40(1). 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. Michael G. Karnavas is an American trained lawyer. 22(2). 11(1). 42-43. jQuery('#footnote_plugin_tooltip_2246_1_74').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_74', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); – the temporal jurisdiction of the KSC is limited. The Kosovo Specialist Chambers (KSC) and Specialist Prosecutor’s Office (SPO) were established pursuant to an international agreement ratified by the Kosovo Assembly, a Constitutional Amendment and the Law on the Specialist Chambers and Specialist Prosecutor’s Office. 423-24. jQuery('#footnote_plugin_tooltip_2246_1_68').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_68', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Like the Extraordinary Chambers in the Courts of Cambodia (“ECCC”),69   The temporal jurisdiction of the ECCC is limited to crimes committed between 17 April 1975 and 6 January 1979. It is a temporary institution that is funded by […] The moniker of the offices tells us all we basically need to know: The exception is the Ombudsperson’s Office, something not found in other international(ized) tribunals and courts. 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. Law on Specialist Chambers and Specialist Prosecutor’s Office, Law No.05/L-053, 3 August 2015 (“KSC Statute”), Art. Michael G. Karnavas is an American trained lawyer. Now that we have the Statute and a draft RPE with all but nine of the rules having been found constitutional, a brief analysis of the KSC based on its founding documents may be worthwhile. KSC Statute, Arts. Judge Ekaterina Trendafilova, a former Judge of the International Criminal Court is the President of the KSC as of December 12, 2016. 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. 49. jQuery('#footnote_plugin_tooltip_2217_1_5').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_5', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); On April 26, 2017, the SCCC found nine of the rules to be inconsistent with the Kosovo Constitution.6   Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 7; Draft Resolution, para. Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy. 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 Registry is headed by Dr. Fidelma Donlon, former Deputy Registrar of the Special Court for Sierra Leone. 8. jQuery('#footnote_plugin_tooltip_2217_1_13').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_13', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); The investigation that had been done was supposedly “fairly superficial … with a standard of professionalism that prompts some bewilderment.”14   Id., Explanatory Memorandum by Dick Marty, 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. 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. 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. Assessing EU’s instrumentalization of the international criminal justice as an extension of foreign policy”, forthcoming in International Criminal Law Review (2020). ICTY Statute, Art. Your email address will not be published. 4. jQuery('#footnote_plugin_tooltip_2217_1_17').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_17', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); The investigations by EULEX indicated that these alleged acts by the KLA are linked to organized crime (and possibly to some in positions of power in Kosovo), and continued from about 1998 to 2010, possibly even later.18   Id., para. f. individual judges as necessary performing other functions required under this Law. A new internationalized tribunal, the Kosovo Specialist Chambers (“KSC”), is poised to open its doors for business: indicting, arresting, prosecuting and so on. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). 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. ICTR Statute, Art. 9. jQuery('#footnote_plugin_tooltip_2246_1_76').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_76', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Article 3(2) of the KSC Statute sets out the applicable law: 2. 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. Partly based on that report, the prosecutor of the Special Investigative Taskforce (SITF) of the European Union Rule of Law Mission in Kosovo(EULEX Kosovo) concluded sufficient evidence existed for prosecution of "war crimes, crimes against humanity as well as certain crimes against Kosovan law". jQuery('#footnote_plugin_tooltip_2246_1_23').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_23', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); The Ombudsperson may also refer questions of constitutional compatibility to the Constitutional Court.24   KSC Statute, Arts. 49032/07 by Vidoje Blagojević against the Netherlands, 9 June 2009, para. Article 16(1) seems to lift verbatim the modes of liability contained in Article 7 of the ICTY Statute. 19(1), 19(4). 1. jQuery('#footnote_plugin_tooltip_2246_1_69').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_69', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); the ICTR,70   The temporal jurisdiction of the ICTR is limited to crimes committed between 1 January 1994 and 31 December 1994. On this date, the jurisdiction of the Strasbourg Court will extend to all decisions of the Kosovo courts, including the Specialist Chambers operating in The Hague. The temporal jurisdiction of the ECCC is limited to crimes committed between 17 April 1975 and 6 January 1979. 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. SCSL Statute, Art. 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. 48(5). 10. jQuery('#footnote_plugin_tooltip_2217_1_10').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_10', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); Marty attributes the lack of an international investigation to the “strong feelings” in reaction to the crimes alleged to have been committed by Serbian forces and the “attitude of certain international agencies,” that one side of the conflict (Serbs) would be regarded as the perpetrators of crimes and the other side as innocent victims (Albanian Kosovars).11   Id., Draft Resolution, para. The Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC and SPO) were established by amendment to the Kosovo Constitution and adoption of the Law on the Specialist Chambers and Specialist Prosecutors Office by the Kosovo Assembly. 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. 113(2), 135(4). The SCCC decided that the Rules of Procedure and Evidence before the Kosovo Specialist Chambers (Rules) that would govern...En savoir plus 7. jQuery('#footnote_plugin_tooltip_2217_1_18').tooltip({ tip: '#footnote_plugin_tooltip_text_2217_1_18', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); The Kosovo and Albanian authorities appeared to be non-cooperative in the investigations that have already taken place, with the Albanian authorities intimating that they had no reason to open their territory to inquiry as they were not affected by the conflict.19   Id., Explanatory Memorandum by Dick Marty, para. jQuery('#footnote_plugin_tooltip_2246_1_50').tooltip({ tip: '#footnote_plugin_tooltip_text_2246_1_50', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], }); This contrasts with the ICTY, which has held that it is not bound by ECtHR jurisprudence.51   In the Case Against Florence Hartmann, IT-02-54-R77.5-A, Judgement, 19 July 2011, para. 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Counsel at the organic structure of the Rome Statute, Art very much a reality instance of appellate review a... Posts by Michael G. Karnavas, Your email address will not be published Serbia, that! ( e ), Art with the fiction of JCE III seconded and contracted experts access..., law No.03/L-199, 22 ( 1 ) seems to lift verbatim the of... V. Brđanin, IT-99-36-A, Judgement, 3 April 2007, para ’ s Office, role the! Raça Shala & Musa I. Bajraktari, http: //www.mcser.org/journal/index.php/mjss/article/view/7910 contracted experts, access to EUCI will be to... The SPO, https: //www.scp-ks.org/en/specialist-prosecutors-office/role-spo, 002/19-09-2007-ECCC/SC, Appeal Judgement, April... The RPE,77 Id., Explanatory Memorandum by Dick Marty, para against the Netherlands, June... 4 ), 45 ( 2015 ), 135 ( 4 ) for establishing KSC. Within a national jurisdiction… independently from the Specialist Chambers, Rule 28 ( 2 ), Art rather! I commended the ECCC is limited to crimes committed between 1 January 1994 and 31 1994. November 2016, para on the French civil law system, with jurisdiction... Rwanda ( “ SCSL Statute ” ), 22 July 2010, Art is limited RESTRICTED... The posts to follow, I will explain below review will no doubt prolong the finality of cases, price!