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Home Posts tagged "Kosovo"

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence

Published on August 17, 2017        Author: 

The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) are the latest addition to a multi-layered and broad spectrum of international institutions dedicated to the investigation and prosecution of international crimes. In March 2017, the Judges of the KSC adopted the Rules of Procedure and Evidence (RPE), which are now finally available on the Tribunal’s website. In the following, I will provide a first analysis of the RPE and evaluate them against existing procedural laws of International(ized) Criminal Tribunals (ICTs). It goes without saying that, in the face of the sheer number of rules (211), this analysis can only be cursory.

The biggest achievement of the Judges certainly is that they translated the institutional uniqueness of the KSC – an internationalized tribunal with a Constitutional Chamber (‘Specialist Chamber of the Constitutional Court’) and the European Union as the primary sponsor – into the rules. This especially becomes apparent through the incorporation of an interpretation rule (Rule 4) into the RPE, which refers – inter alia – to ‘the framework as set out in Article 3 [KSC-Law]’. This Article 3 (its length makes it impractical to reproduce it here) is not only a modern version of Article 21 of the ICC-Statute. It also determines that the KSC shall adjudicate and function in accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Constitution of Kosovo. This is remarkable in many regards: the preference to refer to the ECHR rather than ‘internationally recognized human rights’ (Article 21(3) ICC-Statute) has the potential of strengthening the rights of the defendant. The vagueness of the term ‘internationally recognized human rights’ has led to the assumption that it denotes something less than universal acceptance. The European human rights jurisprudence, by contrast, is one of the most developed and most discussed in secondary source material (Young, ICLQ 60 (2011), 204). Moreover, through its Article 22, the Constitution of Kosovo gives the ECHR constitutional value. Of course, one could think that this does not make any practical difference, since the ECHR is mentioned as a source of the KSC anyway. However, recall that Kosovo is not a party to the ECHR and therefore not internationally liable for its implementation. The reference to the ECHR in Kosovo’s Constitution makes these human rights justiciable because both the accused and the victim are entitled to make referrals to the Constitutional Chamber in relation to alleged violations by the KSC of their human rights guaranteed by the Constitution (Article 113(7) Kosovo Constitution). Thus, in questions of the KSC’s activity and subject-matter jurisdiction, it is the Constitutional Chamber – not an appellate body – that serves as the final authority for the interpretation of the Constitution (Article 49 KSC-Law). This turns the rights enshrined in the ECHR into basic rights and contributes to a constitutionalization.

Of course, the strengthened judicial review at the KSC through the establishment of a Constitutional Chamber comes at a price, and it does not take much to predict a governance problem. More concretely, as praiseworthy as a constitutionalized ECHR may be in theory, in practice it will not make it any easier for the Judges to face the daily task of running an ICT. Take, for instance, the first Constitutional Chamber judgment about the constitutionality of the KSC RPE, Rule 19 in particular: in the version that was first referred to the Constitutional Chamber on 27 March 2017, Rule 19 contained a paragraph 3 where a hearing could continue for no more than five working days in the presence of just two instead of three Judges, in case one Judge was absent due to circumstances such as illness. Such a rule has great practical importance and is modelled after Rule 16(A) of the Special Court for Sierra Leone (SCSL) RPE and Rule 15bis ICTY RPE. Nevertheless, the Constitutional Chamber declared Rule 19(3) KSC RPE unconstitutional, because Article 25(1) KSC-Law prescribes that the Trial Panels, Court of Appeal Panels and Supreme Court Panels are comprised of ‘three’ Judges, and the KSC-Law is silent on whether hearings may be conducted before a ‘Panel’ of two Judges (Specialist Chamber of the Constitutional Court, para. 39). Read the rest of this entry…

 
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Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…