Dr. Gentian Zyberi was co-ordinator of the Albanian legal team in the ICJ’s Advisory proceedings on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. He worked for the Defence in the Haradinaj case discussed below.
In its judgment dated 19 July 2010 the Appeals Chamber of International Criminal Tribunal for the former Yugoslavia (ICTY) partially quashed the acquittals of Ramush Haradinaj (Kosovo’s ex-Prime Minister and former commander of the Kosovo Liberation Army (KLA) for the Dukagjin zone), Idriz Balaj (former KLA member, commander of the Black Eagles unit), and Lahi Brahimaj (former deputy commander of the KLA Dukagjin Operative Staff, member of the KLA General Staff). Mr. Haradinaj and Balaj had been acquitted of all charges, while Mr. Brahimaj was found guilty of torture and sentenced to a term of six years’ imprisonment by the Trial Chamber on 3 April 2008. The Appeals Chamber ordered a partial retrial of the case, President Robinson partially dissenting. The President then proceeded to appoint a trial bench composed of Judge Moloto, Judge Hall and Judge Delvoie for this retrial.
Since this is the first retrial ordered by the ICTY in its 15 years of activity – it is surprising that so far this judgment has escaped the careful scrutiny it deserves regarding the legal standard applied and the conclusions drawn by the Appeals Chamber. The Appeals Chamber found that the Trial Chamber had committed a mistake of law by refusing the Prosecutor’s requests for additional time to exhaust all reasonable steps to secure the testimony of two witnesses, while the Trial Chamber had ordered an extension three times, and ordering the close of the prosecution case before such reasonable steps could be taken. It stated that the Trial Chamber ‘failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity’ which ‘undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.’ (Appeals Judgment, p. 22, par. 49).
Problems with the Appeals Chamber reasoning
This Appeals Chamber Judgment is problematic for a number of reasons, few of which are briefly dealt with below. As the partial dissent pointedly chastises, on the issue of retrial the Haradinaj Appeal Judgment leaves open many more questions than it closes, giving the impression that a policy driven decision-making process disregarded the rule of law, the rights of the accused, and the legal and factual diligence due in handing down a decision of such importance (Partially dissenting opinion of Judge Patrick Robinson, pp. 129-130, par. 32). It is a pity, because witnesses’ protection in international criminal proceedings and the role of discretion in securing a fair opportunity for the Prosecutor to be heard are unquestionably two extremely important matters for international criminal justice in general.
a) Substitution of the discretion of the Trial Chamber for its own
As the partial dissent of President Robinson points out (Partially dissenting opinion of Judge Patrick Robinson, pp. 116-120, paras. 1-9), the Appeals Chamber did not abide by its own rule that it will not lightly overturn decisions based on the Trial Chamber’s discretion. This is the first of a number of significant flaws and mistakes which weaken the Appeals Chamber’s reasoning. Can a conviction on charges of joint criminal enterprise hinge on two witnesses only, two witnesses whose credibility is obviously, for the findings made by the Trial Chamber left untouched by the Appeals Chamber, extremely low? Practically, this is the position the OTP essentially put forth, and in turn accepted as an assumption by the Appeals Chamber.
b) Alleged witness intimidation
The Appeals Chamber took the position that for the Tribunal to function effectively, Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu (Appeals Judgment, par. 35). In its view, the Trial Chamber appeared to place undue emphasis on ensuring that its deadlines for presenting evidence were respected, irrespective of the possibility of securing the testimony of two key witnesses. Such misplaced priority demonstrated that the Trial Chamber failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity (Appeals Judgment, par. 40). For the majority of the Appeals Chamber, the President partially dissenting, the Trial Chamber’s language and approach manifestly prioritized logistical considerations and the specific number of hours assigned to the prosecution case over the much more significant consideration of securing the testimony of a potentially important witness who was finally available to testify (Appeals Judgment, par. 43).
The starting point of the Appeals Chamber’s discussion on intimidation of witnesses is the OTP’s allegation that there was an ‘unprecedented atmosphere of widespread and serious witness intimidation’ (Appeals Judgment, par. 34). This is either a conclusion based on the trial record, without any reference to it however, or a rather serious mischaracterization of the quoted Trial Chamber’s finding, which did not speak about witness intimidation. Had the Trial Chamber itself been able to point to one or many incidents of witness intimidation, it would have done so – but it apparently never did so in its Judgment. By using expressions like ‘witness intimidation of the type described by the Trial Chamber’ (Appeals Judgment, par. 35) and going even further in stating that ‘all witnesses’ lived in a context of intimidation’ (Appeals Judgment, par. 46) and that ‘witness intimidation [that] permeated the trial’ (Appeals Judgment, par. 49) the Appeals Chamber completely altered the meaning of the words used by the Trial Chamber. Apparently this comes from paragraph 22 of the Trial Judgment, which however only states that ‘A high proportion of Prosecution witnesses in this case expressed a fear of appearing before the Trial Chamber to give evidence’ – which is quite different from intimidation of all witnesses. It is therefore difficult to understand how the Appeals Chamber arrives at these important findings for the case – were they a sort of fact of common knowledge (?), that does not require a previous finding by the trier of fact or an explicit factual basis?
c) When is the right time to appeal the decision to close the case?
A bit of procedural history is helpful to understand this issue. The Trial Chamber, after granting three extensions of time to the OTP for these witnesses [Trial transcript, pp. 9984-9985, (31 October 2007); Trial transcript, p. 10893 (15 November 2007); Trial transcript, pp. 10955-10956 (20 November 2007)], warned the Prosecutor that if there were indications that the witnesses would testify this should be brought to the Chamber’s attention [Trial transcript, pp. 10977-10979 (26 November 2007)]. Since this was not the case, on 21 December 2007, the Trial Chamber decided to close the case. While one would have expect strong disagreement on the part of the Prosecutor, with appeals or motions for review and reconsideration, the Prosecutor instead opted for not even requesting certification to appeal this order and never raised any concern between that date and 3 April 2008 when the Trial Judgment was finally delivered. Surprisingly, the Appeals Chamber seems to consider this failure to appeal not a mistake of the Prosecutor, but rather an error of Trial Chamber!
Practically, this ruling appears to say that if one of the parties does not file an interlocutory appeal at trial, they can still reserve the right to raise the issue on appeal, if and when they wish and after having considered the outcome of the trial judgment?! While this might actually be fair to the accused in exceptional circumstances, it is doubtful (to say the least) whether this possibility should be allowed to the prosecuting authorities! Are or should there be limitations to this right to appeal?
d) The retrial
The decision of the Appeals Chamber to order a retrial is also novel. No retrial has been ordered in any other ICTY case; the Appeals Chamber electing instead to make new findings on its own. In this case, the Appeals Chamber did not require the Prosecutor to prove that a retrial would be helpful – nothing in the Appeals Chamber’s judgment hints that the Prosecutor may now be in a better position to call the two witnesses in question than in December 2007. This is quite bewildering, since the whole point of the exercise would appear to be that of securing those witnesses’ testimony: their availability now as opposed to December 2007 should thus have been the basis of the remedy ordered in the circumstances of this case. It remains to be seen how the newly appointed Trial Chamber will deal with this matter.
Another point related to the retrial is raised by footnote 159. Here the Appeals Chamber notes that on retrial, the latest version of the Rules (IT/32/Rev. 44 of 10 December 2009) is to be applied by the Trial Chamber. This raises the issue of whether Rule 92-quinquies – which is a new rule allowing for admission of written statements of witnesses who have not given evidence because they have been intimidated – can be used. Rule 6(D) explicitly provides that a rule amendment ‘shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case’. It is clear that the substance – if not the letter – of this rule protects Haradinaj from a rule amendment passed while his case was under appeal, which resulted in a decision to re-try him. He was an acquitted person in a case and now his case has been re-opened (or sent back to trial), surely an amendment detrimental for him as Rule 92-quinquies cannot be used in this ‘retrial’.
More generally, one would have expected some discussion on the issue of double jeopardy, since effectively the OTP has been given a second chance to litigate the case. Some guidance about how to carry out such a retrial would undoubtedly have been useful.
This judgment of the Appeals Chamber is quite problematic for two main reasons; first, it does not give enough consideration to the rights of the accused and second, it substitutes the discretion of the Trial Chamber for its own. Moreover, it raises more questions than it answers, particularly for the expected soon-to-start retrial. Indeed, as pointed out above, the interpretation of the holdings of the Appeals Chamber by the new Trial Chamber in this context is rather important. Is the new Trial Chamber bound by the assessment that there was witness intimidation, considering that no such finding was made by the previous Trial Chamber? Is this a trial de novo, or limited to hearing only the two missing witnesses? Which version of the Rules of Procedure and Evidence is going to apply during the retrial? The answers to these questions will be provided soon by the new Trial Chamber.