On 21 July 2010 the ICTY Appeals Chamber 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 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 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.
In its first ground of appeal the Prosecutor argued that the Trial Chamber erred when it refused its request for additional time to exhaust all reasonable steps to secure the testimony of two crucial witnesses and instead ordered the close of the prosecution case before such reasonable steps could be taken. The Prosecutor asserted that these witnesses possessed direct evidence relating to the guilt of the three accused, who had refused to testify due to intimidation and fear. The Prosecutor therefore asked for a retrial on certain specific counts, hinging on the joint criminal enterprise (JCE).
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 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.’
Problems with the Appeals Chamber Reasoning
Here below are exposed in some detail six grounds why the reasoning of the Appeals Chamber is problematic. Moreover, this judgment raises more questions, legal and otherwise, than it answers.
a) Substitution of the discretion of the Trial Chamber for its own
As the Dissent points out, 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 for JCE 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 was accepted as an assumption by the Appeals Chamber.
b) Alleged witness intimidation
With regard to this issue the reasoning of the Appeals Chamber goes as follows: 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 (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 (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 (par. 43).
In view of such an argument, the first issue is of course whether there was intimidation, which provides the basis for the Appeals Chamber line of reasoning. The starting point of the Appeals Chamber’s discussion is indeed that there was an ‘unprecedented atmosphere of widespread and serious witness intimidation’ (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 Trial Chamber’s findings, which did not speak about witness intimidation. The quoted passage by the Appeals Chamber has the following tone: ‘the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe…’ (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 in the whole Judgment…). By using expressions like ‘witness intimidation of the type described by the Trial Chamber’ (par. 35) and going even further in par. 46, stating that ‘all witnesses’ lived in a context of intimidation (see also par. 49 ‘witness intimidation that permeated the trial’) the Appeals Chamber misconstrued the meaning of the words used by the Trial Chamber. Apparently this comes from par. 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) The two ‘missing’ witnesses
What does the Appeals Chamber say about the two missing witnesses? One witness – Kabashi – had fled the Netherlands, was located in the United States and clearly expressed a lack of willingness to testify when at the Tribunal. The threat of arrest was known to him at that time and now, but that has had no effect for the past three years. What more could have been done by the Trial Chamber is a bit puzzling in such a case, but the Appeals Chamber found that whatever was done was not enough.
Then there was the second witness, whose identity is undisclosed and is known under the pseudonym of ‘witness 30’. In para 43, the Appeals Chamber states that ‘the other witness had been arrested on the basis of an indictment by the Tribunal’. The other witness, i.e. Witness 30, was apparently never indicted by the Tribunal – there is no indictment for contempt that appears to fit with this case on the ICTY website. Was he ever really indicted? Is this a mistake of the Appeals Chamber, a mistake on which the whole re-trial issue hinges? If Witness 30 was indeed indicted but such an indictment was under seal, then this is a serious breach of confidentiality by the Appeals Chamber – a breach much more serious than the ones the Appeals Chamber appears to chastise in fn. 130 (ensuring that confidential information on protected witnesses is not made public). If, on the contrary, Witness 30 was actually never indicted, then one cannot but feel sorry for him or her, who must now be under the impression of being liable to arrest by the ICTY.
d) Fair trial for whom?
In a finding which is rather troubling, the Appeals Chamber states that, since ‘actual arrest and the immediate threat of imprisonment had proved effective in compelling testimony from other unwilling witnesses during the course of the trial’, this would justify assuming that arrest or threat thereof should be generally used to compel other witnesses’ testimony (par. 42). If it is the Appeals Chamber’s own conclusion (and ignoring for the moment the question if it could and should be replacing the Trial Chamber’s assessment with its own), it does not explain what this new assessment is based on.
Obviously, arresting or using that threat on people who could be scared for a myriad of reasons which might very well not have anything to do with the case, while at the same time there is no certainty that they will be then willing to testify, or failing to show a degree of hesitation about the kind of evidence these persons would give under such conditions, shows a disquieting lack of concern for the rights of individuals and for their real and most serious concerns. Does the arresting of the (allegedly) intimidated person really solve the problem for that person – or it merely puts him or her more in the spotlight and makes the person and his or her family an easier target after the testimony? This line of reasoning by the ICTY Appeals Chamber betrays a worrying lack of concern for the problems faced by intimidated witnesses. Is arrest really the most effective and efficient way to ensure compliance with the obligation to testify? Moreover, the Appeals Chamber does not really address the steps the Trial Chamber might have taken to ensure better protection or anonymity of the witnesses in question…the whole preoccupation appears to be that of giving the prosecution another shot.
More generally, the focus in the Appeal Judgment is completely on the prosecution’s possibility of hearing the two witnesses. The first version of the Judgment even contained the finding that the Trial Chamber had ‘inappropriately prioritized logistical considerations over the Prosecutor’s right to a fair trial, which was luckily corrected a few days later into ‘…over the Trial Chamber’s duty to safeguard the fairness of the proceedings’, which is still a bit problematic, since in this case it seems not to take into account the rights of the accused. In fact, any concern about the accused’s right to a fair trial is simply absent. The Appeals Chamber justifies this approach by stating that the Trial Chamber balanced the interest of the OTP to hear these witnesses against ‘witness scheduling, trial logistics, and deadlines’, and in that in that respect the former interests wrongly prevailed. This would of course be right, but the question in the Trial Chamber’s mind was more probably, how to ‘ensure the fair and expeditious conduct of the proceedings as well as the protection and well-being of witnesses who appeared before it’ (par. 6 of the Trial Judgment). This is also obvious enough from Trial Chamber’s decisions and from the trial record, if not from common sense. The Appeals Chamber did not spend a line on this.
e) No need to appeal at trial when you can do so on appeal!!!
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 expect an outcry from 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 considered this failure to appeal not a mistake of the Prosecutor, but rather an error of Trial Chamber!
In practice, 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 a very strange possibility to allow for prosecuting authorities! Are or should there be limitations to this right to appeal?
f) The retrial
The choice 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 (Blaskic, Mrksic and Sljivancanin etc). In this case, the Appeals Chamber did not require the Prosecutor to prove that a re-trial would be helpful – there is nothing in the Appeals Chamber’s judgment hinting 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. One wonders 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 ‘re-trial’.
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. In fact, as the US Supreme Court stated in a case of mistrial: ‘[…] a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted … Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.’ (Arizona v. Washington, 434 U.S. 497, 503-05 (1978)). Whether the Haradinaj case does fall within this mistrial concept is not certain, but what certainly is, is that a better rationale for the outcome and some guidance would have served the interests and the proper administration of international justice.
In sum, as the 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. 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. Hopefully the next two judgments on the matter (re-trial and eventually re-appeal) will address the law and the facts of this case as they really are. How the holdings of the Appeals Chamber will be considered by the new trial chamber in this context are also important: is the new trial chamber bound by the assessment that there was intimidation (considering that no such finding was made by the trial chamber)? Are the new judges bound to consider that both witnesses had been indicted, even if it turns out that only one actually was? Nobody knows!