On Nov. 2, former Kosovar liberation fighter turned politician Isni Kilaj was arrested in Kosovo and transferred to The Hague, where the Kosovo Specialist Chambers (KSC) sit. He is suspected of offences against the administration of justice, as laid down in the Kosovo Criminal Code, including obstructing officials in the performance of their official duties and violating secrecy of the KSC proceedings. Kilaj’s arrest is the third for alleged contempt of court out of the KSC in the past two months. At first blush, such contempt cases seem marginal to, or even a distraction from, the core business of war crimes and crimes against humanity prosecutions that the KSC conduct. Yet, the reality is that such proceedings are integral to the project of accountability.
The KSC and Specialist Prosecutor’s Office (SPO) are probably best known in the United States for being the former employer of Special Counsel Jack Smith. They were established pursuant to an international agreement ratified by the Kosovar parliament and are incorporated in the constitution of Kosovo. Unlike most international criminal tribunals – even hybrid ones – the KSC does not have a statute, but applies the Law on Kosovo Specialist Chambers and Specialist Prosecutor’s Office, which incorporates many elements of international criminal law and gives the tribunal jurisdiction over crimes against humanity, war crimes, and specifically named crimes under Kosovo’s domestic criminal law committed between Jan. 1, 1998, and Dec. 31, 2000, by or against citizens of Kosovo or the Federal Republic of Yugoslavia. (For a general overview of the KSC and SPO, see here and here.)
This article sets out how the offenses against the administration of justice proceedings, so-called contempt cases, fit within the broader international criminal law system, with its focus on crimes such as genocide, crimes against humanity, and war crimes (see, e.g., the ICTY Statute, ICTR Statute, SCSL Statute, and the Rome Statute).
Contempt Cases Before International Criminal Courts and Tribunals
Contempt trials have been a feature of previous international criminal legal proceedings, including at the International Criminal Court (ICC) and the ad hoc tribunals (i.e., those created for prosecutions related to a particular conflict).
Among the ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) held 23 contempt cases against 28 suspects, while the tribunal’s residual mechanism has outstanding arrest warrants for two more suspects. The suspects in these contempt cases consist of both accused persons and third persons who were not otherwise involved with the Tribunal, including the (in)famous Florence Hartmann case against a former spokesperson of the Office of the Prosecutor. The International Criminal Tribunal for Rwanda (ICTR) held five contempt proceedings, related to providing false testimony and witness interference.
At the Special Court for Sierra Leone (SCSL), a hybrid tribunal like the KSC, 12 persons were prosecuted for contempt across seven trials, for either witness interference or disclosure of confidential information. The Special Tribunal for Lebanon, another hybrid tribunal, only had one core case, but in addition prosecuted two journalists and two media offices for contempt of court, leading to the conviction of one journalist and media company and a conviction for the others.
At the ICC, out of the 40 public arrest warrants, eight were for so-called “Article 70 offenses,” i.e. offenses against the administration of justice, but five of the ten ICC convictions were for such crimes. In other words, half of the ICC’s convictions were for violations of Article 70 of the Rome Statute. (While in my view the achievements of an international criminal court or tribunal ought not to be measured by the number of convictions, this is often the way how the public-at-large judges these institutions.) In addition, public information shows that more Article 70 investigations have taken place, but they did not result in (applications for) arrest warrants (see also here at pp 16-17).
Compared to regular international crimes cases, which generally relate to events that took place several or many years ago, and for which investigations could only start quite some time after the alleged conduct took place, investigations related to interference with the administration of justice can take place soon after the alleged offense. Moreover, as opposed to war crimes, for example, which necessarily take place in a situation of armed conflict with concomitant chaos and challenges to collecting evidence, contempt of court usually takes place once the conflict, or situation that gave rise to the core mandate, has ended. The evidence in contempt may therefore not only be easier to obtain, but also stronger. Where regular war crimes cases often rely on witness testimony, given many years after the fact, the evidence in contempt cases is of a different nature. In the Bemba et al. contempt case at the ICC, for example, much of the evidence consisted of the actual words of the suspects, captured by way of phone taps.
Contempt Cases at the KSC
As noted above, the KSC has two pending contempt cases, and its first completed trial was also such a case. Compared to the ad hoc tribunals, which had to resort to inherent powers, and the ICC, which has a dedicated provision but a procedural framework focused on the core international crimes, the KSC has the advantage of being able to rely on Kosovo’s domestic criminal law, which has several specific provisions setting out different type of offense by which one can interfere with justice.
Contempt cases are an important tool to counter and discourage interference with the core purpose of an international tribunal, namely to prosecute and adjudicate international crimes. However, there is a risk that such cases will demand too many resources, which – given the generally limited size of these international institutions and funds that are generally geared towards investigation and trying so-called core crimes, may then result in challenges to achieve the institution’s goal.
The two ICTY cases related to, at least partially, the same alleged crimes committed by the Kosovo Liberation Army (KLA) resulted in several acquittals, due to, inter alia, witness intimidation, and led to several contempt cases for witness interference (see, e.g., here and here). It was therefore only logical to expect that the KSC, in order to ensure that it would be able to carry out its mandate, would also have to prosecute attempts to avert the administration of justice. Indeed, the ICTY trial chamber seized of the main case involving alleged KLA crimes found that “throughout the trial [it] 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.” It therefore “gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult.” (Haradinaj et al. first trial judgment, para. 6). The ICTY’s former Chief Prosecutor, Carla Delponte, whose book Madame Prosecutor spurred the call for further investigations in to KLA conduct resulting in the establishment of the KSC and SPO, recalled that “witnesses were so afraid and intimidated that they even feared to talk about the KLA presence in some areas, not to mention actual crimes.”
Mindful of the foregoing, the KSC was provided with a robust framework for witness protection; one that even allows, albeit in “exceptional circumstances,” for “total anonymity” of witnesses (Rule 80(4)(e)(ii) of the KSC Rules of Procedure and Evidence). As noted above, contempt proceeding have nonetheless become prevalent at the KSC. In addition, different panels of judges of the KSC have held that there is a “need to address the pervasive climate of witness intimidation and interference in Kosovo” (e.g., here at para. 28). Following the confirmation of the KSC’s Appeals Panel of the verdict in the first contempt case, the SPO stated that it “sends a clear message to anyone involved in witness intimidation, retaliation against witnesses and obstruction of justice” that “[t]he SPO takes these crimes extremely seriously and will continue to investigate and to prosecute anyone and everyone involved in every instance.”
Based on the current cases, the KSC does risk having the numbers run askew and, like the SCSL, end up with more contempt cases than “regular” trials. Be that as it may, the legacy of the KSC may ultimately not be affected by it, as people tend to remember only the core crimes cases. The number of accused brought before the SCSL as part of contempt cases, for example, is higher (12) than the total number of accused in the four crimes against humanity and war crimes cases (10), but the Special Tribunal is remembered for its judgments the core crimes, such as the RUF judgment and the one in the Charles Taylor case.
Moreover, bearing in mind the experiences of the ICTY, the contempt cases may be a necessary tool to assist the SPO and the judges of the KSC in carrying out their mandates, and, should challenges arise in this regard, creating a judicial record on why the mandate may only be partially fulfilled. Indeed, the SPO emphasized that the first contempt case had been “about the conditions required for the fair administration of justice and what is needed to make the rule of law a reality,” and that it would not be the last.
This article was written in the author’s personal capacity, and all views expressed here are his own.
IMAGE: The exterior of the Kosovo Specialist Chambers building in The Hague, Netherlands. (Photo by Pierre Crom/Getty Images)
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