As of July 5, the Specialist Chambers and the Specialist Prosecutor’s Office have been fully judicially operational and at any moment now we can expect to read about potential indictments and trial dates. There was an initial false-start, in which the Rules of Procedure and Evidence were found to be inconsistent with the Constitution, but these rules have now been revised and found to be compliant.

There are not so many more things that one can write about the legal framework of the Specialist Chambers and Specialist Prosecutor’s Office before the trials begin and the indictments are issued. But before the trials begin and the focus is shifted, let’s focus on one last potential controversy in relation to the law and Rules of Procedure and Evidence.

Throughout its formation, the protection of witnesses and a focus on the victims has been one of the major points of the Specialist Chambers. It was a point stressed again by Ekaterina Trandafilova, president of the Specialist Chambers, last week in an interview for BIRN, in which she repeatedly emphasized that the court would protect its witnesses properly — a failing in previous attempts to prosecute Kosovo Liberation Army fighters. They have effective tools and procedures in place to do this, she said, and they will succeed in protecting witnesses.

Nevertheless, despite the promises there is one particular rule in the Rules of Procedure and Evidence that might just undermine them — Rule 155.

The innocuous sounding rule relates to the admission of written statements of unavailable persons and of persons subjected to interference. But it is similar to a rule used in the International Criminal Court — Rule 68 — that has caused problems in the past, and a look at the two rules side by side highlights potential issues down the line.

Rule 155 — what about it?

According to this specific rule:

“Evidence in the form of a written statement, any other record written or otherwise expressed of what a person has said or transcript of a statement by a person who has died or who can no longer be traced with reasonable diligence, or who is by reason of physical or mental impairment unable to testify orally, may be admitted, whether or not the written statement is in the form prescribed by these Rules, if the Panel is satisfied.”

In laymen’s terms what this rule stipulates is that a written statement given by a witness at the beginning of the investigation can be used later on during the proceedings even if the witness is dead, cannot be traced or is mentally unfit to testify — even if the statement is not in the form ordinarily required by the Rules of Procedure and Evidence.

The only conditions are that the Panel (of judges) must be satisfied that the person is unavailable or unable to testify orally, and that the statement, record or transcript is prima facie reliable, with regard to the circumstances in which it was made, recorded and maintained.

These in themselves are very broad criteria that might lead to protracted discussion and clashes when it comes to the admission of written statements as the Panel may consider any relevant evidence, including written evidence, for the purpose of applying this rule.

How has a similar rule worked in practice?

The similar Rule 68 of the ICC’s Rules of Procedure has already been shown to contribute to delays and uncertainty in trials.

Like with the Specialist Chambers’ Rule 155, the ICC’s Rule 68 permits the admission of prior-recorded testimony of witnesses in certain circumstances, such as if the witness has subsequently died or is presumed dead or unavailable to testify orally; the recorded testimony can also be accepted from a person who has been subjected to interference relating to the physical, psychological, economic or other interests of the person. The conditions in which the ICC Trial Chambers are supposed to accept a previously recorded testimony are that both the Prosecutor and the defense have had the opportunity to examine the witness during the recording.

As with the Kosovo Specialist Chambers’ Rule 155, both these conditions are very broad and leave room for interpretation and discussion.

This was exactly the case with the ICC’s case of Ruto and Sang, in which William Samoei Ruto and Joshua Arap Sang were accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in the context of the 2007-08 post-election violence in Kenya. This case specifically was full of allegations of witness tampering due to the fact that a considerable number of witnesses for the Prosecution, after giving their initial testimonies, either changed them or refused to cooperate any further.

The Prosecution’s stance was that the witnesses were being threatened and intimidated as well as bribed and that’s why they were changing their minds, while social media and blogs were also being used to expose the identities of these witnesses.

Significant delays in the process were caused due to the unclear situation of what was happening with the witness testimonies and whether they would be permitted as admissible or not. Hence Rule 68 and the issue of prior-recorded testimony became the main concern during this trial, as the statements of 16 witnesses, who had subsequently recanted their statements or refused to testify due to fear of reprisals, threats, intimidation or bribery, were ultimately deemed admissible. This created a domino effect, causing other witnesses to flee ahead of testifying.

Ultimately, in 2016, the ICC’s Trial Chamber decided by majority that the case against Ruto and Sang be terminated.

Could Rule 155 cause familiar problems?

We all know that almost every single justice process with regard to war crimes that Kosovo has gone through, including but not limited to UNMIK, EULEX and the ICTY, has been faced with witness protection and witness testimony problems. It is an accepted fact for many that the lack of trust from Kosovars in witness protection programs is a major problem that the international community has faced, including with the Specialist Chambers; revelation of protected witnesses identity has already been a crucial part of the whole problematic process of getting testimonies.

Bearing in mind the problems faced by the ICC with a similar rule to Rule 155, the cases in the Specialist Chambers may well become controversial and last a very long time.  

A rule such as Rule 155 can be risky if used often or improperly and may lead to a focus on obtaining witness testimony at the expense of actually protecting them. The usage of the rule does not provide safety for witnesses, nor does it give them the option to opt out of the process once they have decided to speak up. Their testimony can, and probably will, become a part of the whole process, even if the witness is faced with threats. The main focus ought to be on protecting these witnesses from potential threats, rather than finding a way to use their testimonies even after threats have been made and they want out.

This is only a hypothetical scenario analysis, looking ahead at potential issues. But it is very important to consider at this stage, given that we have the option of relying on preventive measures of ensuring witness protection rather than reparative ones.

Feature image: Majlinda Hoxha / K2.0.