Partial retrial ordered in Haradinaj

The ICTY Appeals Chamber just released its Judgment in the Haradinaj, Balaj and Brahimaj case. The Trial Chamber, in its April 2008 Judgment had acquitted the first two, and convicted the third for two counts of torture. The Appeals Chamber decided, with the President Judge Robinson dissenting, to partially quash the two acquittals and order a partial re-trial, because:

49. [...] the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial and, in particular, to facilitate the Prosecution’s requests to secure the testimony of Kabashi and the other witness. Given the potential importance of these witnesses to the Prosecution’s case, the Appeals Chamber finds that, in the context of this case [of systematic witness intimidation], the error undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.

Several comments about this decision.

For one, the basis for the motion by the Prosecutor was a "breach of the Prosecution's right to a fair trial". But since when does a Prosecutor have fair trial rights? He's an organ of the judicial system. Fair Trial rights exist to protect the defendants in their relation with the judiciary, not one organ of the judiciary against another organ of the judiciary. As Patrick Robinson puts it in his dissenting opinion:

17. By virtue of the burden placed on the Prosecution to prove the guilt of the accused person beyond reasonable doubt, the position of the Prosecution is in many ways different from the position of the accused person. Thus, the Prosecution has duties, which the Defence does not have, and the Defence has rights, which the Prosecution does not have. Properly analysed, the relationship between the Prosecution and Defence is not symmetrical; it is, because of the aforementioned burden, asymmetrical.

This is yet another example of a misapplication of human rights principles due to the decontextualisation of the reason of their existence and therefore a complete misunderstanding of their ethos and telos. In a similar fashion, the ICC Prosecutor had claimed a "right of appeal" when leave to appeal had been refused in the early witness participation decisions in the DRC situations. The Appeals Chamber at the time had rejected the motion.
It should be pointed out, however, that in the course of its reasoning, the Chamber does not really take up this idea of "prosecution fair trial rights". It does so once:

46. this decision again inappropriately prioritised logistical considerations over the Prosecution’s right to a fair trial.

[UPDATE: The Chamber issued on 23 July a corrigendum where it says that in paragraph 46, it meant to say "fairness of the proceedings" and that the mistake is due to a "clerical error". Blame it on the clerks... I'm sure that explains Tadic as well...]

but refers more generally to the "fairness of the proceedings", as illustrated by the above quoted passage. This is far less controversial, and shows that the issue could have been solved without opening the can of worms of Prosecution rights. And it therefore begs the question of why the Prosecution framed the question in this way in the first place. One worrying conclusion is that the OTP (and the Chamber when it picks up on it that one time) didn't see the semantic difference between "interests" (which the Prosecutor has), "rights" (which the Prosecutor doesn't have) and "the fairness of the proceedings" (as a general principle of good administration of justice). You would expect professional jurists to know that words have a meaning...

The Appeals Chamber missed an opportunity to explicitly reject the Prosecutor's reasoning. What it does here is a little more confusing, because it agrees with the Prosecutor, but doesn't clearly indicate that it is so doing on a different (and more accurate) reasoning, as you generally see in decisions. [Reading the judgment too fast the first time around, I actually got confused and, in the absence of a clear rejection of the OTP's reasoning, attributed the Prosecution argument to the Appeals Chamber. Thank you to my anonymous commentator for setting the record straight! And in my defense, the Chamber does refer to "Prosecution fair trial rights" once and Robinson himself must have considered the majority decision unclear, because he takes upon himself to clarify the situation.]

A problematic aspect is the standard of review. Given that the Trial Chamber was exercising a discretionary power, it has a certain leeway in its decision-making which in turn usually means that the Appeals Chamber only interferes when there is an obvious misuse of discretion. However, what the Appeals Chamber does here is substitute what it would have done if it had been the Trial Chamber. This is beyond the scope of the function of the Appeals Chamber, as highlighted in Judge Robinson's dissent:

7. The question of how many extensions to grant, whether one, two, or one hundred, or whether to stay or adjourn the proceedings, relates to the detailed day-to-day management of the case and is a matter best determined by the Trial Chamber in light of all the relevant circumstances. This is not a judgement for the Appeals Chamber to make. I would have granted more than three extensions or adjourned or stayed the proceedings, and the Majority itself might have done the same, but that is irrelevant. For it is not the appellate function to determine the sufficiency of the extensions granted by the Trial Chamber absent a clear indication of an abuse of the Trial Chamber’s discretion. And were we to do so, we would simply be substituting our own exercise of discretion for that of the Trial Chamber without any proper basis.

In effect, it appears from the Judgment that the Trial Chamber did in fact take into account the circumstances of the case and the importance of the witnesses by granting three consecutive extensions to the Prosecutor in order to allow him to secure witness testimony, so clearly, on the face of it, it did take into account relevant factors for the exercise of its discretion.
More generally, given the length of proceedings at the ICTY, the idea that the Prosecutor is not given enough time seems slightly puzzling. In this case, the indictments were issued in March 2005 (so presumably, the investigation had already been going on for a while), it took 2 years for the trial to begin in March 2007, and it lasted about 10 months, until January 2008. Even accounting for the specific difficulties of international investigations in difficult circumstances, you'd expect the Prosecutor to have had enough time to prepare a good case in that time and that its solidity would not depend on a last minute hiccup with a couple of witnesses... and even in this event, there comes a moment when it is legitimate for a Trial Chamber to move the proceedings forward in the interests of the defendants and in light of the right to be judged without undue delay. In the absence of proof of witness intimidation or tampering, at some reasonable point in time, the Defendant should not bear the consequences of the Prosecution's failure to secure sufficient evidence for a conviction.

A final general comment. Once again, we have a dissenting opinion which seems to make more sense than the majority decision. I'm not familiar enough with all the case-law of the tribunal to claim that dissenters always get it right, but my empirical experience is that I generally agree with the dissents (Schomburg on JCE, Pocar on reversal of acquitals). I think it might have to do with the fact that once a judge has taken the step towards dissent, he frees himself of the shackles of the internal politics of consensus which leads to sometimes inconsistently argued collective decisions, as illustrated in the present case, whereas dissenting opinions will have more chances of being intellectually consistent, and therefore make more sense. Any thoughts on that?