Courtney Curran is an Australia-qualified lawyer with domestic and international investigative and prosecutorial practising experience, and a final-year Faculty of Law Doctoral Fellow at the Irish Centre for Human Rights.
I highlight that all opinions are my own. I worked at the KSC for four months earlier this year as part of my PhD project. I conducted extensive archival research for evidentiary review purposes for the Defence team for Mr Kadri Veseli in the Thaçi et al. case [KSC-BC-2020-06]. I have had this article reviewed by Counsel to ensure they are happy for it to be published, as is my PhD supervisor. The Media section of the KSC have also been notified of same.
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Having recently completed a stint at the Kosovo Specialist Chambers (KSC), I returned to Australian legal practise with an obstinate question hanging over my head that regrettably had the effect of stalling my PhD thesis-writing progress. Already juggling the care of our gorgeous 15-month-old twins, two work schedules, and attempts to maintain some semblance of a social life, we truly did not need any other distractions. Still, for my research waning to get back its (sporadic) waxing, I needed the space of mind to explore this annoyingly persistent question. I capitulated, as did my husband, taking some precious PhD-allocated time to thrash some ideas out. Fortunately, this pondering builds on my doctoral research that explores the uses of archives in transnational, transitional justice (TJ) cases addressing international criminality, with the view to strengthening expansive jurisdictional pathways toward accountability. Illustrative of the unanticipated pathways of archives, their versatility and veracity, the following observational fodder concludes with suggestions concerning their uses in downstream TJ mechanisms that interestingly/thankfully support aspects of my preliminary PhD findings.
The question staring me down was:
How should ad-hoc tribunals aptly deal with court documents, such as witness statements and exhibit material relied on by judges during adjudication of past—sometimes only loosely—related cases, in present proceedings?
A nagging uncertainty about the use of archival material arose out of my work at the KSC on the proverbial ‘dark side’. It was my first time working in the Defence corner, activating a Defence practitioner’s mindset that I never knew I had, which I found to be startlingly eye-opening. I essentially was responsible for crunching piles of potentially relevant material—such as witness statements and exhibit material from the International Criminal Tribunal for the former Yugoslavia (ICTY) and other local court cases, reports of human rights organisations and contemporary media reporting, as well as witness versions compiled for present purposes—and synthesising it into (hopefully) useful strategic suggestions to Counsel in furtherance of my team’s case.
Coming from a background of prosecutorial and investigative legal work, I am no stranger to wading through voluminous evidentiary material to buttress witness examination plans and to build intricate and lengthy briefs of evidence. I have on too many occasions become all too familiar with quirky (to put it one way) habits of suspects and persons-of-interest gauged from poring over telephone call and message logs, email threads and the like to bolster application material for covert warrants, to further lines of inquiry, or to reinforce or negate allegations made. However, litigation at the KSC was an entirely new beast, colossal in size and illimitable in complexity. I found the complicating feature to be the necessity to consult the ICTY-generated, seemingly endless well of jurisprudence, procedure and findings in digitised databases, material of which was not always subject to disclosure. Because of the sheer volume of disclosed material together with the ICTY archival pool of potentially relevant evidence, as well as the need to review volumes of documentary evidence and precedent connected with local court cases, I found it worryingly possible to miss what could be relevant evidence.
This article attempts to respond to the above-stated question by posing three postulations to prime rumination, salvaged from the KSC documentary underbelly. First up, discussion of how archival material from the ICTY may be used to demonstrate inconsistencies in versions provided by prosecution witnesses, to verify or water-down assertions made, or to shine new light on a significant statement or event, is presented. Second, findings made by other judicial outfits are postulated as must-reads to ensure the law is consistent and to respect fundamental principles such as the doctrine of precedent or stare decisis in absence of cogent reasons to deviate. And thirdly, the witness line-up for cases dealing with similar factual matrices vary, and in actuality, it is the role of Defence to develop plausible reasons for why certain witnesses may or may not have been called. It is hoped some of my learnings about the KSC’s admissibility regime, its hybridised procedural landscape, and its torrents of evidentiary webs may show the value of historical archives if identified and ‘activated’ with informed precision and care.
Archival incongruities
Given the task of evidence review in preparation for the cross-examination of an upcoming witness, I began with the unimaginative approach of reviewing all the material that had been disclosed by the SPO. My review was satisfactory; it seemed the witness was unremarkably professional and consistent, and therefore likely to be taken as a reliable source of information. I noticed the witness had given evidence in prior court cases given her/his then senior role of a human rights organisation at relevant times, including at the ICTY and in local court proceedings in Pristina, Kosovo. I started to review court documents from those proceedings, including transcripts of evidence given by that witness and other witnesses who gave evidence about similar people and or events, exhibits, judgements, and related media reporting.
This documentary assortment started to mute the rose-colour from my glasses as the more I read, the more convinced I became that this individual in fact had a proclivity for publicity, a seeming hunger for power no matter the consequence to others, and a tendency to gloss over finer methodological details to ensure project aims were delivered at any cost so as to maintain personal and professional authority. These patterns of behaviour were crystallised from the additional materials I found and assessed that were drawn from digitised archival databases disassociated from the KSC. I could now see that by presenting the judiciary with these counter-narratives, the witness’ overall credibility may be negatively impacted, the exhibit material sought to be tendered under their hand thereby tainted, and as an unforeseen personal consequence, the value I ascribed to Defence work sky-rocketed in significance.
Should I have stuck to reviewing only the disclosed materials, what would have played out in court? Would some of the materials I unearthed from the ICTY databases have been found and put before the court by another Defence team? Would the version of the witness the SPO presented have been the only version presented in evidence? If one accepts that narratives drawn from judicial organs also produce historical accounts, impeding Defence from submitting plausible alternative hypotheses likewise obstructs comprehensive fact-finding as a crucial component to legitimate truth and justice seeking.
Consistency is Queen
Another fundamental pillar to legal justice is consistency in its application to ensure predictability and stability unless cogent reasons exist not to in the interests of justice. Although not strictly imbued in international legal architecture, the doctrine of precedent or stare decisis is nevertheless overwhelmingly adopted to further those ends. The current practise elucidated from the ad hoc tribunals is to uphold findings of law as authoritative even where previous decisions and judgements are not strictly binding. Guénaël Mettraux explains that ‘the almost artisanal and academic approach’ of some earlier judgements of the ad hoc tribunals—where courts would expansively explain positions reached with reference to external authorities—has been circumscribed in favour of ‘a more mechanical, almost autarchic approach’ due at least in part to ‘the pressure of time heavy of the Chambers’. This position is important to keep front of mind (not only due to Mettraux being a judge on one of the KSC’s Panels) but mainly because prior judicial analysis exists that has already attributed evidentiary weight to archival material being litigated in present proceedings.
Applying Mettraux’s logic, relevant previous judgements and decisions ought to be referred to and upheld unless there are convincing reasons in the interests of justice to permit deviation. There have been decisions reached at the ICTY concerning the admissibility of organisational reports for example, that therefore require consideration. In instances where the evidentiary value of documentary material has been forensically assessed and formally delivered by a Trial Chamber, and when the same documentary material is proposed for use in downstream court processes, ventilation of those findings is obliged. Of course, any temporal gap since the original decision or findings and present proceedings ought to be taken into account, as should relevant jurisprudence developed since that time be heeded.
Lofty line-ups
A final observation is the selection and scheduling of SPO witnesses that vary from case to case despite having been built on strikingly similar (alleged) factual and evidentiary platforms. Sometimes, the same witnesses are called to given evidence time and time again while others seem to be dropped from the witness line-up for reasons one can only guess at. To take some of the guesswork out of this equation, knowledge bases are formed to allow Defence to look at an upcoming witness’ evidence in relation not only to their prior evidence, but also to their associates’ evidence given in prior cases. Even if those associates have not been called to attend present proceedings, their views may verify or negate assertions made by the subject witness or may identify areas of evidence that are confronting to the SPO’s case.
Again, archives rear their heads as critical sources of information. Archives can operate as historically lodged stones to help guide the judicial passage through ravines of myth and truth, fact, and fallacy. Time can augment memory, dilute tension, or further ingrain prejudices. As articulated by Dutch archivist Eric Ketelaar, archives will remain ‘tacit narratives’ until their functionality as ‘searchlights’ is switched on to ‘colour-in’ allegation outlines, and to expose potentially obscured versions of events.
I have discovered first-hand the power of positioning in the international criminal justice arena: archival identification, selection and interpretation has an immense role to play in presenting and reinforcing some truths, and perhaps not others. For this reason and consistent with some of my preliminary PhD findings, I suggest the incorporation of archivists into teams working on cases before courts addressing international criminality (be they local, regional or international). Specialist archivists have proven to bolster the work of Prosecutorial and Defence legal teams alike by ensuring important evidence and related judicial determinations are not overlooked. Identifying and cataloguing archival material into logically structured repositories can expedite evidence review and mitigate against the possibility of failing to locate relevant evidence. Effective archival approaches strengthen future truth, justice and memory related initiatives as affected communities continue to activate such records in innovative, courageous ways.
Irish Centre for Human Rights 