Trial Chamber's Frankenstein: Res Judicata & Judicial Notice v Presumption of Innocence

In one of its latter-day (2011) acts the Court added a severance provision to the Internal Rules (‘IRs’). This provision (Rule 89ter) states that “[w]hen in the interest of justice so requires, the Trial Chamber may at any stage order the separation of proceedings in relation to one or several accused and concerning part or the entirety of the charges contained in an Indictment [;] [t]he cases as separated shall be tried and adjudicated in such order as the Trial Chamber deems appropriate.” Severing particular accused from the group is not a tough concept to grasp, is of little essence to these proceedings (other than their length associated with severance) and is of absolutely no interest to the Constitution of this country or to me. What is of interest to me and this country’s Constitution is the second part of the Severance Provision, i.e. “concerning part or the entirety of the charges contained in an Indictment”. The Trial Chamber tells us that the meaning of “charges” in the Severance Provision is to be understood not only as charges of crimes but also charges of crimes allegedly committed at a particular time within the Court’s jurisdiction or in a particular place. As such, the charge of murder as a crime against humanity, for example, can be split into a number of Trial Chamber-created thematic units based on time, place, etc. (e.g. murder as a crime against humanity committed during the evacuation of the cities in 1975). The Trial Chamber tells us that this is a fair reading of “charges” of the Severance Provision. Let’s see if it is. The Trial Chamber split up Case 002 into the so-called “mini-trials”. The first of these mini-trials is presumably coming to an end. What is going to happen at the end of the first mini-trial is a judgment. Let’s say that the judgment results in a conviction (on all counts, some or one). The judgment will doubtless be appealed to the Supreme Court. The Trial Chamber will not have to wait (Trial Chamber agrees with this projection but not the Co-Prosecutors) for the Supreme Court to rule on the judgment to start the second mini-trial. Somewhere in the middle or towards the end of the second mini-trial (the Supreme Court will be under tremendous pressure to deliver as soon as possible), let’s say, the Supreme Court hands down a decision on the appeal of the judgment upholding the verdict part of the judgment (in some form). The accused in the second mini-trial are now convicted persons with the force of res judicata. Let’s say that one of the convictions is murder as a crime against humanity. It is doubtless that the same charge will be applicable to the second mini-trial. At that point, the Trial Chamber will be trying the same individuals on a charge on which they by then will have been convicted, except that the second trial will add a new set of facts to it (e.g. this time it will be murder as a crime against humanity for the executions in the cooperatives). This will go on, from mini-trial to mini-trial. What does this remind me of? Let’s see, oh, yes, the Milosevic trial. And what happened there? But the death of the accused prior to the conclusion of these proceedings is not as much of concern to me as constitutional rights. There is a little known right in this country’s Constitution called the presumption of innocence. I know the Trial Chamber has just the plan to ensure that its mini-trial arrangement comports with that constitutional right. I do not know what that plan is and I do not know anyone who does but we are all on pins and needles to find out. In their latest immediate appeal the Co-Prosecutors convey their concerns about the manner in which res judicata and judicial notice could be ascertained if the second trial in Case 002 goes ahead before the Supreme Court puts out an appeal judgment on the first one. Res judicata is a valid point but judicial notice is a matter of time-saving for the Court and the worst thing that can happen is that the absence of determination of what is and what is not a matter of judicial notice will prolong the proceedings. As such, the issue of judicial notice has no constitutional implications and the issue of res judicata has some. If the Court decides to delve into these issues, it will do well by first dealing not with something that has no or some constitutional implications but with that which happens to be a constitutional right, the presumption of innocence. Until the Court tests the Trial Chamber’s Case 002 Frankenstein-like arrangement for constitutionality, none of the other issues of this arrangement need to be entertained.