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On July 21, 2010, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), with President Robinson dissenting, granted the prosecution’s appeal for a partial retrial in the case of Ramush Haradinaj, Idriz Balaj, and Lahi Brahima. The retrial is based, in part, on charges relating to allegations of prisoner abuse at a Kosovo Liberation Army (KLA) detention facility in Jablanica where Haradinaj commanded KLA troops; Balaj, Haradinaj’s subordinate, commanded a special military unit; and Brahimaj, also Haradinaj’s subordinate, was a regional deputy commander. In the first instance, Trial Chamber I found the evidence before it was insufficient and acquitted all three of the accused of operating a joint criminal enterprise. The Appeals Chamber ruled that Trial Chamber I erred by constraining the prosecution to pre-determined time limits to present its case despite allegations of witness intimidation; by failing to properly respond to specific requests by the prosecution; and by failing to act proprio motu to facilitate witness testimony. Furthermore, the Appeals Chamber concluded that Trial Chamber I’s presumptions in the interest of efficiency compromised the fairness of the proceedings in light of witness intimidation. The conflicting rulings by the Trial Chamber and the Appeals Chamber in Haradinaj et al highlight the inherent challenges of compelling unwilling witnesses to testify. The Appeals Chamber based its decision on the Trial Chamber’s failure to facilitate the testimony of two unwilling witnesses who were present at the Jablanaca camp: Shefqet Kabashi, a former KLA prison camp guard and a protected witness who was imprisoned at the camp. The prosecution asserted that these witnesses possessed direct evidence as to the guilt of the accused, but the witnesses refused to testify out of fear and intimidation. Kabashi had requested that protective measures be lifted because he did not believe they worked. He claims that he had received threats in previous cases at the ICTY where other protected witnesses had been killed.  In lieu of an indictment, Trial Chamber I issued an order against Kabashi for contempt under Rule of Procedure and Evidence 77 when he refused to answer questions in court and then refused to testify via video conference after fleeing to the United States. Under Rule 77, Trial Chamber I could direct the prosecution to investigate the matter, initiate procedures itself, or have the registrar appoint an amicus curiae to investigate. In addition, Trial Chamber I, in opposition to the prosecution’s requests, held the prosecution to its previously allotted time in presenting its case. The prosecution is likely to seek testimony from Kabashi and the former KLA prisoner in the retrial to support joint criminal enterprise charges. The Appeals Chamber based its ruling in Haradinaj et al on what it regarded as an improper balance, struck by the Trial Chamber, between witness intimidation and trial expediency. Given the importance of the witnesses’ testimonies to the prosecution’s case, the Appeals Chamber held that the Trial Chamber’s decision “undermined the fairness of the proceedings . . . and resulted in a miscarriage of justice.” It would be a gross oversimplification to say the takeaway from the Appeals Chamber’s ruling is that fairness considerations trump efficiency concerns. However, witness intimidation complicates ICTY procedure and, in addition to adjudicating cases, Trial Chambers are ultimately responsible for protecting witnesses in the interests of fairness and efficiency. In cases where witness intimidation is a factor, the Appeals Chambers’ ruling also establishes that the Trial Chambers must be particularly cautious when implementing time constraints to avoid sacrificing fairness in the interest of efficiency.