Literature Review: Rule of Law Lessons Learned from the UN Mission in Kosovo (UNMIK) (CR 09-006)

Literature Review:Rule of Law LessonsLearned from the UNMission in Kosovo(UNMIK)

INPROL Consolidated Response (09-006)

With contributions from Gary Hill, Ngozi Nwosu, Valeza Oruqi, Eric Scheye and William Sells Research assistance provided by Yolande Bouka,Shamus Brennan, Eve Grina, and Morgan Miller Finalized by Scott Carlson and Michael Dziedzic

INPROL is a project of the United States Institute of Peace with facilitation support from the Center of Excellence for StabilityPolice Units, the Pearson Peacekeeping Centre, the Public International Law & Policy Group, the Swedish Police Peace SupportOperations and the United States Department of State's Bureau of International Narcotics and Law Enforcement Affairs.

L

ITERATURE

R

EVIEW

:R

ULE OF

L

AW

L

ESSONS

L

EARNED FROM THE

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ISSION IN

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OSOVO

(UNMIK)

INPROL Consolidated Response (09-006)

October 2009

Submitted by:

Rob Pulver, UN DPKO/CLJAS

Drafted by:

Yolande Bouka, Research Assistant, U.S. Institute of Peace (USIP);Shamus Brennan, George Mason University School of Law, Research Assistant, Ruleof Law (ROL) Program, USIP, Eve Grina, William & Mary Law School, ResearchAssistant, ROL; Morgan Miller, Program Assistant, USIP; finalized by Scott Carlson,ROL Facilitator

With contributions from:

1.

Gary Hill, INPROL Corrections Facilitator

2.

Ngozi Nwosu

3.

Valeza Oruqi

4.

Eric Scheye

5.

William SellsThe full text of the responses provided by these INPROL members can be found athttp://inprol.org/node/4469. INPROL invites further comment by members.

Note:

All opinions stated in this consolidated response have been made in a personalcapacity and do not necessarily reflect the views of particular organizations. INPROLdoes not explicitly advocate policies.

October 2009 INPROL Consolidated Response (

09-006

) Page 1 of 79

Background:

The United Nations Department of Peacekeeping Operations (DPKO), the UnitedNations Office of the High Commissioner for Human Rights (OHCHR), and the UnitedStates Institute of Peace (USIP) have jointly undertaken a lessons-learned study,examining the first ten years of operation for the United Nations Mission in Kosovo(UNMIK). The following information describes the terms of reference for this study andprovides context for the literature review that follows.

Origins of UNMIK

Security Council resolution 1244 (1999) of 10 June tasked UNMIK with “[p]erformingbasic civilian administrative functions where and as long as required; [o]rganizing andoverseeing the development of provisional institutions for democratic and autonomousself-government pending a political settlement, including the holding of elections; and[t]ransferring, as these institutions are established, its administrative responsibilitieswhile overseeing and supporting the consolidation of Kosovo's local provisionalinstitutions and other peace-building activities (OP 11 (b), (c) and (d)). OP 11(j) alsostipulates the mandate of “[p]rotecting and promoting human rights”.Paragraph 66 of the Secretary-General’s report dated 12 July 1999 (S/1999/779)directed “the immediate re-establishment of an independent, impartial and multi-ethnic judiciary’. At paragraph 72 of the same report, UNMIK was instructed to “re-establishand reform the correctional system in Kosovo, in a legal and operational framework thatis consistent with international prison standards…. [and] recruit, select and train new aswell as former staff of these prisons, applying the highest international standardsregarding prisons and human rights”. According to paragraph 1 of UNMIK RegulationNo. 1999/1 of 25 July 1999, “[a]ll legislative and executive authority with respect toKosovo, including the administration of the judiciary, is vested in UNMIK and isexercised by the Special Representative of the Secretary-General”.In July 1999, the Department of Judicial Affairs, the precursor to the Department of Justice (DoJ), was established, and the international judges and prosecutorsprogramme was created in February 2000. The DoJ’s core mandate was to build amulti-ethnic, independent, impartial and competent judiciary, while ensuring in theshorter term that inter-ethnic and organized crimes are prosecuted and adjudicated byinternational judges and prosecutors. It was also responsible for administering thecorrectional system in Kosovo, for identifying persons from all communities who are stillmissing from the conflict in Kosovo, and for establishing local justice institutions such asKosovo’s Ministry of Justice. The DoJ comprised the Judicial Development Division,International Judicial Support Division, Criminal Division, Penal Management Division,and Office on Missing Persons and Forensics. In time, the International JudicialSupport Division became the largest division, employing over 150 judges and