Literature Review: Rule of Law Lessons Learned from the UN Mission in Kosovo (UNMIK

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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

LITERATURE REVIEW: RULE OF LAW LESSONS LEARNED FROM THE UN MISSION IN KOSOVO (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, Rule of Law (ROL) Program, USIP, Eve Grina, William & Mary Law School, Research Assistant, ROL; Morgan Miller, Program Assistant, USIP; finalized by Scott Carlson, ROL Facilitator With contributions from:
1. 2. 3. 4. 5.

Gary Hill, INPROL Corrections Facilitator Ngozi Nwosu Valeza Oruqi Eric Scheye William Sells

The full text of the responses provided by these INPROL members can be found at http://inprol.org/node/4469. INPROL invites further comment by members. Note: All opinions stated in this consolidated response have been made in a personal capacity and do not necessarily reflect the views of particular organizations. INPROL does not explicitly advocate policies.

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

Background: The United Nations Department of Peacekeeping Operations (DPKO), the United Nations Office of the High Commissioner for Human Rights (OHCHR), and the United States 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 and provides context for the literature review that follows. Origins of UNMIK Security Council resolution 1244 (1999) of 10 June tasked UNMIK with “[p]erforming basic civilian administrative functions where and as long as required; [o]rganizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections; and [t]ransferring, as these institutions are established, its administrative responsibilities while overseeing and supporting the consolidation of Kosovo's local provisional institutions and other peace-building activities (OP 11 (b), (c) and (d)). OP 11(j) also stipulates 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-establish and reform the correctional system in Kosovo, in a legal and operational framework that is consistent with international prison standards…. [and] recruit, select and train new as well as former staff of these prisons, applying the highest international standards regarding prisons and human rights”. According to paragraph 1 of UNMIK Regulation No. 1999/1 of 25 July 1999, “[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised 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 prosecutors programme was created in February 2000. The DoJ’s core mandate was to build a multi-ethnic, independent, impartial and competent judiciary, while ensuring in the shorter term that inter-ethnic and organized crimes are prosecuted and adjudicated by international judges and prosecutors. It was also responsible for administering the correctional system in Kosovo, for identifying persons from all communities who are still missing from the conflict in Kosovo, and for establishing local justice institutions such as Kosovo’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 Judicial Support Division became the largest division, employing over 150 judges and

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prosecutors. As local justice institutions were created and local capacity strengthened, the DoJ began to transfer some of its functions to these local bodies, while downsizing its own staffing. On 17 February 2008, Kosovo issued a declaration of independence and later adopted a new Constitution. The Secretary-General’s report dated 24 November 2008 (S/2008/692) set out the parameters for the deployment of the European Union Rule of Law Mission in Kosovo (EULEX) in the areas of policing, justice and customs, within the framework of Security Council resolution 1244 (1999). The Security Council Presidential Statement of 26 November 2008 (S/PRST/2008/44) welcomed the Secretary-General’s report dated 24 November 2008. On 9 December 2008, EULEX declared its assumption of full responsibility for rule of law functions throughout Kosovo. The DoJ ceased to function, and residual rule of law functions were transferred to UNMIK’s new Rule of Law Liaison Office, which has a liaison, and not an operational, role. Objectives of the UNMIK Lessons-Learned Study Following the end of the DoJ’s operations, UNMIK has requested that a lessons learned study be conducted of UNMIK’s justice operations, to identify best practices and lessons learned. Based on this request, a team comprising DPKO, OHCHR, and USIP staffers was dispatched to Kosovo to conduct the lessons learned study from 22 June to 1 July 2009. They analysed relevant documentation and conducted interviews with local and international stakeholders on the justice system, to identify the successes and lessons learned from UNMIK’s justice and corrections programme. Based on its findings, the team will draft best practices and lessons learned for a study on justice and corrections system reform, which will inform the future work of justice and corrections components in peace operations. Role of the Literature Review Prior to making a site visit to Kosovo, the team began reviewing and analyzing existing articles and other materials on the UN experience with the Kosovo justice and corrections systems. What follows in this Consolidated Response are excerpts that reflect a variety of professional observations that have been assembled to date. These references from the literature will be integrated into the overall lessons-learned analysis and study, and they will serve as a valuable supplement to the onsite interviews that involved a wide variety of officials from local justice and corrections authorities (including the Ministry of Justice and Kosovo Judicial Council), Kosovo Judicial Institute, UNMIK, EULEX staff formerly with DoJ, OSCE, Ombudsperson Institution, other civil society bodies and other local justice actors. This literature review is intended to be a living document that can be updated on an ongoing basis.

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Query: The United Nations Interim Administration Mission in Kosovo (UNMIK) has requested that a lessons learned study be conducted of UNMIK's executive justice and corrections activities. Based on this request, a small team will be dispatched to Kosovo to conduct the study. Prior to departure, the team will review and analyze existing articles and other materials on the Kosovo justice and corrections system, as a considerable amount of material has been written in this area. To facilitate this exercise, INPROL members are kindly requested to identify published works or other materials addressing UNMIK's justice operations to be consulted by the review team. Response Summary: The literature discussing UNMIK’s involvement in rule of law related activities is substantial. Though each particular work emphasizes different aspects of UNMIK, there are a number of similar, or common themes, that tend to emerge in the overall body of work on the topic. This Consolidated Response identifies a number of these themes, excerpting quotes from the literature to illustrate them.

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Table of Contents I. Lessons from Prior Missions Reaffirmed by UNMIK .....................................................7 1.1 Capacity building should be holistic........................................................................7 1.2 The UN mandate should provide adequate authority .............................................8 1.3 International integration of efforts is essential ........................................................9 1.4 An international crowd-control capacity may be necessary..................................12 1.5 Identifying, cataloguing, indexing and distributing the applicable law is crucial....13 II. Process of Establishment of DoJ ...............................................................................14 2.1 Proper assessments are needed..........................................................................14 2.2 There is a systematic incapacity to mobilize required personnel to address deficiencies in the criminal justice system ..................................................................16 2.3 The corrections system is a vital part of Rule of Law and must not be overlooked ...................................................................................................................................18 2.4 The Military Contingent may need to fill in critical gaps until international criminal justice capacity can be deployed................................................................................19 2.5 An interim international criminal code may be a vital tool for avoiding paralysis of the legal system .........................................................................................................20 2.6 Civil proceedings are vital for the resolution of property disputes ........................22 2.7 The availability and clarity of applicable law is essential to transparency.............23 III. Link between Police and DoJ....................................................................................23 3.1 The capacity to gather criminal intelligence is essential for successfully confronting violent threats to the mandate .................................................................23 3.2 The capacity to conduct criminal investigations is essential for successfully confronting violent threats to the mandate .................................................................25 3.3 The ability to conduct intelligence-led operations is essential for successfully confronting violent threats to the mandate .................................................................26 3.4 The ability to conduct high-risk arrests is essential for successful intelligence-led operations and confronting violent threats to the mandate.........................................27 3.5 A crowd-control capability is essential in confronting violent threats to the mandate .....................................................................................................................27 3.6 UN Police should be instructed and monitored for proper interaction with the public and held accountable for adherence to international standards.......................28 IV. Link between Executive and DoJ..............................................................................28 4.1 Measures to preserve the independence of international judges are necessary..28 4.2 Executive power to declare laws, regulations, etc. must be adequately defined and circumscribed consistent with international standards.........................................30 4.3 Leadership and morale among international staff is important to establish and maintain......................................................................................................................32 V. Defense Counsel and Private Bar .............................................................................33 5.1 The private bar should be an integral part of justice reform and rehabilitation .....33

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5.2 Access to defense counsel should be an integral part of justice reform and rehabilitation...............................................................................................................34 VI. Relationship with Local Entities ................................................................................36 6.1 Transforming systemic threats to the rule of law is a precondition for transitioning to local ownership.......................................................................................................36 6.2 Clear institutional mandates, particularly those that create channels of accountability for international actors, are essential to promoting perceptions of institutional legitimacy ................................................................................................38 VII. The Judicial, Prison and Corrections System ..........................................................39 7.1 UNMIK was premature in turning ownership of the judicial system immediately over to local judges ....................................................................................................39 7.2 A sustainable transition from peacekeeping to peacebuilding requires creation of effective safeguards on institutional performance ......................................................42 7.3 Accountability and effective safeguards must be built in from the inception to the development of the judiciary.......................................................................................43 7.4 Accountability and effective safeguards must be built in from the inception of the development of the prisons and corrections service ..................................................47 7.5 Justice capacity building must include training at inception..................................48 7.6 Remedies and resources must be provided to limit delays in the judicial process.......................................................................................................................50 7.7 Local judges and prosecutors must be adequately paid and resourced to meet the circumstances of a post-conflict environment.............................................................50 VIII. Politically or Ethnically Sensitive Cases .................................................................51 8.1 Systemic threats to the mandate and to the rule of law must be confronted by the mission across the full spectrum from intelligence to incarceration............................51 8.2 International judges and prosecutors can make a decisive contribution in confronting violent threats to the mandate .................................................................53 8.3 Central or Special Courts involving international and local judges may be essential for confronting violent threats to the mandate .............................................57 8.4 Procedures for the selection of cases for Central or Special Courts need to be established to preserve judicial autonomy..................................................................59 8.5 A close protection unit is essential for confronting violent threats to the mandate60 8.6 The capacity to collect and properly handle admissible evidence is essential .....61 8.7 The capacity to provide maximum security for high-risk detainees is essential for confronting violent threats to the mandate .................................................................62 IX. Key issues and Challenges Addressed by Corrections Practitioners .......................63 9.1 The Military Contingent may need to fill in critical gaps if local prison capacity is deficient......................................................................................................................63 9.2 Pre-trial detention must be dealt with properly at inception ..................................64 9.3 The capacity to provide maximum security for high-risk detainees is essential for confronting violent threats to the mandate .................................................................65

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9.4 A uniform, computerized prison registry was utilized to address concerns about inappropriate detentions.............................................................................................66 X. Corrections Models Strategies Adopted ....................................................................66 10.1 A comprehensive and phased plan was formulated and implemented...............66 10.2 The Kosovo Corrections Service is considered the most successful multi-ethnic institution in Kosovo ...................................................................................................68 XI. National Ownership and Engagement......................................................................68 11.1 Strategic planning should include local capacity building and ownership...........68 11.2 Participation by representatives of local formal and informal systems and sensitivity to cultural considerations is vital ................................................................71 11.3 Ethnic diversity is an important part of sustainable capacity building .................74 11.4 The international community should commit to public outreach early ................75 XII. Bibliography.............................................................................................................77

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I. Lessons from Prior Missions Reaffirmed by UNMIK
1.1 Capacity building should be holistic • One of the fundamental lessons derived from peace operations in El Salvador, Haiti, and Bosnia is that a holistic approach should be taken to establishing the rule of law. In Kosovo, international planners generally understood that it would be necessary to develop local capacity not merely for policing, but also for the judiciary, penal system, and legal code.1 Simply put, the Kosovo Prosecution Service has been largely overlooked and forgotten…when trying to understand why UNMIK forgot to develop the prosecutors and did not actively support the Kosovo judiciary, a senior DOJ staff member argued, “I don’t think there was a high-level decision made. I doubt there was a strategy… I think (UNMIK) went from emergency to emergency.”2 There must be clarity as to the legal framework of the mission… Before deployment, international police must understand the political context, the nature of the conflict that brought them to the region, the nature of the criminal elements that will be facing them… Policing must be viewed as part of the rule of law continuum which includes the judiciary (courts and prosecutors) and the penal or correctional institutions.3 Most critically, future peace-building missions must ensure that a coordinated and thoughtful approach to developing a criminal justice sector is adopted. Such a strategy must be premised on a broad and comprehensive assessment of all of the critical components and an effective justice process that is beyond merely the courts. A holistic approach would include assessing the needs of law enforcement agencies, medical and forensic expertise, and legal services. In addition, consideration has to be given to the development of victim’s services, witness protection, and a network of social services to meet the needs of particular groups such the victims of sexual violence, juveniles, and the mentally ill… Finally, future peace-building strategies must involve the genuine participation of the local

1

Halvor A. Hartz and Laura Mercean (with contributions from Paul Mecklenburg and Clint Williamson), “Safeguarding a Viable Peace: Institutionalizing the Rule of Law,” in The Quest for Viable Peace: International Intervention and Strategies for Conflict Transformation, Jock Covey, Michael Dziedzic and Leonard Hawley (eds.) (Washington, D.C.: United States Institute of Peace, 2005), 162. 2 Heiner Hänggi & Vincenza (eds.), Geneva Center for the Democratic Control of Armed Forces, Security Sector Reform and UN Integrated Missions: Experience from Burundi, the Democratic Republic of Congo, Haiti and Kosovo (2007), 191. 3 Colette Rausch, “The Assumption of Authority in Kosovo and East Timor: Legal and Practical Implications” in Renata Dwan (ed.), Executive Policing: Enforcing the Law in Peace Operations, Stockholm International Peace Research Institute Research Report no. 16 (New York, NY: Oxford University Press, 2002), 31-2.

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community.4 • It took time to write a criminal code and a code of criminal procedure for Kosovo. They became available in April 2004 immediately after the worst period of violence this territory had experienced since 1999. The main difference from the former codes was that the tasks accomplished by the investigative judge were given to prosecutors.5 The training given to local judges and prosecutors concerning the new laws was not adequate. What should have been done was to train judges and prosecutors the same way the police were trained. This means that we should have started from scratch, with a new recruitment program open to applications from former judges. The Kosovo Judicial Institute was never a real school for magistrates. It never had a complete program of studies covering the full range of legal education. It did not perform systematic training. It just organized series of lectures on particular subjects which were not necessarily linked to one another and certainly did not encompass the full range of the legal domain. A number of the trainers had only a scant knowledge of the legal system they were supposed to teach. Therefore local prosecutors, judges and members of the support staff were insufficiently trained and were not equal to the challenges they had to meet.

1.2 The UN mandate should provide adequate authority • The Bosnia experience taught that the authority provided in the mandate must be commensurate with the magnitude of the task involved. The International Police Task Force (IPTF) in Bosnia was unarmed and had no authority under the Dayton Peace Accords to engage in law enforcement activity. Nor was any authority initially provided to discipline police misconduct or to reform the legal code, judiciary, or penal system. In contrast, Resolution 1244 endowed the SRSG with the equivalent of sovereign powers that included the right to appoint and remove officials and to legislate by issuing regulations and revising the existing legal code. UNMIK Police had executive authority to enforce the law.6 “Issue more comprehensive mandates focusing on specific judicial and legal reforms… Implement mandates fully, addressing gaps in local judicial and legal capacity where necessary… Establish rule of law as a core priority in mission planning… Provide sufficient judicial positions and rapidly deploy… Increase financial resources for judicial and legal reform initiatives… Develop a ‘One UN Approach’ to judicial and legal reform in peacekeeping… Strengthen engagement with host-country rule of law partners… Employ contemporary programme

4

David Marshall and Kelly Inglis, The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal 95 (2003), 144-6. 5 Jean Cady, A few thoughts on UNMIK Lessons Learned, unpublished, http://inprol.org/kosovo/LL-JeanCady-July142009-final.pdf (2009), 3. 6 Hartz and Mercean, 162.

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management techniques… Serve as a center for rule of law information, analysis, and coordination in-country… Incorporate rule of law into mission’s diplomatic dialogue… Bolster UN Headquarters capacity to provide adequate support for judicial and legal programmes in peacekeeping operations.” 7 • The mandate given by Security Council resolution 1244 was designed more out of political expediency, than out of an analysis to establish a workable system of cooperation between NATO and the UN. There was a potential conflict between the mandate of KFOR and the mandate of UNMIK. This conflict was partially overcome by good personal relations between the KFOR commander and the SRSG but remained latent throughout the mission. In the early stages of the mission in Kosovo there was no choice. The military had to deal with everything in order to establish peace and security. As the civilian presence took time to percolate into the mission, the military were the only operational international authority for many months. But although the military are quite apt to create a reasonably peaceful and secure environment (i.e. to move out of war), the rule of law can only be established by civilian authorities. It must be clear that the powers to arrest and detain people should be in the hands of a civilian authority as soon as possible. Apart from rare exceptions such as East Timor, the mandate of a peacekeeping mission is usually more the result of a compromise than of a consensus among Security Council members. If a future peacekeeping mission were to have as broad a mandate as UNMIK, the terms of the mandate should be weighed and designed in such a fashion that the mission can work in an efficient manner and not be hindered by illdesigned tools. The main problem in Kosovo was that nothing was planned to establish the cooperation between KFOR and UNMIK. Nothing was planned either to establish the transition from military primacy to civilian primacy. Nothing was planned for situations in which public unrest might overwhelm the whole territory of Kosovo.8

1.3 International integration of efforts is essential • Programs and activities directed at institutionalizing the rule of law in Bosnia were fragmented among various autonomous organizations and programs. The creation of the pillar structure in UNMIK was a step in the direction of bringing greater coherence. Responsibility for training and capacity building was assigned to the OSCE. UNMIK Police were responsible for law enforcement and subsequently for field training and supervision of the graduates of the OSCE police school. Responsibility for re-creating and administering the local judicial and penal systems was assigned to the UNMIK Department of Judicial Affairs, which, in turn, was

7

Scott N. Carlson, “Legal and Judicial Rule of Law Work in Multi-dimensional Peacekeeping Operations: Lessons-Learned Study” in Harvey Langholtz, Boris Kondoch, and Alan Wells (eds.), International Peacekeeping: The Yearbook of International Peace Operations, Volume 12 (Amsterdam, NL: Martinus Nijhoff Press, 2008), 1. 8 Cady, 1.

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assisted and monitored by the OSCE. The need for KFOR to support and coordinate closely with UNMIK was specified in Resolution 1244.9 • International integration of efforts is essential…responsibility for re-creating and administering the local judicial and penal systems was assigned to the UNMIK department of Judicial Affairs, which, in turn, was assisted and monitored by the OSCE. The need for KFOR to support and coordinate closely with UNMIK was specified in Resolution 1244… the need to take a holistic approach was generally recognized, but international capability did not exist to put this concept immediately into practice.10 Because of the way the Kosovo mission was set up, much of the rule-of-law continuum—police, prosecution, judiciary and penal— was fragmented at the beginning. This posed operational problems which resulted in reduced levels of coordination and cooperation. It is of critical importance that the rule-of-law components work together in a continuum.11 Paradoxically, UNMIK’s organizational structure after May 2001 with justice and security silo-ed within Pillar I may have hampered the development of a missionwide SSR approach in that there was no high-level cohesive team supported by sufficient resources (human, financial and bureaucratic) capable of amalgamating the enormous spectrum of justice and security SSR activities into a defined strategy.12 Similarly, UNMIK’s inability to create a judicial police, even though UNMIK had legislated its establishment, could be partially traced to the pillar structure and the inability of successive heads of the Pillar to possess sufficient clout, capability and/or willingness to adjudicate between competing bureaucratic claims. 13 From the beginning of the mission the division of responsibility between the OSCE and the United Nations was not always clear and coordinated.14 Second, cooperation between civilian and military authorities is critical in ensuring that investigations are not conducted at cross-purposes. In Kosovo, a lack of coordination between KFOR and UNMIK led to incidents. 15 Some … difficulties arose from the security environment on the ground; others from the high politics surrounding every aspect of NATO’s intervention and the

• •

9

Hartz and Mercean, 162. Marshall and Inglis, 162-164. 11 Rausch (2002), 28. 12 Hänggi and Vincenza, 178. 13 ibid, 179. 14 Colette Rausch, “From Elation to Disappointment: Justice and Security” in Charles T. Call (ed.), Constructing Justice and Security After War (Washington, DC: United States Institute of Peace, 2007), 284. 15 Ibid, 292.
10

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subsequent role of the United Nations. Together, these factors gave rise to inconsistent policies on the part of the international administration, in turn giving rise to its own contradictions as the body charged with instilling the values of human rights and the rule of law detained persons in apparent contempt of international judges.16 • The relationship between the UN family and donors varied tremendously, depending upon the project under consideration and the personnel involved. On the whole, it would appear that good working relationships existed between UNMIK and the donors with regard to judicial development, though it needs to be pointed out that UNMIK experienced difficulties coordinating the donors and limiting duplication. 17 According to respondents, UNMIK’s support of the MoJ, for instance, has been abysmal, with the donors conducting virtually all development activities. A Kosovar with in-depth knowledge of the situation inside the Ministry claimed that “[the Ministry has] not been given development in management [from UNMIK]. They were just transferred with their competencies from [UNMIK] DoJ to MoJ.” The same applies to the Kosovo Judicial Council (KJC), which is one of the keystones of oversight, court administration and management of the judiciary. It is within the KJC, however, that significant development initiatives are under way, albeit mainly outsourced and conducted by NCSC.18 “…sometimes a disparity between what human rights experts in the field argued was required under international human rights standards and what police argued was actually possible to do given the circumstances in the field. What was missing, and critical to effective law enforcement and adherence to international human rights standards, was a meaningful dialogue between experienced lawyers with human rights experience and criminal justice experience, the international police (and later the international judges and prosecutors who came on board), the military, local judges, prosecutors and police, and legal experts. These actors needed to come together and discuss, from both a practical and a legal standpoint, what could be done that would be consistent with international human rights standards and still be feasible given the reality in the field.”19 Perhaps the most pivotal lesson learned in SSR programming though, is the need to ensure consistent and coherent management of the implementation and performance of initiatives, concentrating on delivering defined and measurable outcomes. This did not happen in Kosovo. 20

16

Simon Chesterman, Justice Under International Administration: Kosovo, East Timor and Afghanistan, IPA Report (NY, NY: September 2002), 6. 17 Hänggi and Vincenza, 202. 18 Eric Scheye. “UNMIK and the Significance of Effective Programme Management: The Case of Kosovo,” 192. 19 Rausch 2002, 18. 20 Hänggi and Vincenza, 203.

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“Recommendation: a cohesive team of SSR experts responsible for the development and managerial oversight of the implementation of the UN’s SSR strategy…” 21

1.4 An international crowd-control capacity may be necessary • Implementation of the Dayton Peace Accords was difficult in the beginning because of a gap in capabilities between the NATO-led Implementation Force (IFOR) and the IPTF. IFOR was able to use lethal force, whereas the IPTF was unarmed. This left the mission vulnerable to civil disturbances. Ethnic extremists became proficient at exploiting this gap through the use of what came to be called “rent-a-mobs.” Eventually NATO responded by deploying a Multinational Specialized Unit composed primarily of Italian Carabinieri. The unit’s nonlethal crowd-control capability and doctrinal understanding of how to deter and defuse public disorder helped to close this peace enforcement gap. This experience led both KFOR and UNMIK Police to incorporate this type of “specialized” crowd-control capability in their contingents. 22 One particular aspect of the rule of law, which should not be overlooked, is crowd control. It certainly was not in the UN tradition to run a police force and, even less, crowd control units. This is a difficult task which has to be performed by units that are specially trained. The role of these units is very different from the role of soldiers in a conflict. Soldiers are trained to behave in a war situation. Crowd control units operate in a situation of relative peace, a peace which is disturbed but not to the point of reaching the state of war. As we all know, there is no permanent standing capacity in the UN of anti riot units. As for the international police, the UN must rely on member states. The way public unrest is dealt with varies greatly from one country to the next. In Kosovo it was done by special units from Poland and Rumania but also by the MSU (multinational specialized unit). The MSU was a police force with military status, under KFOR command. Led by an Italian commander, essentially composed of Italian “carabinieri”, with a participation of French gendarmes and Estonian military policemen, it was not as useful as it could have been for the following reasons. First of all it was under KFOR leadership and was never transferred to UNMIK even though civilian primacy had been established for matters related to law and order. The duality of command made the process of engagement long and burdensome because a request made by UNMIK had to be approved by KFOR. The second reason is that rules of engagement varied from one country to the next for the very simple reason that demonstrations and public disorder do not happen in the same manner. A coherent doctrine for crowd control in a peace-keeping environment still has to be established.23

21 22

Ibid, 203-208. Hartz and Mercean, 162-163. 23 Cady, 6.

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1.5 Identifying, cataloguing, indexing and distributing the applicable law is crucial • While the international judges were experienced with international standards, they were unfamiliar with the applicable law. Furthermore, their number and dispersal was erratic, once again detracting from the international community’s attempt to enforce one set of internationally recognized standards.24 On July 25, 1999, the SRSG approved UNMIK Regulation 1999/1, which provided that the law applicable in Kosovo was the law in force prior to the NATO intervention on March 24, 1999. Members of the ethnic Albanian legal community resented and resisted this determination because they considered it offensive to reinstate the laws of the repressive regime, and they willingly disregarded the applicable law in the conduct of trials. In response, in December 1999, the SRSG promulgated Regulation 1999…which appealed Regulation 1999/1 and reinstated the laws applicable in 1989.25 The challenge of determining what constitutes applicable law is overwhelming, not only to the international lawyers in the mission, but also to the local legal community. The problems are multifaceted and involve parsing out what the applicable law is, finding the laws in relevant languages, and deciding to what extent they should be applied and whether the laws, written in the 1970s and 1980s and based on a communist system, can realistically be applied in light of the establishment of UNMIK. It has been and continues to be a daunting task.26 The questions of what the local law was and how it should be applied, particularly its application in light of international human rights norms, considerably hampered the functioning of the justice system.27 A more workable strategy would have included addressing the applicable law challenges early on so that the most critical provisions could be readily amended or gaps filled to meet international standards and respond to the realities on the ground. 28 The process of defining the immediately applicable law and establishing an accepted lawmaking process should be undertaken prior to the next post-conflict administration.29 An important shortcoming of Resolution 1244 was the absence of clear, legal framework… as William Schabas and Neil Kritz note, the type of approach taken by


24

Wendy S. Betts, Scott N. Carlson and Gregory Gisvold, The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law, 22 Michigan Journal of International Law 371 (2001), 379. 25 Marshall and Inglis, 10. 26 Ibid, 115-6. 27 Ibid, 116. 28 Rausch 2007, 299. 29 Betts, Carlson and Gisvold, 383.

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UNMIK “has proven to be unworkable given the enormity of the task of reconciling local law and international norms.”30 • No clear guidelines existed to guide the police in the procedures for making arrests, gathering evidence or detaining suspects. To make matters more difficult, the international police did not apply either the Kosovar or the Serbian law at all times. In the light of the confusion as to which law applied and the difficulty of understanding the provisions, many resorted to applying the law as they knew it from their own systems.31 The domestic applicable law proved troublesome, most particularly for law enforcement from common law jurisdictions. The criminal procedure code did not provide for police warnings on arrest or during police interrogation. The code did not make reference to a right to counsel prior to being brought before an investigative judge.32 Inconsistent application of the laws by a combination of both local and international judges made it difficult for the defense counsel to mount a defense, particularly as they themselves were not well-versed in either the applicable international standards or the applicable law in force.33 The problem we had in Kosovo as well as in East Timor was: according to which rules and to which law is social and political peace going to be established? Each country that participates in a peacekeeping mission has its own system of reference: its own laws, its own police organization, its own judicial system. Therefore with the best intentions, each country willy-nilly has a tendency to use its own system as a frame of reference. The problem is that a territory which has a peacekeeping mission, is not a blank slate. We do not start from scratch. Kosovo had a legal system and before 1989 there were Kosovo judges.34

II. Process of Establishment of DoJ
2.1 Proper assessments are needed • Every context is unique, which means that the first step in any mission is performing a proper assessment. The most fundamental issue to assess is whether international or local personnel should be relied on to establish public order and assume responsibility for the judicial and penal system. Should the international

30

Adam Day, No Exit Without Judiciary: Learning a Lesson from UNMIK’s Transitional Administration in Kosovo, 23 Wisconsin International Law Journal 183 (2005), 8. 31 Rausch 2002, 17. 32 Marshall and Inglis, 2003, 125. 33 Irene Bernabéu, Laying the Foundations of Democracy? Reconsidering Security Sector Reform Under UN Auspices in Kosovo, Security Dialogue (2007), 379. 34 Cady, 2.

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community take responsibility for any functions on an interim basis? The answer to this question should be a function of the role of the legal system in the conflict. Was it part of the problem or part of the solution? Are indigenous institutions capable of immediately performing any functions in a manner consistent with the rule of law? Will a military contingent (perhaps from an alliance or coalition of the willing) need to perform interim law enforcement, judicial, or penal functions? Which functions can be shared with local counterparts? Where will detainees be held? In the absence of a functioning court system, what will happen when the jails are full? What body of law will be applied, and what revisions will be required? When Resolution 1244 was adopted, Kosovo was without police, judges, or jails to provide law and order. Even the basic infrastructure was lacking. Although the resolution called on the international military presence to ensure law and order, the real challenge was to create it in the first place out of an anarchic social environment. As William O’Neill observes in Kosovo: An Unfinished Peace, “Court buildings looked as if a plague of locusts had swept through, scouring the grounds for anything valuable and leaving broken windows and ripped-out electrical sockets in their wake.” The main prison at Dubrava, with a capacity for 1,200 inmates, had been bombed during the air campaign and was unusable. A massive public security gap awaited the international intervention. Before the conclusion of the bombing campaign, the OSCE sent personnel from its Kosovo Verification Mission to the refugee camps in an attempt to identify Kosovo Albanian judges and prosecutors to help constitute a new judicial system. The vast majority had not worked in those capacities since 1989, and the few who had were regarded as Serb collaborators. None were familiar with international human rights standards, nor could they be expected to be impartial in their treatment of Serbs accused of crimes after the trauma they had experienced. Thus, the OSCE prepared a plan for rebuilding the judicial system that involved the use of international judges and prosecutors along with members of the local legal community. UNMIK, however, made the strategic choice to rely exclusively on local judicial personnel. The overriding factor was a feeling that giving international judges the authority to sentence citizens of Kosovo to imprisonment would smack of colonialism. Ultimately, however, this assessment proved to be misguided and international judges and prosecutors would need to play a prominent role.35 • First, given the character of the conflict, it should have been possible to anticipate postwar ethnic-related and organized crime. However, the United Nations took more than a year to promulgate regulations and mechanisms to address these crimes; these measures remained inadequate as of 2002. 36 Proper attention needs to be given to the likely types of crime the peacekeepers will face.37


35 36

Hartz and Mercean, 171-172. Rausch 2007, 292. 37 Rausch 2002, 30.

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In future postconflict reconstruction missions, the criminal justice environment should be evaluated before international prosecutors are introduced into the jurisdiction. Specifically, the supervising authorities must make a coherent analysis of the forms of crime that fundamentally affect the peace process, and a realistic assessment of the ability of law enforcement institutions to deal with those crimes. On the basis of this evaluation, the supervising authority should implement a temporary structure that reconciles the urgent need to address destabilizing crime with the inherent limitations of postconflict law enforcement agencies. Finally the supervising authority must augment the effectiveness of this temporary structure with supporting legislation. 38 In addition, in Kosovo, the police were ‘grafted’ onto a system with a socialist heritage where independence of the judiciary did not exist and the relationship between the police, the prosecutor and the judge was quite different from the relationship in many of the countries that supplied international police.39

2.2 There is a systematic incapacity to mobilize required personnel to address deficiencies in the criminal justice system • Chronic difficulties existed in recruiting capable police officers. The demands in Kosovo, both in terms of the numbers and the functions involved, greatly exceeded those of any previous operation. The United Nations had never had to create an armed police force that would exercise full executive policing authority. Nor was there any doctrine for this purpose or for the formed police units that would also be employed for the first time by the United Nations. The United Nations was even less prepared to discharge the other functions that are essential to the rule of law, including operating a court system and a corrections service.40 It has not been easy to fill existing slots. UNMIK authorities post announcements through the UN, and applications are sent to the personnel office at UNMIK. The Chief International Judge reviews the applications and draws up a short list for interviews. All candidates are interviewed via telephone, typically by two existing IJs, the head of the International Judicial Support Section (IJSD), and a representative of UNMIK’s personnel office. This system has been criticized for being haphazard and for the difficulty in exercising quality control at such a distance. Most of the applications come from Africa, Asia, or Eastern Europe, because it has proven difficult for judges in the North America and Western Europe to take leaves of absence from their regular judicial duties to serve in Kosovo. Some special bilateral arrangements have been made, such as with the state of Minnesota, which resulted in a number of judges from there taking up office. Judges are not formally nominated

38

Gregory L. Naarden and Jeffrey B. Locke, Peacekeeping and Prosecutorial Policy: Lessons Learned from Kosovo, 98 American Journal of International Law 727 (2004), 12. 39 Rausch 2002, 20. 40 Hartz and Mercean, 160.

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by member states, nor are personnel seconded to UNMIK-DOJ from member states or other institutions. All IJPs are officially chosen, hired, and paid by UNMIK. 41 • Regardless of the institution of ad hoc military arrangements, the United Nations must enhance its own capacity to establish a functioning judiciary as rapidly as possible, by ensuring that the fundamental task of judiciary building is part of its emergency first-phase response. It is thus imperative for the [*62] United Nations to develop a standby network (as opposed to a costly standing capacity) of experienced and qualified international jurists that can be activated at any given time.42 The international community should be prepared to send a group of international judges, prosecutors and defense counsel pre-trained in the emergency law template, and this transitional judiciary should be accompanied by a targeted package of equipment sufficient to support the interim judiciary’s functions. 43 Measures to create a standby network of international jurists who could be employed at short notice to post-conflict areas would facilitate the establishment of a judicial system…but are unlikely to be able to deploy in sufficient time and numbers to establish even an ad hoc system of their own. 44 Lack of adequate deployment capabilities hampered the introduction of CIVPOL into Kosovo. Further complications were introduced by the more ambitious scope (in terms of jurisdiction and primacy of the local police forces) of the Kosovo operation compared with previous CIVPOL missions. 45 The mandate given by Security Council resolution 1244 was designed more out of political expediency, than out of an analysis to establish a workable system of cooperation between NATO and the UN. There was a potential conflict between the mandate of KFOR and the mandate of UNMIK. This conflict was partially overcome by good personal relations between the KFOR commander and the SRSG but remained latent throughout the mission. In the early stages of the mission in Kosovo there was no choice. The military had to deal with everything in order to establish peace and security. As the civilian presence took time to percolate into the mission, the military were the only operational international authority for many months. But although the military are quite apt to create a reasonably peaceful and secure environment (i.e. to move out of war), the rule of law can only be established by civilian authorities.46

41

Tom Pieriello and Marieke Wierda, Lessons from the Deployment of International Judges and Prosecutors in Kosovo, ITCJ Prosecution Case Studies Series (NY, NY: March 2006), 15-16. 42 Strohmeyer, 11. 43 Betts, Carlson and Gisvold, 385. 44 Day, 12. 45 Rausch 2007, 290. 46 Cady, 1.

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One major shortcoming in the establishment of the Kosovo criminal justice system was the failure to recruit and train properly international judges and prosecutors. In the attempt to build a judicial system which would have an international and a local component, UNMIK was hampered by never having a sufficient number of international judges and prosecutors. One can wonder why they are so hard to recruit. Let me try to propose a few explanations. The first which is obvious is that in no country is there a surplus of judges or prosecutors ready to jump to a plane to participate in a peace-keeping mission. The second explanation is that in most countries, the fact of having been a member of a peace-keeping mission may be seen as an exotic feature but not necessarily as an asset in a well-managed career. When he leaves for the UN, the judge or the prosecutor will give up his job at home and when he returns after a year or more, he will have to look for a post. What he will be given will not necessarily be a promotion. So the number of volunteers is not enormous. The third explanation: in many countries, it takes time to move a judge. Advisory bodies which manage the careers of judges and prosecutors and which are a guarantee against arbitrary moves and political interference, have to be consulted. It takes months. After a short listing of the CVs, the recruitment process was done mostly by telephone interviews, as UNMIK did not have the budget for the traveling expenses of candidates. Many judges and prosecutors recruited that way were excellent but UNMIK experienced also inadequately qualified personnel. With hindsight, one feels that in all cases there should have been a face to face meeting.47

2.3 The corrections system is a vital part of Rule of Law and must not be overlooked • In view of the enormous difficulties experienced in both Kosovo and East Timor in this sector, urgent priority must be given to the immediate establishment of an adequate prison infrastructure. A functioning correctional system is not only complementary, but also inextricably linked, to the creation of a functioning law enforcement mechanism.48 Initially, UNMIK had no conception of what was involved in restoring the operation of a prison system. KFOR had to fill the gap. Once UNMIK Police had become established in Pristina, they began operating the detention center there. In October 1999 UNMIK established the Penal Management Division and began recruiting experienced local corrections officers to form the initial cadre for the Kosovo Corrections Service (KCS). One month later, fifty-eight officers of the KCS under UNMIK supervision assumed responsibility from KFOR for the prison in Prizren. In January 2000 the KPSS began offering a corrections training course. By June 2000 UNMIK had rehabilitated the main prison at Dubrava and restored it to use. This was a crucial accomplishment because due to the resumption of trials within the court system, Kosovo’s smaller facilities were full to capacity with sentenced offenders. By February 2001 the KCS, under Penal Management Division supervision, had taken
Cady, 3. Strohmeyer, 15.

47 48

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responsibility for all detention centers and prisons with the exception of the detention center at Camp Bondsteel, which was used primarily for detainees held under KFOR authority (i.e., COMKFOR holds).49 • Most donor nations did not understand the critical important of effective correctional systems in maintaining order and upholding human rights standards. 50

2.4 The Military Contingent may need to fill in critical gaps until international criminal justice capacity can be deployed • UN Security Council Resolution 1244 assigns responsibilities relating to the rule of law to both the “international security presence” (KFOR) and the “international civil presence” (UNMIK). Paragraph 9 charges KFOR with “ensuring public safety and order until the international civil presence can take responsibility for this task.” KFOR’s mandate also includes “supporting, as appropriate, and coordinating closely with the work of the international civil presence.” Although KFOR’s most evident contribution was to fill the initial public security gap, it had vital contributions to make across the entire spectrum from intelligence to incarceration.51 The initial Kosovo Consolidated Budget did not even recognize the need to provide funding for the management of prisons. Initially, KFOR had to fill the gap. Even though this was an unanticipated requirement for most KFOR contingents, during the first phase of the mission each MNB took responsibility for operating pretrial detention facilities. Because there was no adequate jail in its sector, the U.S. military established its own detention center at Camp Bondsteel, processing 1,800 detainees in the first year of operations. Among the factors that slowed the transfer of responsibility to UNMIK were the need to locate and recruit professional expertise in penal management for this unprecedented international requirement; the delay in providing funds, especially to repair Kosovo’s main prison at Dubrava that had been severely damaged by NATO bombing; and the difficulty encountered by UNMIK officials in gaining access to various penal facilities that KFOR regarded as highsecurity installations and therefore placed off limits.52 The Interim SRSG declared that law enforcement activities are a joint responsibility and, when conducted by KFOR and UNMIK police, they must be undertaken in line with international human rights standards. This move indicated early on that the SRSG’s power to legislate could bind KFOR, presuming that KFOR would act in accordance with the applicable law, and that human rights would also limit KFOR’s authority at least in the areas of law enforcement.53

49 50

Hartz and Mercean, 175. Rausch 2007, 296. 51 Hartz and Mercean, 160. 52 Ibid, 175. 53 Marshall and Inglis, 109.

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In the early stages of the mission in Kosovo there was no choice. The military had to deal with everything in order to establish peace and security. As the civilian presence took time to percolate into the mission, the military were the only operational international authority for many months. But although the military are quite apt to create a reasonably peaceful and secure environment (i.e. to move out of war), the rule of law can only be established by civilian authorities.54

2.5 An interim international criminal code may be a vital tool for avoiding paralysis of the legal system • Because Kosovo’s final status remained undetermined, the selection of one penal code over another became part of the continuing conflict. The existing “Serb” code had no legitimacy with Kosovo Albanians because it had been used as an instrument of brutal repression since 1989. This code also implied Kosovo’s subjugation to Serbia and a reversal of ethnic Albanian aspirations for eventual independence. The penal code that had been used when Kosovo enjoyed autonomous status before March 1989 was clearly the preference of Kosovo Albanians. Nevertheless, respect for FRY sovereignty was an overriding concern for the United Nations. Consequently, in July 1999 the SRSG issued Regulation No. 1 stipulating that the law applicable in Kosovo would comprise “all the laws applicable in the territory of Kosovo prior to 24 March 1999.” To administer this body of law— considered odious by Kosovo Albanians—UNMIK decided to rely on recruitment of local judges and prosecutors. Because the vast majority of judges were ethnic Albanians, they simply refused to apply the existing “Serb” law. Until UNMIK reversed itself in December 1999, criminal trials presided over by Kosovo Albanian judges actually applied the pre-1989 “Kosovo” penal code. In addition to amounting to open defiance of UNMIK’s authority, the fundamental legality of these rulings was in doubt. 55 One remedy proposed by UNMIK staff and endorsed by KFOR lawyers was to use UNMIK’s regulatory authority to establish a temporary code covering the most serious violent crimes until the overall legal framework could be revised. The United Nations was unwilling to act until the issue reached the crisis stage in December, when Regulation 1999/24 was adopted, reverting to the law in force in March 1989 when Kosovo enjoyed autonomy. Although this was essential to end the judicial stalemate, there was a price to pay. The international community was perceived as weak and vulnerable to local pressure. The vanishing prospects for inclusion of Serbs in the judiciary were diminished further. There was great uncertainty, moreover, about what the pre-1989 laws actually were. Months would pass before the penal code and other vital codes could be translated into English so that UNMIK Police could be trained on the law they were expected to enforce and UNMIK legal staff could work with them. Instead of promoting peaceful resolution of disputes, the United Nations’ initial strategic choice about the applicable law had created an
Cady, 1. Hartz and Mercean, 175.

54 55

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obstacle that took almost a year to overcome. The Brahimi Report acknowledged that a rudimentary international penal code and code of procedure should be developed. This would at least provide an alternative for international authorities to use to avoid a legal vacuum at the inception of a mission in cases like Kosovo.56 • The availability of an immediately applicable legal framework is an important prerequisite for the building of judicial institutions. Capacities within and outside the United Nations must thus be identified for quickly drafting new legislation in accordance with internationally recognized standards and with due consideration to the legal traditions (i.e., civil law or common law) of the territory at issue.57 Even if the applicable law is clearly agreed upon from the outset, making sure that the international police from a multitude of countries with different legal systems are thoroughly versed and competent in the applicable law, the local justice system and effective investigative techniques for the local justice system is challenging, to say the least. In addition, police officers from different countries come with differing levels of English, firearms abilities, patrolling experience and investigative experience, and from different legal and cultural environments.58 Because UNMIK originally considered itself bound by a constitutional ban against extradition of citizens, Kosovo, in effect, became a safe haven for Kosovars who had committed serious crimes abroad. To begin addressing this, the Department of Justice negotiated bilateral arrangements with many of the most affected countries to provide records, access to witnesses, and financial support for translators so these fugitives could be tried in Kosovo. This allowed judicial proceedings to be initiated by UNMIK against criminals most wanted by foreign governments; however, it was only coincidental when this process could be used to build cases against dangerous criminals who were a strategic priority for UNMIK. In 2003 UNMIK took steps to amend the existing body of law to allow for the extradition of Kosovo citizens. Years of delay in putting this mechanism into effect deprived UNMIK of a powerful tool for ridding Kosovo of some of the most notorious criminal and extremist elements.59 Given the particular controversy concerning the choice of law in Kosovo, it might have been appropriate also for the UN to impose a generic penal code and code of criminal procedure for an interim period, along the lines recommended by the Report of the Panel on Peace Operations (the Brahimi Report). 60 There are two possibilities to avoid a legal vacuum: The first possibility is that the peace keeping mission could arrive with a UN designed simplified criminal code and a basic code of criminal procedure. Each international judge and each member of

56 57

Ibid, 176-177. Strohmeyer, 17. 58 Rausch 2002, 21-2. 59 Hartz and Mercean, 179-80. 60 Chesterman, 12.

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the police force could make himself familiar with these codes which would be their guidelines during the mission. In my view this would be the ideal situation but one has to face the fact that this has never happened in reality. The second possibility is to use the existing codes inasmuch as they comply with international standards. This was the choice of UNMIK at the beginning of the mission. But it drew a lot of criticism for two reasons. The first was that the local population, at long last free from Serbian oppression, could not understand that even though the Serbs were gone, their rules were still operative. The question which was asked time and again was: how can you establish the rule of law with the rules of our oppressor? Even if technically answers could be given, politically this question carried a lot of weight and certainly hampered the cooperation of local judges and politicians at least at the outset of the mission. The second problem which arose from such a choice was that international judges, prosecutors and policemen were not familiar with the Yugoslav system of laws. Therefore those who were supposed to be the role models for the population of Kosovo did not know the body of laws they had to enforce. It took time to have a translation of the codes. During that time, and even beyond, each international judge or prosecutor, each international policeman had a tendency to perform according the rules of his own country.61 2.6 Civil proceedings are vital for the resolution of property disputes • “Recommendations: o Police and public prosecutors should swiftly and rigorously investigate and prosecute criminal activities related to property transactions. o Civil courts should use facts established in the course of criminal proceedings, or in civil proceedings involving fraudulent property transactions. o Civil courts should suspend contested property transactions pending the outcome of criminal proceedings on the same issue. o Courts should rule on requests for temporary injunctions within a reasonable time. o Courts should identify where errors/delays in the implementation of criminal and property law have occurred and find possible solutions to protect the right to property and establish due process of law. o The Kosovo Judicial Institute should train civil judges on the importance of resolving preliminary issues in civil proceedings. o The Kosovo Judicial Institute should train prosecutors on investigation and prosecution of criminal offences related to fraudulent property transactions.”62

61 62

Cady, 2. OSCE, Legal Systems Monitoring Section, Monthly Report for May 2009, 5-6.

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2.7 The availability and clarity of applicable law is essential to transparency • The Office for Management and Administration of the Official Gazette was created in April 2006 to publish Kosovo’s Legal Gazette but has failed to effectively disseminate consistent knowledge of the law. Reports by the Kosovo Ombudsperson indicate that the Gazette suffers from limited distribution and inadequately standardized translations; exacerbating the situation of legal uncertainty even when it is clear what law applies. 63 “An issue that was continuously raised in the previous annual reports is the constant lack of vacatio legis in almost all the laws adopted by the Assembly of Kosovo and UNMIK regulations promulgated during the reporting time. Vacatio legis is a period of time between the promulgation of a law and its entry into force, with the aim of giving the public and the authorities applying the law the chance to adjust and prepare for the new legal situation. The recommendations of the Ombudsperson Institution in this regard have so far not been taken into consideration as UNMIK Regulations and Assembly Laws continued to enter into force immediately after their promulgation. As a result, most institutions are not prepared to implement the new legislation and both the local administration and the judiciary find themselves so overwhelmed with the great amount of regulations and laws promulgated within a relatively short period of time that they either fail to implement them properly, or do not implement them at all. This is particularly dramatic, especially considering the general lack of implementation of the laws in Kosovo. However, some of the laws adopted by the Assembly of Kosovo on 15 June 2008 foresee that the law should enter into force 15 days after the day of the publication of the law in the Official Gazette of Kosovo.”64 “It is not clear which laws from Yugoslav times are still applicable, and there is still no higher judicial body competent to address such matters. All UNMIK Regulations and Kosovo Assembly Laws merely state that they supersede any other inconsistent law or other provisions, but still do not specify exactly which legal provisions or laws they are replacing.”65

III. Link between Police and DoJ
3.1 The capacity to gather criminal intelligence is essential for successfully confronting violent threats to the mandate • The first requirement is to identify the threats to the rule of law, including the major sources of interethnic violence. In early 2000 the Quint countries (i.e., Britain,

63 64

Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 14. Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 14. 65 Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007, 12.

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France, Germany, Italy, and the United States) agreed to create a Criminal Intelligence Unit (CIU) within UNMIK Police in order to pool relevant KFOR intelligence with UNMIK Police information on the organized-crime threat. This seemingly commonsense proposition was confounded by an inherent reluctance to share intelligence, a lack of security clearances for many of the personnel initially assigned to the CIU, and a UN structure that was philosophically and bureaucratically unprepared to manage a criminal intelligence operation. As a result, it took nearly two years for the body to be established under UNMIK auspices. Over time, these challenges were addressed, particularly by the establishment of an institutional “firewall” between the CIU, which was staffed exclusively by the Quint countries, and the rest of the UNMIK Police structure. Another early impediment was the lack of a common vision among the Quint countries about whether this intelligence should be put to operational use in Kosovo. It was one thing for intelligence to start flowing into the CIU and back to home countries. It was quite another to convert this intelligence into actionable leads to guide the collection of evidence against threats in Kosovo. Ultimately, the need to supplement the CIU’s efforts with a capability to gather criminal evidence was recognized, leading to the establishment of the Kosovo Organized Crime Bureau (KOCB) as the investigative arm within UNMIK Police for information developed by the CIU.66 • The second problem is this: what is being created has to be sustainable when things are run by locals. Let me take two examples of institutions of which the international community was rather proud but, in my view, without full justification and which may be difficult to transfer. The first is the CIU, the central intelligence unit. It was not a UN institution: it was a creation of the Quint and was never fully accepted by the UN which did not finance it and did not appoint the staff working for the CIU. Let us also say that anything related to intelligence gathering is very far from the traditional UN culture. The idea was to install in a single place intelligence officers of the five major countries with an interest in Kosovo, namely the US, UK, Germany, France and Italy. It was hoped that by pooling intelligence, we would have better results in the fight against organized crime and the prevention of public disorders. In my view, this was not a success. First of all there was very little pooling of information. Each intelligence officer worked mostly for his own national agency and shared with colleagues only the smallest common denominator. Second, on the local scene, the CIU was largely unsuccessful: it did not succeed in forecasting the major riots Kosovo had in April 2004. In the 40 months I spent in Kosovo, I do not remember any criminal case that moved forward thanks to information or evidence provided by the CIU. The CIU was designed and run by these five countries with the purpose of obtaining intelligence on Kosovo. It did not help in providing hard evidence on criminal cases of the sort that is accepted in criminal courts. Was there any idea of transferring the CIU to locals? Of course not. These were assets and staff belonging to the Quint countries. Few people would dispute the fact that if there is any particular field in which Kosovars do not need any assistance, it is the area of intelligence gathering. Albanians as well as Serbs have had years of practice in the past. The SIOU, the special intelligence unit on organized crime was another unit
Hartz and Mercean, 178-179.

66

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which it would be hard to transfer as such. Its purpose was to collect intelligence but also evidence acceptable in courts on criminal cases. It relied on informers but also on tapping phone calls. As most of the telephone network was linked to former Yugoslavia, there was a lot of eavesdropping on many sides. There again the transfer to local authorities could not be complete.67 • The DOJ is training local police officers and lawyers in the use of new, high-tech surveillance equipment that will reduce the need for relying on witnesses (whom they cannot protect). Over the next year, the DOJ intends to follow the police’s example of building an elite, interethnic team that can conduct complex criminal investigations, particularly around issues of organized crime and terrorism.68 The UNMIK Department of Justice (previously called the Department of Judicial Affairs) is creating a special unit where police, prosecutors and KFOR will work together to build cases using classified intelligence. The plan is for the military to provide support through intelligence that can be shared with prosecutors and/or investigators who have the necessary clearance.69

3.2 The capacity to conduct criminal investigations is essential for successfully confronting violent threats to the mandate • Perhaps the most vexing challenge was to develop the evidence required to bring perpetrators of political violence to justice. UNMIK was hamstrung in its early efforts by obstacles in the applicable law. Evidence gathered by covert means, such as video cameras or wiretaps, was not considered admissible. No provisions existed for granting immunity to witnesses or for protecting their identities. Even after these deficiencies in the applicable law were overcome in 2001 and 2002 through the use of UNMIK’s regulatory authority, many standard investigative means remained unavailable. The United Nations opposed the payment of informants from UN funds, and it delayed the delivery of surveillance equipment for more than a year after the United States had provided funding for acquisition. Although a forensics lab was established after considerable delay, prosecutors remained reliant on witnesses. In spite of the creation of a witness protection program, resources were not available to operate it effectively, and thus witnesses continued to be vulnerable to intimidation. The justice system was unable to make adequate use of its authority to prosecute the most dangerous threats to the rule of law, therefore, because of a lengthy international failure to support it with the necessary resources. Years passed before substantial progress could be made. In mid-2002 the UNMIK Police commissioner reformed and expanded the nascent KOCB and forged effective working relationships with KFOR and the UNMIK Department of Justice. The KOCB included specialists in various investigative disciplines, including the use of technical devices, supplemented as necessary by KFOR’s surveillance capability. The integrity of the

67 68

Cady, 4-5. Pieriello and Wierda, 33. 69 Rausch 2002, 27.

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organization was maintained through the use of polygraphs and periodic internal surveillance on its own personnel. To facilitate the flow of prosecutable intelligence from KFOR, the UNMIK Department of Justice established a Sensitive Information and Operations Unit (SIOU). The purpose was to identify key figures involved in criminality, provide a mechanism for processing intelligence into a format usable in open court proceedings, and secure the arrest of these key figures. It was essential that lawyers assigned to the SIOU have the requisite security clearances from a NATO country.70 • In addition, the IJP may provide a model for what kind of police protection the Kosovar jurists should be provided, and proper judicial/prosecutor working relationships with the police, including close supervision of investigations and prevention of human rights abuses, both of which will be required to end an atmosphere of impunity.71

3.3 The ability to conduct intelligence-led operations is essential for successfully confronting violent threats to the mandate • With the passage of time, UNMIK and KFOR developed an understanding of the various political-criminal power structures at play in Kosovo and the threats they posed to a sustainable peace. To confront this threat effectively, a process was needed to focus the limited resources of the international community decisively on the key figures involved. A key component of this strategy was to use intelligence resources already in place to identify potential high-value investigative targets. Two mechanisms were created in 2002 for this purpose. A Tasking Coordination Group (TCG), which comprised the heads of the CIU, KOCB, SIOU, and KFOR J-2 (Intelligence) and the deputy commander of MNB(C), met every two weeks to assess the available intelligence and develop priorities. Its recommendations were presented to an Overview Coordination Group (OCG) chaired by the UNMIK Police commissioner, with the director of the Department of Justice and the commander of MNB(C) also participating. The OCG met once a month to establish priorities for investigation and prosecution and allocate respective resources accordingly. Originally, this approach was confined to interaction between UNMIK and MNB(C), but it was so successful in bringing the most threatening criminal figures to justice that it was expanded Kosovo-wide, and the KFOR chief of staff replaced the MNB(C) commander on the OCG.72

70 71

Hartz and Mercean, 179-180. Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, United States Institute of Peace Special Report No. 112 (Washington, D.C.: United States Institute of Peace, October 2003), 12. 72 Hartz and Mercean, 180.

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3.4 The ability to conduct high-risk arrests is essential for successful intelligence-led operations and confronting violent threats to the mandate • In the face of widespread attacks against the Serb population at the inception of the mission, it was clear that UNMIK Police would need the capability to counter a high level of violence. The UNMIK Police commissioner drew on personal contacts to arrange for the early recruitment of a cadre of highly professional and experienced tactical police who specialized in high-risk arrests. These officers were called on frequently from the outset of the mission to conduct high-risk arrests (usually with the teams carrying out the arrest while KFOR and UNMIK crowd-control units provided a wider security cordon around them). Owing to the novelty of this type of mission, the United Nations was unprepared and unable to provide appropriate equipment and logistical support for this function for more than a year. The unit depended on ad hoc support from the contributing nations for appropriate weapons and other necessary equipment. The professionalism of the UNMIK Police during the operation to take control of the lead smelter at Zvecan in the summer of 2000 so impressed British commanders that they actively sought to work with this specialized unit to deal with high-priority targets in their MNB. The proficiency of the high-risk arrest team was demonstrated throughout 2002 with the apprehension of more than sixty former KLA members suspected of involvement in a range of violent crimes.73

3.5 A crowd-control capability is essential in confronting violent threats to the mandate • UN planners anticipated a need for a crowd-control capability based on the experience in Bosnia where implementation of the Dayton Peace Accords had been stymied by orchestrated civil disturbances. As a result, UNMIK Police included ten formed police units, called Special Police Units (SPUs), each with 115 men and equipped with riot-control gear, body armor, and armored vehicles. KFOR also included a similar capability with its Multinational Specialized Unit (MSU). It took almost a year before the SPUs began deploying to Kosovo. Initially, there was strong resistance at senior levels within UNMIK to the use of either the SPUs or the MSU in a crowd-control capacity, owing to the fragility of the peace process and uncertainty about how they would perform. As a result, the SPUs were used to supplement UNMIK Police, providing protection for Serb enclaves, support for the close protection and high-risk arrest units, prisoner escort, and point security for high-priority locations such as courthouses and UNMIK facilities. When UNMIK began arresting Serb bridge watchers and former KLA members wanted for murdering rival Kosovo Albanians during and after the war, the SPUs were an invaluable asset. These arrests provoked the sort of orchestrated civil disturbances encountered previously in Bosnia, including violent assaults on UNMIK Police. The SPUs provided the capacity to control and defuse the situation. They were so successful in one of the earliest encounters that the demonstrators, KLA support

73

Ibid, 180-181.

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groups from outside Pristina, eventually grew frustrated and turned to attacking city residents in downtown restaurants for failing to join the confrontation with UNMIK.74 • Use of (excessive) force is a critical issue. It is important above all that the UN principles are applied across the board. 75

3.6 UN Police should be instructed and monitored for proper interaction with the public and held accountable for adherence to international standards • A system of accountability for international police which includes clearly defined rules and procedures must be established and in place at the outset of a mission… The civilian police authorities and the military must have standing systems of coordination and information sharing from the outset. 76

IV. Link between Executive and DoJ
4.1 Measures to preserve the independence of international judges are necessary • A major criticism of the IJP system has been that its structure gives the SRSG the ultimate executive power to appoint international judges and prosecutors and choose cases in which they are to be involved. Moreover, UNMIK’s DOJ is the supervising authority over international judges and prosecutors, extending their contracts. International judges are not subject to the Kosovo Judicial and Prosecutorial Council (KJPC), the body that appoints and disciplines local judges, and there is no local involvement in the oversight of IJPs[…].the very short contractual periods for international judges and prosecutors, and the fact that each extension of these contracts is solely dependent on UNMIK’s executive branches— DOJ and, ultimately, SRSG—create an appearance of executive control over these officials.77 There are no enforceable criteria for executive decisions about which cases have international judges and prosecutors or which individual judges and prosecutors get assigned. Ironically, the stated objective of the regulation, to ensure independence and impartiality, has garnered a perverse result. The lack of any mechanism to ensure a random assignment of judges to cases creates the perception that the executive may interfere at any time with any given case. In addition to the institutional mechanisms that have allowed for room for executive interference into

74 75

Hartz and Mercean, 181. Rausch 2002, 22. 76 Rausch 2002, 31-2. 77 Pieriello and Wierda, 19-20.

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the judicial function, there have been concerns that the executive has interfered directly with the decisions of judges in special cases.78 • While the IJP program itself and the efforts of individual internationals may enjoy a measure of credibility in Kosovo, the wide discretion of UNMIK’s executive over judicial matters has clouded perceptions of independence and been a stumbling block to establishing respect for the law…79 Among the war crimes and interethnic cases that constitute the bulk of the IJP caseload to date, the primary controversy has been whether the SRSG’s and DOJ’s selection of cases has been politically biased. Many observers, including both Kosovars and internationals, believe the UNMIK executive exerts too much influence on the criminal justice process. Regardless of whether it is justified, there is a local perception that political interference has disproportionately protected potential Serb defendants, and many allege that UNMIK has a pattern of “caving in” to Serb demands. Some argue that many cases initially brought against Serbs before local panels resulted in dramatically reduced charges, sentences, or acquittals when the IJPs took over.80 OSCE and UNMIK human rights ombudsmen have argued that UNMIK SRSG’s having the authority to appoint and renew the usual six-month employment contracts of the international judges and prosecutors, and to determine which cases they will hear, constitutes a violation of the separation of powers between the executive and the judiciary and a violation of the independence of the judiciary. 81 The conflation of executive and legislative power has provided significant room for interference in the judicial realm. The promulgation of legislation establishing the Commission on Executive Detentions illustrates the lack of checks on executive power.82 The KJPC, which provides recommendations to the SRSG on the discipline and removal of local judges, has local as well as international involvement, including minority representation, and has begun to function effectively.…The fact that the KJPC is only a consultative body and not truly independent from the executive, and that the SRSG has legislated for himself the power to remove local judges and prosecutors on his own motion, without any recommendation by the KJPC, is troubling.83 The conflation of UNMIK’s powers has provided room for executive abuse of authority, including the promulgation of legislation intended to usurp the judicial


78 79

Marshall and Inglis, 122. Pieriello and Wierda, 19-20. 80 Ibid, 20. 81 Colette Rausch (ed.), Combating Serious Crimes in Postconflict Societies: A Handbook for Policymakers and Practitioners (Washington, DC: United States Institute of Peace, 2006), 87. 82 Marshall and Inglis, 114. 83 Ibid, 121.

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function and ensure the success of the executive agenda. There has been a failure to develop any legislative process, including ensuring meaningful consultation with local actors and transparency. The lack of a process has resulted in ineffective laws, often not implemented, and has created serious obstacles to the ability of the courts to apply the law.”84 • The courts have declined to take an active role and act as a counterbalance to the power of the SRSG. Expectations that the local judiciary would grasp and interpret human rights principles, assert its authority over the SRSG, and provide a remedy may have been unrealistic in light of the realpolitik of the Kosovo community.85 The way in which the judiciary and prosecution services have been established by UNMIK has caused concern regarding the independence of the courts. The ad hoc process for the introduction of internationals into the system has not achieved the goals that many advocates had hoped for. Rather, the process has created the potential for harm to the local community’s perception of justice because of a seemingly parallel international court system with ties to the executive.86 There is a need for some system of accountability for the actions taken by the UN in contravention of international human rights standards… (a) realistic system of accountability could in fact rely upon the panels of international judges and model criminal code discussed above. 87

4.2 Executive power to declare laws, regulations, etc. must be adequately defined and circumscribed consistent with international standards • UNMIK was not created as a democratic administration and cannot be expected to possess the qualities of a democratically elected legislative branch. The foundational concepts of democratic legislatures such as legislative transparency, public commentary and awareness, accountability to the needs and expectations of constituencies, and constitutional or other limitations could not be inherent to the way in which UNMIK created laws…As the mission developed, the number of legislative reform initiatives grew, and UNMIK did not craft a plan to ensure the effectiveness of the legislative process. The result was catastrophic. There was no oversight of who was drafting laws or how drafts impacted or related to each other and the preexisting law. The JAC became less and less relevant and OLA began to bypass the consultative process altogether.88 Peace-building missions need to be premised on the recognition that developing a justice system based on the rule of law and human rights is the key to a successful

84 85

Ibid, 103 Ibid, 120 86 Ibid, 121 87 Day, 10. 88 Marshall and Inglis, 17.

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democratic transition. International administrations must be structured to limit the amount of power vested in the transitional administrator and ensure a more sophisticated system of checks and balances. In peace-building missions that require some degree of autocratic decision-making, meaningful efforts need to be made to ensure that actions do not undermine fundamental principles of democratic governance. Such missions should function within a clear legal framework, which if not rooted in a constitution, at a minimum has at its core international human rights standards. Regardless of the nature of the executive power, whether local or international, such a framework must be applicable to all authorities, including the security component. In this regard, it must be made explicit that security forces, particularly when undertaking civilian functions, are obligated to conform their actions to the law.89 • …the [Constitutional] Framework does provide for a democratically elected government with competencies in certain areas, other functions inherent to a selfgoverning administration are left to international actors. UNMIK continues to solely control the areas of law enforcement and justice, both considered to be beyond the capacity of the locally elected government actors. Although not expressly addressed in the Framework, it is understood within the mission that formulating legislation concerning law enforcement and criminal justice remains solely within the competencies of UNMIK. More broadly, the SRSG has retained all powers of executive and legislative authority to ensure the implementation of Resolution 1244.These areas of “reserved powers,” including an unfettered legislative veto, appear to be so far-reaching as to undermine the democratic legitimacy of the Framework itself.90 The Constitutional Framework does little to provide legal certainty and clarity as to the legislative process because certain areas of lawmaking are presumed still to fall within UNMIK authority and all legislative acts are to be vetted by OLA and approved by the SRSG. Presumably, OLA can make unilateral changes to any laws suggested by the Assembly…91 Without a clear framework set out in the applicable law for the realization of rights and a mechanism for the restraint of excessive state power, the disproportionate authority concentrated in the SRSG could go unchallenged. The obligation to uphold internationally recognized standards and not to discriminate could be rendered meaningless because there would be no framework within which to enforce them. UNMIK’s power could be used arbitrarily and unfairly, without accountability, transparency, or predictability— in contravention of the meaning of justice and the rule of law.92

89 90

Ibid, 144. Ibid, 107 91 Ibid, 118. 92 Ibid, 104.

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However, the very institution in charge of leading the democratic transition and SSR agenda possibly undermined its own work by breaking rules that are supposed to constitute building blocks of both the democratization and the SSR processes. For instance, it ordered ‘executive detentions’, making use of its unrestricted authority to bypass the local justice system and the law in force in the province. 93 The extra-judicial powers of the international community have often been perceived by the Kosovar leadership and community as political in nature. The perception among Kosovars is that the international administration was often politically oriented and one-sided regarding its influence. 94 The UN has ignored a recommendation from the OSCE that no law be passed without its being translated. In addition, the public was not informed about the state of the law or of legal reform initiatives, and there were no attempts to undertake public relations campaigns to increase awareness. The acute failure to address these issues continues to hamper the timely and effective implementation of the laws.95 The conflation of UNMIK’s powers has provided room for executive abuse of authority, including the promulgation of legislation intended to usurp the judicial function and ensure the success of the executive agenda. There has been a failure to develop any legislative process, including ensuring meaningful consultation with local actors and transparency. The lack of a process has resulted in ineffective laws, often not implemented, and has created serious obstacles to the ability of the courts to apply the law.”96

4.3 Leadership and morale among international staff is important to establish and maintain • • One lessons of the Kosovo experience is that leadership and morale among international staff matter.97 The UN personnel weakness originates in the senior leadership positions, not in the quality of those selected but in the duration for which they served in Kosovo. 98

93 94

Bernabéu, 77. Robert Muharremi, Lulin Peci, Leon Malazogu, Verena Knaus & Teuta Murati, Isa Blumi (ed.), Administration and Governance in Kosovo: Lessons Learned and Lessons to Be Learned, Center for Applied Studies in International Negotiations (2003), 5. 95 Marshall and Inglis, 118. 96 Marshall and Inglis, 103. 97 Rausch 2006, 301. 98 Hänggi and Vincenza, 200.

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V. Defense Counsel and Private Bar
5.1 The private bar should be an integral part of justice reform and rehabilitation • Law graduates are poorly prepared to practice law, in large part due to weak and theoretical legal educations, and advocates are not required to take a minimum number of continuing legal education [hereinafter CLE] hours each year.99 The ethics, competence, and diligence of many advocates leave much to be desired. Court-appointed counsel for indigent defendants are too often unprepared and passive in their representations. The KCA has so far been insufficiently proactive and aggressive in setting and enforcing standards in certain areas, including admission requirements, disciplinary prosecutions for unethical behavior, CLE, and practice specialization.100 Kosovo now meets international standards in the areas of academic requirements, nondiscriminatory admission, and formation of independent law practices.101 The 1979 Law on Advocacy still governs the legal profession even though it is from the SFRY era and is not adequate for the current situation in Kosovo. Unfortunately, a new law has been awaiting UNMIK’s approval for nearly three years. Even the new law appears to have some deficiencies compared to its predecessor and needs to be revisited. 102 The KCA leadership is increasingly aware of the need for improvements in the legal profession and in the programs and services it provides to its members and the public. The KCA has undertaken efforts to fill this need. 103 While women continue to be underrepresented among advocates at 10.4% of the total, this share is a 46% increase over the 7.1% figure reported in 2004. The KCA has established a committee on women and minorities, and has launched initiatives intended to improve conditions for these groups and attract members to the profession.104 The University of Pristina law faculty has started legal clinics and a legal methodology course, both of which have the potential to improve the practical preparation of prospective advocates and to prompt other law faculties to offer similar opportunities.105

• •

99

American Bar Association 2007, 10-11. Ibid. 101 Ibid. 102 Ibid. 103 Ibid. 104 Ibid. 105 Ibid.
100

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Women continue to be severely underrepresented in the profession, despite improvements since 2004 and efforts by the KCA to attract them. While ethnic minorities collectively are reasonably well represented, there do not appear to be any Roma advocates.106

5.2 Access to defense counsel should be an integral part of justice reform and rehabilitation • Advocates are often threatened with physical violence by opposing parties, crime victims, and their respective family members who either identify them with their clients or seek to intimidate them into withdrawing from their cases. 107 In Kosovo, UNMIK identified lawyers of different ethnic backgrounds who were qualified and willing to serve as defense counsel in such cases, and it provided each detainee with a list of their names. The enormous number of detainees, however, by far exceeded the number of available lawyers.”108 Defense lawyers may be paid privately by their clients, but when they are courtappointed or ex officio, counsel receives a maximum of around 250 Euros a month, regardless of hours worked. Payments for ex officio lawyers are also often delayed. Moreover, because the payment has a maximum ceiling, there is little incentive for defense lawyers to devote more than a few hours to their cases. There is no legal aid system, and the responsibility for establishing one should be assumed by the new Ministry of Justice, due to begin work in 2006.109 The overwhelming majority of advocates are poorly compensated.110 The government of Kosovo offers free legal counsel to needy individuals in most criminal proceedings, but the compensation is fairly low and most established advocates rarely if ever accept these engagements. Many of these cases are, therefore, handled by relatively inexperienced advocates who often fail to serve their clients diligently, actively and zealously. Free legal aid to the indigent is no longer available in civil or administrative matters, but a recent regulation (which has not yet been fully implemented or funded) would establish a program for doing so. Some advocates provide pro bono representation from time to time, but no statistics on these efforts were available.” 111 Nothing in the 1979 Law on Advocacy gives advocates the legal right of access to detained clients or suitable opportunities to prepare a defense. In contrast, Article 18 of the Pending Law on the Bar expressly entitles an advocate to meet with his or

• •

106 107

Ibid. Ibid. 108 Strohmeyer, 55. 109 Pieriello and Wierda, 24. 110 American Bar Association 2007, 10-11. 111 Ibid, 47.

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her client in private and without time restrictions, especially when the client is under detention. The appropriate authorities are obligated to send for the advocate when the client so requests.”112 • The Criminal Proc. Code contains provisions respecting the rights of both advocates and their clients to confidential communications. These provisions are generally followed by the state, although facilities for advocate-client conversations are often inadequate. Broader protections are provided by the 1979 Law on Advocacy, but will not be available if such law is replaced by the Pending Law of the Bar in its present form. 113 Advocates have the right, with certain reasonable exceptions, to represent their clients in criminal cases and are generally treated equally by the courts. Concerns have surfaced over a perceived tendency of at least some judges to defer to the evidence and arguments of prosecutors, among other issues of equality. In civil and administrative cases, almost anyone can legally represent a party, and lawyers who do so are allowed to appear before the body and receive equal treatment when doing so.114 Despite the improvements brought about by the new codes and the demonstration effect of the involvement of internationals, respect for the rights of the accused remains a concern. Commentators point out that accused continue to be denied the right to challenge decisions on detention, to avoid extended detention, to a speedy trial and to an effective defense.115 Virtually all reports received by the assessment team indicate that there is no problem in Kosovo for an advocate to obtain access to meet with a detained client without time restrictions, and in fact that the situation has improved over the past three years. The one deficiency pertains to the inadequacy of facilities for the advocate to meet with his/her client. There are very few detention buildings or courthouses that have rooms set aside for this purpose, so communications between advocate and client must often take place through cell doors, in hallways, or even in offices where other persons may be present. There do not appear to be any concrete plans to construct facilities in the future in order to remedy this problem. It is, therefore, physically difficult for the advocate to meet privately with the client to prepare his/her defense for trial. 116 The Criminal Defense Resource Centre (CDRC), a nongovernmental organization (NGO), was established to support the defense; support has been provided for the Kosovo Chamber of Advocates (KCA)”117

112 113

Ibid, 18. Ibid. 114 Ibid, 21. 115 Ibid, 25. 116 Ibid, 17. 117 Pieriello and Wierda, 9.

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The quality of defense counsel has also been improved through assistance by the CDRC, an NGO staffed by national and international lawyers with support from the OSCE. The CDRC provided direct legal assistance in war crimes cases, including advice and case assistance by international lawyers.”118 “The defense teams in cases involving IJPs comprise mostly local lawyers. They are paid by the Department of the Judicial Administration (DJA) under the Ministry of Public Services (MPS). For certain high-profile cases, such as those against senior KLA officers, private funds have been raised to hire leading defense lawyers…. Many observers speak of improvements in the skills of local lawyers, who are adjusting to the adversarial nature of the trials, both in facing IPs and practicing under the new code.”119 The CDRC came to serve as an invaluable resource for local defense counsel, providing access to relevant international instruments and research material related to the rights of the accused, case preparation and research and help challenging violations of international standards in criminal matters. 120 Kosovo’s civil and administrative procedure codes allow virtually anyone to represent parties to those proceedings, permitting law to be practiced by people having no minimal educational or other qualifications, ethical requirements, disciplinary recourse or other regulation.121

VI. Relationship with Local Entities
6.1 Transforming systemic threats to the rule of law is a precondition for transitioning to local ownership • UNMIK was expected to fill a void until local capacity could be developed. The conventional wisdom indicated that ownership should be transferred to local institutions as rapidly as possible to avoid creating a dependency on the international community. Unless qualified, however, this lesson could produce dangerous outcomes. Merely building institutional capacity is insufficient when violence remains the dominant political resource and illicit sources of wealth determine who governs. The timing of the transition to local ownership must be conditioned on both the willingness and the capacity of domestic institutions to overcome the threats to the rule of law in their environment. Otherwise, when the withdrawal of international security forces takes place, ownership of these

118 119

Ibid, 24. Ibid. 120 Rausch 2007, 287. 121 American Bar Association 2007, 10-11.

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institutions will be likely pass to a criminalized political elite, making a mockery of the rule of law.122 • Institutionalizing the rule of law was initially regarded primarily as a matter of establishing capacity. The assessment provided by the secretary-general on July 12, 1999, for example, states, “The security problem in Kosovo is largely the result of the absence of law and order institutions and agencies.” Because the institutions responsible for order, law, and justice had collapsed, international personnel would have to provide temporary substitutes. The need to take a holistic approach was generally recognized, but international capability did not exist to put this concept immediately into practice. By default, this meant that KFOR had to establish public order, provide detention facilities, and facilitate a rudimentary judicial process. For UNMIK, the overriding imperative was to field the personnel required to begin enforcing the law, administering the judicial system, and reestablishing the prisons as swiftly as possible. UNMIK eventually assumed full custody of law enforcement from KFOR. Subsequently, as recruits for the KPS were trained and had demonstrated their competence, UNMIK Police transferred increasing responsibility to the KPS. The relationship thus evolved from an international custodianship over law enforcement into a partnership. With the judiciary, in contrast, UNMIK rejected proposals to include internationals in the system and opted instead to rely totally on Kosovar judges and prosecutors. When the local judiciary proved incapable of dispensing equal justice to Kosovo Serbs, international judges and prosecutors had to be inserted into the process. Thus, UNMIK’s approach to establishing institutional capacity was inconsistent. Policing evolved progressively from international custodianship to partnership with the KPS. The judiciary, however, was given greater responsibility than it could handle initially, and internationals had to assert increasing control over politically sensitive matters.123 One of the salient lessons evolving from Kosovo is that it is unrealistic to expect members of a previously subjugated and brutalized community to begin administering equal justice to members of a population that they identify with their former tormentors. Under these circumstances, the relationship between international personnel and the local legal profession should begin with international custodianship over cases of an intergroup or a politically charged nature.124 As the mission in Kosovo progressed, the international community came to recognize that the initial concept of establishing institutional capacity and transitioning directly to local ownership would be insufficient. This was problematic because the context, in both the Albanian and Serb communities, was characterized by a dangerously high degree of overlap between criminal and political power. The transition to a local police force, judiciary, and prison system would not be conducive to the rule of law while forces hostile to Resolution 1244 were able to assert ownership over these institutions. Only after these political-criminal power structures

122 123

Hartz and Mercean, 163. Ibid, 164-5. 124 Ibid.

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had been dismantled, or at least dislodged, could the institutions responsible for the rule of law operate autonomously from destructive extremist and criminal interests. The strategy evolved, therefore, beyond the establishment of institutional capacity to include shaping the context by disrupting, dislodging, and, to the extent possible, dismantling the extremist networks that were bent on obstructing and subverting the peace process. The deployment of specialized crowd-control units was necessary but not sufficient for this purpose, because their capability allowed a response only to the symptoms of obstructionism, not the means to address the sources. Toward the end of 1999, KFOR and UNMIK began to develop the full spectrum of capabilities—from intelligence to incarceration—that would allow them to dismantle rogue power structures. To prosecute high-profile and politically sensitive cases successfully also required the use of international judges and prosecutors, who, unlike their local counterparts, could be protected from intimidation and coercion by extremist elements in both Kosovo’s ethnic communities.125 • The existence of parallel institutions, including courts, which are seen as more legitimate by minority communities, is reinforced by barriers to access that exist in the Kosovo judiciary. The Ombudsperson highlights the unavailability of translation services, physical insecurity, and the reluctance of counsel to represent members of minority groups as factors contributing to minority preferences for parallel courts.126 Both courts and non-judicial parallel institutions benefit from ambiguity in the UNMIK’s legitimacy. In particular the inability of UNMIK to grant documents, like birth certificates and driving licenses, that are recognized internationally encouraged the population to seek documents from parallel institutions.127

6.2 Clear institutional mandates, particularly those that create channels of accountability for international actors, are essential to promoting perceptions of institutional legitimacy • Accountability measures must provide for continuity when domestic institutions replace international actors. In January 2006 the mandate of the Ombudsperson to investigate allegations against UNMIK was to pass to the newly created Human Rights Advisory Panel. However the status of pending cases was not addressed until November 2007. In the interim period the Ombudsperson delayed action on over 50 cases.128 The introduction of international judges into the Kosovo judiciary inadequately provided for transparency and judicial independence. The Ombudsperson has recommended that the appointment process be informed by international actors

125

Ibid. Ombudsperson Institution in Kosovo, Fifth Annual Report, 2004-2005, (July 11, 2005), 20. 127 Ombudsperson Institution in Kosovo, Third Annual Report, 2002-2003, (July 10, 2003), 5. 128 Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 32.
126

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outside UNMIK, specifically the European Court on Human Rights and that an independent body be created to hear complaints against international judges.129

VII. The Judicial, Prison and Corrections System
7.1 UNMIK was premature in turning ownership of the judicial system immediately over to local judges • In Kosovo: An Unfinished Peace, William O’Neill, UNMIK’s senior adviser on human rights from August 1999 to February 2000, provides this assessment of the performance of the judiciary: “Instances of bias against Serbs and other minorities among the Albanian judiciary surfaced early during the Emergency Judicial System and have continued ever since. . . . Albanians arrested on serious charges, often caught red-handed by KFOR or UNMIK police, frequently were released immediately or were not indicted and subsequently released. Meanwhile, Serbs, Roma, and other minorities arrested on even minor charges with flimsy evidence were almost always detained, and some stayed in detention even though they were not indicted.” 130 On June 28, 1999, the SRSG established the Joint Advisory Council on Provisional Judicial Appointments to screen and recommend judges and prosecutors for an initial three-month period. International representatives held three of seven seats, with the remainder divided equally between Kosovo Albanian and minority representatives. Aided in part by the list of judges and prosecutors that the OSCE had developed earlier, fifty-five judges and prosecutors were appointed under this provisional system before it was superseded in October 1999. Because Serbian judges either fled or were soon intimidated into leaving, the vast majority of judges were ethnic Albanians. This cadre began functioning as a mobile court for the purpose of conducting detention hearings for the various KFOR MNBs. KFOR provided transportation, security, and makeshift courtroom facilities, in addition to performing investigations and holding initial detention hearings. This emergency judicial system struggled to process the backlog of detention hearings that had built up in response to the wave of violence against Serbs throughout the summer of 1999. As a result, few cases were investigated. Under the civil law tradition observed in Kosovo, investigations were to be performed under the supervision of a judge; however, the number of judges available was insufficient to perform this vital function. Because little evidence was being developed, indictments were very rare. In December, this paralysis in the legal process reached a crisis point; after six months detainees had to be either indicted or released. The response by UNMIK was to draft a regulation extending the period of pretrial detention for serious offenses to one year. KFOR dealt with this conundrum by adopting a practice called COMKFOR holds. Detainees in KFOR custody could remain locked up in spite of a judicial release order if the KFOR commander determined they constituted a threat to safety and security. This was regarded as a violation of judicial independence and
Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007, 19. Ibid, 177-178.

129
130

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the rights of detainees by the human rights community and provoked a prolonged confrontation, especially with the OSCE’s Legal Systems Monitoring Section (LSMS). Although the merits of this action can be debated, it was indisputably an indication of the incapacity of the local judicial system to meet one of its most basic responsibilities.131 • From August 1999 until January 2000, when international judges were brought in, cases in which members of the Serb minority were the accused parties were frequently fraught with irregularities. Such cases resulted in longer preventive detentions, harder punishments or downright injustice…on the other hand the judiciary would be strikingly lenient with Albanian offenders…this situation created a widespread sense of impunity in the province, fertilizing the ground for criminal organizations and fostering a wave of rampant violence and revenge against Serbs and other minorities.132 One of the principal failings of the Kosovo judiciary was that individuals accused of the same crime were treated differently, based on their ethnicity, and as a result of when they were detained. 133 As a result, the Kosovar judiciary could make decisions that the IJ opposed, and to add insult to injury, then use the IJ’s presence for “window dressing” to justify an unjust decision. Even if the IJ had vehemently dissented in chambers, the Kosovar criminal procedural law, like many other continental European judicial traditions, does not allow any judge to reveal to the public or parties the results of judicial voting, including whether a decision is unanimous or not.134 In September the provisional Joint Advisory Council was replaced by an Advisory Judicial Commission (AJC). In another strategic choice that later experience would show to be misguided, Kosovo Albanian representatives were given control over the commission, with seven of the eleven positions. In December 1999 the AJC began making longer-term appointments to all courts of Kosovo. By September 2000 the AJC had appointed 405 judges and prosecutors and the operation of the courts had been restored at all levels across Kosovo. Staffing the court system, however, did not equate to administration of justice, and placing ownership of the appointment process immediately into local hands did not constitute a formula for institutionalizing the rule of law. Kosovo Albanian members were inclined to make appointments on personal or political grounds rather than on the basis of professionalism. Nor did the AJC ever take disciplinary action to redress misconduct by its appointees. The AJC did act, however, to remove the one Kosovo Albanian district court president who had been willing to conduct proceedings in both languages when Serbs were involved. The AJC fell into such disrepute that by December 2000 it had ceased to function, and its mandate was not renewed. It had overcome the shortage of

131 132

Ibid, 172-173. Bernabéu, 75. 133 Day, 7. 134 Hartmann, 10.

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personnel (judges, lay judges, judicial staff, prosecutors court clerks, court administrators, etc.), but at a high price in terms of the rule of law.135 • Whereas the international community had taken full responsibility for policing at the inception of the mission, UNMIK initially rejected the use of international judges and prosecutors in the legal system. As a senior UNMIK official observes, “There was too much optimism. We thought, ‘Let’s appoint some judges, some good people, they have their freedom and they will be good and behave properly.” As a result, the international role was defined in very limited terms. Colette Rausch, head of the OSCE Rule of Law office (2000–2001) notes: “Originally, it was believed that with some remedial training and assistance, the existing crew of former judges and prosecutors could be brought up to speed and function effectively.” As it turned out, the capacity for impartiality in dealing with Serb accused was severely lacking, and the overall quality of jurisprudence was deficient. The inability to retain Kosovo Serb judges or to provide defense counsel made justice all the more inaccessible for the Serb community. 136 Instead of a gradual process of diminishing international involvement, therefore, as was the case with regard to policing, international involvement in the judicial system had to increase. There was no other way to begin developing an impartial judicial system that could contribute to the equitable and peaceful resolution of disputes between Kosovo’s ethnic communities. Equally vital was the need for international judges and prosecutors to play a decisive role in depriving violent obstructionists of their capacity to intimidate the judiciary and thereby thwart the peace process.137 Although the IJP system has not fared badly in terms of total numbers tried, it may be seen as inefficient if it does not result in systemic impact in terms of legacy…138 Three approaches to improve transitional administrations in the future… (1) a phaseout approach that starts with complete UN ownership over the judiciary; (2) clarity of applicable law; and (3) accountability for UN peacekeepers to an outside source.139 Albeit exceedingly fragile, the UN largely succeeded in restoring basic justice, safety and security to Kosovo. The UN also laid down many of the essential institutional parameters upon which justice and security could be delivered by Kosovar actors. Regarding the second phase of peace operations, the development of indigenous/national justice and security sector delivery, the UN has been less successful. 140

• •

135 136

Hartz and Mercean, 172-173. Ibid, 174. 137 Ibid. 138 Pieriello and Wierda. 139 Day, 7. 140 Hänggi and Vincenza, 170.

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… UNMIK “working very quickly, with little chance to vet candidates thoroughly” appointed 55 Kosovar judges and prosecutors by October 1999. Eleven months later, in September 2000, UNMIK “had recruited 405 judges and prosecutors and 724 support staff for all the courts of Kosovo… security for all those working in the system [was] precarious… and [ethnic] bias and prejudice, combined with a lack of knowledge or will to impose certain human rights guarantees… led to flawed judicial proceedings and unjust results.” Many of UNMIK’s judicial initiatives since have been designed to rectify those early political decisions.141 Due to their prior international isolation, the new Kosovar judges and prosecutors were unfamiliar with the relevant human rights standards, and therefore, they were not equipped to identify provisions of the applicable law that should be superseded by applicable human rights law.142 International judges and prosecutors have effectively acted on a parallel basis to the national judicial system, resulting in a minimal transfer of capacity and skills to national judges and prosecutors. A detailed strategy with specific goals, benchmarks, and target dates for phases out international personnel and empowering the national judges and prosecutors to handle these cases did not exist for the first six year’s of UNMIK’s presence.143 Unlike the administrative and law enforcement authorities, only Kosovars were initially appointed to the judiciary and prosecution. The reasons underlying this decision are not clear. Within the first six months of the mission, however, discussion began about the need to include international actors in these bodies. The main impetus for this was concern about the capacity of the local, mainly Kosovo Albanian, judiciary to make impartial decisions in trials of persons alleged to have committed war crimes and other violations of international humanitarian law against members of their own community.”144

7.2 A sustainable transition from peacekeeping to peacebuilding requires creation of effective safeguards on institutional performance • The final component of UNMIK’s strategy to institutionalize the rule of law was the development of safeguards to ensure that Kosovo’s public security entities and overall judicial processes actually serve the public interest, respect minority rights, dispense justice equally, and do not again become instruments of ethnic persecution or captives of political-criminal networks. The July 12, 1999 SRSG report to the Security Council on the concept for implementing Resolution 1244 stresses that “to strengthen the rule of law in Kosovo, UNMIK will develop mechanisms to ensure that the police, courts, administrative tribunals, and other judicial structures are operating

141 142

Scheye, 189. Betts, Carlson and Gisvold, 378. 143 Rausch 2002, 87. 144 Marshall and Inglis, 119.

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in accordance with international standards of criminal justice and human rights.” Safeguards are needed to provide assurance that the institutional capacity developed by the international community will continue to function in a manner that is consistent with the rule of law. Functionally, this entails the capacity to observe performance (transparency) and to sanction misconduct (accountability). Structural safeguards within the state are part of the answer. This includes open elections that permit transitions in power, judicial autonomy, and independent oversight bodies with effective disciplinary mechanisms for each institution involved. Safeguards in civil society, such as a free press, are also essential. Ultimately, the citizenry must have channels for airing its grievances and mechanisms for pursuing effective remedies.145 • Domestic safeguards will be effective only after the environment they operate in has been transformed and threats to the rule of law have been effectively confronted, as described above. Developing adequate safeguards inevitably takes longer than the process of building institutional capacity. Thus, there is likely to be a gap between the completion of capacity building and the point when local ownership will be conducive to self-sustaining peace. International safeguards are needed to fill this gap. As SRSG Michael Steiner argued in a November 2002 speech in Berlin, even after Kosovo’s final status has been determined, “We must safeguard these investments.” His proposal was to have the European Union perform that function after the United Nations has completed its mission, much as has happened in Bosnia with the transition to the European Union Police Mission. As local safeguards mature and demonstrate their competence, the international role can diminish. This is a crucial difference between merely providing training programs and actually institutionalizing the rule of law. 146 “The UN, however, has given scant attention to the development of accountability and oversight mechanisms and institutions.”147

7.3 Accountability and effective safeguards must be built in from the inception to the development of the judiciary • International oversight of the judiciary was accomplished by the Legal System Monitoring Section (LSMS) of Pillar III as part of UNMIK’s human rights monitoring mandate. Initially only a handful of LSMS monitors were assigned to each of the five judicial districts, where they began reporting on basic issues confronting the emergency judicial system, such as inadequacies in the detention process, lack of access to effective defense counsel, and the material shortcomings of the court system. In October 2000 LSMS began issuing reviews at six-month intervals. The first semiannual report was harsh in its condemnation of persistent deficiencies, such as the periodic use of lengthy pretrial detentions without suitable means of

145 146

Hartz and Mercean, 165-6. Ibid. 147 Scheye, 192.

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redress. Because this practice was largely attributable to other members of the international community (i.e., KFOR or UNMIK), this public rebuke provoked considerable controversy. Those responsible felt it would have been more appropriate to use internal avenues to address this concern. The overall performance of local judges and prosecutors was judged to be lacking in impartiality, and their awareness of international human rights standards was regarded as deficient. On the other hand, LSMS reports credited the introduction of international judges and prosecutors into the legal system with curbing the ethnic bias of the courts. Similarly, the creation of a Judicial Inspection Unit to investigate allegations of judicial misconduct was applauded. Over time, international resources were progressively focused on many of the deficiencies identified by LSMS, such as access to defense counsel, leading to substantial improvement in many areas. Thus, LSMS served as a significant safeguard on the performance of the legal system. As Colette Rausch argues, “the fact that LSMS monitors are present in court provides the important function of making sure that those who are administering justice know that they will be held accountable.” As noted repeatedly in LSMS assessments, access to defense counsel is an additional safeguard that is vital for ensuring fairness of the judicial process, especially for members of ethnic minority groups. During the early phase of the mission, no system was in place to pay for such services. Training for defense counsel in international human rights standards and assistance in case preparation were slow to materialize. Eventually, the OSCE set up the Criminal Defence Resource Centre (CDRC) in mid-2001 as an independent source for reference materials, practical training, legal research and drafting, and assistance in matters such as the safe transport of Serb defense attorneys.148 • The reintegration of Serb judges and prosecutors into the legal system was another essential means of providing a long-term safeguard so that minorities could have an assurance of access to justice. The Department of Justice established a Judicial Integration Section (JIS) for this purpose in 2002 and began to work with Belgrade to recruit and hire some forty Serb judges and prosecutors. However, Belgrade continued to sustain parallel judicial structures for Kosovo Serbs. By accepting contracts to work for UNMIK, Serbs risked the loss of salaries and other forms of support. UNMIK shifted the focus of its efforts toward pressuring Belgrade authorities to eliminate these parallel judicial structures. The initial mechanism created by UNMIK to involve the local legal community in preserving the integrity of the judiciary was the Advisory Judicial Commission. In addition to its role in appointing judges and prosecutors, the AJC was responsible for evaluating their work and, as necessary, recommending dismissal. The AJC consisted of eight local members (seven Kosovo Albanians and one Kosovo Serb) and three from the international community, which meant that the Kosovo Albanian majority monopolized decisions. The AJC proved to be incapable of confronting the risks associated with disciplinary action. In an assessment conducted in February 2000, a team of U.S. government judicial specialists urged UNMIK “to establish a process to
Ibid., 27–28.

148

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remove judges who abused their positions.”149 • Owing to the inefficacy of the AJC in fostering ethical conduct, UNMIK replaced it with the Kosovo Judicial and Prosecutorial Council (KJPC) in April 2001. With five seats for UNMIK on the nine-member council, the majority shifted to the international community. Given the nature of the threat to the rule of law at the time, it was necessary for the SRSG to act decisively to create a body that could deal effectively with the selection, discipline, and removal from office of judges, prosecutors, and lay judges. To investigate allegations of wrongdoing, the Department of Justice established a Judicial Inspection Unit (JIU). Additionally, UNMIK and the OSCE drafted a code of conduct, working in collaboration with the local judiciary. In the first three years of operation, the JIU conducted 336 investigations and submitted 37 cases to the KJPC for action (69 investigations remained pending). The KJPC recommended eight dismissals. In addition to two international staff members, the JIU hired a local prosecutor to investigate allegations of misconduct. The greatest challenges impeding the transition to an expanded Kosovar role were death threats against the local prosecutor and a meager salary that made it unattractive to remain long enough to become proficient in the job. Moreover, understaffing of the international posts caused a backlog of cases. 150 The role of internationals in the reform of the Kosovo judiciary thus underwent a strategic shift between the inception of the mission in June 1999 and May 2001, when the KJPC and the JIU were created. UNMIK came to recognize that the local judicial community was vulnerable to influences that opposed the peace process and that this had rendered the AJC incapable of taking effective disciplinary action. The impression of mistrust that resulted when the KJPC replaced the AJC and the majority shifted to international representatives could have been avoided if this threat had been recognized and heeded when the mission began. UNMIK ultimately determined that to establish effective accountability for judicial and prosecutorial misconduct, it would have to play a custodial role within the KJPC and the JIU.151 The past few years have seen growth in the independence and efficacy of judicial institutions. Thus, the Kosovo Judicial Institute has increasingly become a locally administered institution, and has expanded its curricula for both the pre-appointment judicial training programs and the continuing legal education courses for judges, although these programs are not yet mandatory. The Kosovo Judges Association has also increased its programming, though it has not yet been very successful in affecting change to the judiciary.152 UNMIK Regulation 1999/7 established the Advisory Judicial Commission (“AJC”) to recommend candidates for judicial and prosecutorial appointment on a permanent basis. Significant efforts, early on, to recruit minorities into the judiciary were without

149 150

Hartz and Mercean, 186-8. Ibid. 151 Ibid. 152 American Bar Association 2007, 10.

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success. Among the 354 judges (professional and lay) and public prosecutors sworn into district courts between January and March 2000, there was not a single Kosovo Serb. The most recent Report of the Secretary General on UNMIK states that there are 341 local judges and prosecutors, including 319 Kosovo Albanians, four Kosovo Serbs, seven Turks, nine Bosniaks, and two Roma. As regards international judicial actors, there are twelve international judges and twelve international prosecutors. The regular judicial system is comprised of the minor-offense court system, municipal courts, district courts, and the Kosovo Supreme Court. 153 • Other than judicial appointments, the AJC was also empowered to investigate judicial misconduct and to make recommendations to the SRSG. The SRSG did not renew the AJC mandate and in April 2001 promulgated Regulation 2001/8 establishing the Kosovo Judicial and Prosecutorial Council, composed of nine members, the majority of whom are internationals.154 Despite an ever-present lack of resources and a backlog of cases caused by caution within the KJPC, both the KJPC and the JIU functioned more successful than their predecessor, the AJC. Their success is believed to have been largely due to the input of local officials in developing the KJPC and the JIU, and the mixture of international and local perspectives within the KJC. 155 Former Albanian judges and lawyers who had been fired from their jobs during the decade of Serbian repression were hired, despite the fact that they were on many occasions poorly trained and there was a serious risk that their conduct in trials would not be impartial. 156 …the establishment of independent judicial commissions became the primary mechanism for the selection of judges and prosecutors and served as an important safeguard for the establishment of an independent and impartial judiciary. The commissions were designed as autonomous bodies; they were to receive applications from persons with a law degree, at a minimum. The commission would then select candidates for judicial or prosecutorial office on the basis of merit and, eventually, make recommendations on appointments to the head of the UN mission… were to include local and international legal experts. In Kosovo, the Joint Advisory Council on Judicial Appointments, later succeeded by the Advisory Judicial Commission, was set up only two weeks after the arrival of the first UNMIK staff members. It initially comprised seven lawyers, including two Kosovar Albanians, one Bosniak (Muslim Slav), and one Serb, all of whom had extensive previous experience in the administration of justice in Kosovo, and three international lawyers from different international organizations…157

153 154

Rausch 2007, 102. Ibid. 155 Ibid., 281. 156 Bernabéu, 86. 157 Strohmeyer, 52.

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There is currently a great deal of uncertainty regarding the tenure of Kosovo’s judges. Initially, UNMIK mandated that judges were appointed for 3-, 6-, or 9-month renewable terms at the discretion of the SRSG. In December 2001, following a KJPC recommendation, judicial tenures were extended though the end of the UNMIK administration. Thus, the tenure of all current judges is tied to the duration of UNMIK’s mandate, subject to good behavior and mandatory retirement at age 65. At that time, all of Kosovo’s currently sitting judges will be subject to a one- time, comprehensive evaluation for reappointment to permanent tenures, a process that will be carried out through an IJPC (an autonomous body of the KJC) […] Although implementation of the IJPC was to start in May 2007, the signing of the relevant operational documents has been delayed indefinitely.158 In addition to addressing the typical issues which arise during the judicial selection and appointment process, the Kosovo judiciary is in a unique situation in that all of its currently sitting judges will have to be evaluated for reappointment upon the expiration of UNMIK’s mandate in Kosovo… To address this situation, the Justice System Framework Regulation contemplates the creation of the IJPC as an autonomous body of the KJC. The IJPC is intended to oversee the reappointment of existing judges and the appointment of new judges at the end of UNMIK’s mandate in Kosovo. The IJPC model was used successfully in Bosnia-Herzegovina in 2001. Implementation of the IJPC in Kosovo was to start in May 2007, prior to the exodus of UNMIK. However, the signing of the enabling memorandum of understanding has been delayed indefinitely, and thus the IJPC’s work of reappointing judges has not yet begun.159 The first is: what is being created, needs to be fully understood and accepted by the local community. The idea of an impartial and competent police and justice system, which is not corrupt or linked to any political group or ethnicity, and is independent from local or family connections, this idea is new in Kosovo as in many countries that have never known true democracy. Therefore what is being built in Kosovo needs to have the trust and full support of all components of the population of Kosovo. This is hardly the case. Albanians had more trust in the local police and justice than Serbs. Impartiality is not hard to achieve by international policemen or judges: they are not local players. They have none of the prejudices or complexes of the locals. But let us face the fact and make a blunt statement: it is almost impossible for locals who, one way or another, are members of a particular ethnicity, community or political group, to be impartial.160

7.4 Accountability and effective safeguards must be built in from the inception of the development of the prisons and corrections service

158 159

American Bar Association 2007, 25. American Bar Association 2007, 15. 160 Cady, 4.

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One of the greatest safeguards that was built into the KCS is its multiethnic composition. Some 11 percent of KCS personnel are Kosovo Serbs and other minorities. They serve side by side with their Kosovo Albanian colleagues in what has become one of UNMIK’s most successful endeavors of ethnic integration. A well-run corrections system must also have “an independent oversight process or system including a willingness to accept international scrutiny.” Both internal and external systems of supervision and control were developed by the Penal Management Division.161 It was essential for the international community to play a leading role in the creation of effective safeguards, beginning with long-term supervision of performance. Early attempts to transfer disciplinary responsibility to locals in the judicial and penal systems proved abortive and had to be reversed. Another common theme was the need for the international community to play a leading role in the operation of independent oversight bodies for each institution involved in the rule of law. This meant that the SRSG had to remain the ultimate decision maker to ensure the primacy of the peace process over lawless forces that were willing and able to subvert it. UNMIK and KFOR had to demonstrate that no one had impunity, no matter how well connected they might have been with dangerous elements of the ex–KLA or covert Serbian paramilitary and criminal enterprises.162 Having a system whereby prisoners could voice legal claim for violations of their human rights would obviate a great rift that grew between locals and UN forces in Kosovo. 163 …acknowledged that each of these selection processes was designed with interview and evaluation protocols to emphasize job performance and operational expertise as criteria for promotion rather than level of formal education. More than once, senior Kosovar Albanian officials and others complained about these promotion procedures, claiming that a less-educated KCS officer was promoted above a moreeducated one. Though this may be a political issue, it is an indication that promotions were based upon operational qualifications rather than a paper trail or political patronage. 164

7.5 Justice capacity building must include training at inception • The legal training failed to improve the quality of judicial proceedings. First, the training programs focused on European human rights law jurisprudence, an unknown field to local lawyers. Rather than being informed on the relevant international case law, Kosovo legal professionals needed instruction on applying such standards in the courtroom. In particular, judges needed to know how human

161 162

Hartz and Mercean, 188-9. Ibid. 163 Day, 10. 164 Scheye. 187.

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rights law can be used to fill gaps in domestic law, such as the right to habeas corpus, or to void incompatible provisions in the domestic law, such as the failure to afford detainees a right to counsel on arrest. Judges, prosecutors, and defenders also required training on basic legal skills, such as the questioning of witnesses, legal reasoning, the development of evidence, and the role of professional ethics. Inadequate questioning at the investigative stage can have a debilitating effect on the chances for obtaining a legally and factually sound verdict. Indeed, poorly drafted written verdicts, which fail to adequately summarize the facts or explain the legal elements of the crime, would in due course result in numerous reversals on appeal.165 • The international community must play an active role in providing adequate professional training to newly appointed lawyers, judges, and prosecutors so that the judiciary will be equipped with the highest level of technical competence, will be strongly committed to the principles of judicial independence, and as an institution will respect human rights and understand how to protect these rights in its day-today work.166 Although some international control over the justice system should continue to ensure a balance of power between ethnic and regional interest groups, there should be enhanced efforts to ensure local decision making and capacity building.167 A new Judicial Ethics Code that was adopted in 2006 is fairly comprehensive and closely tracks the language of the Bangalore Principles of Judicial Conduct in many respects. All judges have received trainings on the new Code, even though such trainings are not yet mandatory.”168 The KJI has also held procedural law workshops, including a one-week roundtable on the Provisional Criminal Procedure Code of Kosovo [hereinafter PCPC],6 as well as specific criminal procedure issues such as indictment procedures and evidence (including forensics, detention, and execution of penal and alternative sanctions)… The PCPC is in effect. It is “provisional” because it is an UNMIK Code (approved by UNMIK Regulation No. 2003/26), not an Assembly Law promulgated by UNMIK, and thus will cease to be effective upon termination of UNMIK’s mandate.”169 The need for judicial training also surfaced similar attention in Kosovo, although it was less dramatic because of the availability of a larger number of lawyers with practical experience in the administration of justice…Nevertheless, the issue of training had to be tackled carefully. Bearing in mind the long legal tradition of the former Yugoslavia, many of the lawyers educated in Yugoslav universities considered the emphasis on professional training to be somewhat patronizing. For

165 166

Marshall and Inglis, 124. Strohmeyer, 13. 167 Marshall and Inglis, 124. 168 American Bar Association 2007, 10. 169 American Bar Association 2007, 17.

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their part, Kosovar Albanian lawyers, particularly those schooled during the decade of "parallel institutions," reacted extremely cautiously to the notion of training for fear that the inadequacy of their experience and skills might disqualify them for judicial office or, yet again, provide an advantage to those who had "collaborated" with the previous regime.170 • “District courts were equipped with witness protection equipment and ISDN links have been installed to increase the security level in terms of witness’s protection. But despite these improvements, there are some indications that very frequently prosecutors do not request and judges do not use such measures. There is an insufficient awareness among prosecutors and judges of the benefit that witness protection measures can have on the outcome of the proceedings.”171 The key to what may prove to be a successful judicial development program is that almost all development has been outsourced through, for example, USAID, DFID, EU, and the EC to consulting companies and is not conducted by UN staff.172

7.6 Remedies and resources must be provided to limit delays in the judicial process • “There is also no legal remedy providing relief in cases of excessively long court proceedings. This issue was raised in many reports released by the Ombudsperson Institution, which found that certain court proceedings had been so long that they had violated a person’s right to have his case decided within a reasonable time.”173 Several cases investigated by the Ombudsperson have been pending for over 5 years.174 Resources must be allocated to all portions of the judicial process. The execution of judgment has been impeded by the failure to provide an adequate number of bailiffs to the courts. Reports by the Kosovo Ombudsperson indicate that some courts have no bailiff at all.175

7.7 Local judges and prosecutors must be adequately paid and resourced to meet the circumstances of a post-conflict environment • The lack of adequate translators and low pay for local judges complicated the establishment of a working relationship between local and international judges. Even

170

Strohmeyer, 56. Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 25. 172 Hänggi and Vincenza, 189. 173 Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007, 19. 174 Ombudsperson Institution in Kosovo, Regarding the length of proceedings in the case of Xhemajl Pllana, (October 31, 2006). (Property dispute pending since 2001). Ombudsperson, Sheribane Ademi against the Municipal Court in Vushtrri Vucitrn, the District Court in Mitrovice/Mitrovica and the Supreme Court of Kosovo, (May 10, 2007). (Property dispute pending since mid-2001). 175 Ombudsperson Institution in Kosovo, Sixth Annual Report, 2005-2006, (July 11, 2006), 22.
171

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after pay increases, district court judges receive a yearly salary of approximately U.S. $5,000 compared to the approximately U.S. $100,000 paid to international judges.113 International judges and prosecutors, who received round-the-clock armed protection, could often be seen moving through the region with a phalanx of bodyguards, staff, and vehicles. No such service was afforded local judges, more likely to be victims of violence and intimidation.176

VIII. Politically or Ethnically Sensitive Cases
8.1 Systemic threats to the mandate and to the rule of law must be confronted by the mission across the full spectrum from intelligence to incarceration • The early international response to the destabilizing waves of violence against Serbs and other minorities involved short-term surges in the security presence. Although it was critical to seek to deter and prevent interethnic violence, KFOR and UNMIK Police could not be in every location where they might be needed at all times. Beginning in the spring of 2000, UNMIK planners recognized that a strategy had to be developed that would attack the sources, not just respond to the symptoms, of interethnic violence and obstruction of the peace process.177 In areas populated predominantly by Kosovo Serbs, parallel power structures constituted a persistent threat. Mitrovica represented the most serious flashpoint owing to the dominance there of paramilitary bridge watchers who were responsible for the worst acts of violence perpetrated against UNMIK, including a grenade-andsniper assault in April 2002 that injured twenty-six international police. Adept at orchestrating unruly demonstrations, the bridge watchers also used strong-arm tactics to resist deployment of Serb members of the KPS in northern Mitrovica, even after Belgrade had formally agreed to work toward their dissolution in late 2002. For Kosovo Albanians, the challenge was both their vulnerability to lawless forces within their own community and the inevitable difficulty of administering equal justice to the minority population that was collectively identified with their former oppressors. A report issued in October 1999 by the Lawyers Committee for Human Rights documents the arbitrary nature of decisions by Kosovo Albanian judges in failing to prosecute an inordinate number of cases against suspected perpetrators of assaults on Kosovo Serbs. Conversely, Serbs accused of similar offenses were often detained indefinitely without trial. 178 In Kosovo: An Unfinished Peace, William O’Neill, UNMIK’s senior adviser on human rights from August 1999 to February 2000, provides this assessment of the performance of the judiciary: “Instances of bias against Serbs and other minorities among the Albanian judiciary surfaced early during the Emergency Judicial System

176 177

Marshall and Inglis, 129. Hartz and Mercean, 177-8. 178 Ibid.

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and have continued ever since. . . . Albanians arrested on serious charges, often caught red-handed by KFOR or UNMIK police, frequently were released immediately or were not indicted and subsequently released. Meanwhile, Serbs, Roma, and other minorities arrested on even minor charges with flimsy evidence were almost always detained, and some stayed in detention even though they were not indicted.” 179 • The collective effect was to subvert efforts to promote the peaceful resolution of disputes among Kosovo’s ethnic communities. The institutional context was entirely inhospitable to the preservation of the fundamental rights of minorities, thwarting efforts to maintain the multiethnic character of Kosovo. Lawless forces remained untouchable in both the Kosovo Serb and the Albanian communities. These conditions would have to be transformed for peace to become enduring and for rule of law to prevail.180 UNMIK would eventually have to acquire the full spectrum of capabilities—from intelligence to incarceration—to enable the dismantling of political-criminal power structures that were overwhelming threats to the rule of law in both the Kosovo Albanian and Serb communities. One of the most crucial gaps was in the capacity to gather evidence. While resources were important, it was just as vital for UNMIK to employ its regulatory authority actively to provide a suitable legal framework for this purpose and to establish an effective organizational structure in the form of the Kosovo Organized Crime Bureau (KOCB).181 With virtually no consultation with the local population—indeed, even an Albanian lawyer in a senior UN post noted that she was not included in the decision-making process—on February 15, 2000, the UN issued UNMIK Regulation 2000/6. This provided for the appointment of an international judge and an international prosecutor to work within the existing domestic judiciary along with their local counterparts…. Despite the lack of consultation with the local population, many welcomed the appointment of IJs because it made it possible for trials to proceed in the Kosovo courts without a grave risk of bias or “violent blowback.182 Kosovo is entering its sixth year in the aftermath of intensive ethnic conflict and longstanding systematic discrimination and it has been five years since the deployment of internationals into its legal system… The system has made halting steps forward, although its contributions have been limited by continuing security concerns, concerns regarding independence, ad hoc planning, and poor implementation including the absence of any concrete plans for hand-over. 183

179 180

Ibid. Ibid. 181 Ibid., 185. 182 Pieriello and Wierda, 13. 183 Ibid.

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The UNMIK Regulation on Measures Against Organized Crime made prosecutions of organized crime more viable by dramatically increasing penalties for all forms of participation and clarifying the specific elements of the crime. 184 While the amendments to the criminal law strengthened existing provisions, the amendments to the procedure code gave prosecutors, both local and international, and the police capacities that had not previously existed. The need for the amendments was evidenced by the ease with which criminals could conceal their activities and intimidate witnesses or victims. 185 Because of this inability to effectively address war crimes issues in the emergency phase, the opportunity to hold the perpetrators accountable was compromised at the local level, and serious doubts emerged as to the commitment of the international community to address the issue more generally. 186 First, given the character of the conflict, it should have been possible to anticipate postwar ethnic-related and organized crime. However, the United Nations took more than a year to promulgate regulations and mechanisms to address these crimes; these measures remained inadequate as of 2002. 187 When UNMIK began its mission in Kosovo, the police were unable to ensure public safety, and there was no judicial system to conduct trials or prisons to incarcerate criminals. There is now a tiered structure for criminal and other cases, including twenty-four municipal courts for adjudicating less serious criminal cases188 Immediately after the intervention, up to 50 murders were being reported per week in Kosovo (Ramet 2000). By contrast, the number of murders in Kosovo decreased dramatically following the intervention from 245 in 2000 to 68 in 2002…189

8.2 International judges and prosecutors can make a decisive contribution in confronting violent threats to the mandate • For successful prosecution of cases involving violent criminal and extremist forces, international judges and prosecutors were required, because they were not prone to ethnic bias and could be protected from local intimidation. The need to involve international jurists in the legal process was raised at the inception of the mission and again within UNMIK in September 1999. Several serious disruptions of the peace process eventually compelled UNMIK to begin incorporating international judges and prosecutors in an ad hoc manner into Kosovo’s judicial system.

184 185

Naarden and Locke, 10. Ibid. 186 Betts, Carlson and Gisvold. 187 Rausch 2007, 292. 188 Wilson, 7. 189 Ibid., 11.

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The event that triggered the introduction of the first international judge and prosecutor took place in February 2000 near the divided city of Mitrovica. A deadly military-style assault on a bus carrying primarily elderly Serbs and children precipitated a Serb rampage against Kosovo Albanian residents living in the predominantly Serb portion of Mitrovica. During the skirmishing, armed members of the Kosovo Protection Corps were arrested by UNMIK Police and KFOR for firing their unauthorized weapons at French troops and Serb apartments. The ethnic Albanian judge involved in this case released the suspects the same day. This prompted UNMIK to act with unusual dispatch in promulgating a regulation authorizing the appointment of an international judge and prosecutor to the district court in Mitrovica with the authority to become involved in any case within the jurisdiction of the court. A few months later, Serb prisoners who had been languishing in jail without trial for a year went on a hunger strike, demanding that international judges be assigned to their cases. This precipitated the ad hoc appointment of international judges and prosecutors to be extended to all five district courts in Kosovo. While UNMIK was scrambling to locate the additional eleven international judges and three prosecutors it estimated would be needed to process the hunger strikers’ cases, further events made it evident that this “temporary” measure would have to be retained indefinitely. UNMIK soon realized that two international judges would have to be assigned to each case: one for the investigation and another for the trial phase. With five district courts and the Supreme Court, this required the availability of a minimum of twelve international judges.190 • The main lesson learned from the experience of IJP in Kosovo’s criminal justice system is that international participation in the judicial arena should have been immediate and bold, rather than incremental and crisis-driven…Each of Kosovo’s three judicial phases was preceded by an international hesitancy to assume authority…Funding for witness protection is a continuous problem…The Kosovo example provides proof that future international missions should condition their initial deployment in the judiciary upon a worst-case scenario. Local or national jurists should not be expected to be impartial and impervious to coercion and threats, in light of the expected power vacuum struggle, and the influence that the former regime had upon those jurists. These future missions should establish the most robust international intervention possible, given the existing political and budget realities. While the views of the local or national jurists should be taken into account, their understandable desire to have exclusive authority should not in itself decide the issue of whether there should be IJP participation in the domestic judicial system. Kosovo illustrates that the effective investigation and prosecution of organized crime, terrorism, and inter-ethnic crime may not be within the initial capacity of existing
190

Hartz and Mercean, 182.

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jurists, and that impartial prosecution and adjudication of war crimes may require internationals…Other issues that can have a critical effect upon the success of IJP interventions are the selection, peer performance monitoring, supervision, premission preparatory education, and in-mission training of IJP. While not within the limited scope of this paper, the causes and solutions to these needs are related to human and budgetary resources, as well as taking into account lessons learned in Kosovo. Finally, there must be a phase-out of international involvement that makes use of the lessons learned from phases one and two…The determination and implementation of Kosovo’s final status do not prevent the continuation of a limitedscope program of international judges and prosecutors; for example, both Bosnia and East Timor have IJP. The possibility of such a continuation should perhaps be discussed during talks on final status.191 • In order to guarantee the enforcement of the framework, an independent court system must fulfill its role as a check on excessive state power and the protector of fundamental rights… It must be accepted that peace and order, even in a de facto state of emergency, can be achieved concurrently with respect for the protection of basic human rights. Peace-building missions require both external and internal human rights mechanisms… In situations in which the international community is engaged in rebuilding post-conflict societies that have a history of internal discord, there must be a substantial international presence of judges and prosecutors early on. In particular, in cases that most challenge the capacity of local legal actors, such as war crimes-related offences, judicial investigations must be conducted by internationals, and the composition of the trial panel must be majorityinternational…. Peace-building missions must ensure that those selected as international judicial actors are competent for such high-profile posts. Pre-entry legal training on relevant provisions of the domestic law and international human rights standards is essential. International judicial actors must be independent and impartial and subject to investigation, discipline, and removal from office….192 …several practical issues associated with the use of international judges and prosecutors also became factors: varying degrees of competency, different legal backgrounds, inadequate English-language skills, and lack of proficiency with the applicable law. Further complicating the mission was the short rotation times of a typical assignment in Kosovo.193 In Kosovo international judges and prosecutors have been appointed to handle sensitive cases including war crimes, organized crime, and politically and ethnically motivated crimes. Unfortunately, the UN has been unable to recruit and retain sufficient numbers of qualified international judges and prosecutors. Some who were appointed did not have the legal experience or language skills necessary to handle

191 192

Hartmann, 13-15. Marshall and Inglis, 144-6. 193 Rausch 2007, 284.

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the kinds of case they were expected to handle, and they do not always have the support they need from qualified translators and legal assistants..194 • While IJPs have been helpful in ensuring that justice is achieved in individual cases, their deployment has not necessarily led to requisite measures of fairness in trials…195 National judges generally agree that there are important reasons for IJs to deal with sensitive cases. However, some have complained that they are not sufficiently involved in making decisions about overall case allocation. Moreover, because Regulation 2000/64 gives broad discretion to appoint IJs in a wide array of circumstances, the appointment of the IJs sometimes seemed arbitrary and ad hoc. This aspect of the process has been subject to repeated criticism by OSCE and others, but no changes were made.196 As of the end of 2001, there were approximately 80 ongoing court cases assigned to or selected by IJP; as of October 2002, IJP were participating in over 90 ongoing court cases. Those numbers do not include a significant number of cases being investigated by the police and being supervised by the IP. The need for careful IP scrutiny of police investigation and evidence before initiating a request for a judicial investigation is especially important given the complexity of the legal elements and factual determinations in war crimes cases.197 An overview of the data obtained from over 1,000 cases in the Kosovo courts suggests that overall there are no systematic differences in punishments and trial outcomes between Kosovo Albanians and Kosovo non-Albanians, or among the non-Albanian communities. In addition, the few observed differences did not consistently favour a particular group or community. In any case, the observed differences among the groups do not necessarily prove bias in favour of or against a specific group. The unique facts and aggravating or mitigating circumstances of the case may explain the differences. Of interest, the OSCE noted that in district court cases where the defendant and the judge have the same ethnicity, defendants were imprisoned less often and received slightly more lenient average punishments than in cases where the defendant and the judge have a different ethnicity. As this was a preliminary study that did not control for all factors that can affect punishment, the limits of this study must be recognized.”198

194 195

Scheye, 24. Pieriello and Wierda, 17. 196 Ibid. 197 Hartmann, 12. 198 OSCE, Legal Systems Monitoring Section, Different Communities before the Kosovo Justice System (December 2008), 19.

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8.3 Central or Special Courts involving international and local judges may be essential for confronting violent threats to the mandate • At the district court level, judicial panels had five members. This meant that the single international judge assigned to the panel could simply be outvoted, which immediately began to happen. Serb defendants were convicted without sufficient evidence, and Kosovo Albanian defendants were released or acquitted regardless of evidence of guilt. Thus, instead of precluding the miscarriage of justice, the presence of an international judge had the perverse effect of appearing to legitimize patently unjust verdicts. To ensure “impartiality, independence, and respect for human rights,” therefore, UNMIK promulgated Regulation 2000/64 in December 2000. This provided for the formation of special three-member judicial panels—composed of at least two international judges—to hear high-profile cases, especially those involving interethnic violence, political violence, organized crime, or war crimes. The more difficult step was to locate qualified international judges and prosecutors who understood civil law, spoke fluent English, and were willing to confront the risks and rigors of the most difficult cases Kosovo had to offer. By July 2002 UNMIK had filled twenty-seven of the thirty-four positions it had created for international judges and prosecutors.199 The practical effect of these “sixty-four panels” (in reference to Regulation 2000/64) was to create a division of labor between local and international jurists. On the one hand, the vast majority of proceedings remained entirely in the hands of the local judiciary. Politically sensitive cases, however, were dealt with by the sixty-four panels, and this was where almost all the attention of international judges and prosecutors was focused. Although this regulation was controversial initially, local judges later manifested their acceptance by asking international judges to relieve them of cases when external pressure and intimidation were too great to handle. Indeed, such concerns also caused local judges to decline to serve on many cases heard by the sixty-four panels, especially during the first year of its use. When they did become involved in cases dealing with powerful criminal or political figures, international jurists found their local counterparts to lack objectivity in weighing the evidence. When external influence, fear of social ostracism, or ethnic bias was not a factor, however, their conduct was professional and the relationship collegial. This suggests that as the institutional context is progressively transformed and extremist power structures are disabled, the relationship should also evolve toward greater partnership and eventually to greater local authority over the criminal justice system.200 • Primarily to address the concerns of judicial bias raised in the war crimes cases, Section 1 of Regulation 2000/64 grants to prosecutors, the accused, or defense counsel the right to petition the DJA for the assignment of an international prosecutor and a three-judge trial panel that consists of a majority of international
Hartz and Mercean, 182-3. Ibid.

199 200

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judges where this is “necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice.” In the absence of a petition, DJA may act on its own motion.201 • Numbers tried in Kosovo are comparable to those of other domestic systems. While several of the national judges and prosecutors comment that international participation has slowed down trials, an extended and more deliberate criminal process may be seen as beneficial.202 In response, UNMIK instituted special “64” panels, named after the regulation that created them (2000/64), to ensure that international judges would constitute the majority in designated cases. Furthermore, it instituted rigorous case-monitoring practices and passed an additional regulation (2001/2) that ensured that international prosecutors could resurrect cases that had been abandoned by their Kosovar counterparts.203 Indeed, in practice IJs were often outvoted by the lay and professional Kosovar judges, leading to unsubstantiated verdicts of guilt against some Serbian defendants and questionable verdicts of acquittal against some ethnic Albanian defendants. In addition, Kosovar Albanian prosecutors were accused of initiating criminal investigations and proposing detentions of Serbs based on insufficient evidence, while abandoning cases and refusing to investigate ethnic Albanians. In addition, because of the large volume of cases, IJs were spread too thin. As a result, cases were often tried before panels of varying composition, some with no IJs. Ultimately, many of these early verdicts in war crimes cases were overturned on appeal and sent for retrial.204 Another shortcoming was that before joining the mission, international judges and prosecutors did not receive any training on the applicable law in Kosovo. And the induction training after their arrival in Kosovo was not adequate and often nonexistent. This was particularly damaging for judges and prosecutors coming from a common law background. One should have taken more into account the fact that criminal justice in a territory disturbed by war like Kosovo has characteristics that are not always found in the domestic legal tradition of other countries: interethnic crimes, war crimes, terrorism, for example. The fact also that justice is not given in the name of a state but of the United Nations. For all these reasons the performance of the UNMIK international justice system was not as exemplary as it was meant to be. Justice was plagued by slowness, excessive length of pre-trial detention, absence of homogeneity of decisions in cases having the same characteristics. All these shortcomings can be found in many countries, including my own. However in

201 202

Marshall and Inglis, 129. Pieriello and Wierda, 14. 203 Hartmann, 2. 204 Pieriello and Wierda, 14.

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Kosovo, the difficulties of the justice system were compounded by the fact that everything had to be translated and that translation was often less than adequate.205 • There were other major shortcomings in the justice system. One was that there was no system for case management. A great deal of money was spent on an electronic case management system. In 2008 it was not yet working. The backlog of cases is huge and there is no legal recourse against excessive delays in court proceedings. Another is witness protection. Time and again UNMIK said that there could not be any successful prosecution without testimonies. Witness intimidation is the rule for war crimes, inter-ethnic crimes and organized crime. No country has ever committed itself in a significant fashion to accept the relocation of endangered witnesses as quite obviously Kosovo is much too small and much too closely knit to have witness protection in a sustainable fashion for a lengthy period.206

8.4 Procedures for the selection of cases for Central or Special Courts need to be established to preserve judicial autonomy • One issue that resisted effective resolution was the process for selection of cases to be handled by the Special Courts or sixty-four panels. Although this was a topic of discussion from the early days of their incorporation into the local judiciary, the question was difficult to resolve because formal direction from the SRSG would have created concerns about judicial independence. Guidelines were eventually established for prosecutors in 2003; however, criteria for international judges remained informal. As a result, there was a tendency for the caseloads to become overcrowded with extraneous or inconsequential matters, which militated heavily against the ability to establish priorities for prosecution.207 Among the war crimes and interethnic cases that constitute the bulk of the IJP caseload to date, the primary controversy has been whether the SRSG’s and DOJ’s selection of cases has been politically biased. Many observers, including both Kosovars and internationals, believe the UNMIK executive exerts too much influence on the criminal justice process. Regardless of whether it is justified, there is a local perception that political interference has disproportionately protected potential Serb defendants, and many allege that UNMIK has a pattern of “caving in” to Serb demands. Some argue that many cases initially brought against Serbs before local panels resulted in dramatically reduced charges, sentences, or acquittals when the IJPs took over.”208 Specialized subject matter jurisdiction should be accompanied by broad geographical jurisdiction. 209

205 206

Cady, 3-4. Ibid., 4. 207 Hartz and Mercean, 183. 208 Day, 20. 209 Rausch 2006, 7.

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In light of these issues, subject matter jurisdiction should have been delineated more clearly. While specific provisions would have limited the flexibility in the issue of IPs, they would have guaranteed from the outset that IPs would participate only in cases with a direct nexus to the overall goals of the mission. 210 The ability of Kosovo’s IJP to take on any crime by selecting any case and any type of crime proved to be a double-edged sword. On the one hand, the unlimited flexibility of Kosovo’s IJP to select any case is an advantage because an impartial international panel can provide justice in any politically explosive case for which the Kosovar jurists do not yet have the capacity to withstand pressure or threats, or to uphold the appearance of impartiality—for example, a domestic-violence case of an organized crime kingpin, or a political assassination by feuding party factions.211 There are no enforceable criteria for executive decisions about which cases have international judges and prosecutors or which individual judges and prosecutors get assigned. Ironically, the stated objective of the regulation, to ensure independence and impartiality, has garnered a perverse result. The lack of any mechanism to ensure a random assignment of judges to cases creates the perception that the executive may interfere at any time with any given case. In addition to the institutional mechanisms that have allowed for room for executive interference into the judicial function, there have been concerns that the executive has interfered directly with the decisions of judges in special cases.212

8.5 A close protection unit is essential for confronting violent threats to the mandate • In the summer of 2000, as UNMIK sought to introduce international judges and prosecutors into all five district courts in Kosovo, one of the main challenges was to provide for their security. As SRSG Michael Steiner would later warn the Security Council, “As we begin to make significant arrests against criminal gangs we should expect a criminal backlash.” In the same ad hoc fashion that the high-risk arrest team had been cobbled together, UNMIK Police created a small Close Protection Unit (CPU) to provide security for visiting international dignitaries and members of the Serb National Council who participated in the interim government. The addition of more than a dozen judges and prosecutors to their protection responsibilities in mid-2000, however, threatened to overwhelm the CPU’s limited capabilities. UNMIK sought formal recognition of the unit from the United Nations in order to appeal for additional critically needed resources (e.g., automatic weapons), and it began allocating close protection teams according to the assessed level of threat. Over the next several years, international judges and prosecutors were seldom threatened. Instead, intimidation was directed at members of the local judiciary and at witnesses. Because international judges and prosecutors received a protection detail but their

210 211

Naarden and Locke, 7. Hartmann, 2-3. 212 Marshall and Inglis, 122.

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local counterparts did not, a disparity was created that was not conducive to partnership.213 8.6 The capacity to collect and properly handle admissible evidence is essential • For evidence to be legally admissible and a successful prosecution “made”, a secure “chain of evidence” must be established, certifying that the evidence has not been tampered with as it moves along the criminal justice continuum. In other words, how evidence is handled is one of the pivotal links in the criminal justice system, cementing the relationship between the crime scene and the police, the police and the prosecutors and, thereafter, the prosecutors and the courts. Unfortunately, as pointed out by an international donor, “evidence is so badly handled here… What prosecutors need to have is get them back to basics,” and maintaining the chain of evidence is as basic a linking component as any other. One of the many reasons why the chain of evidence is poor in Kosovo may be because there is no judicial police, even though UNMIK legislated the establishment of a judicial police. In this case, the absence of a coherent SSR support strategy and team of experts to manage its implementation meant that policies are decreed without planning how they are to be executed. The judicial police were intended to be the sworn law enforcement officers specially trained to conduct criminal investigations in cooperation with and under the supervision of prosecutors. While the new criminal code of procedure has been in existence for a couple of years, the judicial police remain missing in action. UNMIK wrote the law, but has consistently refused to implement it, which can be attributed only to an absence of managerial and performance accountability within UNMIK and DPKO.”214 Though there was much confusion over the applicable law and the role of international fair-trial standards, there was little doubt that UNMIK police were severely hampered in their investigative and forensic capabilities. In the critical period between June 1999 and December 1999, UNMIK police were without a “scenes of crimes” unit that would systematically collect forensic and other physical evidence. This remained the case for two years.215 The short rotations for CIVPOL personnel also posed a number of challenges, including maintaining the continuity of ongoing investigations. 216 Given the short rotations of international police and the diversity of the legal systems from which they come, critical areas such as war crimes, crimes against humanity, organized crime and other sensitive crime issues require the creation of a cadre of

• •

213 214

Hartz and Mercean, 183-4. Scheye, 191. 215 Marshall and Inglis, 127. 216 Rausch 2007, 292.

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police who are specially trained and equipped, sent for longer rotations and provided with adequate guidelines and procedures…217 8.7 The capacity to provide maximum security for high-risk detainees is essential for confronting violent threats to the mandate • UNMIK was particularly ill prepared initially to provide maximum security for the prisoners who constituted the gravest threats to public order and the peace process. The majority of Serb suspects, including accused war criminals, were held in the predominantly Serb section of Mitrovica. Because the KCS remained unarmed until 2001, UNMIK Police were assigned to operate that facility. Management of prisons is not simply another form of policing, however. A distinctive set of skills and specialized training are required to manage a prison adequately. Compounding this deficiency, standards were lax because UNMIK Police tended to regard prison duty as a form of punishment. In August 2000 fourteen Serb detainees, many of whom were indicted war criminals, escaped from the Mitrovica jail. Subsequently, the Penal Management Division took over supervision of the UNMIK Police contingent there, providing training in basic prison skills and enforcing professional standards and procedures. At Dubrava, the largest prison facility, an UNMIK SPU provided a minimum of armed presence to prevent breakout, but for a long time the Penal Management Division depended on a rapid-response agreement from KFOR to provide some deterrence against break-ins. High-profile Kosovo Albanian detainees also required incarceration under tight international supervision. Although the U.S. military had initially considered the facility at Camp Bondsteel to be a stopgap measure and pressed UNMIK to relieve it of the burden, Bondsteel continued to serve for years essentially as a maximum-security facility for Kosovo’s most politically dangerous suspects. Cross-border subversion in southern Serbia and Macedonia in late 2000 and early 2001 demonstrated the continuing need for a facility secure enough to deal with the subversive and terrorist threat that menaced the peace, both inside and outside Kosovo. When the suspected ringleader of the February 2001 Niš bus bombing was apprehended, UNMIK officials determined that the risk was too great to use a local detention center. His subsequent escape from Camp Bondsteel revealed that military detention facilities that are designed for handling prisoners of war require various modifications to prevent such breakouts. Thus, even KFOR had to enhance its capacity in order to complete the last element of the intelligence-to-incarceration continuum.218 • Of comparable importance is that the head of the PMD personally interviewed his international corrections officers prior to their being assigned to Kosovo to ensure, as far as possible, not only uniformity and consistency in penal practice and
Rausch 2002, 31-2. Hartz and Mercean, 184-5.

217 218

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development perspective, but appropriateness of skills to the function that individual staff are expected to perform.219

IX. Key issues and Challenges Addressed by Corrections Practitioners
9.1 The Military Contingent may need to fill in critical gaps if local prison capacity is deficient • UN Security Council Resolution 1244 assigns responsibilities relating to the rule of law to both the “international security presence” (KFOR) and the “international civil presence” (UNMIK). Paragraph 9 charges KFOR with “ensuring public safety and order until the international civil presence can take responsibility for this task.” KFOR’s mandate also includes “supporting, as appropriate, and coordinating closely with the work of the international civil presence.” Although KFOR’s most evident contribution was to fill the initial public security gap, it had vital contributions to make across the entire spectrum from intelligence to incarceration.220 The initial Kosovo Consolidated Budget did not even recognize the need to provide funding for the management of prisons. Initially, KFOR had to fill the gap. Even though this was an unanticipated requirement for most KFOR contingents, during the first phase of the mission each MNB took responsibility for operating pretrial detention facilities. Because there was no adequate jail in its sector, the U.S. military established its own detention center at Camp Bondsteel, processing 1,800 detainees in the first year of operations. Among the factors that slowed the transfer of responsibility to UNMIK were the need to locate and recruit professional expertise in penal management for this unprecedented international requirement; the delay in providing funds, especially to repair Kosovo’s main prison at Dubrava that had been severely damaged by NATO bombing; and the difficulty encountered by UNMIK officials in gaining access to various penal facilities that KFOR regarded as highsecurity installations and therefore placed off limits.221 Quite obviously from the early stages of the mission, there is a need to establish prisons which have to be run by a civilian authority under the supervision of the department of justice. In the early stages, when nothing exists, detention is run by a military authority. This should not last for at least three reasons. One is that running a prison is a profession which is outside the normal area of expertise of the military. The second is that the corrections system is part of the justice system. Habeas corpus is not easily respected in a military environment where there is no judge. People who are in detention in military premises are just put away without the

219 220

Rausch 2007. Hartz and Mercean, 160. 221 Ibid., 175.

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guarantees a normal legal environment provides. The third is that those who are in pre-trial detention, as well as those who are serving a sentence, have rights, in particular, to receive visits from their lawyer or their family. These visits are not easy in a military environment. The UN is not used to running prisons. Penal management is foreign to the UN culture. There is not a great deal of competent and available international capacity available to monitor and supervise the creation of a prison system.222 9.2 Pre-trial detention must be dealt with properly at inception • A law enforcement vacuum in the early days of a mission should be avoided by establishing ad hoc judicial arrangements to facilitate the detention and subsequent judicial hearings on individuals who are apprehended on criminal [*61] charges.223 KFOR’s detention policies not only ‘led to uncertainty in Kosovo about the scope of KFOR’S authority’ they undermined the overall legitimacy of the mission… the length of detention was also problematic for UNMIK, given that the courts were overburdened and unable to try all the cases within a short time period. 224 Concurrently, KFOR and UNMIK administrators had realized that there was a significant disparity in the way the Albanian Kosovar prosecutors and judges were ordering detention. When former KLA members were arrested by KFOR or CivPol for attacks on Serbs, they would often be proposed for release by the prosecutor, and then released by the investigative judge, while Serbs would often be detained in custody for the same crimes. KFOR, which had the mandate to ensure a “safe and secure environment,” reacted to the Kosovar judicial release orders by adopting a detention practice separate from judicially ordered detention, called a “COMKFOR hold.” Arrestees might be locked up in KFOR detention facilities for a time to be determined by KFOR, without consideration of any judicial orders, if KFOR felt they posed a danger to safety and security…the mono-ethnic Albanian Kosovar judiciary and prosecutors’ offices gave the appearance of partiality and in some cases discriminated against Serbs, while favoring fellow Albanians, especially where the suspects had ties to organized crime or were former KLA members.”225 Fairly early on in the establishment of the judicial system, COMKFOR declared its authority to detain persons without any judicial review and to continue to detain persons despite a judicial decision to release the person from custody. KFOR argued that its mandate under Resolution 1244 provided it with such authority where such detention is necessary to address a “threat to KFOR” or under its mandate to

222

Cady, 7. Strohmeyer, 11. 224 Day, 5. 225 Hartmann, 7.
223

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provide “a safe and secure environment [for as long as] civilian authorities are unable or unwilling to take responsibility for the matter.226 • […] KFOR […] has continued to hold persons in detention without any judicial process and continues to maintain that this is, in part, based on its law enforcement mandate until the civilian authority can take over. Even three years into the mission, KFOR appeared to be expanding its authority to detain persons outside of the justice system and refining its parallel system of review. KFOR’s approach has arguably rendered meaningless the SG’s condition on KFOR’s authority in the area of public peace and order. Practically speaking, KFOR has boundless and unfettered authority in Kosovo.227 UNMIK and KFOR continue to be shielded with criminal and civil immunity. Although UNMIK grants the Ombudsperson the authority to enter into a bilateral agreement with the SRSG on procedures for cases dealing with UNMIK, the assessment team has not been made aware of any such agreement.228 As of February 2007, of Kosovo’s two prisons and five detention centres, all but the Dubrava Prison have been transferred to the control of the KCS. The Dubrava Prison holds Kosovo’s male prison population of over 800 persons. According to the ISSR, “this figure is expected to rise by up to 50 per cent as the courts backlog reduction programme comes into effect.229

9.3 The capacity to provide maximum security for high-risk detainees is essential for confronting violent threats to the mandate • UNMIK was particularly ill prepared initially to provide maximum security for the prisoners who constituted the gravest threats to public order and the peace process. The majority of Serb suspects, including accused war criminals, were held in the predominantly Serb section of Mitrovica. Because the KCS remained unarmed until 2001, UNMIK Police were assigned to operate that facility. Management of prisons is not simply another form of policing, however. A distinctive set of skills and specialized training are required to manage a prison adequately. Compounding this deficiency, standards were lax because UNMIK Police tended to regard prison duty as a form of punishment. In August 2000 fourteen Serb detainees, many of whom were indicted war criminals, escaped from the Mitrovica jail. Subsequently, the Penal Management Division took over supervision of the UNMIK Police contingent there, providing training in basic prison skills and enforcing professional standards and procedures. At Dubrava, the largest prison facility, an UNMIK SPU provided a minimum of armed presence to prevent breakout, but for a long time the Penal Management Division depended on a rapid-response agreement from KFOR to

226 227

Marshall and Inglis, 110. Ibid., 112. 228 American Bar Association 2007, 24. 229 Scheye, 186.

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provide some deterrence against break-ins. High-profile Kosovo Albanian detainees also required incarceration under tight international supervision. Although the U.S. military had initially considered the facility at Camp Bondsteel to be a stopgap measure and pressed UNMIK to relieve it of the burden, Bondsteel continued to serve for years essentially as a maximum-security facility for Kosovo’s most politically dangerous suspects. Cross-border subversion in southern Serbia and Macedonia in late 2000 and early 2001 demonstrated the continuing need for a facility secure enough to deal with the subversive and terrorist threat that menaced the peace, both inside and outside Kosovo. When the suspected ringleader of the February 2001 Niš bus bombing was apprehended, UNMIK officials determined that the risk was too great to use a local detention center. His subsequent escape from Camp Bondsteel revealed that military detention facilities that are designed for handling prisoners of war require various modifications to prevent such breakouts. Thus, even KFOR had to enhance its capacity in order to complete the last element of the intelligence-to-incarceration continuum.230 9.4 A uniform, computerized prison registry was utilized to address concerns about inappropriate detentions231

X. Corrections Models Strategies Adopted
10.1 A comprehensive and phased plan was formulated and implemented • By default rather than design, the approach that evolved for the penal system closely resembled the path followed with policing. Initially, KFOR managed all prisons and pretrial detention facilities, until UNMIK Police were in a position to assume responsibility for some locations. As UNMIK’s Penal Management Division was able to recruit and train local corrections staff, the KCS began to take charge of the prisons, with international prison wardens providing supervision. Thus, the relationship evolved from one of international custodianship to one of partnership, with responsibility gradually being transferred as local KCS personnel were able to demonstrate both proficiency and adherence to professional standards of conduct.232 Because Kosovo and East Timor represented the first cases where the United Nations had assumed responsibility for managing and reconstituting corrections systems, no principles or procedures existed to guide these efforts. Much more than training was required to instill an ethos in corrections staff that was consistent with the rule of law. Constant supervision while under international custodianship and reinforcement while operating in partnership were essential. This process could not

230 231

Hartz and Mercean, 184-5. Information from Kosovo Lessons Learned Trip 232 Hartz and Mercean, 175-6.

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be rushed. An early attempt to move toward local ownership by designating a Kosovar to be the deputy director for the KCS in early 2000 undermined the professionalism of the service, and he had to be removed. Subsequently, UNMIK took a phased approach to KCS leadership development, with those who demonstrated both ability and commitment to internationally accepted standards being selected for more senior posts. 233 • One of the key ingredients of UNMIK’s successful prison SSR programme is that a comprehensive prison management plan was formulated at the start of the integrated peace operation and then systematically carried through. Each year specific organizational and operational targets were established and, as the plan unfolded, annual development plans were updated. Job descriptions and a full range of standard operating procedures and managerial policies were systematically introduced ranging, for instance, from separating “prisoners on committal… depending upon the seriousness of their crime and risk to the community” to emergency response to serious incidents to financial management and procurement. Social workers and medical staff were hired to ensure adequate health care, given existing resources.234 Management training for the KCS was not delayed, but commenced in 2001, supported by the government of Switzerland. It was originally believed that the major components of prison development would be completed by 2004. Comprehensive roll-out plans for transferring prison authority facility by facility to the KCS were developed early and thereafter followed. Each transfer entailed three months of twinning international staff with KCS personnel during which UNMIK staff retained authority, three months of “co-work”, and finally three months of mentorship during which the KCS manager already possessed executive powers. At the same time, each department of the KCS was progressively turned over to Kosovar authority: social work, personnel, engineering, recruitment, etc.235 Of special importance was that the PMD rapidly established an “internal prison inspection, audit and compliance system”. This managerial step cannot be underestimated. As indicated earlier, the PMD was the only UNMIK unit that was able unequivocally to state the criteria with which the performance of the Kosovo institution, to which they were providing SSR support, was being evaluated. Without hesitation, the PMD listed more than half a dozen indicators, including, but not limited to: (1) number of attempted escapes; (2) severity of fines for guards and inmates; (3) number and type of prisoner complaints; (4) quality of intelligence information about inmate population; (5) number and type of medical complaints and treatments; (6) number of prisoner visits; and (7) number of inmate self harming incidents.236

233 234

Ibid., 188-9. Scheye, 186. 235 Ibid. 236 Rausch 2007, 298.

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The leadership of the PMD was consistent from the beginning, greatly assisting its own development and that of KCS.237

10.2 The Kosovo Corrections Service is considered the most successful multi-ethnic institution in Kosovo • • In the case of Kosovo, UN support for prison development has been one of UNMIK’s most successful SSR programmes. 238 Most international observers viewed the PMD’s performance as successful, despite the slow and inadequate initial response of the international community in establishing Kosovo’s correctional system. 239 The KCS has 1,200 staff and 400 support workers, approximately 18 per cent of them women, which is considered to be an “acceptable proportion given that women are only a small proportion of the prison population”. In service training is conducted among KCS staff, but KCPSED has assumed responsibility for basic corrections instruction.240

XI. National Ownership and Engagement
11.1 Strategic planning should include local capacity building and ownership • Through the ambiguous sovereignty in Kosovo…the guiding principle must be an appropriate balance of short-term measures to assert the re-establishment of the rule of law and longer-term institution-building that will last beyond the life of the mission and the transient interest of the international community. 241 With the creation of Pillar I and the Department of Justice in 2001, the exclusion of locals in the administration of justice increased. This move indicated that there was little faith or interest in building local capacity to administer justice fairly and effectively. Despite UNMIK’s mandate to develop the capacity of the locals to administer democratic institutions, including the justice system, there is no Kosovar leadership in the DJA. The Ministry of Public Services within the Provisional Government has some authority regarding the logistical administration of the justice system. However, the attitude among internationals in UNMIK seems to be that this department will have no impact on substantive judicial policymaking.242

237 238

Ibid. Hänggi and Vincenza, 18. 239 Rausch 2007, 297. 240 Scheye, 186. 241 Chesterman, 13. 242 Marshall and Inglis, 130.

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In Kosovo, the evidence indicates that the UN did not support local ownership as an outcome of its SSR initiatives. Instead, the Kosovo experience seems to have been more akin to an almost colonial imposition rather than assisting local justice and security development or, at the very least, engaging in active consultation with national actors.243 Without a formulated strategy, lacking a comprehensive plan and labouring under severe human resources deficits, the UN in Kosovo was unable to deliver effective and efficient SSR support to its Kosovar counterparts to enable them to develop their justice and security sector.244 In the interim, UNMIK has handed over many of its powers to local bodies. As for the judiciary, the UNMIK-Government Rule of Law Working Group assists in executing the transfer of powers from UNMIK to Kosovo institutions, as part of the Kosovo Standards Implementation Plan. At the same time, the SRSG still retains broad and ultimate legislative and executive authority in the areas of law enforcement and justice. As of September 2005, UNMIK transferred responsibilities to 13 central government ministries for Kosovo-led Provisional Institutions of Self-Government (PISGs), including an Assembly, Prime Minister, and President of Kosovo. But the Constitutional Framework transferred only a limited number of powers in the field of judicial affairs to the PISGs, such as participation in judicial appointments and training, organization of judicial qualification examinations, organization and maintenance of the courts, provision of material resources to the judiciary, and appointment, training, discipline, and dismissal of court support personnel.245 The pertinent findings of the King’s College study, for example, are… ‘ in all key sectors (SSR included) capacity-building has been part of the rhetoric but has rarely been accomplished in practice…at the operation level there has been a noted lack of understanding of what is involved in capacity- or institutional building.246 Thus far, institution building in security and justice has been surprisingly limited, reflecting many of the same limitations and neglect exhibited by other UN missions.247 The numbers of international judges and prosecutors has increased rather than decreased as local capacity has developed. The mentoring aspect of the international presence, cited as one of the reasons for their involvement, has been almost nonexistent. The use of substantial resources in developing an enhanced international judiciary indicates a lack of trust in and attention to the local judges and

243 244

Hänggi and Vincenza, 171. Scheye, 203. 245 Pieriello and Wierda, 33. 246 Hänggi and Vincenza, 197. 247 Rausch 2007, 307.

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prosecutors and a dismissive attitude towards the long term development of a local justice system.”248 • There are two major areas in which the MoJ should receive support: techniques of legislative drafting; and substantive expertise on the area of law that proposed legislation may cover. Other donors have also recognized these needs… 249 While the rhetoric of the international community has been ‘partnership’ ‘local ownership’ and ‘self-government’ the reality, particularly in the justice and police spheres, was that direct and sole control continued to be maintained by international personnel.250 However, there exists very little domestic ownership of policy issues, as national legal professionals have not been represented in the DOJ until recently and are not involved in decisions on recruitment or deployment of international judges. Consultation of national counterparts in policy decisions remains limited. The internationals and nationals operate largely in parallel legal universes (although this will likely change with the creation of permanent ministries, including a Ministry of Justice). A recent report calls for UNMIK to “develop a comprehensive strategy for building local judicial capacities and a realistic exit strategy. Kosovar jurists should be involved in the drafting of that strategy.251 Despite Resolution 1244’s clear and unmistakable mandate to build democratic judicial institutions, UNMIK has not effectively supported the development of Kosovar judicial services. As one senior DoJ official admitted, “UNMIK understood for a long time that its job was not to develop Kosovar judicial authorities, but to handle high-profile cases – corruption, ethnic impunity, war crimes…. Our job was not to train or build capacity [emphasis added].” The unintended consequence has been that judicial SSR activities (court automation, court administration, ministerial development, development of Kosovo Judicial Council, legal writing, etc.) have been outsourced to consulting companies and NGOs …which ha[ve] facilitated the slow growth of many of the basic building blocks of judicial development.252 Reluctance to involve local input may be attributable to the acknowledged uncertainty as to Kosovo’s final status and affiliated concerns, but regardless, the result was a number of ad hoc measures instituted by the administration in response to issues as they arose.253 “A major recent development is the transfer of court administration responsibilities to the Kosovo Judicial Council (KJC), an independent body within the judiciary that

248 249

Marshall and Inglis, 124. USAID Kosovo, Evaluation of the Justice System Reform Activity – Kosovo (2006), 33. 250 Rausch 2007, 302. 251 Pieriello and Wierda, 32. 252 Scheye, 189. 253 Betts, Carlson and Gisvold, 377.

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receives international training and support to develop its capacities in many areas. Among other responsibilities, the KJC is charged with setting administrative policies for the judiciary, preparing and managing judicial budgets, and overseeing judges and courts. In addition, the KJC now largely oversees the judicial selection process, which for the most part occurs in a transparent fashion and based on objective criteria and provides for special legal protections for minority candidates. It also plays a large role in the removal and discipline of judges, a process which is conducted in a fairly orderly and transparent manner. 254 • The re-establishment of a judicial system using specially-trained, international jurists, while local legal professionals are trained and mentored, provides a foundation for a basic judicial system capable of immediately applying international standards and ensuring accountability. 255 In the end what made the peacekeeping effort in Kosovo extremely difficult, was two things: The first is that for many years, at least from 1999 to 2005, the end game was not clear. What was the purpose of the mission? Was it to pave the way for independence? That was undoubtedly the goal for the Kosovo Albanians. But for many years the UN and the Quint did not mention the word, even though independence was the only possible outcome. But it was a contentious question then and still is now. Let us not forget that only 40 or so countries recognize Kosovo as an independent state.256

11.2 Participation by representatives of local formal and informal systems and sensitivity to cultural considerations is vital • Compounding the problem of lack of local involvement and coordination in legal reform efforts, the United Nations often chose to rely almost exclusively on its own legal advisors and outside experts who submitted various draft regulations. 257 As part of respecting local input and learning from it, it is important to incorporate traditional dispute resolution systems within the international legal framework.258 As Edward Rees (2006:22) puts it, ‘ the lack of attention to the role of participatory bodies such as transitional or sovereign legislatures creates a basic and fundamental divide between the peace operations’ SSR programme and the very constituency it is attempting to assist. 259

• •

254 255

American Bar Association 2007, 10. Betts, Carlson and Gisvold, 386. 256 Cady, 7. 257 Rausch 2007, 279. 258 Rausch 2002, 31-2. 259 Bernabéu, 75.

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With virtually no consultation with the local population—indeed, even an Albanian lawyer in a senior UN post noted that she was not included in the decision-making process—on February 15, 2000, the UN issued UNMIK Regulation 2000/6. This provided for the appointment of an international judge and an international prosecutor to work within the existing domestic judiciary along with their local counterparts…. Despite the lack of consultation with the local population, many welcomed the appointment of IJs because it made it possible for trials to proceed in the Kosovo courts without a grave risk of bias or “violent blowback.260 Active dialogue must take place between the international and local actors in relation to establishing or re-establishing the judicial system. Local expertise and acceptance are crucial…261 Civil society participation is similarly crucial for the development of an accountable justice and security sector whose performance meets local needs. The UN’s record in Kosovo fostering civil society participation, however, has been as poor as its performance with regard to local ownership…and for similar reasons. Some of the difficulties may also have to do with the history and culture of Kosovo in that, as one NGO staff member acknowledged ‘there is a general lack of communication’ … once again part of the issue may have to do with the desire of Kosovar civil society organizations to score political points. Nevertheless, the absence of a real effort on behalf of UNMIK to engage with civil society is telling and the perception among Kosovar NGOs of UNMIK is calamitous.262 The UN family’s relationships with Kosovar stakeholders were dismal, as further evidenced by the KPS staff’s desire to change its structures immediately upon gaining executive authority, the current lack of functionality within the MoIA and the MOJ, and the fact that the ISSR did not develop Kosovar capacity. 263 In addition, regulations adopted by UNMIK were not always drafted or conceived in such a way as to be consistent with local laws. Local and international experts were not always consulted. Even when local experts were consulted and provided meaningful comments, their comments were not always incorporated. Some of the criminal provisions were not consistent with the civil law system of Kosovo and some international human rights experts argued that they were not consistent with the European Convention on Human Rights. Local judges and prosecutors thus did not always interpret them in the same way or understand them in the same way as police officers from other legal systems.264 From 2003 to 2005, reform efforts get a mixed report card. New Kosovo criminal and criminal procedure codes were promulgated, training and reliance on local police

260 261

Pieriello and Wierda, 13. Rausch 2002, 31-2. 262 Hänggi and Vincenza, 193. 263 Ibid., 202. 264 Rausch 2002, 16.

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continued, and the number of skilled criminal defense attorneys increased. Notwithstanding these important advances, the political factors that plagued the mission from the beginning continued. 265 • • • In Kosovo the use of traditional systems was never sanctioned by the UN, nor was there any attempt to have it incorporated somehow into the formal justice system.266 There are no guidelines in Kosovo… governing when the use of traditional methods is appropriate and when it is not.267 It appears that UNMIK was unable to grasp the necessity of supporting local ownership as an outcome of its SSR initiatives. Furthermore, the organization’s culture seems to have been one of imposition rather than consultation, an opinion that is widely held throughout Kosovo…. UNMIK did consult, but the process of partnership is about the quality of that participation rather than its mere occurrence. It is one method of consultation to share drafts of a law, policy or set of regulations that have been pre-written and ask Kosovar stakeholders to comment. It is an entirely different method of supporting ownership to ask the local stakeholders to select a model of their choosing and write the initial draft, which would thereafter be discussed.268 In the ROL context, NPOs with a solid knowledge of the pre-existing legal system and, if possible, a knowledge of international standards, are crucial to the development of ROL programming that is tailored to the local conditions and likely to make a lasting impact. Furthermore, there are frequently linguistic and cultural challenges that will play a significant role in the reform and rebuilding process, which require intimate knowledge of local conditions.269 Rather, staff must work within a foreign legal environment to assist national counterparts in the creation and rehabilitation of institutions that are appropriate for the existing local conditions and limited available resources. In this sense, humility and the ability to respect host-country counterparts are crucial attributes.270 “It appears that UNMIK was unable to grasp the necessity of supporting local ownership as an outcome of its SSR initiatives.”271 According to most observers, the Kosovo Prosecutorial Service is a shambles and the ability of Kosovo’s Parliament to exercise its oversight function is practically nonexistent due to the retention of executive authority by UNMIK, lack of skilled

• •

265 266

Rausch 2007, 302. Rausch 2002, 25. 267 Ibid., 26. 268 Rausch 2007, 194. 269 Betts, Carlson and Gisvold, 11. 270 Carlson 2008, 10. 271 Scheye, 194.

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legislative staff, and the absence of realistic budgeting within the sector over which to exercise responsibility. 272 • The clear message should be sent that security sector development in Kosovo will be a long process in which the roles of the public, elected representatives and civil society are as important if not more so than that of consultants and technocrats. Effective scrutiny must now develop alongside institutions that allow ordinary Kosovars to obtain even greater ownership of the bodies that provide for their security. 273

11.3 Ethnic diversity is an important part of sustainable capacity building • If the security institutions under reform fail to present themselves as the guarantors of the rights and security of the whole population, regardless of their ethnic background or former faction during the conflict, they will only contribute to marginalizing parts of the population. In turn, these groups may seek alternative sources for protection – as the Serbs did in this case by maintaining their parallel institutions and refusing to join the Joint Administrative Structure (JIAS). 274 On June 30, 1999, two weeks after the arrival of the first UNMIK staff in Pristina, the search had already yielded its initial results: the head of the United Nations mission was able to appoint nine judges and prosecutors, among them three Serb jurists, on the basis of recommendations of the Joint Advisory Council. They served as mobile units with jurisdiction throughout the territory of Kosovo. By mid-July, these judges and prosecutors had conducted hearings on 249 detainees in all of Kosovo's five districts, releasing 112. The initial appointments were controversial because of a perceived overrepresentation of Serb lawyers. Nevertheless, by July 24, 1999, as the mission had gradually identified more lawyers, the number of UNMIK-appointed judges and prosecutors had risen to twenty-eight, comprising twenty-one Kosovar Albanians, four Serbs, one Roma, one member of the Turkish community in Kosovo, and one Bosniak.275 UNMIK has done well in creating a police and correctional system that reflects Kosovo’s population but has been less effective in creating a judiciary that includes Serbs. Should this failure render the judiciary ineffective, it may also undo whatever progress law enforcement is able to make in establishing law and order and building trust in Kosovo’s democratic institutions. 276

272 273

Hänggi and Vincenza, 173. Saferworld & The Forum for Civic Initiatives, The Internal Security Sector Review: The Future of Kosovo’s Security Sector? Briefing (2007), 307. 274 Bernabéu, 76. 275 Strohmeyer, 53. 276 Wilson, 13.

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UNMIK imposed a body of law that was not perceived as ethnically neutral. The negative repercussions of this action were compounded by the lack of Kosovar input into the legislative process more generally. 277 The Anti-Discrimination Law’s protection of the “principle of equal treatment” and “principle of fair representation” regardless of gender or ethic origin is applicable to the judiciary and the professional organizations to which judges belong […] The law imposes a ban on direct and indirect discrimination, harassment, and segregation, all of which are defined by the law […] These principles must be applied to selection, recruitment, promotion, dismissal, pay, membership in professional organizations, and access to vocational training [..] Affirmative action type measures, i.e., actions aimed at preventing or compensating for disadvantages related to one or more grounds for discrimination are permitted, as long as these measures comply with international human rights standards.278 The intervention of NATO happened so that one ethnicity, the Albanians, would not be driven out of Kosovo. It was therefore made in the name of multi-ethnicity. What happened during the UN protectorate was that multi-ethnicity was imposed by the international community. Apart from the international community, no one locally believed that the multi-ethnic character of Kosovo could be maintained. It was obvious for the education system, for the health system also. In the Kosovo assembly the Serbs had a policy of absenteeism most of the time, which was self defeating. The division between Serbs and Albanians could not be bridged. It could be noted that in the world, there are not many examples of smoothly running multiethnic states. The new EULEX mission and the new government of Kosovo face the same obstacles. Let me end with a quotation by Robert MacNamara [sic], who died a few days ago and who said about the Balkans: “My views are in no way meant to be critical, but I am not sure that we have learned from experience and I worry that we will end up making the same mistakes again and again. It was once famously said that the United States did not have 10 years of experience in Vietnam, but one year of experience 10 times over. Will we say the same about the Balkans?279

11.4 The international community should commit to public outreach early • In the emergency phase, the international community also should commit to the establishment of an official legal publications office and distribution network, thereby dramatically increasing the public’s awareness of the early steps taken by the administration. In Kosovo, such basic efforts at transparency in the decisionmaking

277 278

Betts, Carlson and Gisvold, 375. American Bar Association 2007, 17. 279 Cady, 7-8.

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process would have gone a long way toward decreasing the appearance of the reinstitution of a ‘parallel’ system.280 • Prior to its promulgation, UNMIK made no attempt to explain to local judges, politicians, or the general public the rationale behind the regulation. This resulted in widespread resentment throughout the ethnic Albanian community. In court, local judges refused to be recruited for the Regulation 64 panels and the Kosovo Supreme Court sent a letter to the SRSG stating that the regulation was a violation of international law…281

280 281

Betts, Carlson and Gisvold. Marshall and Inglis, 130.

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XII. Bibliography
American Bar Association, Kosovo Legal Profession Reform Index, Volume II (2007). American Bar Association, Judicial Reform Index, Volume III (2007). Irene Bernabéu, Laying the Foundations of Democracy? Reconsidering Security Sector Reform Under UN Auspices in Kosovo, Security Dialogue (2007). Wendy S. Betts, Scott N. Carlson & Gregory Gisvold, The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law, 22 Michigan Journal of International Law 371 (2001). Jean Cady, A few thoughts on UNMIK Lessons Learned, unpublished, http://inprol.org/kosovo/LL-Jean-Cady-July142009-final.pdf (2009). Scott N. Carlson, “Legal and Judicial Rule of Law Work in Multi-dimensional Peacekeeping Operations: Lessons-Learned Study” in Harvey Langholtz, Boris Kondoch, and Alan Wells (eds.), International Peacekeeping: The Yearbook of International Peace Operations, Volume 12 (Amsterdam, NL: Martinus Nijhoff Press, 2008). Rahul Chandran, Jake Sherman and Dr. Bruce Jones with Dr. Shepard Forman, Dr. Anne le More and Andrew Hart, Rapid Deployment of Civilians for Peace Operations: Status, Gaps, and Options, A Report of the NYU Center on International Cooperation (NY, NY: April 2009). Simon Chesterman, Justice Under International Administration: Kosovo, East Timor and Afghanistan, IPA Report (NY, NY: September 2002). Adam Day, No Exit Without Judiciary: Learning a Lesson from UNMIK’s Transitional Administration in Kosovo, 23 Wisconsin International Law Journal 183 (2005). Heiner Hänggi & Vincenza (eds.), Geneva Center for the Democratic Control of Armed Forces, Security Sector Reform and UN Integrated Missions: Experience from Burundi, the Democratic Republic of Congo, Haiti and Kosovo (2007). Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, United States Institute of Peace Special Report No. 112 (Washington, D.C.: United States Institute of Peace, October 2003). Halvor A. Hartz and Laura Mercean (with contributions from Paul Mecklenburg and Clint Williamson), “Safeguarding a Viable Peace: Institutionalizing the Rule of Law,” in The Quest for Viable Peace: International Intervention and Strategies for Conflict

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Transformation, Jock Covey, Michael Dziedzic and Leonard Hawley (eds.) (Washington, D.C.: United States Institute of Peace, 2005). David Marshall and Kelly Inglis, The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal 95 (2003). Robert Muharremi, Lulin Peci, Leon Malazogu, Verena Knaus & Teuta Murati, Isa Blumi (ed.), Administration and Governance in Kosovo: Lessons Learned and Lessons to Be Learned, Center for Applied Studies in International Negotiations (2003). Gregory L. Naarden & Jeffrey B. Locke, Peacekeeping and Prosecutorial Policy: Lessons Learned from Kosovo, 98 American Journal of International Law 727 (2004). Ombudsperson Institution in Kosovo, Third Annual Report, 2002-2003. Ombudsperson Institution in Kosovo, Fifth Annual Report, 2004-2005. Ombudsperson Institution in Kosovo, Sixth Annual Report, 2005-2006. Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007. Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008. Ombudsperson Institution in Kosovo, Regarding the length of proceedings in the case of Xhemajl Pllana, (October 31, 2006). Ombudsperson Institution in Kosovo, Sheribane Ademi against the Municipal Court in Vushtrri Vucitrn, the District Court in Mitrovice/Mitrovica and the Supreme Court of Kosovo, (May 10, 2007). OSCE, Legal Systems Monitoring Section, Monthly Report for May 2009. OSCE, Legal Systems Monitoring Section, Different Communities before the Kosovo Justice System (December 2008). Tom Pieriello and Marieke Wierda, Lessons from the Deployment of International Judges and Prosecutors in Kosovo, ITCJ Prosecution Case Studies Series (NY, NY: March 2006). Colette Rausch, “The Assumption of Authority in Kosovo and East Timor: Legal and Practical Implications” in Renata Dwan (ed.), Executive Policing: Enforcing the Law in Peace Operations, Stockholm International Peace Research Institute Research Report no. 16 (New York, NY: Oxford University Press, 2002). Colette Rausch (ed.), Combating Serious Crimes in Postconflict Societies: A Handbook for Policymakers and Practitioners (Washington, DC: United States Institute of Peace,

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2006). Colette Rausch, “From Elation to Disappointment: Justice and Security” in Charles T. Call (ed.), Constructing Justice and Security After War (Washington, DC: United States Institute of Peace, 2007). Saferworld & The Forum for Civic Initiatives, The Internal Security Sector Review: The Future of Kosovo’s Security Sector? Briefing (2007). Eric Scheye. “UNMIK and the Significance of Effective Programme Management: The Case of Kosovo.” Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 American Journal of International Law 46 (2001). USAID Kosovo, Evaluation of the Justice System Reform Activity – Kosovo (2006). Jeremy M. Wilson, Law and Order in an Emerging Democracy: Lessons from the Reconstruction of Kosovo’s Police and Justice Systems, 605 Annals of the American Academy of Political and Social Science 152 (2006).

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