PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
Chapter 10. Th e Rule of Law and Judicial Reconstruction
A. Re-establishing the Judicial System
1. Kosovo: From Emergency to Provisional Institutions
Upon UNMIK’s arrival in Kosovo, the formal justice system was almost non- existent, and unquestionably not functioning.850 The NATO air strikes and the years of hostilities in Kosovo had caused major damage to the court infrastructure and facilities. Court equipment, legal materials, registers and records had been destroyed or stolen. Moreover, the departing Serb forces had mined or booby- trapped several courtrooms and destroyed other office equipment.851 Kosovo was left with a devastated judicial infrastructure and UNMIK had the difficult task of providing immediate judicial assistance because of increasing ethnic violence and growing criminal activity. Security Council Resolution 1244 gave UNMIK a general mandate in the administration of the Province, with no explicit refer- ence to the judiciary or judicial reconstruction. In line with this general man- date, the first UNMIK Regulation852 adopted by the Special Representative of the Secretary-General vested in UNMIK all legislative and executive authority, including the administration of the judiciary.
(a) The Applicable Law Dispute
As Resolution 1244 explicitly maintained Serbian sovereignty over Kosovo, the first regulation included a provision stating that the law applicable in Kosovo prior to 24 March 1999 would still be applied provided it did not conflict with international human rights standards.853 The principle underlying this regulation was the avoidance of a legal vacuum, and the avoidance of the introduction of an entirely new legal system which would have necessitated an immediate com- prehensive training programme and would have jeopardised the security situation even more.854 The incorporated provision immediately generated great opposition from the Kosovo Albanian community and judges, who viewed the application of this system of laws as a ‘symbol of Serb discrimination’.855 The Kosovo Alba- nians considered the law applicable in 1989, i.e. before the decision of the Serb Authorities to withdraw Kosovo’s autonomy, to be the only legitimate system of
850 OSCE Mission in Kosovo, ‘Report 2: The Development of The Kosovo Judicial System (10 June Through 15 December 1999)’ (17 December 1999). See also Jones, Wilson, Rathmell and Riley, supra note 716, p. 40.
851 OSCE Mission in Kosovo, ‘Report 1 – Material Needs of The Emergency Judicial System’
(7 November 1999). See also Betts, W. S., Carlson, S. N. and Gisvold, G., ‘The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judi- ciary and Rule of Law’, 22 Michigan Journal of International Law 371 (2000–2001), p. 377.
852 UNMIK Regulation 1999/1, supra note 118.
853 Ibid. Section 3.
854 Strohmeyer, supra note 803.
855 Hartmann, supra note 665, p. 4. Michael Hartmann was the first international prosecutor appointed by the SRSG in Kosovo.
law. The result was that the many Kosovar judges resigned after the adoption of the regulation or simply refused to apply the 1999 law, basing their judgments instead on the law applicable in 1989.856 The legality of the decisions based on the law applicable in 1989 was therefore highly questionable, as they were in manifest violation of UNMIK Regulation 1999/1.857 Eventually, the Special Representative of the Secretary-General decided to amend the first regulation by altering the applicable law to the legal system in force in Kosovo on 22 March 1989.858 The whole dispute and the eventual adjustment of the applicable legal framework of course harmed the reputation of the UN-led administration.859 UNMIK eventually engaged in the drafting of an entirely new code of criminal law and criminal procedure, considering that many of the applicable criminal laws in Kosovo did not meet international human rights standards.860
(b) The ‘Emergency Judicial System’
Within two weeks of its deployment, UNMIK established the ‘Emergency Judi- cial System’, which functioned from June to December 1999. The Emergency Judicial System focused on criminal cases and offences to support UNMIK and KFOR efforts to re-establish law and order. The Emergency Judicial System set up several emergency institutions to re-establish the judicial system. A ‘Joint Advisory Council on Judicial Appointments’861 was instituted to recommend the appointment of judges as part of an Emergency Judicial System mainly to hear suspects detained by KFOR in the immediate post-conflict phase. The Joint Advisory Council was composed of both local and international personnel, and recommended the provisional appointment of judges and public prosecutors for a three-month renewable term in order to conduct pre-trial hearings of
856 Ibid. This code had been adopted by the Kosovo Assembly before the withdrawal of Kosovo’s autonomy.
857 In addition, the legal uncertainty caused by this dispute was further increased by the fact that the judges nevertheless applied several provisions of the Serb criminal code for crimes which were not covered by the 1989 Kosovo Criminal Code, such as drug-trafficking. See O’Neill, supra note 654, p. 80.
858 UNMIK Regulation 1999/24 on the law applicable in Kosovo, UN Doc. UNMIK/
REG/1999/24 (12 December 1999), section 1.1.
859 Cf. O’Neill, supra note 654, pp. 80–81.
860 The drafting of the new codes started in 2000, and was finalised in November 2001 by the Joint Advisory Council on Legislative Matters. The new codes were promulgated by the Special Representative of the Secretary-General, and entered into force in April 2004. See UNMIK Regulation 2003/25, Provisional Criminal Code of Kosovo, UN Doc. UNMIK/REG/2003/25 (6 July 2003) and UNMIK Regulation 2003/26, Provisional Criminal Procedure Code of Kosovo, UN Doc. UNMIK/REG/2003/26 (6 July 2003).
861 UNMIK Emergency Decree No. 1999/1 (28 June 1999) (providing legal basis for the estab- lishment of the Joint Advisory Council for Provisional Judicial Appointments ( JAC/PJA)).
people detained by KFOR. The nine appointed judges and prosecutors served from 2 July 1999 as mobile units with jurisdiction throughout the territory of Kosovo. Between June and September 1999, the Special Representative of the Secretary-General appointed another 55 judges and public prosecutors following recommendations by the Joint Advisory Council, but the premature resignation of all Kosovo Serb judges and prosecutors rapidly brought the total number of judges and prosecutors appointed to 47.862
Provisional district courts and prosecutors’ offices had been set up in the main districts; the mobile units of the Pristina District Court covered areas not served by the regular district courts. UNMIK also created an ‘Ad Hoc Court of Final Appeal’ to hear appeals against decisions of District Courts in the sphere of criminal law and also with regard to sentencing.863 Very soon, the judicial system was administered by co-Ministers of Justice (one Kosovar and one inter- national) in the UNMIK Judicial Affairs Office, established in August 1999.
UNMIK established a Technical Advisory Commission on Judiciary and Pros- ecution Service, to advise the administrator on the structure and administration of the judiciary in Kosovo.864 On 13 December 1999 the Technical Advisory Commission delivered to the Special Representative of the Secretary-General its recommendations on the establishment of the civil and criminal jurisdictions, the district and municipal courts, a Court of Appeal and a Supreme Court. The approval of the ‘Constitutional Framework for Provisional Self-Government’ in May 2001 was the start of a gradual transition from the Emergency Judicial System to permanent institutions. A definitive court structure along the lines of the recommendations of the Technical Advisory Commission gradually replaced the transitional system.865 The Advisory Judicial Commission, which had replaced the Joint Advisory Council on Judicial Appointments in September 1999,866 was in
862 OSCE Mission in Kosovo, ‘Report 2 – The Development Of The Kosovo Judicial System (10 June Through 15 December 1999)’ (17 December 1999), 3. See also OSCE Mission in Kosovo, ‘Review of the criminal justice system (April 2003–October 2004): crime, detention, and punishment’ (14 December 2004), p. 10.
863 UNMIK Regulation 1999/5 on the establishment of an ad hoc court of final appeal and an ad hoc office of the public prosecutor, UN Doc. UNMIK/REG/1999/5 (4 September 1999).
864 UNMIK Regulation 1999/6, on recommendations for the structure and registration of the judiciary and prosecution service, UN Doc. UNMIK/REG/1999/6 (7 September 1999).
865 UNMIK Regulation 2001/9 on the Constitutional Framework for Provisional Self-Government, UN Doc. UNMIK/REG/2001/9 (15 May 2001), section 9.4.4.
866 The Advisory Judicial Commission began its work on 27 October 1999, and was charged with recommending candidates for appointment as permanent judges and prosecutors. A gap of approximately six weeks between the dissolution of the first and the establishment of the second resulted in a critical delay in the appointment of judges, while the number of detainees waiting for pre-trial hearings and trials grew apace as a result of the alarming security situa- tion in the Serb Province. The Advisory Judicial Commission interviewed approximately 500
turn dissolved and replaced by a permanent Kosovo Judicial and Prosecutorial Council.
(c) Initial Training, Continuous Education and Practical Skills Training
The OSCE, in charge of democratisation and institution building within the UNMIK administration, was responsible for the training of judicial personnel, the monitoring of trials and other judicial proceedings, and the development and/or improvement of institutions such as the law schools and bar associations.867 Upon UNMIK’s arrival, many of the judges and prosecutors who had worked in Kosovo during the previous ten years had left, while those remaining were seen as unacceptable to the population because of their role in the former Serbian dominated system. Others, mainly Kosovo Albanian lawyers, lacked appropriate knowledge and experience of the task as they had been educated by ‘parallel’
institutions and banned from exercising official legal functions.868 The importance of the swift restoration of the judiciary, and therefore adequate training of judges holding office, was urgent by reason of growing ethnic violence and organised crime, and the consequent growing number of people detained by KFOR.869 In addition, their training in international human rights law was imperative, as the applicable law in Kosovo required the judges to review the existing legislation in function of internationally recognised human rights standards.870
UNMIK’s coherent approach to the training of the judiciary can been divided into three main categories: initial training programmes, continuous legal edu- cation and practical skills training. Within the Emergency Judicial System set up by UNMIK, the OSCE initiated training activities in August 1999 by its
‘Judicial Training Section’, which was replaced by the Kosovo Judicial Institute in February 2000.871 The first step was a ‘quick start’ training course for the
applicants for appointment to the Kosovar judiciary, and on its recommendations the head of UNMIK had appointed 296 judges and prosecutors and 238 lay judges by the end of December 1999.
867 Cf. OSCE Mission in Kosovo, ‘Report 1 – Material Needs Of The Emergency Judicial System’
(7 November 1999), para. 1.
868 Report of the Secretary-General, UN Doc. S/1999/779, supra note 117, para. 69.
869 See for an overview OSCE Mission in Kosovo, ‘Report 2 – The Development of the Kosovo Judicial System (10 June Through 15 December 1999)’ (17 December 1999).
870 UNMIK Regulation 1999/24, supra note 858, para. 1.3.
871 OSCE Mission in Kosovo – Legal Systems Monitoring Section, ‘Kosovo: Review of the criminal justice system 1999–2005 – Reforms and residual concerns’ (March 2006), 16. In February 2006, the Assembly of Kosovo adopted a law establishing the Kosovo Judicial Institute as an independent body, which is therefore no longer part of the OSCE Mission on Kosovo. One representative of the OSCE and one UNMIK official still are full members of the Institute.
See Provisional Institutions of Self Government, Assembly of Kosovo, Law No. 02/L-25 on Establishing The Kosovo Judicial Institute.
judges and prosecutors appointed, mainly focusing on criminal law and human rights laws.872 These two-day training courses were intended to give the newly appointed personnel the capacity promptly to initiate hearings in accordance with international human rights standards. These initial training courses were however insufficient to guarantee the adequate functioning of the judiciary, considering the strong, although understandable, focus on criminal law, and the still very sensitive ethnic division.873 As a consequence, the appointment of international judges in February 2000 became unavoidable. Although reluctant at first, the Special Representative of the Secretary-General in Kosovo decided to introduce international actors in the re-established judicial system in order to train the local judges and uphold the rule of law in the territory, as the courts and tribunals were generally seen as ineffective and biased.874 This decision, which introduced the new concept of ‘internationalised’ courts and tribunal, was taken only several months after the establishment of UNMIK. Regulation 2000/6 first launched the possibility of appointing international judges and prosecutors in the Mitrovica District Court, which had been the scene of massive ethnic riots.875 The possibility of appointing international judges and prosecutors was later extended to all other courts and tribunals in Kosovo,876 following a massive strike by Kosovo Serbs, held in detention for several months without indictment.877
872 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/1196 (15 December 2000), para. 49.
873 The initial training courses were completely restructured in 2005 to train candidates who passed the Judicial Entry Exam. A more comprehensive curriculum, covering all areas of legal practice, was developed to increase professional skills and enlarge the legal knowledge of future judges. The ‘Initial Legal Education Program’ was launched in April 2005 and is mandatory for candidates prior to their appointment.
874 Kosovo Albanian suspects arrested by KFOR (often former KLA members) were immediately released by the judges, while Serbian suspects were being detained in custody for identical crimes. See O’Neill, supra note 654, pp. 83 et s. and Hartmann, supra note 665, p. 5. See also Kouchner, supra note 568, pp. 304–305.
875 UNMIK Regulation 2000/6 on the appointment and removal from office of international judges and international prosecutors, UN Doc. UNMIK/REG/2000/6 (15 February 2000), para. 1.1.
876 UNMIK Regulation 2000/34 amending UNMIK Regulation 2000/6 on the appointment and removal from office of international judges and international prosecutors, UN Doc. UNMIK/
REG/2000/34 (27 May 2000).
877 Hartmann, supra note 665, pp. 9–11. Soon, one of the problems relating to the limited num- ber of international judges and prosecutors became clear: the international judges were often outvoted by the four other Kosovar panel judges, who nevertheless ‘legitimised’ their decision because of the presence of an international judge on the panel. A later regulation identified the possibilities for the competent prosecutor, the accused and the defence counsel to request the Special Representative to submit to the Department of Judicial Affairs a petition for the assignment of international judges/prosecutors “where this is considered necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice”
A next step was to allow international prosecutors to reopen cases which had been abandoned by a Kosovar Prosecutor.878
After a needs assessment of priorities in the Kosovo Judicial System, and in consultation with officials and OSCE Rule of Law Officers in the different regions, the Kosovo Judicial Institute equally provided more specific courses on other legal issues. In approximately five years, the Kosovo Judicial Institute, occa- sionally in collaboration with other institutions such as the Council of Europe, the US Department of Justice, or the American Bar Association, organised more than 200 training programmes within the framework of the Continuous Legal Education Program. The majority of the judges and prosecutors have attended at least one programme. However, the courses organised under the Continuous Legal Education Programme were not mandatory and only an average of 25 judges attended all the special training courses.879 The facultative character of the continuous legal training programme was probably not the best format for broadening the legal knowledge of the magistrates. Another facet of the training of magistrates was the launch by UNMIK in 2002 of the Practical Skills Training Programme, in collaboration with the US Agency for International Develop- ment (USAID). The training was offered by the International Development Law Organization and focused on improving management skills, decision-making, writing judgments and questioning of witnesses. However, these essential train- ing programmes were initiated only three years after the first appointments to the judiciary. Especially considering that the main problem with the magis- trates appointed was that they lacked any practical experience whatsoever, these indispensable courses should have ideally been initiated immediately upon the appointment of the judges and prosecutors.
Despite the setback with regard to the applicable law, the management of the emergency judicial reconstruction was handled rather well by UNMIK. In particular, its rapid consultation with the local population to appoint judges and prosecutors, and the creation of mechanisms to boost local capacity in the administration of justice were essential. Nevertheless, reliance on local judges
(UNMIK/REG/2000/64 on assignment of international judges/prosecutors and/or change of venue, UN Doc. UNMIK/REG/2000/64 (15 December 2000), para. 1.1). The same power was given to the Department of Judicial Affairs. (para. 1.2). After approval by the Special Representative, the Department of Judicial Affairs was empowered to designate an interna- tional judge or prosecutor or, in order to avoid the international judge being outvoted, a panel composed of only three judges, including at least two international judges, one of which was the presiding judge (Ibid., para. 2.1).
878 UNMIK Regulation 2001/2 amending UNMIK Regulation no. 2000/6, as amended, on the appointment and removal from office of international judges and international prosecutors, UN Doc. UNMIK/REG/2001/2 (12 January 2001).
879 OSCE Mission in Kosovo – Legal Systems Monitoring Section, ‘Kosovo: Review of the criminal justice system 1999–2005 – Reforms and residual concerns’ (March 2006), p. 17.
did not always amount to the fair administration of justice. Local judges often lacked the capacity to handle difficult and sensitive cases, which fact, added to criticism about ethnic bias, resulted in the introduction of international judges and prosecutors. However, UNMIK’s efforts should not be underestimated, as the judiciary was almost non-existent upon its arrival.