Finding the Balance: The Scales of Justice in Kosovo
Europe Report N°134
12 Sep 2002
EXECUTIVE SUMMARY AND RECOMMENDATIONS
An independent, effective, and transparent justice system will be the cornerstone of a stable and democratic society in Kosovo. Ensuring that such a system is developed in a sustainable manner must be one of the top priorities of the United Nations Interim Administrative Mission in Kosovo (UNMIK) and the Provisional Institutions of Self-Government (PISG). In this report, ICG argues that although progress has been made, serious obstacles and challenges remain.
When UNMIK entered Kosovo, it found that the previous law enforcement and judicial structure had collapsed. Since that time, the system has been completely rebuilt and reformed. Although much has been done – investigations are undertaken, indictments filed, and courts function – the judiciary still lacks the capacity to investigate crimes effectively. Critical instruments for the prosecution, including the witness protection program, will remain largely a shell until the right equipment and resources are provided.
While international judges and prosecutors are crucial for ensuring that justice is impartially delivered, the international community must continue to strengthen the justice system by building local capacity of judicial personnel. This includes the further training and mentoring of the local judiciary, as well as a timetable to gradually introduce local judges and prosecutors into sensitive cases such as war crimes, ethnically motivated crime, and organized crime.
Under the Constitutional Framework, authority for the justice sector – with the exception of the administration of courts - is reserved to the Special Representative of the Secretary General (SRSG). However, this does not absolve UNMIK of the responsibility to involve Kosovo officials in planning the system. The Department of Justice is currently developing a transition strategy for the implementation of UNMIK’s benchmarks. ICG calls on the Department to include Kosovo officials in the development of this strategy. Moreover, Kosovo officials should be gradually introduced into policy and planning functions more generally, co-head positions should be established in the Department of Justice, and international staff dedicated solely to building the capacity of local officials should be seconded into the Department.
Finding the Balance also examines the prosecution of sensitive offences such as war crimes and ethnically motivated violence. Despite the significant resources devoted to the documentation of war crimes, they have largely gone unpunished as has subsequent violence against Kosovo’s minorities. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has issued only one indictment for Kosovo, while investigations conducted by UNMIK suffer from the general weaknesses in the system. To increase the capacity of the judiciary to try these crimes, a Memorandum of Understanding, similar to the Rules of the Road in Bosnia,should be established to share evidence and technical advice between UNMIK and ICTY.
In August 2002 UNMIK arrested a number of individuals – including former members of the Kosovo Liberation Army (KLA) – for crimes committed during the 1998 and 1999 period. The arrests provoked an outcry from some of Kosovo’s political leaders. The consequent prosecutions will test the capacity of the judiciary to investigate crimes and secure evidence, as well as its ability to conduct free and fair trials while protecting the rights of victims, witnesses, and the accused. It will also test the commitment of Kosovo’s politicians and public to an independent justice system that treats everyone equally before the law. The international community justified the NATO military intervention by citing the extensive violations of international law committed by Yugoslav forces in Kosovo. It would be highly paradoxical for politicians to now condemn the enforcement of this law for crimes committed by Kosovo Albanians during and after the conflict.
Given the potential divisiveness of these prosecutions, UNMIK should undertake a public information campaign to explain that the Geneva Conventions must be applied equally to all parties and that no-one is above the law. Moreover, UNMIK should seek to overcome the lack of public trust in the system by expanding this campaign to cultivate public confidence more generally. While public respect will only be truly secured with successful reforms that produce an effective and fair system, politicians and leaders of civil society need to value and promote judicial independence and freedom. Without that independence, the foundations of democracy in Kosovo will lack one of its most important pillars.
To the International Community:
1. Strengthen the current system’s capacity to investigate and prosecute crimes by ensuring UNMIK has the technical, financial, and political support for judicial reform.
2. Support the development of a witness relocation program to other countries, and strengthen the witness protection program by improving police surveillance and providing much needed equipment.
3. Provide additional resources to support the efforts of UNMIK to resolve cases of war crimes and ethnically motivated violence.
4. Second experts to build Kosovo officials’ capacity to administer the Department of Justice.
5. Encourage Belgrade to work with ICTY and UNMIK to develop a mechanism to ensure war crimes suspects charged by UNMIK are transferred to UNMIK courts.
6. Implement the agreement signed on 9 July 2002 to protect the professional status and pensions of judges and prosecutors who work with UNMIK and dissolve the parallel courts operating in Kosovo, including the parallel District Court in Mitrovica.
7. Amend the law on cooperation with the ICTY to eliminate its restrictions on indictments and make a public commitment to transfer to The Hague any new war crimes suspects the ICTY indicts.
8. Commit to the transfer of war crimes suspects indicted by UNMIK to Kosovo.
9. Conclude with UNMIK a Memorandum of Understanding, based on the Bosnia Rules of the Road, to facilitate and institutionalise cooperation, including evidence sharing, technical advice on war crimes cases, and mechanisms to ensure that sufficient evidence exists before a case is brought to trial.
10. Build on the existing outreach program to share more war crimes-related information with Kosovo judges, prosecutors, and defence counsel.
To UNMIK Department of Justice:
11. Develop a transition and exit strategy, including a financial plan, for the gradual handover of power from internationals to local officials, including involvement of Kosovo officials in developing and implementing the strategy and an increase in Kosovo officials – of all ethnicities working in policy and planning at the Department of Justice, including, where possible, as unit co-heads.
12. Develop a long-term strategy and curriculum for the Kosovo Judicial Institute based on a needs assessment, and ensure that attendance is compulsory and evaluation procedures are established.
13. Provide legally binding guidelines for international judges and prosecutors, while using these officials only for extremely sensitive cases – war crimes, ethnically motivated violence, and organized crime - so as not to impede development of local judicial capacity and responsibility. Gradually phase in a heightened role for local judges in such sensitive cases.
14. Create a clear hierarchy for international prosecutors which would ensure sufficient oversight of cases to verify that sufficient evidence exists before charges are filed.
15. Quickly promulgate into law the new Criminal Code and Criminal Procedures Code for Kosovo.
16. Ensure that forensic evidence is organised and stored properly so that critical evidence is not lost.
17. Intensify efforts to resolve cases of war crimes and ethnically motivated violence, delay in which impacts on the peace process.
18. Issue regulations simultaneously in English, Albanian and Serbian.
19. Undertake a public information campaign to increase public understanding of, and confidence in, the judicial system, and address in this campaign Albanian concerns about trials of former members of the Kosovo Liberation Army (KLA).
20. With the PISG (including Serb members), establish a working group to consider possible reconciliation mechanisms.
To the PISG:
21. Increase the justice system’s transparency by using the Department of Judicial Administration to develop accurate and relevant statistics for court cases, particularly those involving minority victims or defendants.
22. Work with the Department of Justice to develop a judicial branch of government that ultimately will be independent from the legislative and executive branches.
To the Kosovo Albanians:
23. Political leaders must respect the independence of the judicial process.
24. Build public respect for the justice system through provision by civil society groups of information to the public on the importance of an independent and impartial judiciary.
To the Kosovo Serbs:
25. Take advantage of the 9 July 2002 agreement between UNMIK and Belgrade to participate in the judicial system.
Pristina/Brussels, 12 September 2002