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.

Pristina/Brussels, 12 September 2002