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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.
RECOMMENDATIONS
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.
To Belgrade:
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.
To ICTY:
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.
To UNMIK:
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