literature review: rule of law lessons learned from the un mission in kosovo (unmik) (cr 09-006)

8/14/2019 Literature Review: Rule of Law Lessons Learned from the UN Mission in Kosovo (UNMIK) (CR 09-006)

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Literature Review:Rule of Law LessonsLearned from the UN

Mission in Kosovo(UNMIK)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


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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.

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, Ruleof Law (ROL) Program, USIP, Eve Grina, William & Mary Law School, ResearchAssistant, ROL; Morgan Miller, Program Assistant, USIP; finalized by Scott Carlson,ROL Facilitator

With contributions from:

1. Gary Hill, INPROL Corrections Facilitator2. Ngozi Nwosu3. Valeza Oruqi4. Eric Scheye5. William Sells

The full text of the responses provided by these INPROL members can be found athttp://inprol.org/node/4469. INPROL invites further comment by members.

Note: All opinions stated in this consolidated response have been made in a personalcapacity and do not necessarily reflect the views of particular organizations. INPROLdoes not explicitly advocate policies.


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October 2009 INPROL Consolidated Response (09-006) Page 1 of 79

Background:

The United Nations Department of Peacekeeping Operations (DPKO), the UnitedNations Office of the High Commissioner for Human Rights (OHCHR), and the UnitedStates 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 andprovides context for the literature review that follows.

Origins of UNMIK

Security Council resolution 1244 (1999) of 10 June tasked UNMIK with [p]erformingbasic civilian administrative functions where and as long as required; [o]rganizing and

overseeing the development of provisional institutions for democratic and autonomousself-government pending a political settlement, including the holding of elections; and[t]ransferring, as these institutions are established, its administrative responsibilitieswhile overseeing and supporting the consolidation of Kosovo's local provisionalinstitutions and other peace-building activities (OP 11 (b), (c) and (d)). OP 11(j) alsostipulates the mandate of [p]rotecting and promoting human rights.

Paragraph 66 of the Secretary-Generals 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-establishand 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 aswell as former staff of these prisons, applying the highest international standardsregarding prisons and human rights. According to paragraph 1 of UNMIK RegulationNo. 1999/1 of 25 July 1999, [a]ll legislative and executive authority with respect toKosovo, including the administration of the judiciary, is vested in UNMIK and isexercised by the Special Representative of the Secretary-General.

In July 1999, the Department of Judicial Affairs, the precursor to the Department ofJustice (DoJ), was established, and the international judges and prosecutorsprogramme was created in February 2000. The DoJs core mandate was to build amulti-ethnic, independent, impartial and competent judiciary, while ensuring in the

shorter term that inter-ethnic and organized crimes are prosecuted and adjudicated byinternational judges and prosecutors. It was also responsible for administering thecorrectional system in Kosovo, for identifying persons from all communities who are stillmissing from the conflict in Kosovo, and for establishing local justice institutions such asKosovos 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 JudicialSupport 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 downsizingits own staffing.

On 17 February 2008, Kosovo issued a declaration of independence and later adopted

a new Constitution. The Secretary-Generals report dated 24 November 2008(S/2008/692) set out the parameters for the deployment of the European Union Rule ofLaw Mission in Kosovo (EULEX) in the areas of policing, justice and customs, within theframework of Security Council resolution 1244 (1999). The Security CouncilPresidential Statement of 26 November 2008 (S/PRST/2008/44) welcomed theSecretary-Generals report dated 24 November 2008. On 9 December 2008, EULEXdeclared 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 toUNMIKs 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 DoJs operations, UNMIK has requested that a lessons learnedstudy be conducted of UNMIKs justice operations, to identify best practices and lessonslearned. Based on this request, a team comprising DPKO, OHCHR, and USIP stafferswas dispatched to Kosovo to conduct the lessons learned study from 22 June to 1 July2009. They analysed relevant documentation and conducted interviews with local andinternational stakeholders on the justice system, to identify the successes and lessonslearned from UNMIKs justice and corrections programme. Based on its findings, theteam will draft best practices and lessons learned for a study on justice and correctionssystem reform, which will inform the future work of justice and corrections componentsin peace operations.

Role of the Literature Review

Prior to making a site visit to Kosovo, the team began reviewing and analyzing existingarticles and other materials on the UN experience with the Kosovo justice andcorrections systems. What follows in this Consolidated Response are excerpts thatreflect a variety of professional observations that have been assembled to date. Thesereferences from the literature will be integrated into the overall lessons-learned analysisand study, and they will serve as a valuable supplement to the onsite interviews thatinvolved 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 civilsociety bodies and other local justice actors. This literature review is intended to be aliving document that can be updated on an ongoing basis.


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Query:

The United Nations Interim Administration Mission in Kosovo (UNMIK) has requestedthat a lessons learned study be conducted of UNMIK's executive justice and correctionsactivities. 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 othermaterials on the Kosovo justice and corrections system, as a considerable amount ofmaterial has been written in this area. To facilitate this exercise, INPROL members arekindly 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 UNMIKs involvement in rule of law related activities issubstantial. 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 thesethemes, excerpting quotes from the literature to illustrate them.


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Table of Contents

I. Lessons from Prior Missions Reaffirmed by UNMIK .....................................................71.1 Capacity building should be holistic........................................................................7

1.2 The UN mandate should provide adequate authority .............................................81.3 International integration of efforts is essential ........................................................91.4 An international crowd-control capacity may be necessary..................................121.5 Identifying, cataloguing, indexing and distributing the applicable law is crucial....13

II. Process of Establishment of DoJ ...............................................................................142.1 Proper assessments are needed..........................................................................142.2 There is a systematic incapacity to mobilize required personnel to addressdeficiencies in the criminal justice system..................................................................162.3 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 criminaljustice capacity can be deployed................................................................................192.5 An interim international criminal code may be a vital tool for avoiding paralysis ofthe legal system .........................................................................................................202.6 Civil proceedings are vital for the resolution of property disputes ........................222.7 The availability and clarity of applicable law is essential to transparency.............23

III. Link between Police and DoJ....................................................................................233.1 The capacity to gather criminal intelligence is essential for successfullyconfronting violent threats to the mandate .................................................................233.2 The capacity to conduct criminal investigations is essential for successfullyconfronting violent threats to the mandate .................................................................253.3 The ability to conduct intelligence-led operations is essential for successfullyconfronting violent threats to the mandate .................................................................263.4 The ability to conduct high-risk arrests is essential for successful intelligence-ledoperations and confronting violent threats to the mandate.........................................273.5 A crowd-control capability is essential in confronting violent threats to themandate .....................................................................................................................273.6 UN Police should be instructed and monitored for proper interaction with thepublic and held accountable for adherence to international standards.......................28

IV. Link between Executive and DoJ..............................................................................284.1 Measures to preserve the independence of international judges are necessary..284.2 Executive power to declare laws, regulations, etc. must be adequately definedand circumscribed consistent with international standards.........................................304.3 Leadership and morale among international staff is important to establish andmaintain......................................................................................................................32

V. Defense Counsel and Private Bar .............................................................................335.1 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 andrehabilitation...............................................................................................................34

VI. Relationship with Local Entities ................................................................................366.1 Transforming systemic threats to the rule of law is a precondition for transitioning

to local ownership.......................................................................................................366.2 Clear institutional mandates, particularly those that create channels ofaccountability for international actors, are essential to promoting perceptions ofinstitutional legitimacy ................................................................................................38

VII. The Judicial, Prison and Corrections System..........................................................397.1 UNMIK was premature in turning ownership of the judicial system immediatelyover to local judges ....................................................................................................397.2 A sustainable transition from peacekeeping to peacebuilding requires creation ofeffective safeguards on institutional performance ......................................................427.3 Accountability and effective safeguards must be built in from the inception to the

development of the judiciary.......................................................................................437.4 Accountability and effective safeguards must be built in from the inception of thedevelopment of the prisons and corrections service ..................................................477.5 Justice capacity building must include training at inception..................................487.6 Remedies and resources must be provided to limit delays in the judicialprocess.......................................................................................................................507.7 Local judges and prosecutors must be adequately paid and resourced to meet thecircumstances of a post-conflict environment.............................................................50

VIII. Politically or Ethnically Sensitive Cases .................................................................518.1 Systemic threats to the mandate and to the rule of law must be confronted by themission across the full spectrum from intelligence to incarceration............................518.2 International judges and prosecutors can make a decisive contribution inconfronting violent threats to the mandate .................................................................538.3 Central or Special Courts involving international and local judges may beessential for confronting violent threats to the mandate .............................................578.4 Procedures for the selection of cases for Central or Special Courts need to beestablished to preserve judicial autonomy..................................................................598.5 A close protection unit is essential for confronting violent threats to the mandate608.6 The capacity to collect and properly handle admissible evidence is essential .....618.7 The capacity to provide maximum security for high-risk detainees is essential forconfronting violent threats to the mandate .................................................................62

IX. Key issues and Challenges Addressed by Corrections Practitioners .......................639.1 The Military Contingent may need to fill in critical gaps if local prison capacity isdeficient......................................................................................................................639.2 Pre-trial detention must be dealt with properly at inception..................................649.3 The capacity to provide maximum security for high-risk detainees is essential forconfronting violent threats to the mandate .................................................................65


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9.4 A uniform, computerized prison registry was utilized to address concerns aboutinappropriate detentions.............................................................................................66

X. Corrections Models Strategies Adopted ....................................................................6610.1 A comprehensive and phased plan was formulated and implemented...............66

10.2 The Kosovo Corrections Service is considered the most successful multi-ethnicinstitution in Kosovo ...................................................................................................68

XI. National Ownership and Engagement ......................................................................6811.1 Strategic planning should include local capacity building and ownership...........6811.2 Participation by representatives of local formal and informal systems andsensitivity to cultural considerations is vital ................................................................7111.3 Ethnic diversity is an important part of sustainable capacity building.................7411.4 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 todeveloplocal capacity not merely for policing, but also for the judiciary, penalsystem, and legal code.1

Simply put, the Kosovo Prosecution Service has been largely overlooked andforgottenwhen trying to understand why UNMIK forgot to develop the prosecutorsand did not actively support the Kosovo judiciary, a senior DOJ staff memberargued, I dont think there was a high-level decision made. I doubt there was astrategy 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 conflictthat brought them to the region, the nature of the criminal elements that will befacing them Policing must be viewed as part of the rule of law continuum whichincludes the judiciary (courts and prosecutors) and the penal or correctionalinstitutions.3

Most critically, future peace-building missions must ensure that a coordinated andthoughtful approach to developing a criminal justice sector is adopted. Such astrategy must be premised on a broad and comprehensive assessment of all of the

critical components and an effective justice process that is beyond merely thecourts. A holistic approach would include assessing the needs of law enforcementagencies, medical and forensic expertise, and legal services. In addition,consideration has to be given to the development of victims services, witnessprotection, and a network of social services to meet the needs of particular groupssuch the victims of sexual violence, juveniles, and the mentally ill Finally, futurepeace-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 andLeonard Hawley (eds.) (Washington, D.C.: United States Institute of Peace, 2005), 162.2 Heiner Hnggi & Vincenza (eds.), Geneva Center for the Democratic Control of Armed Forces, SecuritySector 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 PracticalImplications in Renata Dwan (ed.), Executive Policing: Enforcing the Law in Peace Operations,Stockholm International Peace Research Institute Research Report no. 16 (New York, NY: OxfordUniversity 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 violencethis territory had experienced since 1999. The main difference from the former codes

was that the tasks accomplished by the investigative judge were given toprosecutors.5

The training given to local judges and prosecutors concerning the new laws was notadequate. What should have been done was to train judges and prosecutors thesame way the police were trained. This means that we should have started fromscratch, 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 acomplete program of studies covering the full range of legal education. It did notperform systematic training. It just organized series of lectures on particular subjectswhich 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 scantknowledge of the legal system they were supposed to teach. Therefore localprosecutors, judges and members of the support staff were insufficiently trained andwere 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 becommensurate with the magnitude of the task involved. The International PoliceTask 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 initiallyprovided to discipline police misconduct or to reform the legal code, judiciary, orpenal system. In contrast, Resolution 1244 endowed the SRSG with the equivalentof sovereign powers that included the right to appoint and remove officials and tolegislate by issuing regulations and revising the existing legal code. UNMIK Policehad executive authority to enforce the law.6

Issue more comprehensive mandates focusing on specific judicial and legalreforms Implement mandates fully, addressing gaps in local judicial and legalcapacity where necessary Establish rule of law as a core priority in missionplanning Provide sufficient judicial positions and rapidly deploy Increasefinancial resources for judicial and legal reform initiatives Develop a One UNApproach to judicial and legal reform in peacekeeping Strengthen engagementwith host-country rule of law partners Employ contemporary programme

4 David Marshall and Kelly Inglis, The Disempowerment of Human Rights-Based Justice in the UnitedNations 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-Jean-Cady-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 missions diplomaticdialogue 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 ofpolitical expediency, than out of an analysis to establish a workable system ofcooperation between NATO and the UN. There was a potential conflict between themandate of KFOR and the mandate of UNMIK. This conflict was partially overcomeby good personal relations between the KFOR commander and the SRSG butremained latent throughout the mission. In the early stages of the mission in Kosovothere was no choice. The military had to deal with everything in order to establishpeace and security. As the civilian presence took time to percolate into the mission,the military were the only operational international authority for many months. Butalthough the military are quite apt to create a reasonably peaceful and secureenvironment (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 peopleshould be in the hands of a civilian authority as soon as possible. Apart from rareexceptions such as East Timor, the mandate of a peacekeeping mission is usuallymore the result of a compromise than of a consensus among Security Councilmembers. If a future peacekeeping mission were to have as broad a mandate asUNMIK, the terms of the mandate should be weighed and designed in such afashion that the mission can work in an efficient manner and not be hindered by ill-designed tools. The main problem in Kosovo was that nothing was planned toestablish the cooperation between KFOR and UNMIK. Nothing was planned either toestablish the transition from military primacy to civilian primacy. Nothing wasplanned for situations in which public unrest might overwhelm the whole territory ofKosovo.8

1.3International integration of efforts is essential

Programs and activities directed at institutionalizing the rule of law in Bosnia werefragmented among various autonomous organizations and programs. The creationof the pillar structure in UNMIK was a step in the direction of bringing greatercoherence. Responsibility for training and capacity building was assigned to theOSCE. UNMIK Police were responsible for law enforcement and subsequently forfield training and supervision of the graduates of the OSCE police school.Responsibility for re-creating and administering the local judicial and penal systemswas 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.), InternationalPeacekeeping: The Yearbook of International Peace Operations, Volume 12(Amsterdam, NL: MartinusNijhoff Press, 2008), 1.8 Cady, 1.


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assisted and monitored by the OSCE. The need for KFOR to support and coordinateclosely with UNMIK was specified in Resolution 1244.9

International integration of efforts is essentialresponsibility for re-creating andadministering the local judicial and penal systems was assigned to the UNMIK

department of Judicial Affairs, which, in turn, was assisted and monitored by theOSCE. The need for KFOR to support and coordinate closely with UNMIK wasspecified in Resolution 1244 the need to take a holistic approach was generallyrecognized, but international capability did not exist to put this concept immediatelyinto practice.10

Because of the way the Kosovo mission was set up, much of the rule-of-lawcontinuumpolice, prosecution, judiciary and penal was fragmented at thebeginning. This posed operational problems which resulted in reduced levels ofcoordination and cooperation. It is of critical importance that the rule-of-lawcomponents work together in a continuum.11

Paradoxically, UNMIKs organizational structure after May 2001 with justice andsecurity silo-ed within Pillar I may have hampered the development of a mission-wide SSR approach in that there was no high-level cohesive team supported bysufficient resources (human, financial and bureaucratic) capable of amalgamatingthe enormous spectrum of justice and security SSR activities into a definedstrategy.12

Similarly, UNMIKs inability to create a judicial police, even though UNMIK hadlegislated its establishment, could be partially traced to the pillar structure and theinability 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 OSCEand the United Nations was not always clear and coordinated.14

Second, cooperation between civilian and military authorities is critical in ensuringthat investigations are not conducted at cross-purposes. In Kosovo, a lack ofcoordination between KFOR and UNMIK led to incidents. 15

Some difficulties arose from the security environment on the ground; others fromthe high politics surrounding every aspect of NATOs intervention and the

9 Hartz and Mercean, 162.10 Marshall and Inglis, 162-164.11 Rausch (2002), 28.12 Hnggi and Vincenza, 178.13ibid, 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),284.15Ibid, 292.


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subsequent role of the United Nations. Together, these factors gave rise toinconsistent policies on the part of the international administration, in turn giving riseto its own contradictions as the body charged with instilling the values of humanrights and the rule of law detained persons in apparent contempt of international

judges.16

The relationship between the UN family and donors varied tremendously, dependingupon the project under consideration and the personnel involved. On the whole, itwould appear that good working relationships existed between UNMIK and thedonors with regard to judicial development, though it needs to be pointed out thatUNMIK experienced difficulties coordinating the donors and limiting duplication. 17

According to respondents, UNMIKs support of the MoJ, for instance, has beenabysmal, with the donors conducting virtually all development activities. A Kosovarwith in-depth knowledge of the situation inside the Ministry claimed that [the Ministryhas] not been given development in management [from UNMIK]. They were just

transferred with their competencies from [UNMIK] DoJ to MoJ. The same applies tothe Kosovo Judicial Council (KJC), which is one of the keystones of oversight, courtadministration and management of the judiciary. It is within the KJC, however, thatsignificant development initiatives are under way, albeit mainly outsourced andconducted by NCSC.18

sometimes a disparity between what human rights experts in the field argued wasrequired under international human rights standards and what police argued wasactually possible to do given the circumstances in the field. What was missing, andcritical to effective law enforcement and adherence to international human rightsstandards, was a meaningful dialogue between experienced lawyers with humanrights experience and criminal justice experience, the international police (and laterthe international judges and prosecutors who came on board), the military, local

judges, prosecutors and police, and legal experts. These actors needed to cometogether and discuss, from both a practical and a legal standpoint, what could bedone that would be consistent with international human rights standards and still befeasible given the reality in the field.19

Perhaps the most pivotal lesson learned in SSR programming though, is the need toensure consistent and coherent management of the implementation andperformance of initiatives, concentrating on delivering defined and measurableoutcomes. 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 Hnggi and Vincenza, 202.18 Eric Scheye. UNMIK and the Significance of Effective Programme Management: The Case of Kosovo,192.19 Rausch 2002, 18.20 Hnggi and Vincenza, 203.


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Recommendation: a cohesive team of SSR experts responsible for thedevelopment and managerial oversight of the implementation of the UNs SSRstrategy 21

1.4 An international crowd-control capacity may be necessary

Implementation of the Dayton Peace Accords was difficult in the beginning becauseof a gap in capabilities between the NATO-led Implementation Force (IFOR) and theIPTF. IFOR was able to use lethal force, whereas the IPTF was unarmed. This leftthe mission vulnerable to civil disturbances. Ethnic extremists became proficient atexploiting this gap through the use of what came to be called rent-a-mobs.Eventually NATO responded by deploying a Multinational Specialized Unitcomposed primarily of Italian Carabinieri. The units nonlethal crowd-controlcapability and doctrinal understanding of how to deter and defuse public disorderhelped to close this peace enforcement gap. This experience led both KFOR and

UNMIK Police to incorporate this type of specialized crowd-control capability intheir contingents.22

One particular aspect of the rule of law, which should not be overlooked, is crowdcontrol. 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 thatare specially trained. The role of these units is very different from the role of soldiersin a conflict. Soldiers are trained to behave in a war situation. Crowd control unitsoperate in a situation of relative peace, a peace which is disturbed but not to thepoint of reaching the state of war. As we all know, there is no permanent standingcapacity 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 onecountry to the next. In Kosovo it was done by special units from Poland andRumania but also by the MSU (multinational specialized unit). The MSU was apolice force with military status, under KFOR command. Led by an Italiancommander, essentially composed of Italian carabinieri, with a participation ofFrench gendarmes and Estonian military policemen, it was not as useful as it couldhave been for the following reasons. First of all it was under KFOR leadership andwas never transferred to UNMIK even though civilian primacy had been establishedfor matters related to law and order. The duality of command made the process ofengagement long and burdensome because a request made by UNMIK had to beapproved by KFOR. The second reason is that rules of engagement varied from onecountry to the next for the very simple reason that demonstrations and publicdisorder do not happen in the same manner. A coherent doctrine for crowd control ina peace-keeping environment still has to be established.23

21Ibid, 203-208.22 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, theywere unfamiliar with the applicable law. Furthermore, their number and dispersalwas erratic, once again detracting from the international communitys attempt to

enforce one set of internationally recognized standards.24

On July 25, 1999, the SRSG approved UNMIK Regulation 1999/1, which providedthat the law applicable in Kosovo was the law in force prior to the NATO interventionon March 24, 1999. Members of the ethnic Albanian legal community resented andresisted this determination because they considered it offensive to reinstate the lawsof the repressive regime, and they willingly disregarded the applicable law in theconduct of trials. In response, in December 1999, the SRSG promulgated Regulation1999which appealed Regulation 1999/1 and reinstated the laws applicable in1989.25

The challenge of determining what constitutes applicable law is overwhelming, notonly 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 beapplied and whether the laws, written in the 1970s and 1980s and based on acommunist system, can realistically be applied in light of the establishment ofUNMIK. 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 itsapplication in light of international human rights norms, considerably hampered thefunctioning of the justice system.27

A more workable strategy would have included addressing the applicable lawchallenges early on so that the most critical provisions could be readily amended orgaps filled to meet international standards and respond to the realities on theground. 28

The process of defining the immediately applicable law and establishing an acceptedlawmaking process should be undertaken prior to the next post-conflictadministration.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 by24 Wendy S. Betts, Scott N. Carlson and Gregory Gisvold, The Post-Conflict Transitional Administration ofKosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law, 22 Michigan Journalof International Law 371 (2001), 379.25 Marshall and Inglis, 10.26Ibid, 115-6.27Ibid, 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 reconcilinglocal 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. Inthe light of the confusion as to which law applied and the difficulty of understandingthe provisions, many resorted to applying the law as they knew it from their ownsystems.31

The domestic applicable law proved troublesome, most particularly for lawenforcement from common law jurisdictions. The criminal procedure code did notprovide for police warnings on arrest or during police interrogation. The code did notmake 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 internationaljudges made it difficult for the defense counsel to mount a defense, particularly asthey themselves were not well-versed in either the applicable international standardsor the applicable law in force.33

The problem we had in Kosovo as well as in East Timor was: according to whichrules and to which law is social and political peace going to be established? Eachcountry 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 thebest intentions, each country willy-nilly has a tendency to use its own system as aframe of reference. The problem is that a territory which has a peacekeepingmission, is not a blank slate. We do not start from scratch. Kosovo had a legalsystem 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 performinga proper assessment. The most fundamental issue to assess is whetherinternational 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 UNMIKs Transitional Administration inKosovo, 23 Wisconsin International Law Journal 183 (2005), 8.31 Rausch 2002, 17.32 Marshall and Inglis, 2003, 125.33 Irene Bernabu, Laying the Foundations of Democracy? Reconsidering Security Sector Reform UnderUN 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 tothis question should be a function of the role of the legal system in the conflict. Wasit part of the problem or part of the solution? Are indigenous institutions capable ofimmediately 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 canbe shared with local counterparts? Where will detainees be held? In the absence ofa functioning court system, what will happen when the jails are full? What body oflaw will be applied, and what revisions will be required?

When Resolution 1244 was adopted, Kosovo was without police, judges, or jails toprovide law and order. Even the basic infrastructure was lacking. Although theresolution called on the international military presence to ensure law and order, thereal challenge was to create it in the first place out of an anarchic socialenvironment. As William ONeill observes in Kosovo: An Unfinished Peace, Courtbuildings looked as if a plague of locusts had swept through, scouring the grounds

for anything valuable and leaving broken windows and ripped-out electrical socketsin their wake. The main prison at Dubrava, with a capacity for 1,200 inmates, hadbeen bombed during the air campaign and was unusable. A massive public securitygap awaited the international intervention.

Before the conclusion of the bombing campaign, the OSCE sent personnel from itsKosovo Verification Mission to the refugee camps in an attempt to identify KosovoAlbanian judges and prosecutors to help constitute a new judicial system. The vastmajority had not worked in those capacities since 1989, and the few who had wereregarded as Serb collaborators. None were familiar with international human rightsstandards, nor could they be expected to be impartial in their treatment of Serbsaccused of crimes after the trauma they had experienced. Thus, the OSCE prepareda plan for rebuilding the judicial system that involved the use of international judgesand prosecutors along with members of the local legal community. UNMIK, however,made the strategic choice to rely exclusively on local judicial personnel. Theoverriding factor was a feeling that giving international judges the authority tosentence citizens of Kosovo to imprisonment would smack of colonialism. Ultimately,however, this assessment proved to be misguided and international judges andprosecutors would need to play a prominent role.35

First, given the character of the conflict, it should have been possible to anticipatepostwar 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 willface.37

35 Hartz and Mercean, 171-172.36 Rausch 2007, 292.37 Rausch 2002, 30.


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In future postconflict reconstruction missions, the criminal justice environment shouldbe evaluated before international prosecutors are introduced into the jurisdiction.Specifically, the supervising authorities must make a coherent analysis of the formsof 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 ofthis evaluation, the supervising authority should implement a temporary structurethat reconciles the urgent need to address destabilizing crime with the inherentlimitations of postconflict law enforcement agencies. Finally the supervising authoritymust augment the effectiveness of this temporary structure with supportinglegislation. 38

In addition, in Kosovo, the police were grafted onto a system with a socialistheritage where independence of the judiciary did not exist and the relationshipbetween the police, the prosecutor and the judge was quite different from therelationship in many of the countries that supplied international police.39

2.2 There is a systematic incapacity to mobilize required personnel to addressdeficiencies in the criminal justice system

Chronic difficulties existed in recruiting capable police officers. The demands inKosovo, both in terms of the numbers and the functions involved, greatly exceededthose of any previous operation. The United Nations had never had to create anarmed police force that would exercise full executive policing authority. Nor wasthere any doctrine for this purpose or for the formed police units that would also beemployed 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 announcementsthrough the UN, and applications are sent to the personnel office at UNMIK. TheChief International Judge reviews the applications and draws up a short list forinterviews. All candidates are interviewed via telephone, typically by two existing IJs,the head of the International Judicial Support Section (IJSD), and a representative ofUNMIKs personnel office. This system has been criticized for being haphazard andfor the difficulty in exercising quality control at such a distance. Most of theapplications come from Africa, Asia, or Eastern Europe, because it has proven

difficult for judges in the North America and Western Europe to take leaves ofabsence from their regular judicial duties to serve in Kosovo. Some special bilateralarrangements have been made, such as with the state of Minnesota, which resultedin 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 Learnedfrom 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 statesor other institutions. All IJPs are officially chosen, hired, and paid by UNMIK. 41

Regardless of the institution of ad hoc military arrangements, the United Nationsmust 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 itsemergency first-phase response. It is thus imperative for the [*62] United Nations todevelop a standby network (as opposed to a costly standing capacity) ofexperienced and qualified international jurists that can be activated at any giventime.42

The international community should be prepared to send a group of internationaljudges, prosecutors and defense counsel pre-trained in the emergency law template,and this transitional judiciary should be accompanied by a targeted package ofequipment sufficient to support the interim judiciarys functions. 43

Measures to create a standby network of international jurists who could be employedat short notice to post-conflict areas would facilitate the establishment of a judicialsystembut are unlikely to be able to deploy in sufficient time and numbers toestablish even an ad hoc system of their own. 44

Lack of adequate deployment capabilities hampered the introduction of CIVPOL intoKosovo. Further complications were introduced by the more ambitious scope (interms of jurisdiction and primacy of the local police forces) of the Kosovo operationcompared with previous CIVPOL missions. 45

The mandate given by Security Council resolution 1244 was designed more out ofpolitical expediency, than out of an analysis to establish a workable system ofcooperation between NATO and the UN. There was a potential conflict between themandate of KFOR and the mandate of UNMIK. This conflict was partially overcomeby good personal relations between the KFOR commander and the SRSG butremained latent throughout the mission. In the early stages of the mission in Kosovothere was no choice. The military had to deal with everything in order to establishpeace and security. As the civilian presence took time to percolate into the mission,the military were the only operational international authority for many months. Butalthough the military are quite apt to create a reasonably peaceful and secureenvironment (i.e. to move out of war), the rule of law can only be established bycivilian authorities.46

41 Tom Pieriello and Marieke Wierda, Lessons from the Deployment of International Judges andProsecutors 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 systemwas the failure to recruit and train properly international judges and prosecutors. Inthe attempt to build a judicial system which would have an international and a localcomponent, UNMIK was hampered by never having a sufficient number ofinternational 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 inno country is there a surplus of judges or prosecutors ready to jump to a plane toparticipate in a peace-keeping mission. The second explanation is that in mostcountries, the fact of having been a member of a peace-keeping mission may beseen 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 homeand when he returns after a year or more, he will have to look for a post. What hewill be given will not necessarily be a promotion. So the number of volunteers is notenormous. 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 area 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 donemostly by telephone interviews, as UNMIK did not have the budget for the travelingexpenses of candidates. Many judges and prosecutors recruited that way wereexcellent but UNMIK experienced also inadequately qualified personnel. Withhindsight, one feels that in all cases there should have been a face to facemeeting.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 anadequate prison infrastructure. A functioning correctional system is not onlycomplementary, but also inextricably linked, to the creation of a functioning lawenforcement mechanism.48

Initially, UNMIK had no conception of what was involved in restoring the operation ofa prison system. KFOR had to fill the gap. Once UNMIK Police had becomeestablished in Pristina, they began operating the detention center there. In October1999 UNMIK established the Penal Management Division and began recruitingexperienced local corrections officers to form the initial cadre for the KosovoCorrections Service (KCS). One month later, fifty-eight officers of the KCS underUNMIK supervision assumed responsibility from KFOR for the prison in Prizren. InJanuary 2000 the KPSS began offering a corrections training course. By June 2000UNMIK had rehabilitated the main prison at Dubrava and restored it to use. This wasa crucial accomplishment because due to the resumption of trials within the courtsystem, Kosovos smaller facilities were full to capacity with sentenced offenders. ByFebruary 2001 the KCS, under Penal Management Division supervision, had taken

47 Cady, 3.48 Strohmeyer, 15.


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responsibility for all detention centers and prisons with the exception of the detentioncenter at Camp Bondsteel, which was used primarily for detainees held under KFORauthority (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 criminaljustice capacity can be deployed

UN Security Council Resolution 1244 assigns responsibilities relating to the rule oflaw to both the international security presence (KFOR) and the international civilpresence (UNMIK). Paragraph 9 charges KFOR with ensuring public safety andorder until the international civil presence can take responsibility for this task.KFORs mandate also includes supporting, as appropriate, and coordinating closely

with the work of the international civil presence. Although KFORs most evidentcontribution was to fill the initial public security gap, it had vital contributions to makeacross the entire spectrum from intelligence to incarceration.51

The initial Kosovo Consolidated Budget did not even recognize the need to providefunding for the management of prisons. Initially, KFOR had to fill the gap. Eventhough this was an unanticipated requirement for most KFOR contingents, duringthe first phase of the mission each MNB took responsibility for operating pretrialdetention facilities. Because there was no adequate jail in its sector, the U.S. militaryestablished its own detention center at Camp Bondsteel, processing 1,800 detaineesin 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 inpenal management for this unprecedented international requirement; the delay inproviding funds, especially to repair Kosovos main prison at Dubrava that had beenseverely damaged by NATO bombing; and the difficulty encountered by UNMIKofficials in gaining access to various penal facilities that KFOR regarded as high-security installations and therefore placed off limits.52

The Interim SRSG declared that law enforcement activities are a joint responsibilityand, when conducted by KFOR and UNMIK police, they must be undertaken in linewith international human rights standards. This move indicated early on that theSRSGs power to legislate could bind KFOR, presuming that KFOR would act in

accordance with the applicable law, and that human rights would also limit KFORsauthority at least in the areas of law enforcement.53

49 Hartz and Mercean, 175.50 Rausch 2007, 296.51 Hartz and Mercean, 160.52Ibid, 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 todeal with everything in order to establish peace and security. As the civilianpresence took time to percolate into the mission, the military were the onlyoperational international authority for many months. But although the military arequite 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 ofthe legal system

Because Kosovos final status remained undetermined, the selection of one penalcode over another became part of the continuing conflict. The existing Serb codehad no legitimacy with Kosovo Albanians because it had been used as aninstrument of brutal repression since 1989. This code also implied Kosovossubjugation to Serbia and a reversal of ethnic Albanian aspirations for eventual

independence. The penal code that had been used when Kosovo enjoyedautonomous status before March 1989 was clearly the preference of KosovoAlbanians. Nevertheless, respect for FRY sovereignty was an overriding concern forthe United Nations. Consequently, in July 1999 the SRSG issued Regulation No. 1stipulating that the law applicable in Kosovo would comprise all the laws applicablein the territory of Kosovo prior to 24 March 1999. To administer this body of lawconsidered odious by Kosovo AlbaniansUNMIK decided to rely on recruitment oflocal judges and prosecutors. Because the vast majority of judges were ethnicAlbanians, they simply refused to apply the existing Serb law. Until UNMIKreversed 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 UNMIKs authority, the fundamental legality of these rulings wasin doubt. 55

One remedy proposed by UNMIK staff and endorsed by KFOR lawyers was to useUNMIKs regulatory authority to establish a temporary code covering the mostserious violent crimes until the overall legal framework could be revised. The UnitedNations 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 1989when Kosovo enjoyed autonomy. Although this was essential to end the judicialstalemate, there was a price to pay. The international community was perceived asweak and vulnerable to local pressure. The vanishing prospects for inclusion ofSerbs in the judiciary were diminished further. There was great uncertainty,moreover, about what the pre-1989 laws actually were. Months would pass beforethe penal code and other vital codes could be translated into English so that UNMIKPolice could be trained on the law they were expected to enforce and UNMIK legalstaff could work with them. Instead of promoting peaceful resolution of disputes, theUnited Nations initial strategic choice about the applicable law had created an

54 Cady, 1.55 Hartz and Mercean, 175.


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obstacle that took almost a year to overcome. The Brahimi Report acknowledgedthat a rudimentary international penal code and code of procedure should bedeveloped. This would at least provide an alternative for international authorities touse 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 importantprerequisite for the building of judicial institutions. Capacities within and outside theUnited Nations must thus be identified for quickly drafting new legislation inaccordance with internationally recognized standards and with due consideration tothe 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 thatthe international police from a multitude of countries with different legal systems arethoroughly versed and competent in the applicable law, the local justice system andeffective investigative techniques for the local justice system is challenging, to saythe least. In addition, police officers from different countries come with differing

levels of English, firearms abilities, patrolling experience and investigativeexperience, and from different legal and cultural environments.58

Because UNMIK originally considered itself bound by a constitutional ban againstextradition of citizens, Kosovo, in effect, became a safe haven for Kosovars who hadcommitted serious crimes abroad. To begin addressing this, the Department ofJustice negotiated bilateral arrangements with many of the most affected countriesto provide records, access to witnesses, and financial support for translators sothese fugitives could be tried in Kosovo. This allowed judicial proceedings to beinitiated by UNMIK against criminals most wanted by foreign governments; however,it was only coincidental when this process could be used to build cases againstdangerous criminals who were a strategic priority for UNMIK. In 2003 UNMIK tooksteps to amend the existing body of law to allow for the extradition of Kosovocitizens. Years of delay in putting this mechanism into effect deprived UNMIK of apowerful tool for ridding Kosovo of some of the most notorious criminal and extremistelements.59

Given the particular controversy concerning the choice of law in Kosovo, it mighthave been appropriate also for the UN to impose a generic penal code and code ofcriminal procedure for an interim period, along the lines recommended by the Reportof the Panel on Peace Operations (the Brahimi Report). 60

There are two possibilities to avoid a legal vacuum: The first possibility is that thepeace keeping mission could arrive with a UN designed simplified criminal code anda basic code of criminal procedure. Each international judge and each member of

56Ibid, 176-177.57 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 theirguidelines during the mission. In my view this would be the ideal situation but onehas 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 themission. 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 stilloperative. The question which was asked time and again was: how can youestablish the rule of law with the rules of our oppressor? Even if technically answerscould be given, politically this question carried a lot of weight and certainly hamperedthe 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 ofKosovo did not know the body of laws they had to enforce. It took time to have atranslation of the codes. During that time, and even beyond, each international judgeor prosecutor, each international policeman had a tendency to perform according therules 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 criminalproceedings, or in civil proceedings involving fraudulent property transactions.

o Civil courts should suspend contested property transactions pending theoutcome of criminal proceedings on the same issue.

o Courts should rule on requests for temporary injunctions within a reasonabletime.

o Courts should identify where errors/delays in the implementation of criminaland property law have occurred and find possible solutions to protect the rightto property and establish due process of law.

o The Kosovo Judicial Institute should train civil judges on the importance ofresolving preliminary issues in civil proceedings.

o The Kosovo Judicial Institute should train prosecutors on investigation andprosecution of criminal offences related to fraudulent property transactions.62

61 Cady, 2.62 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 inApril 2006 to publish Kosovos Legal Gazette but has failed to effectivelydisseminate consistent knowledge of the law. Reports by the Kosovo

Ombudsperson indicate that the Gazette suffers from limited distribution andinadequately standardized translations; exacerbating the situation of legaluncertainty even when it is clear what law applies. 63

An issue that was continuously raised in the previous annual reports is the constantlack ofvacatio legis in almost all the laws adopted by the Assembly of Kosovo andUNMIK regulations promulgated during the reporting time. Vacatio legis is a periodof time between the promulgation of a law and its entry into force, with the aim ofgiving the public and the authorities applying the law the chance to adjust andprepare for the new legal situation. The recommendations of the OmbudspersonInstitution in this regard have so far not been taken into consideration as UNMIK

Regulations and Assembly Laws continued to enter into force immediately after theirpromulgation. As a result, most institutions are not prepared to implement the newlegislation and both the local administration and the judiciary find themselves sooverwhelmed with the great amount of regulations and laws promulgated within arelatively short period of time that they either fail to implement them properly, or donot implement them at all. This is particularly dramatic, especially considering thegeneral lack of implementation of the laws in Kosovo. However, some of the lawsadopted by the Assembly of Kosovo on 15 June 2008 foresee that the law shouldenter into force 15 days after the day of the publication of the law in the OfficialGazette of Kosovo.64

It is not clear which laws from Yugoslav times are still applicable, and there is stillno higher judicial body competent to address such matters. All UNMIK Regulationsand Kosovo Assembly Laws merely state that they supersede any other inconsistentlaw or other provisions, but still do not specify exactly which legal provisions or lawsthey 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 majorsources of interethnic violence. In early 2000 the Quint countries (i.e., Britain,

63Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 14.

64Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 14.

65Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007, 12.


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France, Germany, Italy, and the United States) agreed to create a CriminalIntelligence Unit (CIU) within UNMIK Police in order to pool relevant KFORintelligence with UNMIK Police information on the organized-crime threat. Thisseemingly commonsense proposition was confounded by an inherent reluctance toshare intelligence, a lack of security clearances for many of the personnel initially

assigned to the CIU, and a UN structure that was philosophically andbureaucratically unprepared to manage a criminal intelligence operation. As a result,it took nearly two years for the body to be established under UNMIK auspices. Overtime, these challenges were addressed, particularly by the establishment of aninstitutional firewall between the CIU, which was staffed exclusively by the Quintcountries, and the rest of the UNMIK Police structure. Another early impediment wasthe lack of a common vision among the Quint countries about whether thisintelligence should be put to operational use in Kosovo. It was one thing forintelligence to start flowing into the CIU and back to home countries. It was quiteanother to convert this intelligence into actionable leads to guide the collection ofevidence against threats in Kosovo. Ultimately, the need to supplement the CIUs

efforts with a capability to gather criminal evidence was recognized, leading to theestablishment of the Kosovo Organized Crime Bureau (KOCB) as the investigativearm within UNMIK Police for information developed by the CIU.66

The second problem is this: what is being created has to be sustainable when thingsare run by locals. Let me take two examples of institutions of which the internationalcommunity was rather proud but, in my view, without full justification and which maybe difficult to transfer. The first is the CIU, the central intelligence unit. It was not aUN institution: it was a creation of the Quint and was never fully accepted by the UNwhich did not finance it and did not appoint the staff working for the CIU. Let us alsosay that anything related to intelligence gathering is very far from the traditional UNculture. The idea was to install in a single place intelligence officers of the five majorcountries 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 fightagainst organized crime and the prevention of public disorders. In my view, this wasnot a success. First of all there was very little pooling of information. Eachintelligence officer worked mostly for his own national agency and shared withcolleagues only the smallest common denominator. Second, on the local scene, theCIU was largely unsuccessful: it did not succeed in forecasting the major riotsKosovo had in April 2004. In the 40 months I spent in Kosovo, I do not rememberany criminal case that moved forward thanks to information or evidence provided bythe CIU. The CIU was designed and run by these five countries with the purpose ofobtaining intelligence on Kosovo. It did not help in providing hard evidence oncriminal cases of the sort that is accepted in criminal courts. Was there any idea oftransferring the CIU to locals? Of course not. These were assets and staff belongingto the Quint countries. Few people would dispute the fact that if there is anyparticular field in which Kosovars do not need any assistance, it is the area ofintelligence gathering. Albanians as well as Serbs have had years of practice in thepast. The SIOU, the special intelligence unit on organized crime was another unit

66 Hartz and Mercean, 178-179.


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which it would be hard to transfer as such. Its purpose was to collect intelligence butalso evidence acceptable in courts on criminal cases. It relied on informers but alsoon tapping phone calls. As most of the telephone network was linked to formerYugoslavia, there was a lot of eavesdropping on many sides. There again thetransfer to local authorities could not be complete.67

The DOJ is training local police officers and lawyers in the use of new, high-techsurveillance equipment that will reduce the need for relying on witnesses (whomthey cannot protect). Over the next year, the DOJ intends to follow the policesexample of building an elite, interethnic team that can conduct complex criminalinvestigations, particularly around issues of organized crime and terrorism.68

The UNMIK Department of Justice (previously called the Department of JudicialAffairs) is creating a special unit where police, prosecutors and KFOR will worktogether to build cases using classified intelligence. The plan is for the military toprovide 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 successfullyconfronting violent threats to the mandate

Perhaps the most vexing challenge was to develop the evidence required to bringperpetrators of political violence to justice. UNMIK was hamstrung in its early effortsby obstacles in the applicable law. Evidence gathered by covert means, such asvideo cameras or wiretaps, was not considered admissible. No provisions existed forgranting immunity to witnesses or for protecting their identities. Even after these

deficiencies in the applicable law were overcome in 2001 and 2002 through the useof UNMIKs regulatory authority, many standard investigative means remainedunavailable. 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 theUnited States had provided funding for acquisition. Although a forensics lab wasestablished after considerable delay, prosecutors remained reliant on witnesses. Inspite of the creation of a witness protection program, resources were not available tooperate it effectively, and thus witnesses continued to be vulnerable to intimidation.The justice system was unable to make adequate use of its authority to prosecutethe most dangerous threats to the rule of law, therefore, because of a lengthyinternational failure to support it with the necessary resources. Years passed beforesubstantial progress could be made. In mid-2002 the UNMIK Police commissionerreformed and expanded the nascent KOCB and forged effective workingrelationships with KFOR and the UNMIK Department of Justice. The KOCB includedspecialists in various investigative disciplines, including the use of technical devices,supplemented as necessary by KFORs surveillance capability. The integrity of the

67 Cady, 4-5.68 Pieriello and Wierda, 33.69 Rausch 2002, 27.


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organization was maintained through the use of polygraphs and periodic internalsurveillance on its own personnel.To facilitate the flow of prosecutable intelligencefrom KFOR, the UNMIK Department of Justice established a Sensitive Informationand Operations Unit (SIOU). The purpose was to identify key figures involved incriminality, provide a mechanism for processing intelligence into a format usable in

open court proceedings, and secure the arrest of these key figures. It was essentialthat lawyers assigned to the SIOU have the requisite security clearances from aNATO country.70

In addition, the IJP may provide a model for what kind of police protection theKosovar jurists should be provided, and proper judicial/prosecutor workingrelationships with the police, including close supervision of investigations andprevention of human rights abuses, both of which will be required to end anatmosphere of impunity.71

3.3 The ability to conduct intelligence-led operations is essential for successfullyconfronting violent threats to the mandate

With the passage of time, UNMIK and KFOR developed an understanding of thevarious political-criminal power structures at play in Kosovo and the threats theyposed to a sustainable peace. To confront this threat effectively, a process wasneeded to focus the limited resources of the international community decisively onthe key figures involved. A key component of this strategy was to use intelligenceresources already in place to identify potential high-value investigative targets. Twomechanisms 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 toassess the available intelligence and develop priorities. Its recommendations werepresented to an Overview Coordination Group (OCG) chaired by the UNMIK Policecommissioner, with the director of the Department of Justice and the commander ofMNB(C) also participating. The OCG met once a month to establish priorities forinvestigation 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 justicethat it was expanded Kosovo-wide, and the KFOR chief of staff replaced the MNB(C)commander on the OCG.72

70 Hartz and Mercean, 179-180.71 Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post-ConflictPeacekeeping, United States Institute of Peace Special Report No. 112 (Washington, D.C.: United StatesInstitute 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-ledoperations and confronting violent threats to the mandate

In the face of widespread attacks against the Serb population at the inception of themission, 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 toarrange for the early recruitment of a cadre of highly professional and experiencedtactical police who specialized in high-risk arrests. These officers were called onfrequently from the outset of the mission to conduct high-risk arrests (usually withthe teams carrying out the arrest while KFOR and UNMIK crowd-control unitsprovided a wider security cordon around them). Owing to the novelty of this type ofmission, the United Nations was unprepared and unable to provide appropriateequipment and logistical support for this function for more than a year. The unitdepended on ad hoc support from the contributing nations for appropriate weaponsand other necessary equipment.The professionalism of the UNMIK Police duringthe 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 specializedunit to deal with high-priority targets in their MNB. The proficiency of the high-riskarrest team was demonstrated throughout 2002 with the apprehension of more thansixty 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 theexperience in Bosnia where implementation of the Dayton Peace Accords had beenstymied by orchestrated civil disturbances. As a result, UNMIK Police included ten

formed police units, called Special Police Units (SPUs), each with 115 men andequipped with riot-control gear, body armor, and armored vehicles. KFOR alsoincluded a similar capability with its Multinational Specialized Unit (MSU). It tookalmost a year before the SPUs began deploying to Kosovo. Initially, there wasstrong resistance at senior levels within UNMIK to the use of either the SPUs or theMSU in a crowd-control capacity, owing to the fragility of the peace process anduncertainty about how they would perform. As a result, the SPUs were used tosupplement UNMIK Police, providing protection for Serb enclaves, support for theclose protection and high-risk arrest units, prisoner escort, and point security forhigh-priority locations such as courthouses and UNMIK facilities. When UNMIKbegan arresting Serb bridge watchers and former KLA members wanted for

murdering rival Kosovo Albanians during and after the war, the SPUs were aninvaluable asset. These arrests provoked the sort of orchestrated civil disturbancesencountered previously in Bosnia, including violent assaults on UNMIK Police. TheSPUs provided the capacity to control and defuse the situation. They were sosuccessful in one of the earliest encounters that the demonstrators, KLA support

73Ibid, 180-181.


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groups from outside Pristina, eventually grew frustrated and turned to attacking cityresidents 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 UNprinciples are applied across the board. 75

3.6 UN Police should be instructed and monitored for proper interaction with the publicand held accountable for adherence to international standards

A system of accountability for international police which includes clearly definedrules and procedures must be established and in place at the outset of a missionThe civilian police authorities and the military must have standing systems ofcoordination 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 theultimate executive power to appoint international judges and prosecutors andchoose cases in which they are to be involved. Moreover, UNMIKs DOJ is thesupervising authority over international judges and prosecutors, extending theircontracts. International judges are not subject to the Kosovo Judicial andProsecutorial Council (KJPC), the body that appoints and disciplines local judges,

and there is no local involvement in the oversight of IJPs[].the very shortcontractual periods for international judges and prosecutors, and the fact that eachextension of these contracts is solely dependent on UNMIKs executive branchesDOJ and, ultimately, SRSGcreate an appearance of executive control over theseofficials.77

There are no enforceable criteria for executive decisions about which cases haveinternational judges and prosecutors or which individual judges and prosecutors getassigned. Ironically, the stated objective of the regulation, to ensure independenceand impartiality, has garnered a perverse result. The lack of any mechanism toensure 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 theinstitutional mechanisms that have allowed for room for executive interference into

74 Hartz and Mercean, 181.75 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 interfereddirectly with the decisions of judges in special cases.78

While the IJP program itself and the efforts of individual internationals may enjoy ameasure of credibility in Kosovo, the wide discretion of UNMIKs executive over

judicial matters has clouded perceptions of independence and been a stumblingblock to establishing respect for the law79

Among the war crimes and interethnic cases that constitute the bulk of the IJPcaseload to date, the primary controversy has been whether the SRSGs and DOJsselection of cases has been politically biased. Many observers, including bothKosovars and internationals, believe the UNMIK executive exerts too much influenceon the criminal justice process. Regardless of whether it is justified, there is a localperception that political interference has disproportionately protected potential Serbdefendants, and many allege that UNMIK has a pattern of caving in to Serbdemands. Some argue that many cases initially brought against Serbs before local

panels resulted in dramatically reduced charges, sentences, or

literature review: rule of law lessons learned from the un mission in kosovo (unmik) (cr 09-006)

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