Challenges to the Justice Sector Reforms in Post-War Kosovo
1.0 Justice Sector Reforms in Kosovo
1.1 Introduction
Post-conflict
reconstruction is a very important segment in societies emerging from armed
conflict and war. The idea of responsibility of victory as presented by Bellamy
(2008) ought to be taken into consideration. Post-war reconstruction could
entail a range of issues to reckon with. Among the key issues is to ensure
justice after war (jus post bello).However,
post-conflict situations are often complex. Faulkner (2010, p. 79) observes
that in most countries where massive human rights violations occur, the claim
for justice lingers around for a long time refusing to go away.
In
addition, over the years experience has demonstrated that when dealing with the
post-conflict situations, policy-makers often restrict their reforms to the
judges, prosecutors, and law enforcers and generally to the institutions that
make up the judicial system. The danger here is that by doing so the political,
economic, and cultural environments in which the justice and law enforcement
reforms take place are disregarded (Rausch, 2007, p. 271).
The
post-conflict situations are very unpredictable and difficulties might arise in
balancing peace with other pressing considerations such as accountability,
deterrence and the needs of victims (Grono & O’Brien, 2008, p. 19). It is
clear that criminal courts can never prosecute all those responsible and that
punitive judicial accountability can only be one response to the complex
post-conflict situation “in a panoply of available judicial and non-judicial mechanisms”
(Simpson, 2008, p. 74). Thus, the
question should not be about whether or not to prosecute, but rather how to
prosecute and coordinate trials with other transitional justice responses
Weinstein et al, 2010, p. 47. This reflects the issue of timing and sequencing
of transitional justice activities. Nevertheless, the reality on the ground can
always alter what has been envisaged by theorists, or by both international and
domestic actors such as the case in Kosovo.
It all
begins with the question on how best to deal with a divisive past of mass
violence, armed conflict and/or war. As Andrieu (2010, p. 2) argues, this is
not a new phenomenon. The technicality is always on how to apply the same
mechanisms of justice that are known for instance prosecutions in new, unique
and often complex situations. The post-cold war era has brought with it
different and new challenges. Most of the conflicts in this period are
intrastate as opposed to the traditional interstate wars. The problems of
Kosovo were internal but it is through invocation of the the principle of
responsibility to protect, that NATO moved in. The NATO operation in Kosovo
brought with it even more complex challenges since NATO is a collective
security arrangement comprising of many countries. The immediate challenge was
a disagreement on how best to reconstruct Kosovo after war; something that led
to fragmentation of reconstruction efforts by different actors especially on
the justice sector.
1.2 Background
In 1999,
the Serbian government led by Slobodan Milosevic launched an ethnic cleansing campaign
that drove about half of the majority Albanians from the province of Kosovo. However,
through the invocation of the principle of responsibility to protect, NATO moved
into Kosovo and in a seventy-eight days’ war it ousted Serbia’s state presence
entirely from the province of Kosovo in June 1999. This was the first war in
NATO alliance’s fifty-year history (Rausch, 2007, p. 271).
Even as
NATO’s military campaign was under way there was a big debate as to who would
take responsibility in post-war reconstruction of Kosovo (Rausch, 2007, p. 273).
This perhaps points at the emerging sensitivity to the post-war justice. Later,
there was reached an agreement to entrust the responsibility of post-war
reconstruction of Kosovo to the UN mission but also to share responsibilities with
the Organization for Security and Cooperation in Europe (OSCE) and the European
Union (EU) as well as the United Nations High Commission for Refugees (UNHCR).
The United Nations Interim Administration Mission in Kosovo (UNMIK) was therefore
established to, among other responsibilities, protect and promote human rights
and ensure safe return of all refugees and displaced persons to their homes in
Kosovo (Rausch, 2007, pp. 273-4).
After the
war, Kosovo was dived into five sectors (American, British, French, German and
Italian) according to Rausch (2007, p. 279). The reason for such states of
affair according to Jeremy Wilson (2006, p. 153) was because KFOR was organized
into five multinational brigades, one each led by those five world powers. This
made the efforts for post-war reconstruction and indeed rendering of justice
even more complicated. In fact, according to Jeremy Wilson (2006, p. 153), this
makes the background to the security challenges in the post-war Kosovo.
2.0 Post-War Reconstruction
In 1992,
Boutros Boutros-Ghali (then UN Secretary General) issued a policy statement
entitled An Agenda for Peace. This policy is the foundation of what was later
to be given taxonomy of peace operations for the post-Cold War era. Among other
issues, this policy made a clear distinction between peacekeeping, peace
enforcement and post-conflict peacebuilding. This third category of peace
operations sought to identify and support structures that would then strengthen
and solidify peace in the aftermath of civil strife (Paris, 2004, p. 18). When
faced with the task of post-conflict reconstruction, the world’s leading
international organizations seem almost predisposed to adopt strategies
promoting liberal market democracy as a remedy for conflict. Many of these
organizations are active proponents of liberal democracy and market oriented
economy as it has been witnessed across the globe especially in the post-Cold
War period (Paris, 2004, p. 22). With this comes the need for the rule of law. Ensuring
the rule of law in the post-war Kosovo was as important as it was challenging
since it entailed putting in place virtually all supportive institutions and
mechanisms to render justice.
Paris
(2004, p. 34) argues that given all the changes that occurred at the end of the
Cold War, there is increased demand for post-conflict reconstruction and indeed
peacebuilding. The ability of the UN and other international agencies to
respond to this demand is necessary and the turn toward liberalism both in
world politics and in the commitments of the world’s leading international
organizations is critical. This was exactly the situation in the post-war
Kosovo as international actors moved in to ensure justice after atrocities and
after a military intervention.
Justice is
a very central aspect in reconstruction endeavours after any civil strife,
armed conflict or war. The centrality of justice in the post-conflict
reconstruction efforts therefore cannot be ignored. The period after the end of
the Cold War saw a paradigmatic shift in the history of peace operations
especially with the UN, other international organizations and western powers
that were the “winners” of the Cold War. This is the time when the term post-conflict
peacebuilding strongly emerged. It is conventionally agreed that there cannot
be peace without justice. This is what brings justice to the fore in post
conflict situations as the case in Kosovo.
2.1 The Place of Justice in the Post-War Environment
The place of justice is central in the
post conflict reconstruction. This is because justice paves the way for peace
and reconciliation. In Kosovo immediately after the NATO operation, the next
important phase was to establish institutions and structures widespread enough
to allow for the search and delivery of justice to the victims of the conflict.
Three major reforms are necessary for ensuring justice. These are security
sector reforms, legal reforms and judicial reforms. However, to reforms these
sectors come with a handful of challenges, as demonstrated hereafter.
According to Seth Jones et al (2005, pp.
xi-xii) “establishing security during the “golden hour” should be the most
immediate concern of policy-makers after the conclusion of major combat.” The
golden hour according to them is that period when the external actors are still
enjoying local support mainly when they are still viewed as “saviors.” Security
is very important because societies in transition experience a rise in crime
and an increase in violence (Jones et al, 2005, p. xiv). This was the case in
Kosovo with the rise in human and drug trafficking and criminal gangs (Jeremy, 2006, p. 154). The major challenge
to the Security Sector Reforms (SSR) involving external actors, especially if
and when those actors are states is the same old realpolitic approach to security. Seth Jones et al (2005, p. 10)
argue that “in practice establishing stability and the rule of law has not
always been the most important objectives of external actors.” This played out
in Kosovo since each actor had its own vested interests thus derailing the SSR in
the post-war Kosovo.
Second is the area of legal reforms.
During war, law is normally suspended. The major challenge after war is to put
in place necessary legal mechanisms. Besides, this, another challenging task is
to change the mindset of people from the lawlessness that characterize wartime into
that of respecting and upholding the rule of law. According to the liberal
peace approach, constitutional reforms are among the first issues that should be
dealt with in the post-conflict situation. However, as Rausch (2007) has succinctly argued, legal reform was
a painstaking and challenging process in the post-war Kosovo which according to
critics was not successful due to a liberal peace approach.
The other important sector which needs reforms after
the war is the judiciary. It is agreeable that after armed conflict, people who
bear responsibility should be held accountable. Whereas those with the greatest
responsibility like the former Yugoslavia strongman, Slobodan Milosevic would
be brought to face justice in international judicial mechanisms, there was need
to establish a judicial system in Kosovo to try those suspected to have
committed middle and lower level crimes both before and during the crisis in
Kosovo. The judicial sector reform was therefore imperative in Kosovo but given
the prevailing circumstances, it proved to be a very challenging task as well. According
to Perriello and Wierda (2006, p. 9) much of the physical infrastructure of the
judicial system were destroyed during the conflict.
2.3 Necessary Reforms
Justice in
the post-war societies requires major institutional reforms. It is such institutions
that will in turn ensure that justice is finally served. Societies and indeed
states emerging from war are often caught up in a situation lacking in
operational institutions especially the security agencies. It becomes complicated
to ensure justice and peace in a society, which, for instance, has no police to
maintain law and order and the judiciary to bring culprits to justice.
Establishment, operationalisation or reformation of institutions is an
important undertaking of post-war reconstruction. Kosovo was not an exception.
After the NATO-led military operation following an internal conflict in Kosovo,
there was need to put in place supportive institutions to aid in the search and
delivery of post-war justice. However, as this paper seeks to reveal these
institutional reforms came with serious challenges.
3.0 The Challenges to Justice Sector Reforms in the Post-War Kosovo
This paper
explores three major reform sectors. These are the security sector, the legal
sector and the judicial sector. Of interest will be to expose some of the major
challenges to the reforms of such sectors and then demonstrate how this
affected the search for justice in the post-war Kosovo. Kosovo is just a case,
which might not be unique after all, since in reality most states emerging from
conflict go through similar and even worse situations.
Rebuilding the justice sector in Kosovo was an
enormous challenge that was not easily fulfilled. Much of the physical
infrastructure of the judicial system such as court buildings, law libraries,
and equipment were destroyed or severely damaged during the conflict. Local
lawyers and judges were hard to find since most fled as the Serb forces withdrew
and those who remained generally refused to serve under UNMIK. In addition, few
Kosovar Albanians had legal experience, as many were forced out of the
judiciary a decade earlier. In addition law classes were offered only in
Serbian language and the bar exam was offered only in Belgrade thus the better
part of Albanian lawyers had been lost (Perriello & Wierda, 2006, p. 7). All these coupling with lack of
security structures as demonstrated by Jones et al (2005) made the justice
sector reforms in Kosovo very challenging. The fact that apart from the UN,
other major actors were states complicated the situation since states are well
known for their undying quest to pursue national interests.
The creation of hybrid judicial
panels in Kosovo was largely a response to urgent needs on the ground. UNMIK’s
mandate to maintain peace and security in the territory
included a directive to maintain civic law and order, including establishment of local police forces and meanwhile through the deployment of international police personnel to
serve in Kosovo. While UN officials interpreted this as a mandate to
re-establish the justice sector in general and, in particular, to seek accountability for war crimes and other
atrocities committed during and after
the conflict, the resolution’s language was vague on this point (Perriello
& Wierda, 2006, pp. 8-9).
The
task of re-establishing the rule of law and criminal justice in Kosovo was
shared by the UN and the OSCE. Under the UNMIK structure of police and justice
which was actually the first pillar. The Department of Justice (DoJ) and UNMIK
police were brought into one administration to maximize coordination of
criminal investigations. Mandated primarily to build and oversee the
functioning of an independent, impartial, and multi-ethnic judiciary, the DoJ
was also charged with the responsibility to administer the correctional system
in Kosovo. The DoJ was also to ensure access to justice for all communities and
to provide assistance and advocacy services for victims. The established Kosovo
police force was tasked with the responsibility of protecting the vulnerable,
to counter human trafficking, and to fight other forms of organized crime.
Development of the local legal community and promotion of human rights was left
to OSCE. The Criminal Defence Resource Centre (CDRC) was established to support
the defence. The Kosovo Judicial Institute (KJI) was created to train local
judges and prosecutors while the department of human rights and rule of law was
to provide assistance in the reforms of variety of legal issues (Perriello
& Wierda, 2006, p. 9).
This
was indeed a well thought and elaborate structure to ensure the justice sector
reform in Kosovo. However, the responsibility for rebuilding the justice sector
and building the capacity of local actors lied with different actors. In the
process there was a confusion of mandates of different organs and lack of
effective coordination posed a serious challenge to the justice sector reforms.
3.1 Security Sector Reform (SSR)
The issue
of SSR has strongly emerged in the post-conflict situations especially since
the late 1990s. One of the reasons for this emergence according to Mayer-Rieckh
and Duthie (2009, p. 215) is the increasing understanding of the link between
security and development. During the post-conflict situation, any country
emerging from conflict yearns for development in diverse fields especially due
to the kind of destruction that comes with war. Such societies are growingly
becoming aware that there can never be development without security and this is
one of the major reasons for the growing popularity of the SSR.
According
to
Seth Jones et al (2005, p. 7) establishing internal security after combat
should be the most immediate and important concern of policy-makers.
Establishing security is important in many ways since a state’s prospect for
stability depend on viable police, security forces, and justice structures that
can establish order. In addition, Jones, et al (2005, p. 7) assert that
“effective police and internal security forces require a functioning of the
justice system.” This is interesting in the sense that the SSR ensures the
operation of other sectors including the judiciary and on the other hand, a
functioning judicial order is necessary for the success of SSR. This demonstrates
the interconnectedness of the necessary institutions for ensuring justice in
the post-conflict situations.
The security sector is undoubtedly a very key factor
in post-conflict justice mechanisms. There is need to have the security
sector which is responsible and answerable to the people. It is in this regard
that Hans and
Lazzarini (2006, p. 3) argue that “the constitution should establish accountable civilian
supremacy over the command of the security forces in order to preclude the
prospects of organized force being used to oppress the citizenry or, even worse
perhaps threatening the democratic polity itself.” The major challenge to the
SSR in Kosovo was the suspicion and lack of trust on local mechanisms and
process. The foreign actors came in handy to rescue the situation however their
approach to this sector’s reform stands to be criticized on the grounds that it
was largely informed by the liberal peace approaches which assumed blanket
application that unfortunately never worked in Kosovo.
Societies
emerging from conflict such as Kosovo, according to Mayer-Rieckh and Duthie
(2009, p. 222) in which serious human rights abuses have taken place, practices
of SSR and transitional justice regularly occur alongside each other and are
often supported by some of the same domestic and international actors. This
assertion can clearly be seen in the case of Kosovo. In fact in actual post-war
reconstruction settings, justice and SSR frequently share same historical
catalysts such as poverty, access to resources, and identity conflicts, face
some of the same social and political barriers to reform, and target some of
the same institutions and individuals in their programs (Mayer-Rieckh &
Duthie, 2009, p. 225). There is a very strong bond between justice and security
in the post-conflict situation. In order for any state emerging from conflict
to ensure justice, security is a pre-requisite. Mayer-Rieckh and Duthie (2009,
p. 225) rests their case on an assertion that in the post-conflict
reconstruction situations, there is need to have a justice sensitive SSR. In
other words the SSR should be designed in line with and aimed at ensuring
justice in the post-conflict situation. This process should not be carried in
isolation from other transitional justice mechanisms that aim at peace. The actors
in the post-war reconstruction in Kosovo overlooked some of the most important
transitional justice mechanisms that could have complimented the SSR. The SSR
was largely tilted towards western ideologies without a critical evaluation of
the local situation, dynamics and unique needs of Kosovo.
Efforts for
post-war reconstruction in Kosovo were multi-sectored and multi-dimensional and
involving a multiple of actors just like the war itself. Ensuring justice in
the aftermath of war was one of the major concerns of the actors in the post-war
reconstruction in Kosovo. Having seen the necessary and indeed strong bond
between justice and security, the actors understood that for there to be
justice, SSR was a prerequisite and as such they embarked on SSR immediately
after the end of war. However, the process was lengthened and lack of
coordination between many actors and confusion of mandates led to unprecedented
derailment of the SSR process (Perriello & Wierda, 2006, p. 9).
According
to Rausch (2007, p. 275) “when Kosovo Force (KFOR) and a small number of UNMIK
civilian personnel arrived in June 1999, they faced the daunting task of trying
to maintain security in an environment filled with violence and ethnic hatred.”
The challenges to maintaining security were enormous but KFOR deed quite a
remarkable work in maintaining order and ensuring security in Kosovo amidst
ethnic tensions.
According
to Jeremy Wilson (2006, p. 154) the three major challenges to security in
Kosovo were organized and multifaceted crime, corruption and ethnic conflict.
Post-war Kosovo was a major destination and point of transfer of women and
children trafficking for prostitution (UNMIK, 2003) and it had a drug
trafficking problem (Jeremy, 2006, p. 154). Another serious security challenge
is that the post-war Kosovo remained a hub of weapon trafficking (UNMIK, 2003).
In addition, the society was filled with hatred and suspicion which made it
impossible for local population to share any information on security issues
with the establishment thereby making the problem of crime persistent.
Kosovo
presented a very delicate post-war situation, which needed a careful balance. As
Jones et al (2005, p. 12) opine “there may be a negative feedback loop between
security and other sectors.” This means that SSR cannot and should not be
carried out in isolation but rather in tandem with its counterpart sector
reforms. Jones et al (2005, pp. 12-13) have highlighted some of the
complexities involved in SSR. Success in reconstructing internal security in Kosovo
was a function relying on initial conditions, as well as inputs and outputs.
The initial conditions should exist at the beginning of reconstruction while
inputs and outputs are elements such as financial assistance, international
police and military forces that are provided by outsiders. This also entail the
duration of such assistance. The problem is that while external actors have
influence upon the latter, they have little influence over the former. For
instance, giving the case of the reconstruction of Germany, Jones et al (2005,
p. 13) contend that US, Britain and France were able to successfully
reconstruct western Germany because Germany was a developed country with high
levels of human capital and abundant resources. Now this could not happen in Kosovo,
which was a poor country, torn apart by many years of civil strife and ethnic
cleansing, and largely lacking in both resources and social capital. In this
case, therefore the initial conditions that should be provided by the host
state were largely lacking in Kosovo thus making the SSR a very challenging task.
Unfortunately the actors in this sector failed to recognize this factor leading
to the failure to achieve a robust SSR in Kosovo.
The issue
of duration of the input was also critical. It cannot be emphasised more that,
post-conflict reconstruction is often a protracted enterprise which can run for
a long period. The challenge has always been on the length of time that any
state will want to be committed to reconstruction of another state. Jones et al
(2005, p. 22) argue that “while staying for a long time does not guarantee
success, leaving early usually ensures failure.” The tricky is always on how to
balance the needs of the intervening states and those of the state under
reconstruction. Normally intervention requires a lot of financial commitment,
which could affect the economy of intervening states. Experience has shown a
trend where intervening states want to carry out their work in haste and leave
as soon as possible. This is coupled with issues such as public opinion that
often times call for a pull out of intervening states. In Europe, this is worse
due to high sensitivity to human rights and respect for other states’ sovereignty.
These are some of the issues, which led to hurried SSR in Kosovo. The problem
is that doing such important matters of national interest in hurried manner
leaves many loopholes that might lead to a recurrence of conflict, no wonder
most states emerging from conflict have over the years relapsed into conflict.
3.2 Legislative Reforms
It is
congenitally agreeable that justice can only be better served in a society with
operational and enforceable laws. Following this logical sequence, it was only
necessary that the second most important sector to be reformed after ensuring
security was the legal reforms. In this regard, through UNMIK Regulation 1999/1
it was established that “laws applicable in Kosovo as of March 24 1999, to the
extent they did not conflict with international recognized human rights
standards, would continue to be enforced” (Rausch, 2007, p. 277). This came
with its share of challenges to the KFOR but as Rausch (2007, p. 277) further
reports legal officers educated themselves as best as they could and struggled
to convey this legal knowledge especially to the soldiers but with much
struggle in a society whose laws had been suspended for quite some time. UNMIK
was accused of politicizing the issue of justice by initially designing the Serbian
Criminal Code as the applicable law. The Kosovar Albanians rejected this
leading to one of the most difficult challenges to UNMIK. Murdoch
(2013, p. 158) reports that there was much confusion as UNMIK attempted to
reform the legal system and serious debate ensued on the applicable legal
framework for the training efforts.
KFOR
initially concentrated on addressing only serious crimes and allowed member
states to maintain law and order in their designated sectors (Rausch, 2007, p.
277). However, there were serious inevitable contradictions and discrepancies
occasioned by such arrangements. Furthermore, as Rausch (2007, p. 278) argues
“the United Nations acting as a territory’s sole executive and legislative
authority for the first time in its history, encountered difficulties of its
own.” For instance, the UN department of Justice issued circulars that provided
clarification or interpretation of regulations but failed to disseminate them
consistently. Although the UN also produced an official gazette containing
translated versions of many regulations issued through 1999 the official
gazette for 2001 and 2002 could be found only in English. This was clearly
inadequate for the intended widespread usage in Kosovo where many people could
not understand English (Rausch, 2007, p. 278).
Various
interest groups such as the United States Department of Justice (USDJ) and
Central and Eastern Europe Law Initiative (CEELI) requested the Special
Representative of the Secretary General (SRSG) to secure the local input into
the legislative reform process. Unfortunately as Rausch (2007, p. 278) reports
“efforts to involve local experts in legal reform fared poorly.” This was a
major setback to the establishment of a comprehensive and acceptable legal
system in Kosovo.
The UN
later chose to rely almost exclusively on its own legal advisors and outside
experts in constraction of the legal framework. Much of the legislative work
was mainly done on ad hoc arrangements. Given such circumstances, local input
was almost entirely marginalized and wherever they were called on, it was to
rubber-stamp UN proposals. In addition, certain controversial regulations were
signed by the SRSG without required consultations. The resultant of this is
that some of the legal provisions were inconsistent with local legal system and
others did not meet the international standards. Consequently, local judges and
prosecutors often misinterpreted them (Rausch, 2007, p. 279). The consequences
of this kind of flawed legal reform process cannot be underestimated.
Nevertheless as Rausch (2007, p. 279) asserts despite all the challenges,
finally there was produced a reformed criminal procedure codes which were
submitted to the UN for legal review in 2001, however, they took long to move
any further and even when they moved they lacked the required local legitimacy.
The
applicable law in Kosovo constituted of a blend of UNMIK regulations, including
the Constitutional framework and domestic laws. Initially the UNMIK authorities
declared the applicable law in Kosovo to be Federal Republic of Yugoslavia
Serbian law, modified to conform to international human rights standards.
However, this decision outraged many Kosovar Albanians, who refused to apply
the law, resulting in widespread confusion (Perriello & Wierda, 2006, p. 22). This is a unilateral and foreign
imposition which almost triggered new unrest since the Albanians felt sidelined
in legal representation.
UNMIK
implemented various forms of legislation aimed at combating organized crime and
improving criminal procedure. Of particular importance is the Provisional Criminal
Code of April 2004, which upholds international human rights standards and
proscribes terrorism, trafficking in persons, and organized crime. In addition,
UNMIK established cross-border police information sharing through cooperative
agreements with Serbia, Albania, and the former Yugoslav Republic of Macedonia.
However, despite these bold steps taken by UNMIK, corruption of the police and
the public posed a very great challenge and indeed a threat to Kosovo’s
security (Wilson,
2006, p. 160).
3.3 Judicial Reforms
The
judiciary is a major arm that must be put in place if any hope for retributive
justice is to take place in any civilized society. According to Muna and Duthie
(2009, p. 251) in response to past human rights violations prosecutions are inevitable.
This is aimed at punishing the perpetrators for the crimes that they committed
and ensuring that the victims get justice for instance through compensation.
What made NATO to intervene in Kosovo was a claim that there were massive human
rights violations in an internal crisis. This implies that after the
intervention, those responsible for such violations must be held accountable
for the crimes that they committed. Furthermore, war is by its very nature a
destructive phenomenon. In as far as there are rules of engagement and
international conventions and protocols regulating the conduct of war in line
with the just war tradition, it is indeed true that during war the situation is
very delicate and there are numerous opportunities for crimes during war time.
All these are issues that actors in the post-war reconstruction must reckon
with. There must be put in place a judicial mechanism to deal with crimes
committed before and during war and to act as deterrence to the continuation of
such crimes.
According
to Muna and Duthie (2009, p. 253), there are certain key elements of an
effective and legitimate judiciary that reforms efforts should seek in post-conflict
contexts. These are independence, accountability, representativeness,
oversight, gender sensitivity, and access to justice. These factors lie at the
very heart of the judicial reforms. Actors in the post-war Kosovo had to battle
with the prevailing situation in order to put in place a judiciary which is
reflective of the mentioned key elements. However, experience from Kosovo
reveals this was not to be an easy undertaking.
The
judiciary was an institution that was urgently needed in Kosovo and indeed
there was a swift move to establish an operational judicial system immediately
after the war. “On June 30, 1999, a small number of appointments were made, and
beginning in July, a team of judges and prosecutors travelled around Kosovo
holding detention hearings” (Rausch, 2007, p. 280). KFOR provided all the
logistical support but also security, arrests, investigations and detention
proceedings. In October 1999 the SRSG appointed a total of fifty-five judges,
seven of who were Serbs. Unfortunately by October no single Serb was remaining
on the bench; they had either resigned or departed; some after receiving
threats (Rausch, 2007, p. 280) confirming the delicate balancing of justice in
a post-war situation especially when that war is ethnically motivated.
In
September 1999, the Advisory Judicial Commission (ACJ) was created to replace
the Joint Advisory Council on Provisional Judicial Appointments. However, being
“largely inactive after its first few months of work, the ACJ was criticized by
international and local actors, who concluded that its members had appointed
judges based on personal relations and ethnic background (in this case Kosovo
Albanian) rather than merit” (Rausch, 2007, p. 281). In addition, the ACJ was
accused of not disciplining any single judge or prosecutor for bias or
corruption, despite eligible cases. Later in 2001, the Kosovo Judicial and
Prosecutorial Council (KJPC) replaced the ACJ, with the authority to advice the
SRSG on the appointment of judges, prosecutors and lay judges. The KJPC was
comprised of both local and international personnel (Rausch, 2007, p. 281). The
major challenge to the KJPC was lack of resources and backlog of cases, which
it had to deal with. In addition, the OSCE questioned the independence of the
KJPC. OSCE argued that the KJPC comprised of members all appointed by the same
executive body, it had no sufficient powers for instance that it could only
recommend problematic officials’ removal from office, and that judges and
prosecutors had no right to a review of disciplinary actions lodged against them
as there were no appellate procedures (Doyle, 2007).
Turf
battles continued over assistance to the judiciary especially from the OSCE
through its rule of law division, nevertheless through its Judicial Support
Section (JSS) the OSCE continued to provide logistical support to the judiciary
in Kosovo. However, Perriello and Wierda (2006, p. 9) contend
that much of the physical infrastructure of the judicial system were destroyed
during the conflict. Furthermore,
as in many post-war situations, the courts had limited resources (Rausch, 2007,
p. 282). Definitely, these were major setbacks in ensuring post-war justice in
Kosovo just as it is in many other parts of the world in societies emerging
from armed conflict.
Lack of
sufficient structures for the courts posed a serious challenge, for instance,
Rausch (2007, p. 282) reports that “sometimes international organizations and
even the UN itself occupied court building and refused to vacate.” Furthermore,
there was serious lack of basic judicial equipments, office supplies and
regular pay of the judicial staff leading to the quitting of many judges and
prosecutors who opted instead for other lucrative jobs elsewhere. The UN had a
difficult time filling the vacancies and the dearth of qualified lawyers made
the situation even worse. In addition, the ethnic factors kept its play for
quite a long time for instance Serb officials were reluctant to accept
appointments because of either security concerns or fear of losing their
pensions from Belgrade (Rausch, 2007, p. 282).
Ethnic bias
is another major challenge to the judicial reforms in Kosovo. Rausch (2007, p.
283) opines that in Kosovo, the majority of the war crimes defendants were
expected to be Serbs, while the Kosovo judiciary was nearly made up of all
Albanians. With such situation the fairness of the trials was
questionable. Actually, as time passed
on it was more and more evident that the Kosovo Serb suspects had neither
sufficient access to council nor any prospect for fair and unbalanced trials
(Rausch, 2007, p. 283). This was a serious threat to the credibility of the
judiciary. This led to erosion of public confidence of the Serbs who largely
did not expect any justice from a judicial system which they viewed as
comprising of purely Albanians.
There were
devised mechanisms to bring on board international personnel to staff the
judiciary. However, the involvement of the international Judges and Prosecutors
did not make anything better according to Rausch (2007, p. 284). Such a move
created even more confusion in the sense that it brought about a situation in
which people with varying degrees of competence and indeed different legal
backgrounds were meant to serve justice in a context that they had little
knowledge about. In addition, inadequate English language skills by such
international judicial personnel and lack of proficiency with the applicable
law in Kosovo complicated the situation with the short rotation times of six
months making the situation even worse (Rausch, 2007, p. 284).
The fact
that there were many international Judges and Prosecutors in Kosovo was equally
problematic. According to Perriello and Wierda (2006, p. 23) these Judges and Prosecutors “were too
wedded to their own traditions to adequately adapt to legal processes in
Kosovo.” For example, verdicts in Kosovo have been criticized of brevity.
Furthermore, the international Prosecutors’ backgrounds often led to lack of
congruency in both charges and sentences (Perriello & Wierda, 2006, p. 23).
Becoming a
Judge, Prosecutor or Lawyer in Kosovo as Rausch (2007, p. 286) reports one required
successful completion of the bar exam followed by a period of apprenticeship.
The problem is that the Milosevic regime had eliminated the law schools and bar
exam in the Albanian language after 1989 (Perriello & Wierda
(2006, p. 7). This meant that
finding qualified legal practitioners in Kosovo was difficult. Furthermore, few
Kosovar Albanians had legal experience, as many were forced out of the
judiciary a decade earlier. In addition, law classes were offered only in
Serbian language and the bar exam was offered only in Belgrade thus the better
part of Albanian lawyers had been lost (Perriello & Wierda, 2006, p. 7). The challenge here is that the few
legal personnel available were the Serbs who could not be trusted to deliver
justice to the Albanians due to rampant suspicion and mistrust.
Efforts
were put in place to ensure that Kosovo gets legal experts to work in the
judiciary. The Kosovo Judicial Institute (KJI) was therefore founded for this
purpose. This was a magistrate’s school offering a program that candidates for
judicial posts would be required to complete before gaining eligibility for
appointment. It would also provide continuing legal education to Judges and Prosecutors
(Rausch, 2007, p. 282). The problem which arose from this is that there was
more emphasis on the Judges, Magistrates and Prosecutors to the detriment of Defense
Councils. Rausch (2007, p. 287) reports that “making matters more difficult was
the fact that, while the international community had focussed almost entirely
on Judges and Prosecutors in its reform efforts, little attention was given to
Defense Attorneys.” These caused a serious dearth in the defense side making
the judicial processes a compromised enterprise that did not appeal to many a
people in Kosovo.
Another challenging
factor in Kosovo was lack of independence of the Kosovo judiciary. The
executive directives both from local and international actors still reigned on
the judiciary for a long time. For instance, there was a problem of
extra-judicial detentions by KFOR. However, when KFOR was questioned on this, it
would quickly claim that it had been granted the mandate through Resolution
1244 to ensure a safe and secure environment in Kosovo (Rausch, 2007, p. 289).
The major challenge was that KFOR interpreted this mandate to ensure security
and safety as overriding any other requirement including human rights.
Unfortunately there were no sufficient mechanisms from an independent judiciary
to give the proper interpretation of this mandate. It took the international
intervention through the Council of Europe, Amnesty International and the UN
Office of the High Commissioner for Human Rights (OHCHR) to raise concerns over
the serious human rights violations in Kosovo. In fact, the Ombudsperson in
Kosovo reported that there was lack of evidence to prosecute three of the four
detained persons thus leading to their release (Rausch, 2007, p. 289).
In addition,
other major issues that posed challenges to the judicially were as follows.
First is lack of access to defence councils. Second is lack of mechanisms for
court administration and witness protection. Third is lack of resources to meet
the costs and efficiency of the trials. Fourth is a poor link between the
judicial system and other mechanisms of transitional justice. Fifth is poor
outreach to public perception and ownership of the process (Perriello
& Wierda, 2006, pp.
24-31). All these compounded the efforts for judicial sector reforms in
post-war Kosovo, making the process quite a quagmire that still haunts the justice
sector reforms in Kosovo to date.
4.0 Evaluation of the Situation
In Kosovo the international community
struggled to mount its own unprecedented interim administrative reforms, it
largely failed to adequately prepare for handing over justice and security
responsibilities to local authorities (Rausch, 2007, p. 285). This raised legitimacy questions which continue
to linger in Kosovo.
Outputs of
the reforms aimed at ensuring justice in Kosovo can be categorised into four
major groups. First is the number and quality of trained Security Officers,
Prosecutors, Judges and Corrections Officers. Second is the number and quality
of infrastructure either built or refurbished such as courts, police stations,
and prisons. Third is the number of ex-combatants who have completed a remobilization,
demilitarization, and reintegration program. Lastly is the institutional
development and reform of security ministries. However, as Jones et al (2005, pp. 23-4) argue
“foreign assistance programs tend to focus on outputs as their end results,
this assessment is perhaps of the most immediate relevance to governments
engaged in developing and managing such assistance programs in line with the
liberal peace approaches which have been accused of being swift and often
insensitive to local demands . This means that in Kosovo, the existing assessment
on the progress and success of the reforms of sectors associated with justice
are largely based on the involved governments’ standards. These governments are
therefore interested so much on quantitative assessment for instance they will
argue that so many police officers were trained, that so many courts were
built, and that so many prisons and police stations were erected and so on. However,
this kind of assessment greatly lacks in qualitative analysis. In other words
what is for example, the effectiveness of the police who have been put in place
in Kosovo, what is their level of competence, and how equipped are they to deal
with the challenges that Kosovo is facing?
Another major challenge in Kosovo today
is that most of the legal frameworks are foreign in nature. For example
Perriello and Wierda (2006, p. 22)
argue that the European Convention on Human Rights is directly applicable in
Kosovo and is increasingly applied. Judges in Kosovo have for a long time
failed to refer to any legal sources outside the UNMIK regulations.
Furthermore, the ability to pursue war crimes was severely limited by the
difficulty in collecting evidence in the immediate aftermath of the conflict in
2000-1 (Perriello
& Wierda, 2006, p. 22).
This has been the case to date since as time goes by it becomes more and more
difficult to trace evidence of war crimes in Kosovo and as such a failure to
hold the perpetrators accountable.
However,
not everything can be said to have been negative, there were positive effects
as well. For instance, the fact that Kosovo had a system of international
Prosecutors and Judges integrated directly to the national judiciary presented
an opportunity for symbiosis. These include exposure of the Kosovar legal
community to international professionalism and standards. In addition, it
afforded the Kosovar legal experts and judicial system an opportunity to
demonstrate unbiased legal proceedings thus helping to build trust in a legal
system that for a long time was seen as a tool of oppression (Perriello
& Wierda, 2006, p. 32). Therefore
this international touch to the judicial system in Kosovo left a legacy which
if well utilised can lead to a very vibrant judicial system in Kosovo. The problem
has been on the slow pace of judicial development in Kosovo.
The
dichotomy between the mandates of UNMIK and KFOR served no better in the
struggle for justice sector reforms in Kosovo. KFOR operated within a unified
military control and command structure separate from that of UNMIK (Perriello
& Wierda, 2006, p. 6). This
complicated the whole process of ensuring the rule of law in the post-war
Kosovo. The fact that the two organizations had parallel and at times
un-matching commands (KFOR under NATO and UNMIK under the SRSG) complicated the
situation. Perhaps it could have been different or even better if the two
organizations had an integrated and if possible one and the same command. This
could ensure unity of purpose through consolidated resources and efforts, which
could at the end yield more fruits for the justice sector reforms in Kosovo.
Another
aspect in which the justice sector reforms in Kosovo can be said to have failed
is on the sector of communication. In fact, Blume (2007, p.
10) argues that the conditions for institutional reforms are given in the
political communication. He further argues that political communication through
institutions such as the Kosovo Police Service (KPS) and Kosovar politicians
could have a stronger influence on the public opinion than communicating as
UNMIK. The way UNMIK and other actors communicated to the Kosovar determined
the measure of success or failure in their activities. However, UNMIK
communicated with the public and sometimes through ambassadors and even exerted
influence on Kosovar politicians to communicate certain messages to their
constituencies. This was definitely detrimental to the success of the desired
justice sector reforms since the foreign actors begun loosing public confidence
and largely begun to be viewed as nothing but foreigners imposing their own
will on the people of Kosovo. The 2004 demonstrations in Kosovo is perhaps a
pointer to lack of public confidence in the exiting mechanisms by that time.
The riots of 2004 were triggered by the killing of two Albanian boys alleged to
have been committed by Serbs. This led to a near collapse of the security
system in Kosovo. However swift transfer of responsibilities from UNMIK police
to KPS saved the situation (Blume,
2007, p. 11). This points at the kind of positioning that the international
actors should take in regard to justice sector reforms in post-conflict
situations. The situation is normally delicate and any small trigger can lead
to a relapse into conflict. The manner in which external actors pose and
communicate is critical. The population should be able to see and feel that
their own local mechanisms are at play and that they are not under external
rule. This helps in holding the fragile process of institutional reforms
together and leads to their solidification.
As late as June this year some scholars
have pointed out challenges to the security sector in Kosovo. For instance, the
paper by Grasten (2013) contains investigations and explorations into everyday
practice of diffusion of norms on a micro-level by investigating how various
transnational actors have been carrying out a competing institutional logistics
and construction of knowledge on the domestic institutional reforms in
post-conflict Kosovo. The paper identifies different kinds of knowledge gaps
and indeed a discord between various actors. A recent study by Murdoch (2013) has revealed that the
justice sector in Kosovo is still struggling. Furthermore, this study has
revealed that a vast majority of the people of Kosovo do not trust their legal
and judicial systems and an overwhelming majority have no confidence in their
security agencies, which they view as being extremely corrupt (Murdoch, 2013,
p. 244). With such a situation, most of the victims of the crisis in Kosovo have
never accessed justice all these years. This is dangerous to the sustainability
of peace since without proper mechanisms for ensuring justice, the Kosovar
society can easily relapse into conflict.
5.0 Conclusion
The
line of thought advanced by King and Mason (2006) in their book cannot be
ignored in the final analysis of challenges of ensuring justice sector reforms in
the post-war Kosovo. What led to the perceived failure in reconstruction of
Kosovo especially in regard to the justice sector reforms is the notion of
“peace at all costs.” The western powers appear to have employed this approach.
For them the most important thing was to restore peace in Kosovo at all means.
However, it is now becoming a global fact that peace cannot be imposed. Imposition
of peace in post-conflict situations has been carried out through the
militarization of peace. Regrettably, the notion of militarization of peace
failed in Kosovo and it is indeed failing in many parts of the world. There
must be an alternative and indeed a new approach to post-conflict peacebuilding
processes.
It has taken many years to establish
a robust justice system widespread enough to meet the local circumstances and
ensure justice to the people of Kosovo more than a decade since NATO’s intervention.
A multiplicity of actors with different and at times conflicting interests, and
lack of proper coordination can be blamed for the failure in Kosovo.
Furthermore as the study by Murdoch (2013) has revealed interpersonal
dynamics and challenges, least rewarding experiences, personal insecurities
that arise as a consequence of the work, and job shrink that occurs upon
returning from the mission are part of the factors that contributed to the
failure in the justice sector reforms in Kosovo. In addition, there is a
criticism that participants supported liberal peacebuidling without considering
the local context, objectives and timing of the activities at each stage of the
justice sector reform process.
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Challenges to the Justice Sector Reforms in Post-War Kosovo
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