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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 Challenges to the Justice Sector Reforms in Post-War Kosovo Reviewed by Ibrahim Magara on December 29, 2015 Rating: 5

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