Justice in Kosovo after 5 Years: Suggesting a Way Forward
Since the NATO bombing of Belgrade in 1999, the international community has become inextricably involved with the fate of Kosovo. Many so-called "internationals"—international experts working on the ground in Kosovo—have become vital to the governance of the region. Yet, there are inherent problems in bringing outsiders into sensitive local government branches such as the judiciary, not least of which is how to maximize local ownership of institutions that are not under full local control. Having served as international prosecutor in Kosovo, Michael E. Hartmann presented a report on just how involved the international community has been in the judicial system, how it came to be that way and what is the best course of action to insure a self-sustaining and functioning judiciary in Kosovo.
Hartmann described the integration of foreign nationals into the Kosovar judicial system as a three-phase process. The first phase began shortly after the 1999 war, when the preordained decision to create a strong international presence in Kosovo was implemented. Part of this plan was to create a Kosovo police force, or "civpol," in which an international police, together with KFOR, worked to provide security throughout the region and were answerable to Kosovar judges and prosecutors leftover from the previous regime. This arrangement soon resulted in Serbs, Roma and other minorities in Kosovo being tried and processed differently from ethnic Albanians by the mostly Kosovar Albanian judges and prosecutors. Moreover, judges' decisions on which captives should be released often contradicted KFOR officers' intelligence about who was responsible for disturbing the peace. These unjust outcomes and corrupt practices raised questions about the future viability the Kosovar judiciary, which betrayed its inability to pass unbiased judicial rulings.
This led to the second phase of the reform process, which began in 2000. In the second phase, internationals were inserted into the judiciary to act as judges and prosecutors along with the locals. The idea was that the internationals would have a sort of "tea-bag effect," in which by simply being there, the neutrality of international judges and prosecutors would seep through to the entire judicial system. However, simply inserting internationals into the judiciary did not address the external pressures (bribery and threats) that influenced judicial decisions. Moreover, the so-called Regulation 64 created a parallel system within the judiciary, in which local prosecutors and judges were answerable to local chief justices, while the international judges and prosecutors worked directly under the chief international judge, who was in turn answerable to the executive power of the Special Representative (SRSG). Therefore, internationals were under direct control of UNMIK, rather than operating within the Kosovar judiciary.
Phase three began with the removal of certain internationals from the judiciary, marking the start of the process of giving Kosovars full control over courts. Hartmann argued that this was done before the internationals had had a chance to positively affect the local judiciary. Namely, there must be more transfer of skills through cooperation and mentoring between the internationals and the Kosovars if Kosovo is to have a skilled and impartial judiciary. Currently, there is no institutional structure in place to encourage cooperation, since the SRSG routinely gives politically-important cases to internationals. Moreover, the current system creates disincentives for cooperation and mentoring (which takes more time and slows the judicial process) since the executive has an interest in speeding up the judicial process to forward political goals. Hartmann estimates that at least one-half of all cases completed by internationals could be just as competently handled by Kosovars.
Hartmann suggested that the Bosnian judiciary could serve as a model for Kosovo. In Bosnia, a legal framework has been established in which internationals work under Bosnian officials. Hartmann foresees that internationals will continue to be a part of the judicial system in both Kosovo and Bosnia until prosecutors and judges have the adequate skills, experience and professionalism to handle serious cases, which could take considerably more time.