May 29, 2003
Michael Hartmann, Senior Fellow
International Judges and Prosecutors in Post-Conflict Peacekeeping: Installing Imperialism or Eliminating Impunity?
Introduction
Just over three years ago, the United Nations inserted international judges and prosecutors (IJPs) into a local judicial system to work alongside local jurists for the first time. The newly installed IJPs in Kosovo were given jurisdiction over a range of "power vacuum" and "payback" crimes, including terrorism, ethnic and religious violence, political assassinations, and corruption, as well as war crimes. How well is this system working in Kosovo? Are there lessons that can be applied to other post-conflict situations around the globe?
On May 29, the Institute hosted a presentation by senior fellow Michael Hartmann on "International Judges and Prosecutors in Post-Conflict Peacekeeping: Installing Imperialism or Eliminating Impunity?" The first UN prosecutor appointed to serve in Kosovo, Michael Hartmann has worked since 1997 on a wide array of transitional justice issues throughout the Balkans. Building upon his recent experiences in Kosovo, Hartmann's presentation explored the role of IJPs in post-conflict reconstruction.
Report Summary
Local Kosovan Albanian criminal law judges and prosecutors participate in an information session on corruption sponsored by the Kosovo Judicial Institute in early 2002.
OSCE Photo
What is the role of the international community—and particularly of international judges and prosecutors—in creating a climate that challenges impunity and contributes to the establishment of the rule of law and mechanisms of accountability in post-conflict or collapsed-state environments? On May 29, 2003, Institute senior fellow Michael Hartmann addressed this question during his project report at the Institute. The first international prosecutor for the United Nations Mission in Kosovo and first international public prosecutor of Kosovo before the Supreme Court, Hartmann underscored that from his experience it was clear that robust, prompt intervention, and participation based on a worst-case scenario of public security disorder, was the best guarantee of judicial effectiveness. "The main lesson learned from Kosovo's criminal justice system is that international participation in the judicial arena should have been immediate and bold, rather than incremental and crisis-driven," Hartmann concluded. If it turns out that the local judicial capacity has been underestimated, it is easy to phase out international judicial involvement and participation early on. In contrast, first ceding judicial power to exclusively local control and then phasing in such international control is fraught with problems, he pointed out.
Hartmann went on to note that Kosovo's international judges and prosecutors program is groundbreaking in the use of internationals in domestic legal systems. In fact, not only is Kosovo's the first peacekeeping mission to use international jurists, its program (done in conjunction with extensive capacity-building of the local judiciary) is the most comprehensive. Hartmann then gave an overview of the ethnic conflict in Kosovo that led to the downfall of Slobodan Milosevic and analyzed the three main phases of international efforts to assist with the administration of the rule of law in Kosovo:
- Phase One. The initial phase when only local Kosovar judges and prosecutors were used.
- Phase Two. The phase when international judges and prosecutors were cautiously inserted into the domestic system but without being given any power different than their local counterparts, except the ability to select any criminal case, even ongoing cases already assigned to local jurists.
- Phase Three. The final, and current, phase with the regular and ongoing use of international judges and prosecutors in the Kosovar legal system along with changes to the Kosovo Criminal Procedure Code to ensure that international judges and prosecutors have majority voting control, especially for trial verdicts. This current phase will also include the implementation of planned hierarchical control of prosecutors to ensure uniformity of charging and prioritization of case selection.
When the United Nations established the UN Mission in Kosovo (UNMIK) to perform interim governing duties within Kosovo under Security Council Resolution 1244, it gave the special representative of the secretary general (SRSG) a mandate that explicitly included international police but left the role of international judges and prosecutors ambiguous. Hartmann observed that local retention of judicial and prosecutorial responsibilities gave rise to a number of early problems that foreshadowed the insertion of internationals within the domestic legal system. First, the Albanian population protested against the legal code chosen by the UNMIK administration, the current Serbian Criminal Law, not because the law was discriminatory on its face, but because it was viewed as a symbol of Serbian oppression due to its discriminatory application. The discontent was so great that several months later UNMIK was forced to adopt instead the Kosovo Criminal Law that had been enacted by the Kosovar Assembly when Kosovo was an autonomous province before its autonomy was removed in 1999. Second, there were an insufficient number of local jurists sufficiently qualified to serve as judges and prosecutors. Due to the Serbian discrimination starting in 1989, many of the Kosovar Albanians had not practiced law in at least 10 years and few had any experience as judges or prosecutors. Most of the Kosovar Serbian judges with experience had fled Kosovo after the war; those remaining chose not to accept appointment, due to Albanian-Kosovar intimidation or directions from Serb authorities to boycott, and thus did not participate in the new judicial system.
By the end of 1999, UNMIK administrators realized that the entirely Kosovar Albanian judiciary was treating Albanian and Serbian accused differently. Arrested Serbs would be judicially detained while arrested Albanians would be released for the same crimes with similar circumstances. Serbian suspects would be indicted and detained even if evidence was insufficient to meet the legal standard, while Albanian suspects would not be charged, or be undercharged, for the same crimes even if there were eyewitnesses; moreover, even if charged, Albanian suspects' cases would later be abandoned by the mono-ethnic Albanian prosecutors.
The causes of this seemingly biased behavior included: actual bias; community pressure; fear of ostracism, career stagnation, or demotion; and threats or fear of harm to self or family. In addition, the Kosovar legal system lacked rules of ethics, functioning bar associations or disciplinary codes, and experience with a fair and impartial judiciary. It would be difficult, Hartmann stressed, for anyone to operate with complete impartiality and independence in these circumstances, and most judges and prosecutors there were unable to do so. Judicial impartiality was not a tradition in Yugoslavia, where the phrase "telephone justice" had well-known meaning, he noted.
The final impetus for the decision to introduce international judges and prosecutors into the Kosovar legal and judicial system were the massive riots and inter-ethnic violence in the divided city of Mitrovica that occurred in February 2000. An anti-tank rocket attack on a UN bus, operated by the UN high commissioner for refugees, transporting Serbs into Mitrovica resulted in numerous deaths which in turn led to Serb rioting, retaliatory violence, and the killings of Kosovar Albanians in Mitrovica. When UNMIK police arrested several Kosovar Albanian suspects brandishing weapons, such as AK-47s, the Kosovar Albanian judge ordered them released.
As a result of these events, the SRSG amended judicial law with Regulation 2000/6, and appointed one international judge and one international prosecutor to the Mitrovica judicial district, launching the second phase of international judicial efforts in Kosovo. The international judges and prosecutors appointed to Mitrovica had the same competencies, powers, and functions as their local counterparts, except that they were limited to criminal cases in the Mitrovica region. More important, international judges and prosecutors had the authority to select any cases they chose within those constraints, even cases that had already been assigned to local jurists.
The original concept of international judges and prosecutors being inserted was that the internationals would serve as role models for the Kosovar judicial and prosecutorial staff, enhancing the rule of law within the country. The Kosovar judicial system, as did many civil law jurisdictions, relied upon an investigative judge. In serious cases, trial court panels were composed of five judges—two professional judges and three lay judges (serving in what would be considered a jury-type function in the United States). Since there were no lay internationals, there could never be a majority international judicial body. Moreover, there were few international judges, and a local professional judge who knew the local procedural law usually presided. To complicate matters, an international judge's position as investigative judge for a case disqualified him or her from sitting on the actual trial. This resulted in only one international judge in a trial panel of five, and led to the conviction of Serbs without sufficient evidence and in violation of their procedural rights. The result of this phase was arguably counterproductive, since these decisions controlled by Albanian majorities had the facade of impartiality due to the presence of the international and the local rule prohibiting the revelation of the way individual judges voted. This second phase continued during the expansion of international judges and prosecutors to all of Kosovo. This extension was precipitated, Hartmann noted, in May 2000, when Serb prisoners went on hunger strikes to protest and publicize the inordinate length of their pre-trial detentions. Furthermore, as Serb prisoners realized that the international judge and prosecutor would not discriminate against them, more Serb prisoners began to demand international judges and prosecutors assignment to their cases. In response to these events, UNMIK instituted Regulation 2000/34 to expand international judges and prosecutors beyond Mitrovica to all courts and prosecutor's offices in Kosovo. Within one week of this regulation's enactment, a suspected Kosovar Albanian terrorist who had been repeatedly released back into the community by Kosovar Albanian judges was charged with murdering three Serbs and injuring two. An international judge was appointed to the district and selected the case, but the local prosecutor used his discretion to obstruct justice by abandoning the case, surprising the international community and demonstrating the potential of prosecutorial abuse of power. The SRSG belatedly assigned the Mitrovica international prosecutor to the case, but local judges united to frustrate legal efforts to re-open it. This case, along with the impunity of other Kosovar Albanian suspects and discrimination against Serbs, became the catalyst for the third phase in the development of the Kosovar judicial system.
In December 2000 and January 2001, two regulations were enacted that began the third phase. Regulation 2000/64 enabled the SRSG to select any case and assign it a three-member, international majority panel of professional judges with no lay judges, called "64 Panels." Regulation 2001/2 enabled international prosecutors to resurrect any cases abandoned by local judges. These two changes cemented a separate trial process for international versus local judges and prosecutors, finally severing any pretense of a local-dominated system. The enactment of these final stages of IJP autonomy, Hartmann concluded, should serve as a model for future insertion of international judges and prosecutors into a domestic legal system, as it has led to an increase in fair and impartial trials and a public perception that even the powerful are not immune to the rule of law.
Finally, Hartmann noted that a number of outstanding issues, while beyond the scope of his presentation, merited further serious discussion and development, including: the selection, recruitment, and hiring practices for international judges and prosecutors; terms of international judges' and prosecutors' mandate, tenure, and dismissal; grievance procedures against international judges and prosecutors; international judges' and prosecutors' training practices and policies; case selection criteria (including plans for centralized control of international prosecutors to ensure uniform case selection, and charging and indictment guidelines); the need for concurrent capacity-building of local judiciary; and phase-out procedures for international judges and prosecutors.
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