Literature Review: Rule of Law Lessons Learned From The UN Mission in Kosovo (UNMIK) (CR 09-006)

Literature Review:
Rule of Law Lessons

Learned from the UN
Mission in Kosovo
(UNMIK)
INPROL Consolidated Response (09-006)
With contributions from Gary Hill, Ngozi Nwosu, Valeza Oruqi, Eric Scheye and William Sells
Research assistance provided by Yolande Bouka,

Shamus Brennan, Eve Grina, and Morgan Miller
Finalized by Scott Carlson and Michael Dziedzic

LITERATURE REVIEW:
RULE OF LAW LESSONS LEARNED FROM THE UN MISSION IN KOSOVO
(UNMIK)
INPROL Consolidated Response (09-006)
October 2009
Submitted by: Rob Pulver, UN DPKO/CLJAS
Drafted by: Yolande Bouka, Research Assistant, U.S. Institute of Peace (USIP);
Shamus Brennan, George Mason University School of Law, Research Assistant, Rule
of Law (ROL) Program, USIP, Eve Grina, William & Mary Law School, Research
Assistant, ROL; Morgan Miller, Program Assistant, USIP; finalized by Scott Carlson,
ROL Facilitator
With contributions from:
1. Gary Hill, INPROL Corrections Facilitator

2. Ngozi Nwosu
3. Valeza Oruqi
4. Eric Scheye
5. William Sells
The full text of the responses provided by these INPROL members can be found at
http://inprol.org/node/4469. INPROL invites further comment by members.
Note: All opinions stated in this consolidated response have been made in a personal
capacity and do not necessarily reflect the views of particular organizations. INPROL
does not explicitly advocate policies.
INPROL is a project of the United States Institute of Peace with facilitation support from the Center of Excellence for Stability
Police Units, the Pearson Peacekeeping Centre, the Public International Law & Policy Group, the Swedish Police Peace Support
Operations and the United States Department of State's Bureau of International Narcotics and Law Enforcement Affairs.
Background:
The United Nations Department of Peacekeeping Operations (DPKO), the United

Nations Office of the High Commissioner for Human Rights (OHCHR), and the United
States Institute of Peace (USIP) have jointly undertaken a lessons-learned study,
examining the first ten years of operation for the United Nations Mission in Kosovo
(UNMIK). The following information describes the terms of reference for this study and
provides context for the literature review that follows.
Origins of UNMIK
Security Council resolution 1244 (1999) of 10 June tasked UNMIK with “[p]erforming
basic civilian administrative functions where and as long as required; [o]rganizing and
overseeing the development of provisional institutions for democratic and autonomous
self-government pending a political settlement, including the holding of elections; and
[t]ransferring, as these institutions are established, its administrative responsibilities
while overseeing and supporting the consolidation of Kosovo's local provisional
institutions and other peace-building activities (OP 11 (b), (c) and (d)). OP 11(j) also
stipulates the mandate of “[p]rotecting and promoting human rights”.
Paragraph 66 of the Secretary-General’s report dated 12 July 1999 (S/1999/779)

directed “the immediate re-establishment of an independent, impartial and multi-ethnic
judiciary’. At paragraph 72 of the same report, UNMIK was instructed to “re-establish
and reform the correctional system in Kosovo, in a legal and operational framework that
is consistent with international prison standards…. [and] recruit, select and train new as
well as former staff of these prisons, applying the highest international standards
regarding prisons and human rights”. According to paragraph 1 of UNMIK Regulation
No. 1999/1 of 25 July 1999, “[a]ll legislative and executive authority with respect to
Kosovo, including the administration of the judiciary, is vested in UNMIK and is
exercised by the Special Representative of the Secretary-General”.
In July 1999, the Department of Judicial Affairs, the precursor to the Department of
Justice (DoJ), was established, and the international judges and prosecutors
programme was created in February 2000. The DoJ’s core mandate was to build a
multi-ethnic, independent, impartial and competent judiciary, while ensuring in the
shorter term that inter-ethnic and organized crimes are prosecuted and adjudicated by
international judges and prosecutors. It was also responsible for administering the
correctional system in Kosovo, for identifying persons from all communities who are still
missing from the conflict in Kosovo, and for establishing local justice institutions such as
Kosovo’s Ministry of Justice. The DoJ comprised the Judicial Development Division,
International Judicial Support Division, Criminal Division, Penal Management Division,
and Office on Missing Persons and Forensics. In time, the International Judicial
Support Division became the largest division, employing over 150 judges and
October 2009 INPROL Consolidated Response (09-006) Page 1 of 79

prosecutors. As local justice institutions were created and local capacity strengthened,
the DoJ began to transfer some of its functions to these local bodies, while downsizing
its own staffing.
On 17 February 2008, Kosovo issued a declaration of independence and later adopted

a new Constitution. The Secretary-General’s report dated 24 November 2008
(S/2008/692) set out the parameters for the deployment of the European Union Rule of
Law Mission in Kosovo (EULEX) in the areas of policing, justice and customs, within the
framework of Security Council resolution 1244 (1999). The Security Council
Presidential Statement of 26 November 2008 (S/PRST/2008/44) welcomed the
Secretary-General’s report dated 24 November 2008. On 9 December 2008, EULEX
declared its assumption of full responsibility for rule of law functions throughout Kosovo.
The DoJ ceased to function, and residual rule of law functions were transferred to
UNMIK’s new Rule of Law Liaison Office, which has a liaison, and not an operational,
role.
Objectives of the UNMIK Lessons-Learned Study
Following the end of the DoJ’s operations, UNMIK has requested that a lessons learned
study be conducted of UNMIK’s justice operations, to identify best practices and lessons
learned. Based on this request, a team comprising DPKO, OHCHR, and USIP staffers
was dispatched to Kosovo to conduct the lessons learned study from 22 June to 1 July
2009. They analysed relevant documentation and conducted interviews with local and
international stakeholders on the justice system, to identify the successes and lessons
learned from UNMIK’s justice and corrections programme. Based on its findings, the
team will draft best practices and lessons learned for a study on justice and corrections
system reform, which will inform the future work of justice and corrections components
in peace operations.
Role of the Literature Review
Prior to making a site visit to Kosovo, the team began reviewing and analyzing existing
articles and other materials on the UN experience with the Kosovo justice and
corrections systems. What follows in this Consolidated Response are excerpts that
reflect a variety of professional observations that have been assembled to date. These
references from the literature will be integrated into the overall lessons-learned analysis
and study, and they will serve as a valuable supplement to the onsite interviews that
involved a wide variety of officials from local justice and corrections authorities
(including the Ministry of Justice and Kosovo Judicial Council), Kosovo Judicial Institute,
UNMIK, EULEX staff formerly with DoJ, OSCE, Ombudsperson Institution, other civil
society bodies and other local justice actors. This literature review is intended to be a
living document that can be updated on an ongoing basis.

Query:
The United Nations Interim Administration Mission in Kosovo (UNMIK) has requested
that a lessons learned study be conducted of UNMIK's executive justice and corrections
activities. Based on this request, a small team will be dispatched to Kosovo to conduct
the study. Prior to departure, the team will review and analyze existing articles and other
materials on the Kosovo justice and corrections system, as a considerable amount of
material has been written in this area. To facilitate this exercise, INPROL members are
kindly requested to identify published works or other materials addressing UNMIK's
justice operations to be consulted by the review team.
Response Summary:
The literature discussing UNMIK’s involvement in rule of law related activities is

substantial. Though each particular work emphasizes different aspects of UNMIK,
there are a number of similar, or common themes, that tend to emerge in the overall
body of work on the topic. This Consolidated Response identifies a number of these
themes, excerpting quotes from the literature to illustrate them.

Table of Contents
I. Lessons from Prior Missions Reaffirmed by UNMIK .....................................................7

1.1 Capacity building should be holistic........................................................................7
1.2 The UN mandate should provide adequate authority .............................................8
1.3 International integration of efforts is essential ........................................................9
1.4 An international crowd-control capacity may be necessary..................................12
1.5 Identifying, cataloguing, indexing and distributing the applicable law is crucial....13
II. Process of Establishment of DoJ ...............................................................................14

2.1 Proper assessments are needed..........................................................................14
2.2 There is a systematic incapacity to mobilize required personnel to address
deficiencies in the criminal justice system ..................................................................16
2.3 The corrections system is a vital part of Rule of Law and must not be overlooked
...................................................................................................................................18
2.4 The Military Contingent may need to fill in critical gaps until international criminal
justice capacity can be deployed................................................................................19
2.5 An interim international criminal code may be a vital tool for avoiding paralysis of
the legal system .........................................................................................................20
2.6 Civil proceedings are vital for the resolution of property disputes ........................22
2.7 The availability and clarity of applicable law is essential to transparency.............23
III. Link between Police and DoJ....................................................................................23

3.1 The capacity to gather criminal intelligence is essential for successfully
confronting violent threats to the mandate .................................................................23
3.2 The capacity to conduct criminal investigations is essential for successfully
3.3 The ability to conduct intelligence-led operations is essential for successfully
3.4 The ability to conduct high-risk arrests is essential for successful intelligence-led
operations and confronting violent threats to the mandate.........................................27
3.5 A crowd-control capability is essential in confronting violent threats to the
mandate .....................................................................................................................27
3.6 UN Police should be instructed and monitored for proper interaction with the
public and held accountable for adherence to international standards.......................28
IV. Link between Executive and DoJ..............................................................................28

4.1 Measures to preserve the independence of international judges are necessary..28
4.2 Executive power to declare laws, regulations, etc. must be adequately defined
and circumscribed consistent with international standards.........................................30
4.3 Leadership and morale among international staff is important to establish and
maintain......................................................................................................................32
V. Defense Counsel and Private Bar .............................................................................33

5.1 The private bar should be an integral part of justice reform and rehabilitation .....33

5.2 Access to defense counsel should be an integral part of justice reform and
rehabilitation...............................................................................................................34
VI. Relationship with Local Entities ................................................................................36

6.1 Transforming systemic threats to the rule of law is a precondition for transitioning
to local ownership.......................................................................................................36
6.2 Clear institutional mandates, particularly those that create channels of
accountability for international actors, are essential to promoting perceptions of
institutional legitimacy ................................................................................................38
VII. The Judicial, Prison and Corrections System ..........................................................39

7.1 UNMIK was premature in turning ownership of the judicial system immediately
over to local judges ....................................................................................................39
7.2 A sustainable transition from peacekeeping to peacebuilding requires creation of
effective safeguards on institutional performance ......................................................42
7.3 Accountability and effective safeguards must be built in from the inception to the
development of the judiciary.......................................................................................43
7.4 Accountability and effective safeguards must be built in from the inception of the
development of the prisons and corrections service ..................................................47
7.5 Justice capacity building must include training at inception..................................48
7.6 Remedies and resources must be provided to limit delays in the judicial
process.......................................................................................................................50
7.7 Local judges and prosecutors must be adequately paid and resourced to meet the
circumstances of a post-conflict environment.............................................................50
VIII. Politically or Ethnically Sensitive Cases .................................................................51

8.1 Systemic threats to the mandate and to the rule of law must be confronted by the
mission across the full spectrum from intelligence to incarceration............................51
8.2 International judges and prosecutors can make a decisive contribution in
8.3 Central or Special Courts involving international and local judges may be
essential for confronting violent threats to the mandate .............................................57
8.4 Procedures for the selection of cases for Central or Special Courts need to be
established to preserve judicial autonomy..................................................................59
8.5 A close protection unit is essential for confronting violent threats to the mandate60
8.6 The capacity to collect and properly handle admissible evidence is essential .....61
8.7 The capacity to provide maximum security for high-risk detainees is essential for
IX. Key issues and Challenges Addressed by Corrections Practitioners .......................63

9.1 The Military Contingent may need to fill in critical gaps if local prison capacity is
deficient......................................................................................................................63
9.2 Pre-trial detention must be dealt with properly at inception ..................................64

9.4 A uniform, computerized prison registry was utilized to address concerns about
inappropriate detentions.............................................................................................66
X. Corrections Models Strategies Adopted ....................................................................66

10.1 A comprehensive and phased plan was formulated and implemented...............66
10.2 The Kosovo Corrections Service is considered the most successful multi-ethnic
institution in Kosovo ...................................................................................................68
XI. National Ownership and Engagement......................................................................68

11.1 Strategic planning should include local capacity building and ownership...........68
11.2 Participation by representatives of local formal and informal systems and
sensitivity to cultural considerations is vital ................................................................71
11.3 Ethnic diversity is an important part of sustainable capacity building .................74
11.4 The international community should commit to public outreach early ................75
XII. Bibliography.............................................................................................................77

I. Lessons from Prior Missions Reaffirmed by UNMIK
1.1 Capacity building should be holistic
• One of the fundamental lessons derived from peace operations in El Salvador, Haiti,
and Bosnia is that a holistic approach should be taken to establishing the rule of law.
In Kosovo, international planners generally understood that it would be necessary to
develop local capacity not merely for policing, but also for the judiciary, penal
system, and legal code.1
• Simply put, the Kosovo Prosecution Service has been largely overlooked and
forgotten…when trying to understand why UNMIK forgot to develop the prosecutors
and did not actively support the Kosovo judiciary, a senior DOJ staff member
argued, “I don’t think there was a high-level decision made. I doubt there was a
strategy… I think (UNMIK) went from emergency to emergency.”2
• There must be clarity as to the legal framework of the mission… Before deployment,
international police must understand the political context, the nature of the conflict
that brought them to the region, the nature of the criminal elements that will be
facing them… Policing must be viewed as part of the rule of law continuum which
includes the judiciary (courts and prosecutors) and the penal or correctional
institutions.3
• Most critically, future peace-building missions must ensure that a coordinated and
thoughtful approach to developing a criminal justice sector is adopted. Such a
strategy must be premised on a broad and comprehensive assessment of all of the
critical components and an effective justice process that is beyond merely the
courts. A holistic approach would include assessing the needs of law enforcement
agencies, medical and forensic expertise, and legal services. In addition,
consideration has to be given to the development of victim’s services, witness
protection, and a network of social services to meet the needs of particular groups
such the victims of sexual violence, juveniles, and the mentally ill… Finally, future
peace-building strategies must involve the genuine participation of the local
1
Halvor A. Hartz and Laura Mercean (with contributions from Paul Mecklenburg and Clint Williamson),
“Safeguarding a Viable Peace: Institutionalizing the Rule of Law,” in The Quest for Viable Peace:
International Intervention and Strategies for Conflict Transformation, Jock Covey, Michael Dziedzic and
Leonard Hawley (eds.) (Washington, D.C.: United States Institute of Peace, 2005), 162.
2
Heiner Hänggi & Vincenza (eds.), Geneva Center for the Democratic Control of Armed Forces, Security
Sector Reform and UN Integrated Missions: Experience from Burundi, the Democratic Republic of Congo,
Haiti and Kosovo (2007), 191.
3
Colette Rausch, “The Assumption of Authority in Kosovo and East Timor: Legal and Practical
Implications” in Renata Dwan (ed.), Executive Policing: Enforcing the Law in Peace Operations,
Stockholm International Peace Research Institute Research Report no. 16 (New York, NY: Oxford
University Press, 2002), 31-2.

community.4
• It took time to write a criminal code and a code of criminal procedure for Kosovo.
They became available in April 2004 immediately after the worst period of violence
this territory had experienced since 1999. The main difference from the former codes
was that the tasks accomplished by the investigative judge were given to
prosecutors.5
• The training given to local judges and prosecutors concerning the new laws was not
adequate. What should have been done was to train judges and prosecutors the
same way the police were trained. This means that we should have started from
scratch, with a new recruitment program open to applications from former judges.
The Kosovo Judicial Institute was never a real school for magistrates. It never had a
complete program of studies covering the full range of legal education. It did not
perform systematic training. It just organized series of lectures on particular subjects
which were not necessarily linked to one another and certainly did not encompass
the full range of the legal domain. A number of the trainers had only a scant
knowledge of the legal system they were supposed to teach. Therefore local
prosecutors, judges and members of the support staff were insufficiently trained and
were not equal to the challenges they had to meet.
1.2 The UN mandate should provide adequate authority
• The Bosnia experience taught that the authority provided in the mandate must be
commensurate with the magnitude of the task involved. The International Police
Task Force (IPTF) in Bosnia was unarmed and had no authority under the Dayton
Peace Accords to engage in law enforcement activity. Nor was any authority initially
provided to discipline police misconduct or to reform the legal code, judiciary, or
penal system. In contrast, Resolution 1244 endowed the SRSG with the equivalent
of sovereign powers that included the right to appoint and remove officials and to
legislate by issuing regulations and revising the existing legal code. UNMIK Police
had executive authority to enforce the law.6
• “Issue more comprehensive mandates focusing on specific judicial and legal

reforms… Implement mandates fully, addressing gaps in local judicial and legal
capacity where necessary… Establish rule of law as a core priority in mission
planning… Provide sufficient judicial positions and rapidly deploy… Increase
financial resources for judicial and legal reform initiatives… Develop a ‘One UN
Approach’ to judicial and legal reform in peacekeeping… Strengthen engagement
with host-country rule of law partners… Employ contemporary programme
4
David Marshall and Kelly Inglis, The Disempowerment of Human Rights-Based Justice in the United
Nations Mission in Kosovo, 16 Harvard Human Rights Journal 95 (2003), 144-6.
5
Jean Cady, A few thoughts on UNMIK Lessons Learned, unpublished, http://inprol.org/kosovo/LL-Jean-
Cady-July142009-final.pdf (2009), 3.
6
Hartz and Mercean, 162.

management techniques… Serve as a center for rule of law information, analysis,
and coordination in-country… Incorporate rule of law into mission’s diplomatic
dialogue… Bolster UN Headquarters capacity to provide adequate support for
judicial and legal programmes in peacekeeping operations.” 7
• The mandate given by Security Council resolution 1244 was designed more out of
political expediency, than out of an analysis to establish a workable system of
cooperation between NATO and the UN. There was a potential conflict between the
mandate of KFOR and the mandate of UNMIK. This conflict was partially overcome
by good personal relations between the KFOR commander and the SRSG but
remained latent throughout the mission. In the early stages of the mission in Kosovo
there was no choice. The military had to deal with everything in order to establish
peace and security. As the civilian presence took time to percolate into the mission,
the military were the only operational international authority for many months. But
although the military are quite apt to create a reasonably peaceful and secure
environment (i.e. to move out of war), the rule of law can only be established by
civilian authorities. It must be clear that the powers to arrest and detain people
should be in the hands of a civilian authority as soon as possible. Apart from rare
exceptions such as East Timor, the mandate of a peacekeeping mission is usually
more the result of a compromise than of a consensus among Security Council
members. If a future peacekeeping mission were to have as broad a mandate as
UNMIK, the terms of the mandate should be weighed and designed in such a
fashion that the mission can work in an efficient manner and not be hindered by ill-
designed tools. The main problem in Kosovo was that nothing was planned to
establish the cooperation between KFOR and UNMIK. Nothing was planned either to
establish the transition from military primacy to civilian primacy. Nothing was
planned for situations in which public unrest might overwhelm the whole territory of
Kosovo.8
1.3 International integration of efforts is essential
• Programs and activities directed at institutionalizing the rule of law in Bosnia were
fragmented among various autonomous organizations and programs. The creation
of the pillar structure in UNMIK was a step in the direction of bringing greater
coherence. Responsibility for training and capacity building was assigned to the
OSCE. UNMIK Police were responsible for law enforcement and subsequently for
field training and supervision of the graduates of the OSCE police school.
Responsibility for re-creating and administering the local judicial and penal systems
was assigned to the UNMIK Department of Judicial Affairs, which, in turn, was
7
Scott N. Carlson, “Legal and Judicial Rule of Law Work in Multi-dimensional Peacekeeping Operations:
Lessons-Learned Study” in Harvey Langholtz, Boris Kondoch, and Alan Wells (eds.), International
Peacekeeping: The Yearbook of International Peace Operations, Volume 12 (Amsterdam, NL: Martinus
Nijhoff Press, 2008), 1.
8
Cady, 1.

assisted and monitored by the OSCE. The need for KFOR to support and coordinate
closely with UNMIK was specified in Resolution 1244.9
• International integration of efforts is essential…responsibility for re-creating and

administering the local judicial and penal systems was assigned to the UNMIK
department of Judicial Affairs, which, in turn, was assisted and monitored by the
OSCE. The need for KFOR to support and coordinate closely with UNMIK was
specified in Resolution 1244… the need to take a holistic approach was generally
recognized, but international capability did not exist to put this concept immediately
into practice.10
• Because of the way the Kosovo mission was set up, much of the rule-of-law
continuum—police, prosecution, judiciary and penal— was fragmented at the
beginning. This posed operational problems which resulted in reduced levels of
coordination and cooperation. It is of critical importance that the rule-of-law
components work together in a continuum.11
• Paradoxically, UNMIK’s organizational structure after May 2001 with justice and
security silo-ed within Pillar I may have hampered the development of a mission-
wide SSR approach in that there was no high-level cohesive team supported by
sufficient resources (human, financial and bureaucratic) capable of amalgamating
the enormous spectrum of justice and security SSR activities into a defined
strategy.12
• Similarly, UNMIK’s inability to create a judicial police, even though UNMIK had
legislated its establishment, could be partially traced to the pillar structure and the
inability of successive heads of the Pillar to possess sufficient clout, capability and/or
willingness to adjudicate between competing bureaucratic claims. 13
• From the beginning of the mission the division of responsibility between the OSCE
and the United Nations was not always clear and coordinated.14
• Second, cooperation between civilian and military authorities is critical in ensuring

that investigations are not conducted at cross-purposes. In Kosovo, a lack of
coordination between KFOR and UNMIK led to incidents. 15
• Some … difficulties arose from the security environment on the ground; others from
the high politics surrounding every aspect of NATO’s intervention and the
9
10
Marshall and Inglis, 162-164.
11
Rausch (2002), 28.
12
Hänggi and Vincenza, 178.
13
ibid, 179.
14
Colette Rausch, “From Elation to Disappointment: Justice and Security” in Charles T. Call (ed.),
Constructing Justice and Security After War (Washington, DC: United States Institute of Peace, 2007),
284.
15
Ibid, 292.

subsequent role of the United Nations. Together, these factors gave rise to
inconsistent policies on the part of the international administration, in turn giving rise
to its own contradictions as the body charged with instilling the values of human
rights and the rule of law detained persons in apparent contempt of international
judges.16
• The relationship between the UN family and donors varied tremendously, depending
upon the project under consideration and the personnel involved. On the whole, it
would appear that good working relationships existed between UNMIK and the
donors with regard to judicial development, though it needs to be pointed out that
UNMIK experienced difficulties coordinating the donors and limiting duplication. 17
• According to respondents, UNMIK’s support of the MoJ, for instance, has been
abysmal, with the donors conducting virtually all development activities. A Kosovar
with in-depth knowledge of the situation inside the Ministry claimed that “[the Ministry
has] not been given development in management [from UNMIK]. They were just
transferred with their competencies from [UNMIK] DoJ to MoJ.” The same applies to
the Kosovo Judicial Council (KJC), which is one of the keystones of oversight, court
administration and management of the judiciary. It is within the KJC, however, that
significant development initiatives are under way, albeit mainly outsourced and
conducted by NCSC.18
• “…sometimes a disparity between what human rights experts in the field argued was
required under international human rights standards and what police argued was
actually possible to do given the circumstances in the field. What was missing, and
critical to effective law enforcement and adherence to international human rights
standards, was a meaningful dialogue between experienced lawyers with human
rights experience and criminal justice experience, the international police (and later
the international judges and prosecutors who came on board), the military, local
judges, prosecutors and police, and legal experts. These actors needed to come
together and discuss, from both a practical and a legal standpoint, what could be
done that would be consistent with international human rights standards and still be
feasible given the reality in the field.”19
• Perhaps the most pivotal lesson learned in SSR programming though, is the need to
ensure consistent and coherent management of the implementation and
performance of initiatives, concentrating on delivering defined and measurable
outcomes. This did not happen in Kosovo. 20
16
Simon Chesterman, Justice Under International Administration: Kosovo, East Timor and Afghanistan,
IPA Report (NY, NY: September 2002), 6.
17
18
Eric Scheye. “UNMIK and the Significance of Effective Programme Management: The Case of Kosovo,”
192.
19
Rausch 2002, 18.
20

• “Recommendation: a cohesive team of SSR experts responsible for the
development and managerial oversight of the implementation of the UN’s SSR
strategy…” 21
1.4 An international crowd-control capacity may be necessary
• Implementation of the Dayton Peace Accords was difficult in the beginning because
of a gap in capabilities between the NATO-led Implementation Force (IFOR) and the
IPTF. IFOR was able to use lethal force, whereas the IPTF was unarmed. This left
the mission vulnerable to civil disturbances. Ethnic extremists became proficient at
exploiting this gap through the use of what came to be called “rent-a-mobs.”
Eventually NATO responded by deploying a Multinational Specialized Unit
composed primarily of Italian Carabinieri. The unit’s nonlethal crowd-control
capability and doctrinal understanding of how to deter and defuse public disorder
helped to close this peace enforcement gap. This experience led both KFOR and
UNMIK Police to incorporate this type of “specialized” crowd-control capability in
their contingents. 22
• One particular aspect of the rule of law, which should not be overlooked, is crowd
control. It certainly was not in the UN tradition to run a police force and, even less,
crowd control units. This is a difficult task which has to be performed by units that
are specially trained. The role of these units is very different from the role of soldiers
in a conflict. Soldiers are trained to behave in a war situation. Crowd control units
operate in a situation of relative peace, a peace which is disturbed but not to the
point of reaching the state of war. As we all know, there is no permanent standing
capacity in the UN of anti riot units. As for the international police, the UN must rely
on member states. The way public unrest is dealt with varies greatly from one
country to the next. In Kosovo it was done by special units from Poland and
Rumania but also by the MSU (multinational specialized unit). The MSU was a
police force with military status, under KFOR command. Led by an Italian
commander, essentially composed of Italian “carabinieri”, with a participation of
French gendarmes and Estonian military policemen, it was not as useful as it could
have been for the following reasons. First of all it was under KFOR leadership and
was never transferred to UNMIK even though civilian primacy had been established
for matters related to law and order. The duality of command made the process of
engagement long and burdensome because a request made by UNMIK had to be
approved by KFOR. The second reason is that rules of engagement varied from one
country to the next for the very simple reason that demonstrations and public
disorder do not happen in the same manner. A coherent doctrine for crowd control in
a peace-keeping environment still has to be established.23
21
Ibid, 203-208.
22
Hartz and Mercean, 162-163.
23
Cady, 6.

1.5 Identifying, cataloguing, indexing and distributing the applicable law is crucial
• While the international judges were experienced with international standards, they
were unfamiliar with the applicable law. Furthermore, their number and dispersal
was erratic, once again detracting from the international community’s attempt to
enforce one set of internationally recognized standards.24
• On July 25, 1999, the SRSG approved UNMIK Regulation 1999/1, which provided
that the law applicable in Kosovo was the law in force prior to the NATO intervention
on March 24, 1999. Members of the ethnic Albanian legal community resented and
resisted this determination because they considered it offensive to reinstate the laws
of the repressive regime, and they willingly disregarded the applicable law in the
conduct of trials. In response, in December 1999, the SRSG promulgated Regulation
1999…which appealed Regulation 1999/1 and reinstated the laws applicable in
1989.25
• The challenge of determining what constitutes applicable law is overwhelming, not

only to the international lawyers in the mission, but also to the local legal community.
The problems are multifaceted and involve parsing out what the applicable law is,
finding the laws in relevant languages, and deciding to what extent they should be
applied and whether the laws, written in the 1970s and 1980s and based on a
communist system, can realistically be applied in light of the establishment of
UNMIK. It has been and continues to be a daunting task.26
• The questions of what the local law was and how it should be applied, particularly its
application in light of international human rights norms, considerably hampered the
functioning of the justice system.27
• A more workable strategy would have included addressing the applicable law
challenges early on so that the most critical provisions could be readily amended or
gaps filled to meet international standards and respond to the realities on the
ground. 28
• The process of defining the immediately applicable law and establishing an accepted
lawmaking process should be undertaken prior to the next post-conflict
administration.29
• An important shortcoming of Resolution 1244 was the absence of clear, legal

framework… as William Schabas and Neil Kritz note, the type of approach taken by
24
Wendy S. Betts, Scott N. Carlson and Gregory Gisvold, The Post-Conflict Transitional Administration of
Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law, 22 Michigan Journal
of International Law 371 (2001), 379.
25
Marshall and Inglis, 10.
26
Ibid, 115-6.
27
Ibid, 116.
28
Rausch 2007, 299.
29
Betts, Carlson and Gisvold, 383.

UNMIK “has proven to be unworkable given the enormity of the task of reconciling
local law and international norms.”30
• No clear guidelines existed to guide the police in the procedures for making arrests,
gathering evidence or detaining suspects. To make matters more difficult, the
international police did not apply either the Kosovar or the Serbian law at all times. In
the light of the confusion as to which law applied and the difficulty of understanding
the provisions, many resorted to applying the law as they knew it from their own
systems.31
• The domestic applicable law proved troublesome, most particularly for law
enforcement from common law jurisdictions. The criminal procedure code did not
provide for police warnings on arrest or during police interrogation. The code did not
make reference to a right to counsel prior to being brought before an investigative
judge.32
• Inconsistent application of the laws by a combination of both local and international

judges made it difficult for the defense counsel to mount a defense, particularly as
they themselves were not well-versed in either the applicable international standards
or the applicable law in force.33
• The problem we had in Kosovo as well as in East Timor was: according to which
rules and to which law is social and political peace going to be established? Each
country that participates in a peacekeeping mission has its own system of reference:
its own laws, its own police organization, its own judicial system. Therefore with the
best intentions, each country willy-nilly has a tendency to use its own system as a
frame of reference. The problem is that a territory which has a peacekeeping
mission, is not a blank slate. We do not start from scratch. Kosovo had a legal
system and before 1989 there were Kosovo judges.34
II. Process of Establishment of DoJ

2.1 Proper assessments are needed
• Every context is unique, which means that the first step in any mission is performing
a proper assessment. The most fundamental issue to assess is whether
international or local personnel should be relied on to establish public order and
assume responsibility for the judicial and penal system. Should the international
30
Adam Day, No Exit Without Judiciary: Learning a Lesson from UNMIK’s Transitional Administration in
Kosovo, 23 Wisconsin International Law Journal 183 (2005), 8.
31
Rausch 2002, 17.
32
Marshall and Inglis, 2003, 125.
33
Irene Bernabéu, Laying the Foundations of Democracy? Reconsidering Security Sector Reform Under
UN Auspices in Kosovo, Security Dialogue (2007), 379.
34
Cady, 2.

community take responsibility for any functions on an interim basis? The answer to
this question should be a function of the role of the legal system in the conflict. Was
it part of the problem or part of the solution? Are indigenous institutions capable of
immediately performing any functions in a manner consistent with the rule of law?
Will a military contingent (perhaps from an alliance or coalition of the willing) need to
perform interim law enforcement, judicial, or penal functions? Which functions can
be shared with local counterparts? Where will detainees be held? In the absence of
a functioning court system, what will happen when the jails are full? What body of
law will be applied, and what revisions will be required?
When Resolution 1244 was adopted, Kosovo was without police, judges, or jails to
provide law and order. Even the basic infrastructure was lacking. Although the
resolution called on the international military presence to ensure law and order, the
real challenge was to create it in the first place out of an anarchic social
environment. As William O’Neill observes in Kosovo: An Unfinished Peace, “Court
buildings looked as if a plague of locusts had swept through, scouring the grounds
for anything valuable and leaving broken windows and ripped-out electrical sockets
in their wake.” The main prison at Dubrava, with a capacity for 1,200 inmates, had
been bombed during the air campaign and was unusable. A massive public security
gap awaited the international intervention.
Before the conclusion of the bombing campaign, the OSCE sent personnel from its
Kosovo Verification Mission to the refugee camps in an attempt to identify Kosovo
Albanian judges and prosecutors to help constitute a new judicial system. The vast
majority had not worked in those capacities since 1989, and the few who had were
regarded as Serb collaborators. None were familiar with international human rights
standards, nor could they be expected to be impartial in their treatment of Serbs
accused of crimes after the trauma they had experienced. Thus, the OSCE prepared
a plan for rebuilding the judicial system that involved the use of international judges
and prosecutors along with members of the local legal community. UNMIK, however,
made the strategic choice to rely exclusively on local judicial personnel. The
overriding factor was a feeling that giving international judges the authority to
sentence citizens of Kosovo to imprisonment would smack of colonialism. Ultimately,
however, this assessment proved to be misguided and international judges and
prosecutors would need to play a prominent role.35
• First, given the character of the conflict, it should have been possible to anticipate
postwar ethnic-related and organized crime. However, the United Nations took more
than a year to promulgate regulations and mechanisms to address these crimes;
these measures remained inadequate as of 2002. 36
• Proper attention needs to be given to the likely types of crime the peacekeepers will
face.37
35
36
Rausch 2007, 292.
37
Rausch 2002, 30.

• In future postconflict reconstruction missions, the criminal justice environment should
be evaluated before international prosecutors are introduced into the jurisdiction.
Specifically, the supervising authorities must make a coherent analysis of the forms
of crime that fundamentally affect the peace process, and a realistic assessment of
the ability of law enforcement institutions to deal with those crimes. On the basis of
this evaluation, the supervising authority should implement a temporary structure
that reconciles the urgent need to address destabilizing crime with the inherent
limitations of postconflict law enforcement agencies. Finally the supervising authority
must augment the effectiveness of this temporary structure with supporting
legislation. 38
• In addition, in Kosovo, the police were ‘grafted’ onto a system with a socialist
heritage where independence of the judiciary did not exist and the relationship
between the police, the prosecutor and the judge was quite different from the
relationship in many of the countries that supplied international police.39
2.2 There is a systematic incapacity to mobilize required personnel to address

deficiencies in the criminal justice system
• Chronic difficulties existed in recruiting capable police officers. The demands in

Kosovo, both in terms of the numbers and the functions involved, greatly exceeded
those of any previous operation. The United Nations had never had to create an
armed police force that would exercise full executive policing authority. Nor was
there any doctrine for this purpose or for the formed police units that would also be
employed for the first time by the United Nations. The United Nations was even less
prepared to discharge the other functions that are essential to the rule of law,
including operating a court system and a corrections service.40
• It has not been easy to fill existing slots. UNMIK authorities post announcements
through the UN, and applications are sent to the personnel office at UNMIK. The
Chief International Judge reviews the applications and draws up a short list for
interviews. All candidates are interviewed via telephone, typically by two existing IJs,
the head of the International Judicial Support Section (IJSD), and a representative of
UNMIK’s personnel office. This system has been criticized for being haphazard and
for the difficulty in exercising quality control at such a distance. Most of the
applications come from Africa, Asia, or Eastern Europe, because it has proven
difficult for judges in the North America and Western Europe to take leaves of
absence from their regular judicial duties to serve in Kosovo. Some special bilateral
arrangements have been made, such as with the state of Minnesota, which resulted
in a number of judges from there taking up office. Judges are not formally nominated
38
Gregory L. Naarden and Jeffrey B. Locke, Peacekeeping and Prosecutorial Policy: Lessons Learned
from Kosovo, 98 American Journal of International Law 727 (2004), 12.
39
Rausch 2002, 20.
40

by member states, nor are personnel seconded to UNMIK-DOJ from member states
or other institutions. All IJPs are officially chosen, hired, and paid by UNMIK. 41
• Regardless of the institution of ad hoc military arrangements, the United Nations

must enhance its own capacity to establish a functioning judiciary as rapidly as
possible, by ensuring that the fundamental task of judiciary building is part of its
emergency first-phase response. It is thus imperative for the [*62] United Nations to
develop a standby network (as opposed to a costly standing capacity) of
experienced and qualified international jurists that can be activated at any given
time.42
• The international community should be prepared to send a group of international

judges, prosecutors and defense counsel pre-trained in the emergency law template,
and this transitional judiciary should be accompanied by a targeted package of
equipment sufficient to support the interim judiciary’s functions. 43
• Measures to create a standby network of international jurists who could be employed

at short notice to post-conflict areas would facilitate the establishment of a judicial
system…but are unlikely to be able to deploy in sufficient time and numbers to
establish even an ad hoc system of their own. 44
• Lack of adequate deployment capabilities hampered the introduction of CIVPOL into

Kosovo. Further complications were introduced by the more ambitious scope (in
terms of jurisdiction and primacy of the local police forces) of the Kosovo operation
compared with previous CIVPOL missions. 45
• The mandate given by Security Council resolution 1244 was designed more out of
political expediency, than out of an analysis to establish a workable system of
cooperation between NATO and the UN. There was a potential conflict between the
mandate of KFOR and the mandate of UNMIK. This conflict was partially overcome
by good personal relations between the KFOR commander and the SRSG but
remained latent throughout the mission. In the early stages of the mission in Kosovo
there was no choice. The military had to deal with everything in order to establish
peace and security. As the civilian presence took time to percolate into the mission,
the military were the only operational international authority for many months. But
although the military are quite apt to create a reasonably peaceful and secure
environment (i.e. to move out of war), the rule of law can only be established by
civilian authorities.46
41
Tom Pieriello and Marieke Wierda, Lessons from the Deployment of International Judges and
Prosecutors in Kosovo, ITCJ Prosecution Case Studies Series (NY, NY: March 2006), 15-16.
42
Strohmeyer, 11.
43
44
Day, 12.
45
Rausch 2007, 290.
46
Cady, 1.

• One major shortcoming in the establishment of the Kosovo criminal justice system
was the failure to recruit and train properly international judges and prosecutors. In
the attempt to build a judicial system which would have an international and a local
component, UNMIK was hampered by never having a sufficient number of
international judges and prosecutors. One can wonder why they are so hard to
recruit. Let me try to propose a few explanations. The first which is obvious is that in
no country is there a surplus of judges or prosecutors ready to jump to a plane to
participate in a peace-keeping mission. The second explanation is that in most
countries, the fact of having been a member of a peace-keeping mission may be
seen as an exotic feature but not necessarily as an asset in a well-managed career.
When he leaves for the UN, the judge or the prosecutor will give up his job at home
and when he returns after a year or more, he will have to look for a post. What he
will be given will not necessarily be a promotion. So the number of volunteers is not
enormous. The third explanation: in many countries, it takes time to move a judge.
Advisory bodies which manage the careers of judges and prosecutors and which are
a guarantee against arbitrary moves and political interference, have to be consulted.
It takes months. After a short listing of the CVs, the recruitment process was done
mostly by telephone interviews, as UNMIK did not have the budget for the traveling
expenses of candidates. Many judges and prosecutors recruited that way were
excellent but UNMIK experienced also inadequately qualified personnel. With
hindsight, one feels that in all cases there should have been a face to face
meeting.47
2.3 The corrections system is a vital part of Rule of Law and must not be overlooked
• In view of the enormous difficulties experienced in both Kosovo and East Timor in
this sector, urgent priority must be given to the immediate establishment of an
adequate prison infrastructure. A functioning correctional system is not only
complementary, but also inextricably linked, to the creation of a functioning law
enforcement mechanism.48
• Initially, UNMIK had no conception of what was involved in restoring the operation of
a prison system. KFOR had to fill the gap. Once UNMIK Police had become
established in Pristina, they began operating the detention center there. In October
1999 UNMIK established the Penal Management Division and began recruiting
experienced local corrections officers to form the initial cadre for the Kosovo
Corrections Service (KCS). One month later, fifty-eight officers of the KCS under
UNMIK supervision assumed responsibility from KFOR for the prison in Prizren. In
January 2000 the KPSS began offering a corrections training course. By June 2000
UNMIK had rehabilitated the main prison at Dubrava and restored it to use. This was
a crucial accomplishment because due to the resumption of trials within the court
system, Kosovo’s smaller facilities were full to capacity with sentenced offenders. By
February 2001 the KCS, under Penal Management Division supervision, had taken
47
Cady, 3.
48
Strohmeyer, 15.

responsibility for all detention centers and prisons with the exception of the detention
center at Camp Bondsteel, which was used primarily for detainees held under KFOR
authority (i.e., COMKFOR holds).49
• Most donor nations did not understand the critical important of effective correctional
systems in maintaining order and upholding human rights standards. 50
2.4 The Military Contingent may need to fill in critical gaps until international criminal
justice capacity can be deployed
• UN Security Council Resolution 1244 assigns responsibilities relating to the rule of

law to both the “international security presence” (KFOR) and the “international civil
presence” (UNMIK). Paragraph 9 charges KFOR with “ensuring public safety and
order until the international civil presence can take responsibility for this task.”
KFOR’s mandate also includes “supporting, as appropriate, and coordinating closely
with the work of the international civil presence.” Although KFOR’s most evident
contribution was to fill the initial public security gap, it had vital contributions to make
across the entire spectrum from intelligence to incarceration.51
• The initial Kosovo Consolidated Budget did not even recognize the need to provide
funding for the management of prisons. Initially, KFOR had to fill the gap. Even
though this was an unanticipated requirement for most KFOR contingents, during
the first phase of the mission each MNB took responsibility for operating pretrial
detention facilities. Because there was no adequate jail in its sector, the U.S. military
established its own detention center at Camp Bondsteel, processing 1,800 detainees
in the first year of operations. Among the factors that slowed the transfer of
responsibility to UNMIK were the need to locate and recruit professional expertise in
penal management for this unprecedented international requirement; the delay in
providing funds, especially to repair Kosovo’s main prison at Dubrava that had been
severely damaged by NATO bombing; and the difficulty encountered by UNMIK
officials in gaining access to various penal facilities that KFOR regarded as high-
security installations and therefore placed off limits.52
• The Interim SRSG declared that law enforcement activities are a joint responsibility
and, when conducted by KFOR and UNMIK police, they must be undertaken in line
with international human rights standards. This move indicated early on that the
SRSG’s power to legislate could bind KFOR, presuming that KFOR would act in
accordance with the applicable law, and that human rights would also limit KFOR’s
authority at least in the areas of law enforcement.53
49
50
Rausch 2007, 296.
51
52
Ibid, 175.
53

• In the early stages of the mission in Kosovo there was no choice. The military had to
deal with everything in order to establish peace and security. As the civilian
presence took time to percolate into the mission, the military were the only
operational international authority for many months. But although the military are
quite apt to create a reasonably peaceful and secure environment (i.e. to move out
of war), the rule of law can only be established by civilian authorities.54
2.5 An interim international criminal code may be a vital tool for avoiding paralysis of
the legal system
• Because Kosovo’s final status remained undetermined, the selection of one penal
code over another became part of the continuing conflict. The existing “Serb” code
had no legitimacy with Kosovo Albanians because it had been used as an
instrument of brutal repression since 1989. This code also implied Kosovo’s
subjugation to Serbia and a reversal of ethnic Albanian aspirations for eventual
independence. The penal code that had been used when Kosovo enjoyed
autonomous status before March 1989 was clearly the preference of Kosovo
Albanians. Nevertheless, respect for FRY sovereignty was an overriding concern for
the United Nations. Consequently, in July 1999 the SRSG issued Regulation No. 1
stipulating that the law applicable in Kosovo would comprise “all the laws applicable
in the territory of Kosovo prior to 24 March 1999.” To administer this body of law—
considered odious by Kosovo Albanians—UNMIK decided to rely on recruitment of
local judges and prosecutors. Because the vast majority of judges were ethnic
Albanians, they simply refused to apply the existing “Serb” law. Until UNMIK
reversed itself in December 1999, criminal trials presided over by Kosovo Albanian
judges actually applied the pre-1989 “Kosovo” penal code. In addition to amounting
to open defiance of UNMIK’s authority, the fundamental legality of these rulings was
in doubt. 55
• One remedy proposed by UNMIK staff and endorsed by KFOR lawyers was to use
UNMIK’s regulatory authority to establish a temporary code covering the most
serious violent crimes until the overall legal framework could be revised. The United
Nations was unwilling to act until the issue reached the crisis stage in December,
when Regulation 1999/24 was adopted, reverting to the law in force in March 1989
when Kosovo enjoyed autonomy. Although this was essential to end the judicial
stalemate, there was a price to pay. The international community was perceived as
weak and vulnerable to local pressure. The vanishing prospects for inclusion of
Serbs in the judiciary were diminished further. There was great uncertainty,
moreover, about what the pre-1989 laws actually were. Months would pass before
the penal code and other vital codes could be translated into English so that UNMIK
Police could be trained on the law they were expected to enforce and UNMIK legal
staff could work with them. Instead of promoting peaceful resolution of disputes, the
United Nations’ initial strategic choice about the applicable law had created an
54
Cady, 1.
55

obstacle that took almost a year to overcome. The Brahimi Report acknowledged
that a rudimentary international penal code and code of procedure should be
developed. This would at least provide an alternative for international authorities to
use to avoid a legal vacuum at the inception of a mission in cases like Kosovo.56
• The availability of an immediately applicable legal framework is an important

prerequisite for the building of judicial institutions. Capacities within and outside the
United Nations must thus be identified for quickly drafting new legislation in
accordance with internationally recognized standards and with due consideration to
the legal traditions (i.e., civil law or common law) of the territory at issue.57
• Even if the applicable law is clearly agreed upon from the outset, making sure that
the international police from a multitude of countries with different legal systems are
thoroughly versed and competent in the applicable law, the local justice system and
effective investigative techniques for the local justice system is challenging, to say
the least. In addition, police officers from different countries come with differing
levels of English, firearms abilities, patrolling experience and investigative
experience, and from different legal and cultural environments.58
• Because UNMIK originally considered itself bound by a constitutional ban against

extradition of citizens, Kosovo, in effect, became a safe haven for Kosovars who had
committed serious crimes abroad. To begin addressing this, the Department of
Justice negotiated bilateral arrangements with many of the most affected countries
to provide records, access to witnesses, and financial support for translators so
these fugitives could be tried in Kosovo. This allowed judicial proceedings to be
initiated by UNMIK against criminals most wanted by foreign governments; however,
it was only coincidental when this process could be used to build cases against
dangerous criminals who were a strategic priority for UNMIK. In 2003 UNMIK took
steps to amend the existing body of law to allow for the extradition of Kosovo
citizens. Years of delay in putting this mechanism into effect deprived UNMIK of a
powerful tool for ridding Kosovo of some of the most notorious criminal and extremist
elements.59
• Given the particular controversy concerning the choice of law in Kosovo, it might
have been appropriate also for the UN to impose a generic penal code and code of
criminal procedure for an interim period, along the lines recommended by the Report
of the Panel on Peace Operations (the Brahimi Report). 60
• There are two possibilities to avoid a legal vacuum: The first possibility is that the
peace keeping mission could arrive with a UN designed simplified criminal code and
a basic code of criminal procedure. Each international judge and each member of
56
Ibid, 176-177.
57
Strohmeyer, 17.
58
Rausch 2002, 21-2.
59
60
Chesterman, 12.

the police force could make himself familiar with these codes which would be their
guidelines during the mission. In my view this would be the ideal situation but one
has to face the fact that this has never happened in reality.
The second possibility is to use the existing codes inasmuch as they comply with
international standards. This was the choice of UNMIK at the beginning of the
mission. But it drew a lot of criticism for two reasons.
The first was that the local population, at long last free from Serbian oppression,
could not understand that even though the Serbs were gone, their rules were still
operative. The question which was asked time and again was: how can you
establish the rule of law with the rules of our oppressor? Even if technically answers
could be given, politically this question carried a lot of weight and certainly hampered
the cooperation of local judges and politicians at least at the outset of the mission.
The second problem which arose from such a choice was that international judges,
prosecutors and policemen were not familiar with the Yugoslav system of laws.
Therefore those who were supposed to be the role models for the population of
Kosovo did not know the body of laws they had to enforce. It took time to have a
translation of the codes. During that time, and even beyond, each international judge
or prosecutor, each international policeman had a tendency to perform according the
rules of his own country.61
2.6 Civil proceedings are vital for the resolution of property disputes
• “Recommendations:
o Police and public prosecutors should swiftly and rigorously investigate and
prosecute criminal activities related to property transactions.
o Civil courts should use facts established in the course of criminal
proceedings, or in civil proceedings involving fraudulent property transactions.
o Civil courts should suspend contested property transactions pending the
outcome of criminal proceedings on the same issue.
o Courts should rule on requests for temporary injunctions within a reasonable
time.
o Courts should identify where errors/delays in the implementation of criminal
and property law have occurred and find possible solutions to protect the right
to property and establish due process of law.
o The Kosovo Judicial Institute should train civil judges on the importance of
resolving preliminary issues in civil proceedings.
o The Kosovo Judicial Institute should train prosecutors on investigation and
prosecution of criminal offences related to fraudulent property transactions.”62
61
Cady, 2.
62
OSCE, Legal Systems Monitoring Section, Monthly Report for May 2009, 5-6.

2.7 The availability and clarity of applicable law is essential to transparency
• The Office for Management and Administration of the Official Gazette was created in
April 2006 to publish Kosovo’s Legal Gazette but has failed to effectively
disseminate consistent knowledge of the law. Reports by the Kosovo
Ombudsperson indicate that the Gazette suffers from limited distribution and
inadequately standardized translations; exacerbating the situation of legal
uncertainty even when it is clear what law applies. 63
• “An issue that was continuously raised in the previous annual reports is the constant
lack of vacatio legis in almost all the laws adopted by the Assembly of Kosovo and
UNMIK regulations promulgated during the reporting time. Vacatio legis is a period
of time between the promulgation of a law and its entry into force, with the aim of
giving the public and the authorities applying the law the chance to adjust and
prepare for the new legal situation. The recommendations of the Ombudsperson
Institution in this regard have so far not been taken into consideration as UNMIK
Regulations and Assembly Laws continued to enter into force immediately after their
promulgation. As a result, most institutions are not prepared to implement the new
legislation and both the local administration and the judiciary find themselves so
overwhelmed with the great amount of regulations and laws promulgated within a
relatively short period of time that they either fail to implement them properly, or do
not implement them at all. This is particularly dramatic, especially considering the
general lack of implementation of the laws in Kosovo. However, some of the laws
adopted by the Assembly of Kosovo on 15 June 2008 foresee that the law should
enter into force 15 days after the day of the publication of the law in the Official
Gazette of Kosovo.”64
• “It is not clear which laws from Yugoslav times are still applicable, and there is still
no higher judicial body competent to address such matters. All UNMIK Regulations
and Kosovo Assembly Laws merely state that they supersede any other inconsistent
law or other provisions, but still do not specify exactly which legal provisions or laws
they are replacing.”65
III. Link between Police and DoJ
3.1 The capacity to gather criminal intelligence is essential for successfully confronting
violent threats to the mandate
• The first requirement is to identify the threats to the rule of law, including the major
sources of interethnic violence. In early 2000 the Quint countries (i.e., Britain,
63
Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008, (July 21, 2008), 14.
64
65
Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007, 12.

France, Germany, Italy, and the United States) agreed to create a Criminal
Intelligence Unit (CIU) within UNMIK Police in order to pool relevant KFOR
intelligence with UNMIK Police information on the organized-crime threat. This
seemingly commonsense proposition was confounded by an inherent reluctance to
share intelligence, a lack of security clearances for many of the personnel initially
assigned to the CIU, and a UN structure that was philosophically and
bureaucratically unprepared to manage a criminal intelligence operation. As a result,
it took nearly two years for the body to be established under UNMIK auspices. Over
time, these challenges were addressed, particularly by the establishment of an
institutional “firewall” between the CIU, which was staffed exclusively by the Quint
countries, and the rest of the UNMIK Police structure. Another early impediment was
the lack of a common vision among the Quint countries about whether this
intelligence should be put to operational use in Kosovo. It was one thing for
intelligence to start flowing into the CIU and back to home countries. It was quite
another to convert this intelligence into actionable leads to guide the collection of
evidence against threats in Kosovo. Ultimately, the need to supplement the CIU’s
efforts with a capability to gather criminal evidence was recognized, leading to the
establishment of the Kosovo Organized Crime Bureau (KOCB) as the investigative
arm within UNMIK Police for information developed by the CIU.66
• The second problem is this: what is being created has to be sustainable when things
are run by locals. Let me take two examples of institutions of which the international
community was rather proud but, in my view, without full justification and which may
be difficult to transfer. The first is the CIU, the central intelligence unit. It was not a
UN institution: it was a creation of the Quint and was never fully accepted by the UN
which did not finance it and did not appoint the staff working for the CIU. Let us also
say that anything related to intelligence gathering is very far from the traditional UN
culture. The idea was to install in a single place intelligence officers of the five major
countries with an interest in Kosovo, namely the US, UK, Germany, France and Italy.
It was hoped that by pooling intelligence, we would have better results in the fight
against organized crime and the prevention of public disorders. In my view, this was
not a success. First of all there was very little pooling of information. Each
intelligence officer worked mostly for his own national agency and shared with
colleagues only the smallest common denominator. Second, on the local scene, the
CIU was largely unsuccessful: it did not succeed in forecasting the major riots
Kosovo had in April 2004. In the 40 months I spent in Kosovo, I do not remember
any criminal case that moved forward thanks to information or evidence provided by
the CIU. The CIU was designed and run by these five countries with the purpose of
obtaining intelligence on Kosovo. It did not help in providing hard evidence on
criminal cases of the sort that is accepted in criminal courts. Was there any idea of
transferring the CIU to locals? Of course not. These were assets and staff belonging
to the Quint countries. Few people would dispute the fact that if there is any
particular field in which Kosovars do not need any assistance, it is the area of
intelligence gathering. Albanians as well as Serbs have had years of practice in the
past. The SIOU, the special intelligence unit on organized crime was another unit
66

which it would be hard to transfer as such. Its purpose was to collect intelligence but
also evidence acceptable in courts on criminal cases. It relied on informers but also
on tapping phone calls. As most of the telephone network was linked to former
Yugoslavia, there was a lot of eavesdropping on many sides. There again the
transfer to local authorities could not be complete.67
• The DOJ is training local police officers and lawyers in the use of new, high-tech
surveillance equipment that will reduce the need for relying on witnesses (whom
they cannot protect). Over the next year, the DOJ intends to follow the police’s
example of building an elite, interethnic team that can conduct complex criminal
investigations, particularly around issues of organized crime and terrorism.68
• The UNMIK Department of Justice (previously called the Department of Judicial

Affairs) is creating a special unit where police, prosecutors and KFOR will work
together to build cases using classified intelligence. The plan is for the military to
provide support through intelligence that can be shared with prosecutors and/or
investigators who have the necessary clearance.69
3.2 The capacity to conduct criminal investigations is essential for successfully

confronting violent threats to the mandate
• Perhaps the most vexing challenge was to develop the evidence required to bring
perpetrators of political violence to justice. UNMIK was hamstrung in its early efforts
by obstacles in the applicable law. Evidence gathered by covert means, such as
video cameras or wiretaps, was not considered admissible. No provisions existed for
granting immunity to witnesses or for protecting their identities. Even after these
deficiencies in the applicable law were overcome in 2001 and 2002 through the use
of UNMIK’s regulatory authority, many standard investigative means remained
unavailable. The United Nations opposed the payment of informants from UN funds,
and it delayed the delivery of surveillance equipment for more than a year after the
United States had provided funding for acquisition. Although a forensics lab was
established after considerable delay, prosecutors remained reliant on witnesses. In
spite of the creation of a witness protection program, resources were not available to
operate it effectively, and thus witnesses continued to be vulnerable to intimidation.
The justice system was unable to make adequate use of its authority to prosecute
the most dangerous threats to the rule of law, therefore, because of a lengthy
international failure to support it with the necessary resources. Years passed before
substantial progress could be made. In mid-2002 the UNMIK Police commissioner
reformed and expanded the nascent KOCB and forged effective working
relationships with KFOR and the UNMIK Department of Justice. The KOCB included
specialists in various investigative disciplines, including the use of technical devices,
supplemented as necessary by KFOR’s surveillance capability. The integrity of the
67
Cady, 4-5.
68
Pieriello and Wierda, 33.
69
Rausch 2002, 27.

organization was maintained through the use of polygraphs and periodic internal
surveillance on its own personnel. To facilitate the flow of prosecutable intelligence
from KFOR, the UNMIK Department of Justice established a Sensitive Information
and Operations Unit (SIOU). The purpose was to identify key figures involved in
criminality, provide a mechanism for processing intelligence into a format usable in
open court proceedings, and secure the arrest of these key figures. It was essential
that lawyers assigned to the SIOU have the requisite security clearances from a
NATO country.70
• In addition, the IJP may provide a model for what kind of police protection the
Kosovar jurists should be provided, and proper judicial/prosecutor working
relationships with the police, including close supervision of investigations and
prevention of human rights abuses, both of which will be required to end an
atmosphere of impunity.71
3.3 The ability to conduct intelligence-led operations is essential for successfully

• With the passage of time, UNMIK and KFOR developed an understanding of the
various political-criminal power structures at play in Kosovo and the threats they
posed to a sustainable peace. To confront this threat effectively, a process was
needed to focus the limited resources of the international community decisively on
the key figures involved. A key component of this strategy was to use intelligence
resources already in place to identify potential high-value investigative targets. Two
mechanisms were created in 2002 for this purpose. A Tasking Coordination Group
(TCG), which comprised the heads of the CIU, KOCB, SIOU, and KFOR J-2
(Intelligence) and the deputy commander of MNB(C), met every two weeks to
assess the available intelligence and develop priorities. Its recommendations were
presented to an Overview Coordination Group (OCG) chaired by the UNMIK Police
commissioner, with the director of the Department of Justice and the commander of
MNB(C) also participating. The OCG met once a month to establish priorities for
investigation and prosecution and allocate respective resources accordingly.
Originally, this approach was confined to interaction between UNMIK and MNB(C),
but it was so successful in bringing the most threatening criminal figures to justice
that it was expanded Kosovo-wide, and the KFOR chief of staff replaced the MNB(C)
commander on the OCG.72
70
71
Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict
Peacekeeping, United States Institute of Peace Special Report No. 112 (Washington, D.C.: United States
Institute of Peace, October 2003), 12.
72

3.4 The ability to conduct high-risk arrests is essential for successful intelligence-led
operations and confronting violent threats to the mandate
• In the face of widespread attacks against the Serb population at the inception of the
mission, it was clear that UNMIK Police would need the capability to counter a high
level of violence. The UNMIK Police commissioner drew on personal contacts to
arrange for the early recruitment of a cadre of highly professional and experienced
tactical police who specialized in high-risk arrests. These officers were called on
frequently from the outset of the mission to conduct high-risk arrests (usually with
the teams carrying out the arrest while KFOR and UNMIK crowd-control units
provided a wider security cordon around them). Owing to the novelty of this type of
mission, the United Nations was unprepared and unable to provide appropriate
equipment and logistical support for this function for more than a year. The unit
depended on ad hoc support from the contributing nations for appropriate weapons
and other necessary equipment. The professionalism of the UNMIK Police during
the operation to take control of the lead smelter at Zvecan in the summer of 2000 so
impressed British commanders that they actively sought to work with this specialized
unit to deal with high-priority targets in their MNB. The proficiency of the high-risk
arrest team was demonstrated throughout 2002 with the apprehension of more than
sixty former KLA members suspected of involvement in a range of violent crimes.73
3.5 A crowd-control capability is essential in confronting violent threats to the mandate
• UN planners anticipated a need for a crowd-control capability based on the

experience in Bosnia where implementation of the Dayton Peace Accords had been
stymied by orchestrated civil disturbances. As a result, UNMIK Police included ten
formed police units, called Special Police Units (SPUs), each with 115 men and
equipped with riot-control gear, body armor, and armored vehicles. KFOR also
included a similar capability with its Multinational Specialized Unit (MSU). It took
almost a year before the SPUs began deploying to Kosovo. Initially, there was
strong resistance at senior levels within UNMIK to the use of either the SPUs or the
MSU in a crowd-control capacity, owing to the fragility of the peace process and
uncertainty about how they would perform. As a result, the SPUs were used to
supplement UNMIK Police, providing protection for Serb enclaves, support for the
close protection and high-risk arrest units, prisoner escort, and point security for
high-priority locations such as courthouses and UNMIK facilities. When UNMIK
began arresting Serb bridge watchers and former KLA members wanted for
murdering rival Kosovo Albanians during and after the war, the SPUs were an
invaluable asset. These arrests provoked the sort of orchestrated civil disturbances
encountered previously in Bosnia, including violent assaults on UNMIK Police. The
SPUs provided the capacity to control and defuse the situation. They were so
successful in one of the earliest encounters that the demonstrators, KLA support
73
Ibid, 180-181.

groups from outside Pristina, eventually grew frustrated and turned to attacking city
residents in downtown restaurants for failing to join the confrontation with UNMIK.74
• Use of (excessive) force is a critical issue. It is important above all that the UN
principles are applied across the board. 75
3.6 UN Police should be instructed and monitored for proper interaction with the public
and held accountable for adherence to international standards
• A system of accountability for international police which includes clearly defined

rules and procedures must be established and in place at the outset of a mission…
The civilian police authorities and the military must have standing systems of
coordination and information sharing from the outset. 76
IV. Link between Executive and DoJ
4.1 Measures to preserve the independence of international judges are necessary
• A major criticism of the IJP system has been that its structure gives the SRSG the
ultimate executive power to appoint international judges and prosecutors and
choose cases in which they are to be involved. Moreover, UNMIK’s DOJ is the
supervising authority over international judges and prosecutors, extending their
contracts. International judges are not subject to the Kosovo Judicial and
Prosecutorial Council (KJPC), the body that appoints and disciplines local judges,
and there is no local involvement in the oversight of IJPs[…].the very short
contractual periods for international judges and prosecutors, and the fact that each
extension of these contracts is solely dependent on UNMIK’s executive branches—
DOJ and, ultimately, SRSG—create an appearance of executive control over these
officials.77
• There are no enforceable criteria for executive decisions about which cases have
international judges and prosecutors or which individual judges and prosecutors get
assigned. Ironically, the stated objective of the regulation, to ensure independence
and impartiality, has garnered a perverse result. The lack of any mechanism to
ensure a random assignment of judges to cases creates the perception that the
executive may interfere at any time with any given case. In addition to the
institutional mechanisms that have allowed for room for executive interference into
74
75
Rausch 2002, 22.
76
Rausch 2002, 31-2.
77
Pieriello and Wierda, 19-20.

the judicial function, there have been concerns that the executive has interfered
directly with the decisions of judges in special cases.78
• While the IJP program itself and the efforts of individual internationals may enjoy a
measure of credibility in Kosovo, the wide discretion of UNMIK’s executive over
judicial matters has clouded perceptions of independence and been a stumbling
block to establishing respect for the law…79
• Among the war crimes and interethnic cases that constitute the bulk of the IJP
caseload to date, the primary controversy has been whether the SRSG’s and DOJ’s
selection of cases has been politically biased. Many observers, including both
Kosovars and internationals, believe the UNMIK executive exerts too much influence
on the criminal justice process. Regardless of whether it is justified, there is a local
perception that political interference has disproportionately protected potential Serb
defendants, and many allege that UNMIK has a pattern of “caving in” to Serb
demands. Some argue that many cases initially brought against Serbs before local
panels resulted in dramatically reduced charges, sentences, or acquittals when the
IJPs took over.80
• OSCE and UNMIK human rights ombudsmen have argued that UNMIK SRSG’s
having the authority to appoint and renew the usual six-month employment contracts
of the international judges and prosecutors, and to determine which cases they will
hear, constitutes a violation of the separation of powers between the executive and
the judiciary and a violation of the independence of the judiciary. 81
• The conflation of executive and legislative power has provided significant room for
interference in the judicial realm. The promulgation of legislation establishing the
Commission on Executive Detentions illustrates the lack of checks on executive
power.82
• The KJPC, which provides recommendations to the SRSG on the discipline and
removal of local judges, has local as well as international involvement, including
minority representation, and has begun to function effectively.…The fact that the
KJPC is only a consultative body and not truly independent from the executive, and
that the SRSG has legislated for himself the power to remove local judges and
prosecutors on his own motion, without any recommendation by the KJPC, is
troubling.83
• The conflation of UNMIK’s powers has provided room for executive abuse of
authority, including the promulgation of legislation intended to usurp the judicial
78
79
Pieriello and Wierda, 19-20.
80
Ibid, 20.
81
Colette Rausch (ed.), Combating Serious Crimes in Postconflict Societies: A Handbook for
Policymakers and Practitioners (Washington, DC: United States Institute of Peace, 2006), 87.
82
83
Ibid, 121.

function and ensure the success of the executive agenda. There has been a failure
to develop any legislative process, including ensuring meaningful consultation with
local actors and transparency. The lack of a process has resulted in ineffective laws,
often not implemented, and has created serious obstacles to the ability of the courts
to apply the law.”84
• The courts have declined to take an active role and act as a counterbalance to the
power of the SRSG. Expectations that the local judiciary would grasp and interpret
human rights principles, assert its authority over the SRSG, and provide a remedy
may have been unrealistic in light of the realpolitik of the Kosovo community.85
• The way in which the judiciary and prosecution services have been established by
UNMIK has caused concern regarding the independence of the courts. The ad hoc
process for the introduction of internationals into the system has not achieved the
goals that many advocates had hoped for. Rather, the process has created the
potential for harm to the local community’s perception of justice because of a
seemingly parallel international court system with ties to the executive.86
• There is a need for some system of accountability for the actions taken by the UN in
contravention of international human rights standards… (a) realistic system of
accountability could in fact rely upon the panels of international judges and model
criminal code discussed above. 87
4.2 Executive power to declare laws, regulations, etc. must be adequately defined and
circumscribed consistent with international standards
• UNMIK was not created as a democratic administration and cannot be expected to

possess the qualities of a democratically elected legislative branch. The foundational
concepts of democratic legislatures such as legislative transparency, public
commentary and awareness, accountability to the needs and expectations of
constituencies, and constitutional or other limitations could not be inherent to the
way in which UNMIK created laws…As the mission developed, the number of
legislative reform initiatives grew, and UNMIK did not craft a plan to ensure the
effectiveness of the legislative process. The result was catastrophic. There was no
oversight of who was drafting laws or how drafts impacted or related to each other
and the preexisting law. The JAC became less and less relevant and OLA began to
bypass the consultative process altogether.88
• Peace-building missions need to be premised on the recognition that developing a

justice system based on the rule of law and human rights is the key to a successful
84
Ibid, 103
85
Ibid, 120
86
Ibid, 121
87
Day, 10.
88

democratic transition. International administrations must be structured to limit the
amount of power vested in the transitional administrator and ensure a more
sophisticated system of checks and balances. In peace-building missions that
require some degree of autocratic decision-making, meaningful efforts need to be
made to ensure that actions do not undermine fundamental principles of democratic
governance. Such missions should function within a clear legal framework, which if
not rooted in a constitution, at a minimum has at its core international human rights
standards. Regardless of the nature of the executive power, whether local or
international, such a framework must be applicable to all authorities, including the
security component. In this regard, it must be made explicit that security forces,
particularly when undertaking civilian functions, are obligated to conform their
actions to the law.89
• …the [Constitutional] Framework does provide for a democratically elected

government with competencies in certain areas, other functions inherent to a self-
governing administration are left to international actors. UNMIK continues to solely
control the areas of law enforcement and justice, both considered to be beyond the
capacity of the locally elected government actors. Although not expressly addressed
in the Framework, it is understood within the mission that formulating legislation
concerning law enforcement and criminal justice remains solely within the
competencies of UNMIK. More broadly, the SRSG has retained all powers of
executive and legislative authority to ensure the implementation of Resolution
1244.These areas of “reserved powers,” including an unfettered legislative veto,
appear to be so far-reaching as to undermine the democratic legitimacy of the
Framework itself.90
• The Constitutional Framework does little to provide legal certainty and clarity as to
the legislative process because certain areas of lawmaking are presumed still to fall
within UNMIK authority and all legislative acts are to be vetted by OLA and approved
by the SRSG. Presumably, OLA can make unilateral changes to any laws suggested
by the Assembly…91
• Without a clear framework set out in the applicable law for the realization of rights
and a mechanism for the restraint of excessive state power, the disproportionate
authority concentrated in the SRSG could go unchallenged. The obligation to uphold
internationally recognized standards and not to discriminate could be rendered
meaningless because there would be no framework within which to enforce them.
UNMIK’s power could be used arbitrarily and unfairly, without accountability,
transparency, or predictability— in contravention of the meaning of justice and the
rule of law.92
89
Ibid, 144.
90
Ibid, 107
91
Ibid, 118.
92
Ibid, 104.

• However, the very institution in charge of leading the democratic transition and SSR
agenda possibly undermined its own work by breaking rules that are supposed to
constitute building blocks of both the democratization and the SSR processes. For
instance, it ordered ‘executive detentions’, making use of its unrestricted authority to
bypass the local justice system and the law in force in the province. 93
• The extra-judicial powers of the international community have often been perceived
by the Kosovar leadership and community as political in nature. The perception
among Kosovars is that the international administration was often politically oriented
and one-sided regarding its influence. 94
• The UN has ignored a recommendation from the OSCE that no law be passed
without its being translated. In addition, the public was not informed about the state
of the law or of legal reform initiatives, and there were no attempts to undertake
public relations campaigns to increase awareness. The acute failure to address
these issues continues to hamper the timely and effective implementation of the
laws.95
• The conflation of UNMIK’s powers has provided room for executive abuse of
authority, including the promulgation of legislation intended to usurp the judicial
function and ensure the success of the executive agenda. There has been a failure
to develop any legislative process, including ensuring meaningful consultation with
local actors and transparency. The lack of a process has resulted in ineffective laws,
often not implemented, and has created serious obstacles to the ability of the courts
to apply the law.”96
4.3 Leadership and morale among international staff is important to establish and
maintain
• One lessons of the Kosovo experience is that leadership and morale among
international staff matter.97
• The UN personnel weakness originates in the senior leadership positions, not in the
quality of those selected but in the duration for which they served in Kosovo. 98
93
Bernabéu, 77.
94
Robert Muharremi, Lulin Peci, Leon Malazogu, Verena Knaus & Teuta Murati, Isa Blumi (ed.),
Administration and Governance in Kosovo: Lessons Learned and Lessons to Be Learned, Center for
Applied Studies in International Negotiations (2003), 5.
95
96
97
Rausch 2006, 301.
98

V. Defense Counsel and Private Bar
5.1 The private bar should be an integral part of justice reform and rehabilitation
• Law graduates are poorly prepared to practice law, in large part due to weak and
theoretical legal educations, and advocates are not required to take a minimum
number of continuing legal education [hereinafter CLE] hours each year.99
• The ethics, competence, and diligence of many advocates leave much to be desired.
Court-appointed counsel for indigent defendants are too often unprepared and
passive in their representations. The KCA has so far been insufficiently proactive
and aggressive in setting and enforcing standards in certain areas, including
admission requirements, disciplinary prosecutions for unethical behavior, CLE, and
practice specialization.100
• Kosovo now meets international standards in the areas of academic requirements,

nondiscriminatory admission, and formation of independent law practices.101
• The 1979 Law on Advocacy still governs the legal profession even though it is from
the SFRY era and is not adequate for the current situation in Kosovo. Unfortunately,
a new law has been awaiting UNMIK’s approval for nearly three years. Even the new
law appears to have some deficiencies compared to its predecessor and needs to
be revisited. 102
• The KCA leadership is increasingly aware of the need for improvements in the legal
profession and in the programs and services it provides to its members and the
public. The KCA has undertaken efforts to fill this need. 103
• While women continue to be underrepresented among advocates at 10.4% of the

total, this share is a 46% increase over the 7.1% figure reported in 2004. The KCA
has established a committee on women and minorities, and has launched initiatives
intended to improve conditions for these groups and attract members to the
profession.104
• The University of Pristina law faculty has started legal clinics and a legal
methodology course, both of which have the potential to improve the practical
preparation of prospective advocates and to prompt other law faculties to offer
similar opportunities.105
99
American Bar Association 2007, 10-11.
100
Ibid.
101
Ibid.
102
Ibid.
103
Ibid.
104
Ibid.
105
Ibid.

• Women continue to be severely underrepresented in the profession, despite
improvements since 2004 and efforts by the KCA to attract them. While ethnic
minorities collectively are reasonably well represented, there do not appear to be
any Roma advocates.106
5.2 Access to defense counsel should be an integral part of justice reform and
rehabilitation
• Advocates are often threatened with physical violence by opposing parties, crime
victims, and their respective family members who either identify them with their
clients or seek to intimidate them into withdrawing from their cases. 107
• In Kosovo, UNMIK identified lawyers of different ethnic backgrounds who were

qualified and willing to serve as defense counsel in such cases, and it provided each
detainee with a list of their names. The enormous number of detainees, however, by
far exceeded the number of available lawyers.”108
• Defense lawyers may be paid privately by their clients, but when they are court-
appointed or ex officio, counsel receives a maximum of around 250 Euros a month,
regardless of hours worked. Payments for ex officio lawyers are also often delayed.
Moreover, because the payment has a maximum ceiling, there is little incentive for
defense lawyers to devote more than a few hours to their cases. There is no legal
aid system, and the responsibility for establishing one should be assumed by the
new Ministry of Justice, due to begin work in 2006.109
• The overwhelming majority of advocates are poorly compensated.110
• The government of Kosovo offers free legal counsel to needy individuals in most
criminal proceedings, but the compensation is fairly low and most established
advocates rarely if ever accept these engagements. Many of these cases are,
therefore, handled by relatively inexperienced advocates who often fail to serve their
clients diligently, actively and zealously. Free legal aid to the indigent is no longer
available in civil or administrative matters, but a recent regulation (which has not yet
been fully implemented or funded) would establish a program for doing so. Some
advocates provide pro bono representation from time to time, but no statistics on
these efforts were available.” 111
• Nothing in the 1979 Law on Advocacy gives advocates the legal right of access to
detained clients or suitable opportunities to prepare a defense. In contrast, Article
18 of the Pending Law on the Bar expressly entitles an advocate to meet with his or
106
Ibid.
107
Ibid.
108
Strohmeyer, 55.
109
110
111
Ibid, 47.

her client in private and without time restrictions, especially when the client is under
detention. The appropriate authorities are obligated to send for the advocate when
the client so requests.”112
• The Criminal Proc. Code contains provisions respecting the rights of both advocates
and their clients to confidential communications. These provisions are generally
followed by the state, although facilities for advocate-client conversations are often
inadequate. Broader protections are provided by the 1979 Law on Advocacy, but
will not be available if such law is replaced by the Pending Law of the Bar in its
present form. 113
• Advocates have the right, with certain reasonable exceptions, to represent their
clients in criminal cases and are generally treated equally by the courts. Concerns
have surfaced over a perceived tendency of at least some judges to defer to the
evidence and arguments of prosecutors, among other issues of equality. In civil and
administrative cases, almost anyone can legally represent a party, and lawyers who
do so are allowed to appear before the body and receive equal treatment when
doing so.114
• Despite the improvements brought about by the new codes and the demonstration
effect of the involvement of internationals, respect for the rights of the accused
remains a concern. Commentators point out that accused continue to be denied the
right to challenge decisions on detention, to avoid extended detention, to a speedy
trial and to an effective defense.115
• Virtually all reports received by the assessment team indicate that there is no
problem in Kosovo for an advocate to obtain access to meet with a detained client
without time restrictions, and in fact that the situation has improved over the past
three years. The one deficiency pertains to the inadequacy of facilities for the
advocate to meet with his/her client. There are very few detention buildings or
courthouses that have rooms set aside for this purpose, so communications
between advocate and client must often take place through cell doors, in hallways,
or even in offices where other persons may be present. There do not appear to be
any concrete plans to construct facilities in the future in order to remedy this
problem. It is, therefore, physically difficult for the advocate to meet privately with
the client to prepare his/her defense for trial. 116
• The Criminal Defense Resource Centre (CDRC), a nongovernmental organization

(NGO), was established to support the defense; support has been provided for the
Kosovo Chamber of Advocates (KCA)”117
112
Ibid, 18.
113
Ibid.
114
Ibid, 21.
115
Ibid, 25.
116
Ibid, 17.
117

• The quality of defense counsel has also been improved through assistance by the
CDRC, an NGO staffed by national and international lawyers with support from the
OSCE. The CDRC provided direct legal assistance in war crimes cases, including
advice and case assistance by international lawyers.”118
• “The defense teams in cases involving IJPs comprise mostly local lawyers. They are
paid by the Department of the Judicial Administration (DJA) under the Ministry of
Public Services (MPS). For certain high-profile cases, such as those against senior
KLA officers, private funds have been raised to hire leading defense lawyers….
Many observers speak of improvements in the skills of local lawyers, who are
adjusting to the adversarial nature of the trials, both in facing IPs and practicing
under the new code.”119
• The CDRC came to serve as an invaluable resource for local defense counsel,
providing access to relevant international instruments and research material related
to the rights of the accused, case preparation and research and help challenging
violations of international standards in criminal matters. 120
• Kosovo’s civil and administrative procedure codes allow virtually anyone to

represent parties to those proceedings, permitting law to be practiced by people
having no minimal educational or other qualifications, ethical requirements,
disciplinary recourse or other regulation.121
VI. Relationship with Local Entities

6.1 Transforming systemic threats to the rule of law is a precondition for transitioning to
local ownership
• UNMIK was expected to fill a void until local capacity could be developed. The
conventional wisdom indicated that ownership should be transferred to local
institutions as rapidly as possible to avoid creating a dependency on the
international community. Unless qualified, however, this lesson could produce
dangerous outcomes. Merely building institutional capacity is insufficient when
violence remains the dominant political resource and illicit sources of wealth
determine who governs. The timing of the transition to local ownership must be
conditioned on both the willingness and the capacity of domestic institutions to
overcome the threats to the rule of law in their environment. Otherwise, when the
withdrawal of international security forces takes place, ownership of these
118
Ibid, 24.
119
Ibid.
120
Rausch 2007, 287.
121

institutions will be likely pass to a criminalized political elite, making a mockery of the
rule of law.122
• Institutionalizing the rule of law was initially regarded primarily as a matter of

establishing capacity. The assessment provided by the secretary-general on July 12,
1999, for example, states, “The security problem in Kosovo is largely the result of
the absence of law and order institutions and agencies.” Because the institutions
responsible for order, law, and justice had collapsed, international personnel would
have to provide temporary substitutes. The need to take a holistic approach was
generally recognized, but international capability did not exist to put this concept
immediately into practice. By default, this meant that KFOR had to establish public
order, provide detention facilities, and facilitate a rudimentary judicial process. For
UNMIK, the overriding imperative was to field the personnel required to begin
enforcing the law, administering the judicial system, and reestablishing the prisons
as swiftly as possible. UNMIK eventually assumed full custody of law enforcement
from KFOR. Subsequently, as recruits for the KPS were trained and had
demonstrated their competence, UNMIK Police transferred increasing responsibility
to the KPS. The relationship thus evolved from an international custodianship over
law enforcement into a partnership. With the judiciary, in contrast, UNMIK rejected
proposals to include internationals in the system and opted instead to rely totally on
Kosovar judges and prosecutors. When the local judiciary proved incapable of
dispensing equal justice to Kosovo Serbs, international judges and prosecutors had
to be inserted into the process. Thus, UNMIK’s approach to establishing institutional
capacity was inconsistent. Policing evolved progressively from international
custodianship to partnership with the KPS. The judiciary, however, was given
greater responsibility than it could handle initially, and internationals had to assert
increasing control over politically sensitive matters.123
• One of the salient lessons evolving from Kosovo is that it is unrealistic to expect
members of a previously subjugated and brutalized community to begin
administering equal justice to members of a population that they identify with their
former tormentors. Under these circumstances, the relationship between
international personnel and the local legal profession should begin with international
custodianship over cases of an intergroup or a politically charged nature.124
• As the mission in Kosovo progressed, the international community came to

recognize that the initial concept of establishing institutional capacity and
transitioning directly to local ownership would be insufficient. This was problematic
because the context, in both the Albanian and Serb communities, was characterized
by a dangerously high degree of overlap between criminal and political power. The
transition to a local police force, judiciary, and prison system would not be conducive
to the rule of law while forces hostile to Resolution 1244 were able to assert
ownership over these institutions. Only after these political-criminal power structures
122
123
Ibid, 164-5.
124
Ibid.

had been dismantled, or at least dislodged, could the institutions responsible for the
rule of law operate autonomously from destructive extremist and criminal interests.
The strategy evolved, therefore, beyond the establishment of institutional capacity to
include shaping the context by disrupting, dislodging, and, to the extent possible,
dismantling the extremist networks that were bent on obstructing and subverting the
peace process. The deployment of specialized crowd-control units was necessary
but not sufficient for this purpose, because their capability allowed a response only
to the symptoms of obstructionism, not the means to address the sources. Toward
the end of 1999, KFOR and UNMIK began to develop the full spectrum of
capabilities—from intelligence to incarceration—that would allow them to dismantle
rogue power structures. To prosecute high-profile and politically sensitive cases
successfully also required the use of international judges and prosecutors, who,
unlike their local counterparts, could be protected from intimidation and coercion by
extremist elements in both Kosovo’s ethnic communities.125
• The existence of parallel institutions, including courts, which are seen as more
legitimate by minority communities, is reinforced by barriers to access that exist in
the Kosovo judiciary. The Ombudsperson highlights the unavailability of translation
services, physical insecurity, and the reluctance of counsel to represent members of
minority groups as factors contributing to minority preferences for parallel courts.126
• Both courts and non-judicial parallel institutions benefit from ambiguity in the
UNMIK’s legitimacy. In particular the inability of UNMIK to grant documents, like
birth certificates and driving licenses, that are recognized internationally encouraged
the population to seek documents from parallel institutions.127
6.2 Clear institutional mandates, particularly those that create channels of accountability
for international actors, are essential to promoting perceptions of institutional legitimacy
• Accountability measures must provide for continuity when domestic institutions

replace international actors. In January 2006 the mandate of the Ombudsperson to
investigate allegations against UNMIK was to pass to the newly created Human
Rights Advisory Panel. However the status of pending cases was not addressed
until November 2007. In the interim period the Ombudsperson delayed action on
over 50 cases.128
• The introduction of international judges into the Kosovo judiciary inadequately

provided for transparency and judicial independence. The Ombudsperson has
recommended that the appointment process be informed by international actors
125
Ibid.
126
Ombudsperson Institution in Kosovo, Fifth Annual Report, 2004-2005, (July 11, 2005), 20.
127
Ombudsperson Institution in Kosovo, Third Annual Report, 2002-2003, (July 10, 2003), 5.
128

outside UNMIK, specifically the European Court on Human Rights and that an
independent body be created to hear complaints against international judges.129
VII. The Judicial, Prison and Corrections System

7.1 UNMIK was premature in turning ownership of the judicial system immediately over
to local judges
• In Kosovo: An Unfinished Peace, William O’Neill, UNMIK’s senior adviser on human

rights from August 1999 to February 2000, provides this assessment of the
performance of the judiciary: “Instances of bias against Serbs and other minorities
among the Albanian judiciary surfaced early during the Emergency Judicial System
and have continued ever since. . . . Albanians arrested on serious charges, often
caught red-handed by KFOR or UNMIK police, frequently were released immediately
or were not indicted and subsequently released. Meanwhile, Serbs, Roma, and other
minorities arrested on even minor charges with flimsy evidence were almost always
detained, and some stayed in detention even though they were not indicted.” 130
• On June 28, 1999, the SRSG established the Joint Advisory Council on Provisional
Judicial Appointments to screen and recommend judges and prosecutors for an
initial three-month period. International representatives held three of seven seats,
with the remainder divided equally between Kosovo Albanian and minority
representatives. Aided in part by the list of judges and prosecutors that the OSCE
had developed earlier, fifty-five judges and prosecutors were appointed under this
provisional system before it was superseded in October 1999. Because Serbian
judges either fled or were soon intimidated into leaving, the vast majority of judges
were ethnic Albanians. This cadre began functioning as a mobile court for the
purpose of conducting detention hearings for the various KFOR MNBs. KFOR
provided transportation, security, and makeshift courtroom facilities, in addition to
performing investigations and holding initial detention hearings. This emergency
judicial system struggled to process the backlog of detention hearings that had built
up in response to the wave of violence against Serbs throughout the summer of
1999. As a result, few cases were investigated. Under the civil law tradition observed
in Kosovo, investigations were to be performed under the supervision of a judge;
however, the number of judges available was insufficient to perform this vital
function. Because little evidence was being developed, indictments were very rare.
In December, this paralysis in the legal process reached a crisis point; after six
months detainees had to be either indicted or released. The response by UNMIK
was to draft a regulation extending the period of pretrial detention for serious
offenses to one year. KFOR dealt with this conundrum by adopting a practice called
COMKFOR holds. Detainees in KFOR custody could remain locked up in spite of a
judicial release order if the KFOR commander determined they constituted a threat
to safety and security. This was regarded as a violation of judicial independence and
129
130
Ibid, 177-178.

the rights of detainees by the human rights community and provoked a prolonged
confrontation, especially with the OSCE’s Legal Systems Monitoring Section
(LSMS). Although the merits of this action can be debated, it was indisputably an
indication of the incapacity of the local judicial system to meet one of its most basic
responsibilities.131
• From August 1999 until January 2000, when international judges were brought in,
cases in which members of the Serb minority were the accused parties were
frequently fraught with irregularities. Such cases resulted in longer preventive
detentions, harder punishments or downright injustice…on the other hand the
judiciary would be strikingly lenient with Albanian offenders…this situation created a
widespread sense of impunity in the province, fertilizing the ground for criminal
organizations and fostering a wave of rampant violence and revenge against Serbs
and other minorities.132
• One of the principal failings of the Kosovo judiciary was that individuals accused of
the same crime were treated differently, based on their ethnicity, and as a result of
when they were detained. 133
• As a result, the Kosovar judiciary could make decisions that the IJ opposed, and to
add insult to injury, then use the IJ’s presence for “window dressing” to justify an
unjust decision. Even if the IJ had vehemently dissented in chambers, the Kosovar
criminal procedural law, like many other continental European judicial traditions,
does not allow any judge to reveal to the public or parties the results of judicial
voting, including whether a decision is unanimous or not.134
• In September the provisional Joint Advisory Council was replaced by an Advisory

Judicial Commission (AJC). In another strategic choice that later experience would
show to be misguided, Kosovo Albanian representatives were given control over the
commission, with seven of the eleven positions. In December 1999 the AJC began
making longer-term appointments to all courts of Kosovo. By September 2000 the
AJC had appointed 405 judges and prosecutors and the operation of the courts had
been restored at all levels across Kosovo. Staffing the court system, however, did
not equate to administration of justice, and placing ownership of the appointment
process immediately into local hands did not constitute a formula for institutionalizing
the rule of law. Kosovo Albanian members were inclined to make appointments on
personal or political grounds rather than on the basis of professionalism. Nor did the
AJC ever take disciplinary action to redress misconduct by its appointees. The AJC
did act, however, to remove the one Kosovo Albanian district court president who
had been willing to conduct proceedings in both languages when Serbs were
involved. The AJC fell into such disrepute that by December 2000 it had ceased to
function, and its mandate was not renewed. It had overcome the shortage of
131
Ibid, 172-173.
132
Bernabéu, 75.
133
Day, 7.
134
Hartmann, 10.

personnel (judges, lay judges, judicial staff, prosecutors court clerks, court
administrators, etc.), but at a high price in terms of the rule of law.135
• Whereas the international community had taken full responsibility for policing at the
inception of the mission, UNMIK initially rejected the use of international judges and
prosecutors in the legal system. As a senior UNMIK official observes, “There was
too much optimism. We thought, ‘Let’s appoint some judges, some good people,
they have their freedom and they will be good and behave properly.” As a result, the
international role was defined in very limited terms. Colette Rausch, head of the
OSCE Rule of Law office (2000–2001) notes: “Originally, it was believed that with
some remedial training and assistance, the existing crew of former judges and
prosecutors could be brought up to speed and function effectively.” As it turned out,
the capacity for impartiality in dealing with Serb accused was severely lacking, and
the overall quality of jurisprudence was deficient. The inability to retain Kosovo Serb
judges or to provide defense counsel made justice all the more inaccessible for the
Serb community. 136
• Instead of a gradual process of diminishing international involvement, therefore, as

was the case with regard to policing, international involvement in the judicial system
had to increase. There was no other way to begin developing an impartial judicial
system that could contribute to the equitable and peaceful resolution of disputes
between Kosovo’s ethnic communities. Equally vital was the need for international
judges and prosecutors to play a decisive role in depriving violent obstructionists of
their capacity to intimidate the judiciary and thereby thwart the peace process.137
• Although the IJP system has not fared badly in terms of total numbers tried, it may
be seen as inefficient if it does not result in systemic impact in terms of legacy…138
• Three approaches to improve transitional administrations in the future… (1) a phase-

out approach that starts with complete UN ownership over the judiciary; (2) clarity of
applicable law; and (3) accountability for UN peacekeepers to an outside source.139
• Albeit exceedingly fragile, the UN largely succeeded in restoring basic justice, safety
and security to Kosovo. The UN also laid down many of the essential institutional
parameters upon which justice and security could be delivered by Kosovar actors.
Regarding the second phase of peace operations, the development of
indigenous/national justice and security sector delivery, the UN has been less
successful. 140
135
136
Ibid, 174.
137
Ibid.
138
Pieriello and Wierda.
139
Day, 7.
140

• … UNMIK “working very quickly, with little chance to vet candidates thoroughly”
appointed 55 Kosovar judges and prosecutors by October 1999. Eleven months
later, in September 2000, UNMIK “had recruited 405 judges and prosecutors and
724 support staff for all the courts of Kosovo… security for all those working in the
system [was] precarious… and [ethnic] bias and prejudice, combined with a lack of
knowledge or will to impose certain human rights guarantees… led to flawed judicial
proceedings and unjust results.” Many of UNMIK’s judicial initiatives since have
been designed to rectify those early political decisions.141
• Due to their prior international isolation, the new Kosovar judges and prosecutors
were unfamiliar with the relevant human rights standards, and therefore, they were
not equipped to identify provisions of the applicable law that should be superseded
by applicable human rights law.142
• International judges and prosecutors have effectively acted on a parallel basis to the
national judicial system, resulting in a minimal transfer of capacity and skills to
national judges and prosecutors. A detailed strategy with specific goals,
benchmarks, and target dates for phases out international personnel and
empowering the national judges and prosecutors to handle these cases did not exist
for the first six year’s of UNMIK’s presence.143
• Unlike the administrative and law enforcement authorities, only Kosovars were
initially appointed to the judiciary and prosecution. The reasons underlying this
decision are not clear. Within the first six months of the mission, however, discussion
began about the need to include international actors in these bodies. The main
impetus for this was concern about the capacity of the local, mainly Kosovo
Albanian, judiciary to make impartial decisions in trials of persons alleged to have
committed war crimes and other violations of international humanitarian law against
members of their own community.”144
7.2 A sustainable transition from peacekeeping to peacebuilding requires creation of

effective safeguards on institutional performance
• The final component of UNMIK’s strategy to institutionalize the rule of law was the
development of safeguards to ensure that Kosovo’s public security entities and
overall judicial processes actually serve the public interest, respect minority rights,
dispense justice equally, and do not again become instruments of ethnic persecution
or captives of political-criminal networks. The July 12, 1999 SRSG report to the
Security Council on the concept for implementing Resolution 1244 stresses that “to
strengthen the rule of law in Kosovo, UNMIK will develop mechanisms to ensure that
the police, courts, administrative tribunals, and other judicial structures are operating
141
Scheye, 189.
142
143
Rausch 2002, 87.
144

in accordance with international standards of criminal justice and human rights.”
Safeguards are needed to provide assurance that the institutional capacity
developed by the international community will continue to function in a manner that
is consistent with the rule of law. Functionally, this entails the capacity to observe
performance (transparency) and to sanction misconduct (accountability). Structural
safeguards within the state are part of the answer. This includes open elections that
permit transitions in power, judicial autonomy, and independent oversight bodies
with effective disciplinary mechanisms for each institution involved. Safeguards in
civil society, such as a free press, are also essential. Ultimately, the citizenry must
have channels for airing its grievances and mechanisms for pursuing effective
remedies.145
• Domestic safeguards will be effective only after the environment they operate in has
been transformed and threats to the rule of law have been effectively confronted, as
described above. Developing adequate safeguards inevitably takes longer than the
process of building institutional capacity. Thus, there is likely to be a gap between
the completion of capacity building and the point when local ownership will be
conducive to self-sustaining peace. International safeguards are needed to fill this
gap. As SRSG Michael Steiner argued in a November 2002 speech in Berlin, even
after Kosovo’s final status has been determined, “We must safeguard these
investments.” His proposal was to have the European Union perform that function
after the United Nations has completed its mission, much as has happened in
Bosnia with the transition to the European Union Police Mission. As local safeguards
mature and demonstrate their competence, the international role can diminish. This
is a crucial difference between merely providing training programs and actually
institutionalizing the rule of law. 146
• “The UN, however, has given scant attention to the development of accountability
and oversight mechanisms and institutions.”147
7.3 Accountability and effective safeguards must be built in from the inception to the
development of the judiciary
• International oversight of the judiciary was accomplished by the Legal System

Monitoring Section (LSMS) of Pillar III as part of UNMIK’s human rights monitoring
mandate. Initially only a handful of LSMS monitors were assigned to each of the five
judicial districts, where they began reporting on basic issues confronting the
emergency judicial system, such as inadequacies in the detention process, lack of
access to effective defense counsel, and the material shortcomings of the court
system. In October 2000 LSMS began issuing reviews at six-month intervals. The
first semiannual report was harsh in its condemnation of persistent deficiencies,
such as the periodic use of lengthy pretrial detentions without suitable means of
145
146
Ibid.
147
Scheye, 192.

redress. Because this practice was largely attributable to other members of the
international community (i.e., KFOR or UNMIK), this public rebuke provoked
considerable controversy. Those responsible felt it would have been more
appropriate to use internal avenues to address this concern.
The overall performance of local judges and prosecutors was judged to be lacking in
impartiality, and their awareness of international human rights standards was
regarded as deficient. On the other hand, LSMS reports credited the introduction of
international judges and prosecutors into the legal system with curbing the ethnic
bias of the courts. Similarly, the creation of a Judicial Inspection Unit to investigate
allegations of judicial misconduct was applauded. Over time, international resources
were progressively focused on many of the deficiencies identified by LSMS, such as
access to defense counsel, leading to substantial improvement in many areas. Thus,
LSMS served as a significant safeguard on the performance of the legal system. As
Colette Rausch argues, “the fact that LSMS monitors are present in court provides
the important function of making sure that those who are administering justice know
that they will be held accountable.” As noted repeatedly in LSMS assessments,
access to defense counsel is an additional safeguard that is vital for ensuring
fairness of the judicial process, especially for members of ethnic minority groups.
During the early phase of the mission, no system was in place to pay for such
services. Training for defense counsel in international human rights standards and
assistance in case preparation were slow to materialize. Eventually, the OSCE set
up the Criminal Defence Resource Centre (CDRC) in mid-2001 as an independent
source for reference materials, practical training, legal research and drafting, and
assistance in matters such as the safe transport of Serb defense attorneys.148
• The reintegration of Serb judges and prosecutors into the legal system was another
essential means of providing a long-term safeguard so that minorities could have an
assurance of access to justice. The Department of Justice established a Judicial
Integration Section (JIS) for this purpose in 2002 and began to work with Belgrade to
recruit and hire some forty Serb judges and prosecutors. However, Belgrade
continued to sustain parallel judicial structures for Kosovo Serbs. By accepting
contracts to work for UNMIK, Serbs risked the loss of salaries and other forms of
support. UNMIK shifted the focus of its efforts toward pressuring Belgrade
authorities to eliminate these parallel judicial structures. The initial mechanism
created by UNMIK to involve the local legal community in preserving the integrity of
the judiciary was the Advisory Judicial Commission. In addition to its role in
appointing judges and prosecutors, the AJC was responsible for evaluating their
work and, as necessary, recommending dismissal. The AJC consisted of eight local
members (seven Kosovo Albanians and one Kosovo Serb) and three from the
international community, which meant that the Kosovo Albanian majority
monopolized decisions. The AJC proved to be incapable of confronting the risks
associated with disciplinary action. In an assessment conducted in February 2000, a
team of U.S. government judicial specialists urged UNMIK “to establish a process to
148
Ibid., 27–28.

remove judges who abused their positions.”149
• Owing to the inefficacy of the AJC in fostering ethical conduct, UNMIK replaced it
with the Kosovo Judicial and Prosecutorial Council (KJPC) in April 2001. With five
seats for UNMIK on the nine-member council, the majority shifted to the international
community. Given the nature of the threat to the rule of law at the time, it was
necessary for the SRSG to act decisively to create a body that could deal effectively
with the selection, discipline, and removal from office of judges, prosecutors, and lay
judges. To investigate allegations of wrongdoing, the Department of Justice
established a Judicial Inspection Unit (JIU). Additionally, UNMIK and the OSCE
drafted a code of conduct, working in collaboration with the local judiciary. In the first
three years of operation, the JIU conducted 336 investigations and submitted 37
cases to the KJPC for action (69 investigations remained pending). The KJPC
recommended eight dismissals. In addition to two international staff members, the
JIU hired a local prosecutor to investigate allegations of misconduct. The greatest
challenges impeding the transition to an expanded Kosovar role were death threats
against the local prosecutor and a meager salary that made it unattractive to remain
long enough to become proficient in the job. Moreover, understaffing of the
international posts caused a backlog of cases. 150
• The role of internationals in the reform of the Kosovo judiciary thus underwent a
strategic shift between the inception of the mission in June 1999 and May 2001,
when the KJPC and the JIU were created. UNMIK came to recognize that the local
judicial community was vulnerable to influences that opposed the peace process and
that this had rendered the AJC incapable of taking effective disciplinary action. The
impression of mistrust that resulted when the KJPC replaced the AJC and the
majority shifted to international representatives could have been avoided if this
threat had been recognized and heeded when the mission began. UNMIK ultimately
determined that to establish effective accountability for judicial and prosecutorial
misconduct, it would have to play a custodial role within the KJPC and the JIU.151
• The past few years have seen growth in the independence and efficacy of judicial
institutions. Thus, the Kosovo Judicial Institute has increasingly become a locally
administered institution, and has expanded its curricula for both the pre-appointment
judicial training programs and the continuing legal education courses for judges,
although these programs are not yet mandatory. The Kosovo Judges Association
has also increased its programming, though it has not yet been very successful in
affecting change to the judiciary.152
• UNMIK Regulation 1999/7 established the Advisory Judicial Commission (“AJC”) to

recommend candidates for judicial and prosecutorial appointment on a permanent
basis. Significant efforts, early on, to recruit minorities into the judiciary were without
149
150
Ibid.
151
Ibid.
152
American Bar Association 2007, 10.

success. Among the 354 judges (professional and lay) and public prosecutors sworn
into district courts between January and March 2000, there was not a single Kosovo
Serb. The most recent Report of the Secretary General on UNMIK states that there
are 341 local judges and prosecutors, including 319 Kosovo Albanians, four Kosovo
Serbs, seven Turks, nine Bosniaks, and two Roma. As regards international judicial
actors, there are twelve international judges and twelve international prosecutors.
The regular judicial system is comprised of the minor-offense court system,
municipal courts, district courts, and the Kosovo Supreme Court. 153
• Other than judicial appointments, the AJC was also empowered to investigate
judicial misconduct and to make recommendations to the SRSG. The SRSG did not
renew the AJC mandate and in April 2001 promulgated Regulation 2001/8
establishing the Kosovo Judicial and Prosecutorial Council, composed of nine
members, the majority of whom are internationals.154
• Despite an ever-present lack of resources and a backlog of cases caused by caution

within the KJPC, both the KJPC and the JIU functioned more successful than their
predecessor, the AJC. Their success is believed to have been largely due to the
input of local officials in developing the KJPC and the JIU, and the mixture of
international and local perspectives within the KJC. 155
• Former Albanian judges and lawyers who had been fired from their jobs during the
decade of Serbian repression were hired, despite the fact that they were on many
occasions poorly trained and there was a serious risk that their conduct in trials
would not be impartial. 156
• …the establishment of independent judicial commissions became the primary

mechanism for the selection of judges and prosecutors and served as an important
safeguard for the establishment of an independent and impartial judiciary. The
commissions were designed as autonomous bodies; they were to receive
applications from persons with a law degree, at a minimum. The commission would
then select candidates for judicial or prosecutorial office on the basis of merit and,
eventually, make recommendations on appointments to the head of the UN
mission… were to include local and international legal experts. In Kosovo, the Joint
Advisory Council on Judicial Appointments, later succeeded by the Advisory Judicial
Commission, was set up only two weeks after the arrival of the first UNMIK staff
members. It initially comprised seven lawyers, including two Kosovar Albanians, one
Bosniak (Muslim Slav), and one Serb, all of whom had extensive previous
experience in the administration of justice in Kosovo, and three international lawyers
from different international organizations…157
153
Rausch 2007, 102.
154
Ibid.
155
Ibid., 281.
156
Bernabéu, 86.
157
Strohmeyer, 52.

• There is currently a great deal of uncertainty regarding the tenure of Kosovo’s
judges. Initially, UNMIK mandated that judges were appointed for 3-, 6-, or 9-month
renewable terms at the discretion of the SRSG. In December 2001, following a
KJPC recommendation, judicial tenures were extended though the end of the
UNMIK administration. Thus, the tenure of all current judges is tied to the duration
of UNMIK’s mandate, subject to good behavior and mandatory retirement at age 65.
At that time, all of Kosovo’s currently sitting judges will be subject to a one- time,
comprehensive evaluation for reappointment to permanent tenures, a process that
will be carried out through an IJPC (an autonomous body of the KJC) […] Although
implementation of the IJPC was to start in May 2007, the signing of the relevant
operational documents has been delayed indefinitely.158
• In addition to addressing the typical issues which arise during the judicial selection
and appointment process, the Kosovo judiciary is in a unique situation in that all of
its currently sitting judges will have to be evaluated for reappointment upon the
expiration of UNMIK’s mandate in Kosovo… To address this situation, the Justice
System Framework Regulation contemplates the creation of the IJPC as an
autonomous body of the KJC. The IJPC is intended to oversee the reappointment of
existing judges and the appointment of new judges at the end of UNMIK’s mandate
in Kosovo. The IJPC model was used successfully in Bosnia-Herzegovina in 2001.
Implementation of the IJPC in Kosovo was to start in May 2007, prior to the exodus
of UNMIK. However, the signing of the enabling memorandum of understanding has
been delayed indefinitely, and thus the IJPC’s work of reappointing judges has not
yet begun.159
• The first is: what is being created, needs to be fully understood and accepted by the
local community. The idea of an impartial and competent police and justice system,
which is not corrupt or linked to any political group or ethnicity, and is independent
from local or family connections, this idea is new in Kosovo as in many countries that
have never known true democracy. Therefore what is being built in Kosovo needs to
have the trust and full support of all components of the population of Kosovo. This is
hardly the case. Albanians had more trust in the local police and justice than Serbs.
Impartiality is not hard to achieve by international policemen or judges: they are not
local players. They have none of the prejudices or complexes of the locals. But let us
face the fact and make a blunt statement: it is almost impossible for locals who, one
way or another, are members of a particular ethnicity, community or political group,
to be impartial.160
7.4 Accountability and effective safeguards must be built in from the inception of the
development of the prisons and corrections service
158
159
160
Cady, 4.

• One of the greatest safeguards that was built into the KCS is its multiethnic
composition. Some 11 percent of KCS personnel are Kosovo Serbs and other
minorities. They serve side by side with their Kosovo Albanian colleagues in what
has become one of UNMIK’s most successful endeavors of ethnic integration. A
well-run corrections system must also have “an independent oversight process or
system including a willingness to accept international scrutiny.” Both internal and
external systems of supervision and control were developed by the Penal
Management Division.161
• It was essential for the international community to play a leading role in the creation
of effective safeguards, beginning with long-term supervision of performance. Early
attempts to transfer disciplinary responsibility to locals in the judicial and penal
systems proved abortive and had to be reversed. Another common theme was the
need for the international community to play a leading role in the operation of
independent oversight bodies for each institution involved in the rule of law. This
meant that the SRSG had to remain the ultimate decision maker to ensure the
primacy of the peace process over lawless forces that were willing and able to
subvert it. UNMIK and KFOR had to demonstrate that no one had impunity, no
matter how well connected they might have been with dangerous elements of the
ex–KLA or covert Serbian paramilitary and criminal enterprises.162
• Having a system whereby prisoners could voice legal claim for violations of their
human rights would obviate a great rift that grew between locals and UN forces in
Kosovo. 163
• …acknowledged that each of these selection processes was designed with interview
and evaluation protocols to emphasize job performance and operational expertise as
criteria for promotion rather than level of formal education. More than once, senior
Kosovar Albanian officials and others complained about these promotion
procedures, claiming that a less-educated KCS officer was promoted above a more-
educated one. Though this may be a political issue, it is an indication that
promotions were based upon operational qualifications rather than a paper trail or
political patronage. 164
7.5 Justice capacity building must include training at inception
• The legal training failed to improve the quality of judicial proceedings. First, the
training programs focused on European human rights law jurisprudence, an
unknown field to local lawyers. Rather than being informed on the relevant
international case law, Kosovo legal professionals needed instruction on applying
such standards in the courtroom. In particular, judges needed to know how human
161
162
Ibid.
163
Day, 10.
164
Scheye. 187.

rights law can be used to fill gaps in domestic law, such as the right to habeas
corpus, or to void incompatible provisions in the domestic law, such as the failure to
afford detainees a right to counsel on arrest. Judges, prosecutors, and defenders
also required training on basic legal skills, such as the questioning of witnesses,
legal reasoning, the development of evidence, and the role of professional ethics.
Inadequate questioning at the investigative stage can have a debilitating effect on
the chances for obtaining a legally and factually sound verdict. Indeed, poorly
drafted written verdicts, which fail to adequately summarize the facts or explain the
legal elements of the crime, would in due course result in numerous reversals on
appeal.165
• The international community must play an active role in providing adequate

professional training to newly appointed lawyers, judges, and prosecutors so that the
judiciary will be equipped with the highest level of technical competence, will be
strongly committed to the principles of judicial independence, and as an institution
will respect human rights and understand how to protect these rights in its day-to-
day work.166
• Although some international control over the justice system should continue to
ensure a balance of power between ethnic and regional interest groups, there
should be enhanced efforts to ensure local decision making and capacity building.167
• A new Judicial Ethics Code that was adopted in 2006 is fairly comprehensive and
closely tracks the language of the Bangalore Principles of Judicial Conduct in many
respects. All judges have received trainings on the new Code, even though such
trainings are not yet mandatory.”168
• The KJI has also held procedural law workshops, including a one-week roundtable
on the Provisional Criminal Procedure Code of Kosovo [hereinafter PCPC],6 as well
as specific criminal procedure issues such as indictment procedures and evidence
(including forensics, detention, and execution of penal and alternative sanctions)…
The PCPC is in effect. It is “provisional” because it is an UNMIK Code (approved by
UNMIK Regulation No. 2003/26), not an Assembly Law promulgated by UNMIK, and
thus will cease to be effective upon termination of UNMIK’s mandate.”169
• The need for judicial training also surfaced similar attention in Kosovo, although it
was less dramatic because of the availability of a larger number of lawyers with
practical experience in the administration of justice…Nevertheless, the issue of
training had to be tackled carefully. Bearing in mind the long legal tradition of the
former Yugoslavia, many of the lawyers educated in Yugoslav universities
considered the emphasis on professional training to be somewhat patronizing. For
165
166
Strohmeyer, 13.
167
168
169

their part, Kosovar Albanian lawyers, particularly those schooled during the decade
of "parallel institutions," reacted extremely cautiously to the notion of training for fear
that the inadequacy of their experience and skills might disqualify them for judicial
office or, yet again, provide an advantage to those who had "collaborated" with the
previous regime.170
• “District courts were equipped with witness protection equipment and ISDN links
have been installed to increase the security level in terms of witness’s protection.
But despite these improvements, there are some indications that very frequently
prosecutors do not request and judges do not use such measures. There is an
insufficient awareness among prosecutors and judges of the benefit that witness
protection measures can have on the outcome of the proceedings.”171
• The key to what may prove to be a successful judicial development program is that
almost all development has been outsourced through, for example, USAID, DFID,
EU, and the EC to consulting companies and is not conducted by UN staff.172
7.6 Remedies and resources must be provided to limit delays in the judicial process
• “There is also no legal remedy providing relief in cases of excessively long court
proceedings. This issue was raised in many reports released by the Ombudsperson
Institution, which found that certain court proceedings had been so long that they
had violated a person’s right to have his case decided within a reasonable time.”173
Several cases investigated by the Ombudsperson have been pending for over 5
years.174
• Resources must be allocated to all portions of the judicial process. The execution of
judgment has been impeded by the failure to provide an adequate number of bailiffs
to the courts. Reports by the Kosovo Ombudsperson indicate that some courts have
no bailiff at all.175
7.7 Local judges and prosecutors must be adequately paid and resourced to meet the
circumstances of a post-conflict environment
• The lack of adequate translators and low pay for local judges complicated the
establishment of a working relationship between local and international judges. Even
170
Strohmeyer, 56.
171
172
173
174
Ombudsperson Institution in Kosovo, Regarding the length of proceedings in the case of Xhemajl
Pllana, (October 31, 2006). (Property dispute pending since 2001). Ombudsperson, Sheribane Ademi
against the Municipal Court in Vushtrri Vucitrn, the District
Court in Mitrovice/Mitrovica and the Supreme Court of Kosovo, (May 10, 2007). (Property dispute pending
since mid-2001).
175
Ombudsperson Institution in Kosovo, Sixth Annual Report, 2005-2006, (July 11, 2006), 22.

after pay increases, district court judges receive a yearly salary of approximately
U.S. $5,000 compared to the approximately U.S. $100,000 paid to international
judges.113 International judges and prosecutors, who received round-the-clock
armed protection, could often be seen moving through the region with a phalanx of
bodyguards, staff, and vehicles. No such service was afforded local judges, more
likely to be victims of violence and intimidation.176
VIII. Politically or Ethnically Sensitive Cases
8.1 Systemic threats to the mandate and to the rule of law must be confronted by the
mission across the full spectrum from intelligence to incarceration
• The early international response to the destabilizing waves of violence against Serbs
and other minorities involved short-term surges in the security presence. Although it
was critical to seek to deter and prevent interethnic violence, KFOR and UNMIK
Police could not be in every location where they might be needed at all times.
Beginning in the spring of 2000, UNMIK planners recognized that a strategy had to
be developed that would attack the sources, not just respond to the symptoms, of
interethnic violence and obstruction of the peace process.177
• In areas populated predominantly by Kosovo Serbs, parallel power structures

constituted a persistent threat. Mitrovica represented the most serious flashpoint
owing to the dominance there of paramilitary bridge watchers who were responsible
for the worst acts of violence perpetrated against UNMIK, including a grenade-and-
sniper assault in April 2002 that injured twenty-six international police. Adept at
orchestrating unruly demonstrations, the bridge watchers also used strong-arm
tactics to resist deployment of Serb members of the KPS in northern Mitrovica, even
after Belgrade had formally agreed to work toward their dissolution in late 2002. For
Kosovo Albanians, the challenge was both their vulnerability to lawless forces within
their own community and the inevitable difficulty of administering equal justice to the
minority population that was collectively identified with their former oppressors. A
report issued in October 1999 by the Lawyers Committee for Human Rights
documents the arbitrary nature of decisions by Kosovo Albanian judges in failing to
prosecute an inordinate number of cases against suspected perpetrators of assaults
on Kosovo Serbs. Conversely, Serbs accused of similar offenses were often
detained indefinitely without trial. 178
• In Kosovo: An Unfinished Peace, William O’Neill, UNMIK’s senior adviser on human

rights from August 1999 to February 2000, provides this assessment of the
performance of the judiciary: “Instances of bias against Serbs and other minorities
among the Albanian judiciary surfaced early during the Emergency Judicial System
176
177
178
Ibid.

and have continued ever since. . . . Albanians arrested on serious charges, often
caught red-handed by KFOR or UNMIK police, frequently were released immediately
or were not indicted and subsequently released. Meanwhile, Serbs, Roma, and other
minorities arrested on even minor charges with flimsy evidence were almost always
detained, and some stayed in detention even though they were not indicted.” 179
• The collective effect was to subvert efforts to promote the peaceful resolution of
disputes among Kosovo’s ethnic communities. The institutional context was entirely
inhospitable to the preservation of the fundamental rights of minorities, thwarting
efforts to maintain the multiethnic character of Kosovo. Lawless forces remained
untouchable in both the Kosovo Serb and the Albanian communities. These
conditions would have to be transformed for peace to become enduring and for rule
of law to prevail.180
• UNMIK would eventually have to acquire the full spectrum of capabilities—from

intelligence to incarceration—to enable the dismantling of political-criminal power
structures that were overwhelming threats to the rule of law in both the Kosovo
Albanian and Serb communities. One of the most crucial gaps was in the capacity to
gather evidence. While resources were important, it was just as vital for UNMIK to
employ its regulatory authority actively to provide a suitable legal framework for this
purpose and to establish an effective organizational structure in the form of the
Kosovo Organized Crime Bureau (KOCB).181
• With virtually no consultation with the local population—indeed, even an Albanian

lawyer in a senior UN post noted that she was not included in the decision-making
process—on February 15, 2000, the UN issued UNMIK Regulation 2000/6. This
provided for the appointment of an international judge and an international
prosecutor to work within the existing domestic judiciary along with their local
counterparts…. Despite the lack of consultation with the local population, many
welcomed the appointment of IJs because it made it possible for trials to proceed in
the Kosovo courts without a grave risk of bias or “violent blowback.182
• Kosovo is entering its sixth year in the aftermath of intensive ethnic conflict and
longstanding systematic discrimination and it has been five years since the
deployment of internationals into its legal system… The system has made halting
steps forward, although its contributions have been limited by continuing security
concerns, concerns regarding independence, ad hoc planning, and poor
implementation including the absence of any concrete plans for hand-over. 183
179
Ibid.
180
Ibid.
181
Ibid., 185.
182
183
Ibid.

• The UNMIK Regulation on Measures Against Organized Crime made prosecutions
of organized crime more viable by dramatically increasing penalties for all forms of
participation and clarifying the specific elements of the crime. 184
• While the amendments to the criminal law strengthened existing provisions, the
amendments to the procedure code gave prosecutors, both local and international,
and the police capacities that had not previously existed. The need for the
amendments was evidenced by the ease with which criminals could conceal their
activities and intimidate witnesses or victims. 185
• Because of this inability to effectively address war crimes issues in the emergency
phase, the opportunity to hold the perpetrators accountable was compromised at the
local level, and serious doubts emerged as to the commitment of the international
community to address the issue more generally. 186
• First, given the character of the conflict, it should have been possible to anticipate
postwar ethnic-related and organized crime. However, the United Nations took more
than a year to promulgate regulations and mechanisms to address these crimes;
these measures remained inadequate as of 2002. 187
• When UNMIK began its mission in Kosovo, the police were unable to ensure public
safety, and there was no judicial system to conduct trials or prisons to incarcerate
criminals. There is now a tiered structure for criminal and other cases, including
twenty-four municipal courts for adjudicating less serious criminal cases188
• Immediately after the intervention, up to 50 murders were being reported per week in
Kosovo (Ramet 2000). By contrast, the number of murders in Kosovo decreased
dramatically following the intervention from 245 in 2000 to 68 in 2002…189
8.2 International judges and prosecutors can make a decisive contribution in

• For successful prosecution of cases involving violent criminal and extremist forces,
international judges and prosecutors were required, because they were not prone to
ethnic bias and could be protected from local intimidation. The need to involve
international jurists in the legal process was raised at the inception of the mission
and again within UNMIK in September 1999. Several serious disruptions of the
peace process eventually compelled UNMIK to begin incorporating international
judges and prosecutors in an ad hoc manner into Kosovo’s judicial system.
184
Naarden and Locke, 10.
185
Ibid.
186
Betts, Carlson and Gisvold.
187
Rausch 2007, 292.
188
Wilson, 7.
189
Ibid., 11.

The event that triggered the introduction of the first international judge and
prosecutor took place in February 2000 near the divided city of Mitrovica. A deadly
military-style assault on a bus carrying primarily elderly Serbs and children
precipitated a Serb rampage against Kosovo Albanian residents living in the
predominantly Serb portion of Mitrovica. During the skirmishing, armed members of
the Kosovo Protection Corps were arrested by UNMIK Police and KFOR for firing
their unauthorized weapons at French troops and Serb apartments. The ethnic
Albanian judge involved in this case released the suspects the same day. This
prompted UNMIK to act with unusual dispatch in promulgating a regulation
authorizing the appointment of an international judge and prosecutor to the district
court in Mitrovica with the authority to become involved in any case within the
jurisdiction of the court. A few months later, Serb prisoners who had been
languishing in jail without trial for a year went on a hunger strike, demanding that
international judges be assigned to their cases.
This precipitated the ad hoc appointment of international judges and prosecutors to

be extended to all five district courts in Kosovo. While UNMIK was scrambling to
locate the additional eleven international judges and three prosecutors it estimated
would be needed to process the hunger strikers’ cases, further events made it
evident that this “temporary” measure would have to be retained indefinitely. UNMIK
soon realized that two international judges would have to be assigned to each case:
one for the investigation and another for the trial phase. With five district courts and
the Supreme Court, this required the availability of a minimum of twelve international
judges.190
• The main lesson learned from the experience of IJP in 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…Each of Kosovo’s
three judicial phases was preceded by an international hesitancy to assume
authority…Funding for witness protection is a continuous problem…The Kosovo
example provides proof that future international missions should condition their initial
deployment in the judiciary upon a worst-case scenario. Local or national jurists
should not be expected to be impartial and impervious to coercion and threats, in
light of the expected power vacuum struggle, and the influence that the former
regime had upon those jurists. These future missions should establish the most
robust international intervention possible, given the existing political and budget
realities.
While the views of the local or national jurists should be taken into account, their
understandable desire to have exclusive authority should not in itself decide the
issue of whether there should be IJP participation in the domestic judicial system.
Kosovo illustrates that the effective investigation and prosecution of organized crime,
terrorism, and inter-ethnic crime may not be within the initial capacity of existing
190

jurists, and that impartial prosecution and adjudication of war crimes may require
internationals…Other issues that can have a critical effect upon the success of IJP
interventions are the selection, peer performance monitoring, supervision, pre-
mission preparatory education, and in-mission training of IJP. While not within the
limited scope of this paper, the causes and solutions to these needs are related to
human and budgetary resources, as well as taking into account lessons learned in
Kosovo. Finally, there must be a phase-out of international involvement that makes
use of the lessons learned from phases one and two…The determination and
implementation of Kosovo’s final status do not prevent the continuation of a limited-
scope program of international judges and prosecutors; for example, both Bosnia
and East Timor have IJP. The possibility of such a continuation should perhaps be
discussed during talks on final status.191
• In order to guarantee the enforcement of the framework, an independent court

system must fulfill its role as a check on excessive state power and the protector of
fundamental rights… It must be accepted that peace and order, even in a de facto
state of emergency, can be achieved concurrently with respect for the protection of
basic human rights. Peace-building missions require both external and internal
human rights mechanisms… In situations in which the international community is
engaged in rebuilding post-conflict societies that have a history of internal discord,
there must be a substantial international presence of judges and prosecutors early
on. In particular, in cases that most challenge the capacity of local legal actors, such
as war crimes-related offences, judicial investigations must be conducted by
internationals, and the composition of the trial panel must be majority-
international…. Peace-building missions must ensure that those selected as
international judicial actors are competent for such high-profile posts. Pre-entry legal
training on relevant provisions of the domestic law and international human rights
standards is essential. International judicial actors must be independent and
impartial and subject to investigation, discipline, and removal from office….192
• …several practical issues associated with the use of international judges and
prosecutors also became factors: varying degrees of competency, different legal
backgrounds, inadequate English-language skills, and lack of proficiency with the
applicable law. Further complicating the mission was the short rotation times of a
typical assignment in Kosovo.193
• In Kosovo international judges and prosecutors have been appointed to handle

sensitive cases including war crimes, organized crime, and politically and ethnically
motivated crimes. Unfortunately, the UN has been unable to recruit and retain
sufficient numbers of qualified international judges and prosecutors. Some who were
appointed did not have the legal experience or language skills necessary to handle
191
Hartmann, 13-15.
192
Marshall and Inglis, 144-6.
193
Rausch 2007, 284.

the kinds of case they were expected to handle, and they do not always have the
support they need from qualified translators and legal assistants..194
• While IJPs have been helpful in ensuring that justice is achieved in individual cases,
their deployment has not necessarily led to requisite measures of fairness in
trials…195
• National judges generally agree that there are important reasons for IJs to deal with
sensitive cases. However, some have complained that they are not sufficiently
involved in making decisions about overall case allocation. Moreover, because
Regulation 2000/64 gives broad discretion to appoint IJs in a wide array of
circumstances, the appointment of the IJs sometimes seemed arbitrary and ad hoc.
This aspect of the process has been subject to repeated criticism by OSCE and
others, but no changes were made.196
• As of the end of 2001, there were approximately 80 ongoing court cases assigned to
or selected by IJP; as of October 2002, IJP were participating in over 90 ongoing
court cases. Those numbers do not include a significant number of cases being
investigated by the police and being supervised by the IP. The need for careful IP
scrutiny of police investigation and evidence before initiating a request for a judicial
investigation is especially important given the complexity of the legal elements and
factual determinations in war crimes cases.197
• An overview of the data obtained from over 1,000 cases in the Kosovo courts
suggests that overall there are no systematic differences in punishments and trial
outcomes between Kosovo Albanians and Kosovo non-Albanians, or among the
non-Albanian communities. In addition, the few observed differences did not
consistently favour a particular group or community. In any case, the observed
differences among the groups do not necessarily prove bias in favour of or against a
specific group. The unique facts and aggravating or mitigating circumstances of the
case may explain the differences. Of interest, the OSCE noted that in district court
cases where the defendant and the judge have the same ethnicity, defendants were
imprisoned less often and received slightly more lenient average punishments than
in cases where the defendant and the judge have a different ethnicity. As this was a
preliminary study that did not control for all factors that can affect punishment, the
limits of this study must be recognized.”198
194
Scheye, 24.
195
196
Ibid.
197
Hartmann, 12.
198
OSCE, Legal Systems Monitoring Section, Different Communities before the Kosovo Justice System
(December 2008), 19.

8.3 Central or Special Courts involving international and local judges may be essential
for confronting violent threats to the mandate
• At the district court level, judicial panels had five members. This meant that the
single international judge assigned to the panel could simply be outvoted, which
immediately began to happen. Serb defendants were convicted without sufficient
evidence, and Kosovo Albanian defendants were released or acquitted regardless of
evidence of guilt. Thus, instead of precluding the miscarriage of justice, the presence
of an international judge had the perverse effect of appearing to legitimize patently
unjust verdicts. To ensure “impartiality, independence, and respect for human
rights,” therefore, UNMIK promulgated Regulation 2000/64 in December 2000. This
provided for the formation of special three-member judicial panels—composed of at
least two international judges—to hear high-profile cases, especially those involving
interethnic violence, political violence, organized crime, or war crimes. The more
difficult step was to locate qualified international judges and prosecutors who
understood civil law, spoke fluent English, and were willing to confront the risks and
rigors of the most difficult cases Kosovo had to offer. By July 2002 UNMIK had filled
twenty-seven of the thirty-four positions it had created for international judges and
prosecutors.199
• The practical effect of these “sixty-four panels” (in reference to Regulation 2000/64)
was to create a division of labor between local and international jurists. On the one
hand, the vast majority of proceedings remained entirely in the hands of the local
judiciary. Politically sensitive cases, however, were dealt with by the sixty-four
panels, and this was where almost all the attention of international judges and
prosecutors was focused. Although this regulation was controversial initially, local
judges later manifested their acceptance by asking international judges to relieve
them of cases when external pressure and intimidation were too great to handle.
Indeed, such concerns also caused local judges to decline to serve on many cases
heard by the sixty-four panels, especially during the first year of its use.
When they did become involved in cases dealing with powerful criminal or political
figures, international jurists found their local counterparts to lack objectivity in
weighing the evidence. When external influence, fear of social ostracism, or ethnic
bias was not a factor, however, their conduct was professional and the relationship
collegial. This suggests that as the institutional context is progressively transformed
and extremist power structures are disabled, the relationship should also evolve
toward greater partnership and eventually to greater local authority over the criminal
justice system.200
• Primarily to address the concerns of judicial bias raised in the war crimes cases,
Section 1 of Regulation 2000/64 grants to prosecutors, the accused, or defense
counsel the right to petition the DJA for the assignment of an international
prosecutor and a three-judge trial panel that consists of a majority of international
199
200
Ibid.

judges where this is “necessary to ensure the independence and impartiality of the
judiciary or the proper administration of justice.” In the absence of a petition, DJA
may act on its own motion.201
• Numbers tried in Kosovo are comparable to those of other domestic systems. While
several of the national judges and prosecutors comment that international
participation has slowed down trials, an extended and more deliberate criminal
process may be seen as beneficial.202
• In response, UNMIK instituted special “64” panels, named after the regulation that
created them (2000/64), to ensure that international judges would constitute the
majority in designated cases. Furthermore, it instituted rigorous case-monitoring
practices and passed an additional regulation (2001/2) that ensured that
international prosecutors could resurrect cases that had been abandoned by their
Kosovar counterparts.203
• Indeed, in practice IJs were often outvoted by the lay and professional Kosovar
judges, leading to unsubstantiated verdicts of guilt against some Serbian defendants
and questionable verdicts of acquittal against some ethnic Albanian defendants. In
addition, Kosovar Albanian prosecutors were accused of initiating criminal
investigations and proposing detentions of Serbs based on insufficient evidence,
while abandoning cases and refusing to investigate ethnic Albanians. In addition,
because of the large volume of cases, IJs were spread too thin. As a result, cases
were often tried before panels of varying composition, some with no IJs. Ultimately,
many of these early verdicts in war crimes cases were overturned on appeal and
sent for retrial.204
• Another shortcoming was that before joining the mission, international judges and
prosecutors did not receive any training on the applicable law in Kosovo. And the
induction training after their arrival in Kosovo was not adequate and often non-
existent. This was particularly damaging for judges and prosecutors coming from a
common law background. One should have taken more into account the fact that
criminal justice in a territory disturbed by war like Kosovo has characteristics that are
not always found in the domestic legal tradition of other countries: interethnic crimes,
war crimes, terrorism, for example. The fact also that justice is not given in the name
of a state but of the United Nations. For all these reasons the performance of the
UNMIK international justice system was not as exemplary as it was meant to be.
Justice was plagued by slowness, excessive length of pre-trial detention, absence of
homogeneity of decisions in cases having the same characteristics. All these
shortcomings can be found in many countries, including my own. However in
201
202
203
Hartmann, 2.
204

Kosovo, the difficulties of the justice system were compounded by the fact that
everything had to be translated and that translation was often less than adequate.205
• There were other major shortcomings in the justice system. One was that there was
no system for case management. A great deal of money was spent on an electronic
case management system. In 2008 it was not yet working. The backlog of cases is
huge and there is no legal recourse against excessive delays in court proceedings.
Another is witness protection. Time and again UNMIK said that there could not be
any successful prosecution without testimonies. Witness intimidation is the rule for
war crimes, inter-ethnic crimes and organized crime. No country has ever committed
itself in a significant fashion to accept the relocation of endangered witnesses as
quite obviously Kosovo is much too small and much too closely knit to have witness
protection in a sustainable fashion for a lengthy period.206
8.4 Procedures for the selection of cases for Central or Special Courts need to be
established to preserve judicial autonomy
• One issue that resisted effective resolution was the process for selection of cases to
be handled by the Special Courts or sixty-four panels. Although this was a topic of
discussion from the early days of their incorporation into the local judiciary, the
question was difficult to resolve because formal direction from the SRSG would have
created concerns about judicial independence. Guidelines were eventually
established for prosecutors in 2003; however, criteria for international judges
remained informal. As a result, there was a tendency for the caseloads to become
overcrowded with extraneous or inconsequential matters, which militated heavily
against the ability to establish priorities for prosecution.207
• Among the war crimes and interethnic cases that constitute the bulk of the IJP
caseload to date, the primary controversy has been whether the SRSG’s and DOJ’s
selection of cases has been politically biased. Many observers, including both
Kosovars and internationals, believe the UNMIK executive exerts too much influence
on the criminal justice process. Regardless of whether it is justified, there is a local
perception that political interference has disproportionately protected potential Serb
defendants, and many allege that UNMIK has a pattern of “caving in” to Serb
demands. Some argue that many cases initially brought against Serbs before local
panels resulted in dramatically reduced charges, sentences, or acquittals when the
IJPs took over.”208
• Specialized subject matter jurisdiction should be accompanied by broad

geographical jurisdiction. 209
205
Cady, 3-4.
206
Ibid., 4.
207
208
Day, 20.
209
Rausch 2006, 7.

• In light of these issues, subject matter jurisdiction should have been delineated more
clearly. While specific provisions would have limited the flexibility in the issue of IPs,
they would have guaranteed from the outset that IPs would participate only in cases
with a direct nexus to the overall goals of the mission. 210
• The ability of Kosovo’s IJP to take on any crime by selecting any case and any type
of crime proved to be a double-edged sword. On the one hand, the unlimited
flexibility of Kosovo’s IJP to select any case is an advantage because an impartial
international panel can provide justice in any politically explosive case for which the
Kosovar jurists do not yet have the capacity to withstand pressure or threats, or to
uphold the appearance of impartiality—for example, a domestic-violence case of an
organized crime kingpin, or a political assassination by feuding party factions.211
• There are no enforceable criteria for executive decisions about which cases have
international judges and prosecutors or which individual judges and prosecutors get
assigned. Ironically, the stated objective of the regulation, to ensure independence
and impartiality, has garnered a perverse result. The lack of any mechanism to
ensure a random assignment of judges to cases creates the perception that the
executive may interfere at any time with any given case. In addition to the
institutional mechanisms that have allowed for room for executive interference into
the judicial function, there have been concerns that the executive has interfered
directly with the decisions of judges in special cases.212
8.5 A close protection unit is essential for confronting violent threats to the mandate
• In the summer of 2000, as UNMIK sought to introduce international judges and

prosecutors into all five district courts in Kosovo, one of the main challenges was to
provide for their security. As SRSG Michael Steiner would later warn the Security
Council, “As we begin to make significant arrests against criminal gangs we should
expect a criminal backlash.” In the same ad hoc fashion that the high-risk arrest
team had been cobbled together, UNMIK Police created a small Close Protection
Unit (CPU) to provide security for visiting international dignitaries and members of
the Serb National Council who participated in the interim government. The addition
of more than a dozen judges and prosecutors to their protection responsibilities in
mid-2000, however, threatened to overwhelm the CPU’s limited capabilities. UNMIK
sought formal recognition of the unit from the United Nations in order to appeal for
additional critically needed resources (e.g., automatic weapons), and it began
allocating close protection teams according to the assessed level of threat. Over the
next several years, international judges and prosecutors were seldom threatened.
Instead, intimidation was directed at members of the local judiciary and at witnesses.
Because international judges and prosecutors received a protection detail but their
210
Naarden and Locke, 7.
211
Hartmann, 2-3.
212

local counterparts did not, a disparity was created that was not conducive to
partnership.213
8.6 The capacity to collect and properly handle admissible evidence is essential
• For evidence to be legally admissible and a successful prosecution “made”, a secure

“chain of evidence” must be established, certifying that the evidence has not been
tampered with as it moves along the criminal justice continuum. In other words, how
evidence is handled is one of the pivotal links in the criminal justice system,
cementing the relationship between the crime scene and the police, the police and
the prosecutors and, thereafter, the prosecutors and the courts. Unfortunately, as
pointed out by an international donor, “evidence is so badly handled here… What
prosecutors need to have is get them back to basics,” and maintaining the chain of
evidence is as basic a linking component as any other. One of the many reasons
why the chain of evidence is poor in Kosovo may be because there is no judicial
police, even though UNMIK legislated the establishment of a judicial police. In this
case, the absence of a coherent SSR support strategy and team of experts to
manage its implementation meant that policies are decreed without planning how
they are to be executed. The judicial police were intended to be the sworn law
enforcement officers specially trained to conduct criminal investigations in
cooperation with and under the supervision of prosecutors. While the new criminal
code of procedure has been in existence for a couple of years, the judicial police
remain missing in action. UNMIK wrote the law, but has consistently refused to
implement it, which can be attributed only to an absence of managerial and
performance accountability within UNMIK and DPKO.”214
• Though there was much confusion over the applicable law and the role of
international fair-trial standards, there was little doubt that UNMIK police were
severely hampered in their investigative and forensic capabilities. In the critical
period between June 1999 and December 1999, UNMIK police were without a
“scenes of crimes” unit that would systematically collect forensic and other physical
evidence. This remained the case for two years.215
• The short rotations for CIVPOL personnel also posed a number of challenges,
including maintaining the continuity of ongoing investigations. 216
• Given the short rotations of international police and the diversity of the legal systems
from which they come, critical areas such as war crimes, crimes against humanity,
organized crime and other sensitive crime issues require the creation of a cadre of
213
214
Scheye, 191.
215
216
Rausch 2007, 292.

police who are specially trained and equipped, sent for longer rotations and provided
with adequate guidelines and procedures…217
• UNMIK was particularly ill prepared initially to provide maximum security for the
prisoners who constituted the gravest threats to public order and the peace process.
The majority of Serb suspects, including accused war criminals, were held in the
predominantly Serb section of Mitrovica. Because the KCS remained unarmed until
2001, UNMIK Police were assigned to operate that facility. Management of prisons
is not simply another form of policing, however. A distinctive set of skills and
specialized training are required to manage a prison adequately.
Compounding this deficiency, standards were lax because UNMIK Police tended to
regard prison duty as a form of punishment. In August 2000 fourteen Serb
detainees, many of whom were indicted war criminals, escaped from the Mitrovica
jail. Subsequently, the Penal Management Division took over supervision of the
UNMIK Police contingent there, providing training in basic prison skills and enforcing
professional standards and procedures. At Dubrava, the largest prison facility, an
UNMIK SPU provided a minimum of armed presence to prevent breakout, but for a
long time the Penal Management Division depended on a rapid-response agreement
from KFOR to provide some deterrence against break-ins. High-profile Kosovo
Albanian detainees also required incarceration under tight international supervision.
Although the U.S. military had initially considered the facility at Camp Bondsteel to
be a stopgap measure and pressed UNMIK to relieve it of the burden, Bondsteel
continued to serve for years essentially as a maximum-security facility for Kosovo’s
most politically dangerous suspects.
Cross-border subversion in southern Serbia and Macedonia in late 2000 and early
2001 demonstrated the continuing need for a facility secure enough to deal with the
subversive and terrorist threat that menaced the peace, both inside and outside
Kosovo. When the suspected ringleader of the February 2001 Niš bus bombing was
apprehended, UNMIK officials determined that the risk was too great to use a local
detention center. His subsequent escape from Camp Bondsteel revealed that
military detention facilities that are designed for handling prisoners of war require
various modifications to prevent such breakouts. Thus, even KFOR had to enhance
its capacity in order to complete the last element of the intelligence-to-incarceration
continuum.218
• Of comparable importance is that the head of the PMD personally interviewed his
international corrections officers prior to their being assigned to Kosovo to ensure,
as far as possible, not only uniformity and consistency in penal practice and
217
Rausch 2002, 31-2.
218

development perspective, but appropriateness of skills to the function that individual
staff are expected to perform.219
IX. Key issues and Challenges Addressed by Corrections

Practitioners
9.1 The Military Contingent may need to fill in critical gaps if local prison capacity is
deficient
• UN Security Council Resolution 1244 assigns responsibilities relating to the rule of

law to both the “international security presence” (KFOR) and the “international civil
presence” (UNMIK). Paragraph 9 charges KFOR with “ensuring public safety and
order until the international civil presence can take responsibility for this task.”
KFOR’s mandate also includes “supporting, as appropriate, and coordinating closely
with the work of the international civil presence.” Although KFOR’s most evident
contribution was to fill the initial public security gap, it had vital contributions to make
across the entire spectrum from intelligence to incarceration.220
• The initial Kosovo Consolidated Budget did not even recognize the need to provide
funding for the management of prisons. Initially, KFOR had to fill the gap. Even
though this was an unanticipated requirement for most KFOR contingents, during
the first phase of the mission each MNB took responsibility for operating pretrial
detention facilities. Because there was no adequate jail in its sector, the U.S. military
established its own detention center at Camp Bondsteel, processing 1,800 detainees
in the first year of operations. Among the factors that slowed the transfer of
responsibility to UNMIK were the need to locate and recruit professional expertise in
penal management for this unprecedented international requirement; the delay in
providing funds, especially to repair Kosovo’s main prison at Dubrava that had been
severely damaged by NATO bombing; and the difficulty encountered by UNMIK
officials in gaining access to various penal facilities that KFOR regarded as high-
security installations and therefore placed off limits.221
• Quite obviously from the early stages of the mission, there is a need to establish
prisons which have to be run by a civilian authority under the supervision of the
department of justice. In the early stages, when nothing exists, detention is run by a
military authority. This should not last for at least three reasons. One is that running
a prison is a profession which is outside the normal area of expertise of the military.
The second is that the corrections system is part of the justice system. Habeas
corpus is not easily respected in a military environment where there is no judge.
People who are in detention in military premises are just put away without the
219
Rausch 2007.
220
221
Ibid., 175.

guarantees a normal legal environment provides. The third is that those who are in
pre-trial detention, as well as those who are serving a sentence, have rights, in
particular, to receive visits from their lawyer or their family. These visits are not easy
in a military environment. The UN is not used to running prisons. Penal management
is foreign to the UN culture. There is not a great deal of competent and available
international capacity available to monitor and supervise the creation of a prison
system.222
9.2 Pre-trial detention must be dealt with properly at inception
• A law enforcement vacuum in the early days of a mission should be avoided by

establishing ad hoc judicial arrangements to facilitate the detention and subsequent
judicial hearings on individuals who are apprehended on criminal [*61] charges.223
• KFOR’s detention policies not only ‘led to uncertainty in Kosovo about the scope of
KFOR’S authority’ they undermined the overall legitimacy of the mission… the length
of detention was also problematic for UNMIK, given that the courts were
overburdened and unable to try all the cases within a short time period. 224
• Concurrently, KFOR and UNMIK administrators had realized that there was a
significant disparity in the way the Albanian Kosovar prosecutors and judges were
ordering detention. When former KLA members were arrested by KFOR or CivPol
for attacks on Serbs, they would often be proposed for release by the prosecutor,
and then released by the investigative judge, while Serbs would often be detained in
custody for the same crimes. KFOR, which had the mandate to ensure a “safe and
secure environment,” reacted to the Kosovar judicial release orders by adopting a
detention practice separate from judicially ordered detention, called a “COMKFOR
hold.” Arrestees might be locked up in KFOR detention facilities for a time to be
determined by KFOR, without consideration of any judicial orders, if KFOR felt they
posed a danger to safety and security…the mono-ethnic Albanian Kosovar judiciary
and prosecutors’ offices gave the appearance of partiality and in some cases
discriminated against Serbs, while favoring fellow Albanians, especially where the
suspects had ties to organized crime or were former KLA members.”225
• Fairly early on in the establishment of the judicial system, COMKFOR declared its
authority to detain persons without any judicial review and to continue to detain
persons despite a judicial decision to release the person from custody. KFOR
argued that its mandate under Resolution 1244 provided it with such authority where
such detention is necessary to address a “threat to KFOR” or under its mandate to
222
Cady, 7.
223
Strohmeyer, 11.
224
Day, 5.
225
Hartmann, 7.

provide “a safe and secure environment [for as long as] civilian authorities are
unable or unwilling to take responsibility for the matter.226
• […] KFOR […] has continued to hold persons in detention without any judicial
process and continues to maintain that this is, in part, based on its law enforcement
mandate until the civilian authority can take over. Even three years into the mission,
KFOR appeared to be expanding its authority to detain persons outside of the justice
system and refining its parallel system of review. KFOR’s approach has arguably
rendered meaningless the SG’s condition on KFOR’s authority in the area of public
peace and order. Practically speaking, KFOR has boundless and unfettered
authority in Kosovo.227
• UNMIK and KFOR continue to be shielded with criminal and civil immunity.
Although UNMIK grants the Ombudsperson the authority to enter into a bilateral
agreement with the SRSG on procedures for cases dealing with UNMIK, the
assessment team has not been made aware of any such agreement.228
• As of February 2007, of Kosovo’s two prisons and five detention centres, all but the
Dubrava Prison have been transferred to the control of the KCS. The Dubrava
Prison holds Kosovo’s male prison population of over 800 persons. According to the
ISSR, “this figure is expected to rise by up to 50 per cent as the courts backlog
reduction programme comes into effect.229
• UNMIK was particularly ill prepared initially to provide maximum security for the
prisoners who constituted the gravest threats to public order and the peace process.
The majority of Serb suspects, including accused war criminals, were held in the
predominantly Serb section of Mitrovica. Because the KCS remained unarmed until
2001, UNMIK Police were assigned to operate that facility. Management of prisons
is not simply another form of policing, however. A distinctive set of skills and
specialized training are required to manage a prison adequately. Compounding this
deficiency, standards were lax because UNMIK Police tended to regard prison duty
as a form of punishment. In August 2000 fourteen Serb detainees, many of whom
were indicted war criminals, escaped from the Mitrovica jail. Subsequently, the Penal
Management Division took over supervision of the UNMIK Police contingent there,
providing training in basic prison skills and enforcing professional standards and
procedures. At Dubrava, the largest prison facility, an UNMIK SPU provided a
minimum of armed presence to prevent breakout, but for a long time the Penal
Management Division depended on a rapid-response agreement from KFOR to
226
227
Ibid., 112.
228
229
Scheye, 186.

provide some deterrence against break-ins. High-profile Kosovo Albanian detainees
also required incarceration under tight international supervision. Although the U.S.
military had initially considered the facility at Camp Bondsteel to be a stopgap
measure and pressed UNMIK to relieve it of the burden, Bondsteel continued to
serve for years essentially as a maximum-security facility for Kosovo’s most
politically dangerous suspects. Cross-border subversion in southern Serbia and
Macedonia in late 2000 and early 2001 demonstrated the continuing need for a
facility secure enough to deal with the subversive and terrorist threat that menaced
the peace, both inside and outside Kosovo. When the suspected ringleader of the
February 2001 Niš bus bombing was apprehended, UNMIK officials determined that
the risk was too great to use a local detention center. His subsequent escape from
Camp Bondsteel revealed that military detention facilities that are designed for
handling prisoners of war require various modifications to prevent such breakouts.
Thus, even KFOR had to enhance its capacity in order to complete the last element
of the intelligence-to-incarceration continuum.230
9.4 A uniform, computerized prison registry was utilized to address concerns about
inappropriate detentions231
X. Corrections Models Strategies Adopted
10.1 A comprehensive and phased plan was formulated and implemented
• By default rather than design, the approach that evolved for the penal system closely
resembled the path followed with policing. Initially, KFOR managed all prisons and
pretrial detention facilities, until UNMIK Police were in a position to assume
responsibility for some locations. As UNMIK’s Penal Management Division was able
to recruit and train local corrections staff, the KCS began to take charge of the
prisons, with international prison wardens providing supervision. Thus, the
relationship evolved from one of international custodianship to one of partnership,
with responsibility gradually being transferred as local KCS personnel were able to
demonstrate both proficiency and adherence to professional standards of
conduct.232
• Because Kosovo and East Timor represented the first cases where the United
Nations had assumed responsibility for managing and reconstituting corrections
systems, no principles or procedures existed to guide these efforts. Much more than
training was required to instill an ethos in corrections staff that was consistent with
the rule of law. Constant supervision while under international custodianship and
reinforcement while operating in partnership were essential. This process could not
230
231
Information from Kosovo Lessons Learned Trip
232

be rushed. An early attempt to move toward local ownership by designating a
Kosovar to be the deputy director for the KCS in early 2000 undermined the
professionalism of the service, and he had to be removed. Subsequently, UNMIK
took a phased approach to KCS leadership development, with those who
demonstrated both ability and commitment to internationally accepted standards
being selected for more senior posts. 233
• One of the key ingredients of UNMIK’s successful prison SSR programme is that a
comprehensive prison management plan was formulated at the start of the
integrated peace operation and then systematically carried through. Each year
specific organizational and operational targets were established and, as the plan
unfolded, annual development plans were updated. Job descriptions and a full range
of standard operating procedures and managerial policies were systematically
introduced ranging, for instance, from separating “prisoners on committal…
depending upon the seriousness of their crime and risk to the community” to
emergency response to serious incidents to financial management and procurement.
Social workers and medical staff were hired to ensure adequate health care, given
existing resources.234
• Management training for the KCS was not delayed, but commenced in 2001,
supported by the government of Switzerland. It was originally believed that the major
components of prison development would be completed by 2004. Comprehensive
roll-out plans for transferring prison authority facility by facility to the KCS were
developed early and thereafter followed. Each transfer entailed three months of
twinning international staff with KCS personnel during which UNMIK staff retained
authority, three months of “co-work”, and finally three months of mentorship during
which the KCS manager already possessed executive powers. At the same time,
each department of the KCS was progressively turned over to Kosovar authority:
social work, personnel, engineering, recruitment, etc.235
• Of special importance was that the PMD rapidly established an “internal prison
inspection, audit and compliance system”. This managerial step cannot be
underestimated. As indicated earlier, the PMD was the only UNMIK unit that was
able unequivocally to state the criteria with which the performance of the Kosovo
institution, to which they were providing SSR support, was being evaluated. Without
hesitation, the PMD listed more than half a dozen indicators, including, but not
limited to: (1) number of attempted escapes; (2) severity of fines for guards and
inmates; (3) number and type of prisoner complaints; (4) quality of intelligence
information about inmate population; (5) number and type of medical complaints and
treatments; (6) number of prisoner visits; and (7) number of inmate self harming
incidents.236
233
Ibid., 188-9.
234
Scheye, 186.
235
Ibid.
236
Rausch 2007, 298.

• The leadership of the PMD was consistent from the beginning, greatly assisting its
own development and that of KCS.237
10.2 The Kosovo Corrections Service is considered the most successful multi-ethnic
institution in Kosovo
• In the case of Kosovo, UN support for prison development has been one of UNMIK’s
most successful SSR programmes. 238
• Most international observers viewed the PMD’s performance as successful, despite

the slow and inadequate initial response of the international community in
establishing Kosovo’s correctional system. 239
• The KCS has 1,200 staff and 400 support workers, approximately 18 per cent of
them women, which is considered to be an “acceptable proportion given that women
are only a small proportion of the prison population”. In service training is conducted
among KCS staff, but KCPSED has assumed responsibility for basic corrections
instruction.240
XI. National Ownership and Engagement
11.1 Strategic planning should include local capacity building and ownership
• Through the ambiguous sovereignty in Kosovo…the guiding principle must be an

appropriate balance of short-term measures to assert the re-establishment of the
rule of law and longer-term institution-building that will last beyond the life of the
mission and the transient interest of the international community. 241
• With the creation of Pillar I and the Department of Justice in 2001, the exclusion of
locals in the administration of justice increased. This move indicated that there was
little faith or interest in building local capacity to administer justice fairly and
effectively. Despite UNMIK’s mandate to develop the capacity of the locals to
administer democratic institutions, including the justice system, there is no Kosovar
leadership in the DJA. The Ministry of Public Services within the Provisional
Government has some authority regarding the logistical administration of the justice
system. However, the attitude among internationals in UNMIK seems to be that this
department will have no impact on substantive judicial policymaking.242
237
Ibid.
238
239
Rausch 2007, 297.
240
Scheye, 186.
241
Chesterman, 13.
242

• In Kosovo, the evidence indicates that the UN did not support local ownership as an
outcome of its SSR initiatives. Instead, the Kosovo experience seems to have been
more akin to an almost colonial imposition rather than assisting local justice and
security development or, at the very least, engaging in active consultation with
national actors.243
• Without a formulated strategy, lacking a comprehensive plan and labouring under

severe human resources deficits, the UN in Kosovo was unable to deliver effective
and efficient SSR support to its Kosovar counterparts to enable them to develop
their justice and security sector.244
• In the interim, UNMIK has handed over many of its powers to local bodies. As for the
judiciary, the UNMIK-Government Rule of Law Working Group assists in executing
the transfer of powers from UNMIK to Kosovo institutions, as part of the Kosovo
Standards Implementation Plan. At the same time, the SRSG still retains broad and
ultimate legislative and executive authority in the areas of law enforcement and
justice. As of September 2005, UNMIK transferred responsibilities to 13 central
government ministries for Kosovo-led Provisional Institutions of Self-Government
(PISGs), including an Assembly, Prime Minister, and President of Kosovo. But the
Constitutional Framework transferred only a limited number of powers in the field of
judicial affairs to the PISGs, such as participation in judicial appointments and
training, organization of judicial qualification examinations, organization and
maintenance of the courts, provision of material resources to the judiciary, and
appointment, training, discipline, and dismissal of court support personnel.245
• The pertinent findings of the King’s College study, for example, are… ‘ in all key
sectors (SSR included) capacity-building has been part of the rhetoric but has rarely
been accomplished in practice…at the operation level there has been a noted lack of
understanding of what is involved in capacity- or institutional building.246
• Thus far, institution building in security and justice has been surprisingly limited,
reflecting many of the same limitations and neglect exhibited by other UN
missions.247
• The numbers of international judges and prosecutors has increased rather than
decreased as local capacity has developed. The mentoring aspect of the
international presence, cited as one of the reasons for their involvement, has been
almost nonexistent. The use of substantial resources in developing an enhanced
international judiciary indicates a lack of trust in and attention to the local judges and
243
244
Scheye, 203.
245
246
247
Rausch 2007, 307.

prosecutors and a dismissive attitude towards the long term development of a local
justice system.”248
• There are two major areas in which the MoJ should receive support: techniques of
legislative drafting; and substantive expertise on the area of law that proposed
legislation may cover. Other donors have also recognized these needs… 249
• While the rhetoric of the international community has been ‘partnership’ ‘local
ownership’ and ‘self-government’ the reality, particularly in the justice and police
spheres, was that direct and sole control continued to be maintained by international
personnel.250
• However, there exists very little domestic ownership of policy issues, as national
legal professionals have not been represented in the DOJ until recently and are not
involved in decisions on recruitment or deployment of international judges.
Consultation of national counterparts in policy decisions remains limited. The
internationals and nationals operate largely in parallel legal universes (although this
will likely change with the creation of permanent ministries, including a Ministry of
Justice). A recent report calls for UNMIK to “develop a comprehensive strategy for
building local judicial capacities and a realistic exit strategy. Kosovar jurists should
be involved in the drafting of that strategy.251
• Despite Resolution 1244’s clear and unmistakable mandate to build democratic

judicial institutions, UNMIK has not effectively supported the development of
Kosovar judicial services. As one senior DoJ official admitted, “UNMIK understood
for a long time that its job was not to develop Kosovar judicial authorities, but to
handle high-profile cases – corruption, ethnic impunity, war crimes…. Our job was
not to train or build capacity [emphasis added].” The unintended consequence has
been that judicial SSR activities (court automation, court administration, ministerial
development, development of Kosovo Judicial Council, legal writing, etc.) have been
outsourced to consulting companies and NGOs …which ha[ve] facilitated the slow
growth of many of the basic building blocks of judicial development.252
• Reluctance to involve local input may be attributable to the acknowledged

uncertainty as to Kosovo’s final status and affiliated concerns, but regardless, the
result was a number of ad hoc measures instituted by the administration in response
to issues as they arose.253
• “A major recent development is the transfer of court administration responsibilities to

the Kosovo Judicial Council (KJC), an independent body within the judiciary that
248
249
USAID Kosovo, Evaluation of the Justice System Reform Activity – Kosovo (2006), 33.
250
Rausch 2007, 302.
251
252
Scheye, 189.
253

receives international training and support to develop its capacities in many areas.
Among other responsibilities, the KJC is charged with setting administrative policies
for the judiciary, preparing and managing judicial budgets, and overseeing judges
and courts. In addition, the KJC now largely oversees the judicial selection process,
which for the most part occurs in a transparent fashion and based on objective
criteria and provides for special legal protections for minority candidates. It also
plays a large role in the removal and discipline of judges, a process which is
conducted in a fairly orderly and transparent manner. 254
• The re-establishment of a judicial system using specially-trained, international jurists,

while local legal professionals are trained and mentored, provides a foundation for a
basic judicial system capable of immediately applying international standards and
ensuring accountability. 255
• In the end what made the peacekeeping effort in Kosovo extremely difficult, was two
things: The first is that for many years, at least from 1999 to 2005, the end game
was not clear. What was the purpose of the mission? Was it to pave the way for
independence? That was undoubtedly the goal for the Kosovo Albanians. But for
many years the UN and the Quint did not mention the word, even though
independence was the only possible outcome. But it was a contentious question
then and still is now. Let us not forget that only 40 or so countries recognize Kosovo
as an independent state.256
11.2 Participation by representatives of local formal and informal systems and sensitivity
to cultural considerations is vital
• Compounding the problem of lack of local involvement and coordination in legal

reform efforts, the United Nations often chose to rely almost exclusively on its own
legal advisors and outside experts who submitted various draft regulations. 257
• As part of respecting local input and learning from it, it is important to incorporate
traditional dispute resolution systems within the international legal framework.258
• As Edward Rees (2006:22) puts it, ‘ the lack of attention to the role of participatory
bodies such as transitional or sovereign legislatures creates a basic and
fundamental divide between the peace operations’ SSR programme and the very
constituency it is attempting to assist. 259
254
255
256
Cady, 7.
257
Rausch 2007, 279.
258
Rausch 2002, 31-2.
259
Bernabéu, 75.

• With virtually no consultation with the local population—indeed, even an Albanian
lawyer in a senior UN post noted that she was not included in the decision-making
process—on February 15, 2000, the UN issued UNMIK Regulation 2000/6. This
provided for the appointment of an international judge and an international
prosecutor to work within the existing domestic judiciary along with their local
counterparts…. Despite the lack of consultation with the local population, many
welcomed the appointment of IJs because it made it possible for trials to proceed in
the Kosovo courts without a grave risk of bias or “violent blowback.260
• Active dialogue must take place between the international and local actors in relation
to establishing or re-establishing the judicial system. Local expertise and acceptance
are crucial…261
• Civil society participation is similarly crucial for the development of an accountable

justice and security sector whose performance meets local needs. The UN’s record
in Kosovo fostering civil society participation, however, has been as poor as its
performance with regard to local ownership…and for similar reasons. Some of the
difficulties may also have to do with the history and culture of Kosovo in that, as one
NGO staff member acknowledged ‘there is a general lack of communication’ … once
again part of the issue may have to do with the desire of Kosovar civil society
organizations to score political points. Nevertheless, the absence of a real effort on
behalf of UNMIK to engage with civil society is telling and the perception among
Kosovar NGOs of UNMIK is calamitous.262
• The UN family’s relationships with Kosovar stakeholders were dismal, as further

evidenced by the KPS staff’s desire to change its structures immediately upon
gaining executive authority, the current lack of functionality within the MoIA and the
MOJ, and the fact that the ISSR did not develop Kosovar capacity. 263
• In addition, regulations adopted by UNMIK were not always drafted or conceived in

such a way as to be consistent with local laws. Local and international experts were
not always consulted. Even when local experts were consulted and provided
meaningful comments, their comments were not always incorporated. Some of the
criminal provisions were not consistent with the civil law system of Kosovo and some
international human rights experts argued that they were not consistent with the
European Convention on Human Rights. Local judges and prosecutors thus did not
always interpret them in the same way or understand them in the same way as
police officers from other legal systems.264
• From 2003 to 2005, reform efforts get a mixed report card. New Kosovo criminal and
criminal procedure codes were promulgated, training and reliance on local police
260
261
Rausch 2002, 31-2.
262
263
Ibid., 202.
264
Rausch 2002, 16.

continued, and the number of skilled criminal defense attorneys increased.
Notwithstanding these important advances, the political factors that plagued the
mission from the beginning continued. 265
• In Kosovo the use of traditional systems was never sanctioned by the UN, nor was
there any attempt to have it incorporated somehow into the formal justice system.266
• There are no guidelines in Kosovo… governing when the use of traditional methods
is appropriate and when it is not.267
• It appears that UNMIK was unable to grasp the necessity of supporting local
ownership as an outcome of its SSR initiatives. Furthermore, the organization’s
culture seems to have been one of imposition rather than consultation, an opinion
that is widely held throughout Kosovo…. UNMIK did consult, but the process of
partnership is about the quality of that participation rather than its mere occurrence.
It is one method of consultation to share drafts of a law, policy or set of regulations
that have been pre-written and ask Kosovar stakeholders to comment. It is an
entirely different method of supporting ownership to ask the local stakeholders to
select a model of their choosing and write the initial draft, which would thereafter be
discussed.268
• In the ROL context, NPOs with a solid knowledge of the pre-existing legal system
and, if possible, a knowledge of international standards, are crucial to the
development of ROL programming that is tailored to the local conditions and likely to
make a lasting impact. Furthermore, there are frequently linguistic and cultural
challenges that will play a significant role in the reform and rebuilding process, which
require intimate knowledge of local conditions.269
• Rather, staff must work within a foreign legal environment to assist national
counterparts in the creation and rehabilitation of institutions that are appropriate for
the existing local conditions and limited available resources. In this sense, humility
and the ability to respect host-country counterparts are crucial attributes.270
• “It appears that UNMIK was unable to grasp the necessity of supporting local
ownership as an outcome of its SSR initiatives.”271
• According to most observers, the Kosovo Prosecutorial Service is a shambles and

the ability of Kosovo’s Parliament to exercise its oversight function is practically non-
existent due to the retention of executive authority by UNMIK, lack of skilled
265
Rausch 2007, 302.
266
Rausch 2002, 25.
267
Ibid., 26.
268
Rausch 2007, 194.
269
270
Carlson 2008, 10.
271
Scheye, 194.

legislative staff, and the absence of realistic budgeting within the sector over which
to exercise responsibility. 272
• The clear message should be sent that security sector development in Kosovo will
be a long process in which the roles of the public, elected representatives and civil
society are as important if not more so than that of consultants and technocrats.
Effective scrutiny must now develop alongside institutions that allow ordinary
Kosovars to obtain even greater ownership of the bodies that provide for their
security. 273
11.3 Ethnic diversity is an important part of sustainable capacity building
• If the security institutions under reform fail to present themselves as the guarantors
of the rights and security of the whole population, regardless of their ethnic
background or former faction during the conflict, they will only contribute to
marginalizing parts of the population. In turn, these groups may seek alternative
sources for protection – as the Serbs did in this case by maintaining their parallel
institutions and refusing to join the Joint Administrative Structure (JIAS). 274
• On June 30, 1999, two weeks after the arrival of the first UNMIK staff in Pristina, the
search had already yielded its initial results: the head of the United Nations mission
was able to appoint nine judges and prosecutors, among them three Serb jurists, on
the basis of recommendations of the Joint Advisory Council. They served as mobile
units with jurisdiction throughout the territory of Kosovo. By mid-July, these judges
and prosecutors had conducted hearings on 249 detainees in all of Kosovo's five
districts, releasing 112. The initial appointments were controversial because of a
perceived overrepresentation of Serb lawyers. Nevertheless, by July 24, 1999, as
the mission had gradually identified more lawyers, the number of UNMIK-appointed
judges and prosecutors had risen to twenty-eight, comprising twenty-one Kosovar
Albanians, four Serbs, one Roma, one member of the Turkish community in Kosovo,
and one Bosniak.275
• UNMIK has done well in creating a police and correctional system that reflects
Kosovo’s population but has been less effective in creating a judiciary that includes
Serbs. Should this failure render the judiciary ineffective, it may also undo whatever
progress law enforcement is able to make in establishing law and order and building
trust in Kosovo’s democratic institutions. 276
272
273
Saferworld & The Forum for Civic Initiatives, The Internal Security Sector Review: The Future of
Kosovo’s Security Sector? Briefing (2007), 307.
274
Bernabéu, 76.
275
Strohmeyer, 53.
276
Wilson, 13.

• UNMIK imposed a body of law that was not perceived as ethnically neutral. The
negative repercussions of this action were compounded by the lack of Kosovar input
into the legislative process more generally. 277
• The Anti-Discrimination Law’s protection of the “principle of equal treatment” and

“principle of fair representation” regardless of gender or ethic origin is applicable to
the judiciary and the professional organizations to which judges belong […] The law
imposes a ban on direct and indirect discrimination, harassment, and segregation,
all of which are defined by the law […] These principles must be applied to
selection, recruitment, promotion, dismissal, pay, membership in professional
organizations, and access to vocational training [..] Affirmative action type
measures, i.e., actions aimed at preventing or compensating for disadvantages
related to one or more grounds for discrimination are permitted, as long as these
measures comply with international human rights standards.278
• The intervention of NATO happened so that one ethnicity, the Albanians, would not
be driven out of Kosovo. It was therefore made in the name of multi-ethnicity. What
happened during the UN protectorate was that multi-ethnicity was imposed by the
international community. Apart from the international community, no one locally
believed that the multi-ethnic character of Kosovo could be maintained. It was
obvious for the education system, for the health system also. In the Kosovo
assembly the Serbs had a policy of absenteeism most of the time, which was self
defeating. The division between Serbs and Albanians could not be bridged. It could
be noted that in the world, there are not many examples of smoothly running
multiethnic states.
The new EULEX mission and the new government of Kosovo face the same
obstacles. Let me end with a quotation by Robert MacNamara [sic], who died a few
days ago and who said about the Balkans: “My views are in no way meant to be
critical, but I am not sure that we have learned from experience and I worry that we
will end up making the same mistakes again and again. It was once famously said
that the United States did not have 10 years of experience in Vietnam, but one year
of experience 10 times over. Will we say the same about the Balkans?279
11.4 The international community should commit to public outreach early
• In the emergency phase, the international community also should commit to the
establishment of an official legal publications office and distribution network, thereby
dramatically increasing the public’s awareness of the early steps taken by the
administration. In Kosovo, such basic efforts at transparency in the decisionmaking
277
278
279
Cady, 7-8.

process would have gone a long way toward decreasing the appearance of the re-
institution of a ‘parallel’ system.280
• Prior to its promulgation, UNMIK made no attempt to explain to local judges,

politicians, or the general public the rationale behind the regulation. This resulted in
widespread resentment throughout the ethnic Albanian community. In court, local
judges refused to be recruited for the Regulation 64 panels and the Kosovo
Supreme Court sent a letter to the SRSG stating that the regulation was a violation
of international law…281
280
Betts, Carlson and Gisvold.
281

XII. Bibliography
American Bar Association, Kosovo Legal Profession Reform Index, Volume II (2007).
American Bar Association, Judicial Reform Index, Volume III (2007).
Irene Bernabéu, Laying the Foundations of Democracy? Reconsidering Security Sector

Reform Under UN Auspices in Kosovo, Security Dialogue (2007).
Wendy S. Betts, Scott N. Carlson & Gregory Gisvold, The Post-Conflict Transitional
Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary
and Rule of Law, 22 Michigan Journal of International Law 371 (2001).
Jean Cady, A few thoughts on UNMIK Lessons Learned, unpublished,

http://inprol.org/kosovo/LL-Jean-Cady-July142009-final.pdf (2009).
Scott N. Carlson, “Legal and Judicial Rule of Law Work in Multi-dimensional

Peacekeeping Operations: Lessons-Learned Study” in Harvey Langholtz, Boris
Kondoch, and Alan Wells (eds.), International Peacekeeping: The Yearbook of
International Peace Operations, Volume 12 (Amsterdam, NL: Martinus Nijhoff Press,
2008).
Rahul Chandran, Jake Sherman and Dr. Bruce Jones with Dr. Shepard Forman, Dr.
Anne le More and Andrew Hart, Rapid Deployment of Civilians for Peace Operations:
Status, Gaps, and Options, A Report of the NYU Center on International Cooperation
(NY, NY: April 2009).
Simon Chesterman, Justice Under International Administration: Kosovo, East Timor and
Afghanistan, IPA Report (NY, NY: September 2002).
Adam Day, No Exit Without Judiciary: Learning a Lesson from UNMIK’s Transitional
Administration in Kosovo, 23 Wisconsin International Law Journal 183 (2005).
Heiner Hänggi & Vincenza (eds.), Geneva Center for the Democratic Control of Armed
Forces, Security Sector Reform and UN Integrated Missions: Experience from Burundi,
the Democratic Republic of Congo, Haiti and Kosovo (2007).
Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Model

for Post-Conflict Peacekeeping, United States Institute of Peace Special Report No. 112
(Washington, D.C.: United States Institute of Peace, October 2003).
Halvor A. Hartz and Laura Mercean (with contributions from Paul Mecklenburg and Clint
Williamson), “Safeguarding a Viable Peace: Institutionalizing the Rule of Law,” in The
Quest for Viable Peace: International Intervention and Strategies for Conflict

Transformation, Jock Covey, Michael Dziedzic and Leonard Hawley (eds.) (Washington,
D.C.: United States Institute of Peace, 2005).
David Marshall and Kelly Inglis, The Disempowerment of Human Rights-Based Justice
in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal 95 (2003).
Robert Muharremi, Lulin Peci, Leon Malazogu, Verena Knaus & Teuta Murati, Isa Blumi
(ed.), Administration and Governance in Kosovo: Lessons Learned and Lessons to Be
Learned, Center for Applied Studies in International Negotiations (2003).
Gregory L. Naarden & Jeffrey B. Locke, Peacekeeping and Prosecutorial Policy:

Lessons Learned from Kosovo, 98 American Journal of International Law 727 (2004).
Ombudsperson Institution in Kosovo, Third Annual Report, 2002-2003.
Ombudsperson Institution in Kosovo, Fifth Annual Report, 2004-2005.
Ombudsperson Institution in Kosovo, Sixth Annual Report, 2005-2006.
Ombudsperson Institution in Kosovo, Seventh Annual Report, 2006-2007.
Ombudsperson Institution in Kosovo, Eighth Annual Report, 2007-2008.
Ombudsperson Institution in Kosovo, Regarding the length of proceedings in the case of

Xhemajl Pllana, (October 31, 2006).
Ombudsperson Institution in Kosovo, Sheribane Ademi against the Municipal Court in

Vushtrri Vucitrn, the District Court in Mitrovice/Mitrovica and the Supreme Court of
Kosovo, (May 10, 2007).
OSCE, Legal Systems Monitoring Section, Monthly Report for May 2009.
OSCE, Legal Systems Monitoring Section, Different Communities before the Kosovo
Justice System (December 2008).
Tom Pieriello and Marieke Wierda, Lessons from the Deployment of International
Judges and Prosecutors in Kosovo, ITCJ Prosecution Case Studies Series (NY, NY:
March 2006).
Colette Rausch, “The Assumption of Authority in Kosovo and East Timor: Legal and
Practical Implications” in Renata Dwan (ed.), Executive Policing: Enforcing the Law in
Peace Operations, Stockholm International Peace Research Institute Research Report
no. 16 (New York, NY: Oxford University Press, 2002).
Colette Rausch (ed.), Combating Serious Crimes in Postconflict Societies: A Handbook

for Policymakers and Practitioners (Washington, DC: United States Institute of Peace,

2006).
Colette Rausch, “From Elation to Disappointment: Justice and Security” in Charles T.

Call (ed.), Constructing Justice and Security After War (Washington, DC: United States
Institute of Peace, 2007).
Saferworld & The Forum for Civic Initiatives, The Internal Security Sector Review: The
Future of Kosovo’s Security Sector? Briefing (2007).
Eric Scheye. “UNMIK and the Significance of Effective Programme Management: The
Case of Kosovo.”
Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United

Nations Missions in Kosovo and East Timor, 95 American Journal of International Law
46 (2001).
USAID Kosovo, Evaluation of the Justice System Reform Activity – Kosovo (2006).
Jeremy M. Wilson, Law and Order in an Emerging Democracy: Lessons from the
Reconstruction of Kosovo’s Police and Justice Systems, 605 Annals of the American
Academy of Political and Social Science 152 (2006).

Literature Review: Rule of Law Lessons Learned From The UN Mission in Kosovo (UNMIK) (CR 09-006)

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Literature Review: Rule of Law Lessons Learned From The UN Mission in Kosovo (UNMIK) (CR 09-006)

Hochgeladen von

Copyright:

Verfügbare Formate

Literature Review:

Rule of Law Lessons

Research assistance provided by Yolande Bouka,

Finalized by Scott Carlson and Michael Dziedzic

Submitted by: Rob Pulver, UN DPKO/CLJAS

With contributions from:

1. Gary Hill, INPROL Corrections Facilitator

The United Nations Department of Peacekeeping Operations (DPKO), the United

Paragraph 66 of the Secretary-General’s report dated 12 July 1999 (S/1999/779)

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

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

Objectives of the UNMIK Lessons-Learned Study

Role of the Literature Review

October 2009 INPROL Consolidated Response (09-006) Page 2 of 79

The literature discussing UNMIK’s involvement in rule of law related activities is

October 2009 INPROL Consolidated Response (09-006) Page 3 of 79

I. Lessons from Prior Missions Reaffirmed by UNMIK .....................................................7

II. Process of Establishment of DoJ ...............................................................................14

III. Link between Police and DoJ....................................................................................23

IV. Link between Executive and DoJ..............................................................................28

V. Defense Counsel and Private Bar .............................................................................33

October 2009 INPROL Consolidated Response (09-006) Page 4 of 79

VI. Relationship with Local Entities ................................................................................36

VII. The Judicial, Prison and Corrections System ..........................................................39

VIII. Politically or Ethnically Sensitive Cases .................................................................51

IX. Key issues and Challenges Addressed by Corrections Practitioners .......................63

October 2009 INPROL Consolidated Response (09-006) Page 5 of 79

X. Corrections Models Strategies Adopted ....................................................................66

XI. National Ownership and Engagement......................................................................68

October 2009 INPROL Consolidated Response (09-006) Page 6 of 79

October 2009 INPROL Consolidated Response (09-006) Page 7 of 79

1.2 The UN mandate should provide adequate authority

• “Issue more comprehensive mandates focusing on specific judicial and legal

October 2009 INPROL Consolidated Response (09-006) Page 8 of 79

1.3 International integration of efforts is essential

October 2009 INPROL Consolidated Response (09-006) Page 9 of 79

• International integration of efforts is essential…responsibility for re-creating and

• Second, cooperation between civilian and military authorities is critical in ensuring

October 2009 INPROL Consolidated Response (09-006) Page 10 of 79

October 2009 INPROL Consolidated Response (09-006) Page 11 of 79

1.4 An international crowd-control capacity may be necessary

October 2009 INPROL Consolidated Response (09-006) Page 12 of 79

• The challenge of determining what constitutes applicable law is overwhelming, not

• An important shortcoming of Resolution 1244 was the absence of clear, legal

October 2009 INPROL Consolidated Response (09-006) Page 13 of 79

• Inconsistent application of the laws by a combination of both local and international

II. Process of Establishment of DoJ

October 2009 INPROL Consolidated Response (09-006) Page 14 of 79

October 2009 INPROL Consolidated Response (09-006) Page 15 of 79

2.2 There is a systematic incapacity to mobilize required personnel to address

• Chronic difficulties existed in recruiting capable police officers. The demands in

October 2009 INPROL Consolidated Response (09-006) Page 16 of 79

• Regardless of the institution of ad hoc military arrangements, the United Nations

• The international community should be prepared to send a group of international

• Measures to create a standby network of international jurists who could be employed

• Lack of adequate deployment capabilities hampered the introduction of CIVPOL into

October 2009 INPROL Consolidated Response (09-006) Page 17 of 79

October 2009 INPROL Consolidated Response (09-006) Page 18 of 79

• UN Security Council Resolution 1244 assigns responsibilities relating to the rule of

October 2009 INPROL Consolidated Response (09-006) Page 19 of 79

October 2009 INPROL Consolidated Response (09-006) Page 20 of 79

• The availability of an immediately applicable legal framework is an important