From 1999 until now, a slew of articles and pundits have addressed everything that is wrong with Kosovo’s justice system, such as its lack of transparency or lack of independence. Many of these articles, particularly those from Amnesty International or Human Rights Watch, make some very important observations about Kosovo’s judicial system. You can find these reports online by simply visiting their respective websites.
I don’t intend to repeat here word for word what already has been said about Kosovo’s justice system or provide a laundry list of complaints. I will just focus on two issues that can go a long way to improving an emerging system. There are other issues, but for the sake of this post, I will rely on two.
Now, don’t get me wrong. Kosovo’s justice system has made improvements, but much is left to be desired. Of course, no justice system is perfect and we shouldn’t judge Kosovo by that standard. But for a new emerging state, the choices leaders and internationals make now in Kosovo (and dealing with decisions that should not have been made before), are critical to the question of whether Kosovo’s judicial system will be an independent, fair, and an effective institution.
1) Mentoring: Too Little, Too Late: UNMIK Regulation 2000/64 provided International Prosecutors with the power to remove cases from local prosecutors and judges. The basis for this regulation stemmed from the failure of local prosecutors and judges to handle certain cases with either the impartiality or competence required. Local prosecutors and judges demonstrated a complete failure to apply the rule of law and, instead, placed ethnic nationalism over that. For instance, a Serbian who threw a rock at a passing car driven by an Albanian would be charged with attempted murder. In other cases, an Albanian perpetrator who committed murder or some other serious crime would not be prosecuted past the “investigation” stage. International Prosecutors soon were handling the most serious of Kosovo’s cases, i.e. war crimes, and inter-ethnic cases, either between victim and perpetrator, or perpetrator/victim and prosecutor (i.e., Serbian defendant; Albanian prosecutor).
While this was a unique opportunity to establish the Rule of Law — and, in fact, was the first time such a model in which an international prosecutor could remove a case from the local judiciary existed — it did nothing to empower the “local” judicial institution. International prosecutors and judges were dealing with the most serious and complex of cases while local prosecutors were left with the “easier” stuff. It quickly created a dependency by the “local” judicial institution. You have too much work in your case? Well, it must be too complex. Hey, give it to the International Prosecutors to handle.
This bifurcated system created no incentive by local prosecutors or judges to “own” their cases. Further, there was no communication between the “local” and “international” system. One generally didn’t know what the other was doing. So, while on paper, the Rule of Law was being improved because there were War Crime or Inter-ethnic investigations and indictments and trials, the “locals” were being left behind. The “international” system was arguably improving, but the “local” system? Far from it.
Only in 2007, six years after the creation of International Prosecutors and Judges, did the Internationals decide it was time to start a mentoring program, under the guise of the Kosovo Special Prosecutor’s Office. These Special Prosecutors were supposed to be the best of the best of Kosovo’s local prosecutors. KSPO prosecutors were going to be mentored by International Prosecutors. In theory, despite the late implementation of such a program, it’s a good idea.
Mentoring helps because it integrates the “international” and “local” system and provides education for local prosecutors on how to better handle certain types of cases. In practice, it’s not enough. The KSPO consists of about 7 – 10 special prosecutors. They are all based in Pristina. What about the other regions? What about the other prosecutors in the other five regions, including t he local prosecutors in Pristina? How were they improving? How were they integrating into the UN goals of improving the Rule of Law?
To be sure, US Aid, US DOJ and other organizations ran lectures and trainings for local prosecutors and judges. But, frankly, that should have been the UN’s job. It was the UN’s priority to establish the Rule of Law, not simply on paper, but to empower those who have most ownership in Kosovo — the local prosecutors and judges — to carry on with those ideals once the internationals left the scene. Organizations such as US AID can only hope to supplement skills and education that local prosecutors and judges should have been learning from day one. Instead, these organizations, rather than the UN, are providing the substantive work. UNMIK’s DOJ has its priorities mixed up and is been sitting on its hands for too long.
Hopefully, the new EULEX mission will change all that. There will be more of a mentoring/monitoring role of international prosecutors and judges. International prosecutors and judges will not all be in Pristina but in all the regions. It’s a shame that the mentoring/monitoring idea has only started to come into fruition now. This doesn’t make much sense, as the police utilized the mentoring/monitoring model almost from day one. Kosovo’s Police Service is in a much better position to run things independently than local prosecutors or judges. In fact, KPS has taken over some enforcement responsibilities completely from UNMIK’s International Police.
2) Before Independence, There Must Be Competence: The big mantra by any group or pundit or politician, like Thaci, is, “Kosovo’s Judiciary Must Be Independent!” This is hard to argue with. An effective judicial system does require independence. Independence from political pressure. Independence from corruption. Independence between prosecutors and judges. The list goes on.
But one thing that isn’t discussed too often is independence from incompetence. Before a judicial system can be truly independent, you must first have competent prosecutors and judges.
More focus and resources must be placed not simply on fixing the structure of Kosovo’s current judicial system, but improving Kosovo’s legal education model. The majority of local judges and prosecutors of today are trained under the old communist Yugoslav model. There is nothing wrong with this model but its a different world. What worked then really won’t work now.
If you want to get a taste of the competence of local prosecutors and judges, step into any courtroom in Kosovo. You will see lawyers who have no idea how to either make a legal argument or to ask questions to a witness. Sure, training can help improve the legal acumen and trial skills of local prosecutors and judges, but the real foundation must start with proper legal education. Training works best when there is a foundation to start with. For many prosecutors and judges, you might as well be speaking Greek to them when you start talking about the most basic of legal concepts. This must change and those leaders in Kosovo’s goverment should start making education more of a priority rather than passing the buck to international organizations.
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In the end, much work is left to improve Kosovo’s judicial system. But these two reforms are probably the easiest and quickest way to get Kosovo on the road to an effective and independent judicial institution.