Amnesty International delegates visited Kosovo in November and December 2007; they found that little of the substance included in this report had changed. However, in conversations with members of the European Union Planning Team (EUPT), with United Nations Interim Administration Mission in Kosovo (UNMIK) officials, including those responsible for the police and judiciary, and with local and international non-governmental organizations monitoring the international prosecutors and judiciary, Amnesty International found that the situation was even more serious than reported below. More than seven years after the International Judges and Prosecutors Programme was established, hundreds of cases of war crimes, enforced disappearances and inter-ethnic crimes remain unresolved (often with little or no investigation having been carried out); hundreds of cases have been closed, for want of evidence which was neither promptly nor effectively gathered. Relatives of missing and “disappeared” persons report that they have been interviewed too many times by international police and prosecutors new to their case, yet no progress is ever made. Few local police, prosecutors and judges have received effective training to carry out investigations and prosecutions of war crimes and crimes against humanity. Amendments to legislation defining crimes, principles of criminal responsibility and defences and guaranteeing the full range of reparations to victims and their families has not been enacted. Rape and other war crimes and crimes against humanity of sexual violence continue to be ignored.

Criminal trials continue to be delayed for lack of international judges and prosecutors (numbering 13 and eight respectively in December 2007); cases continue to be assigned to new prosecutors unfamiliar with applicable law in Kosovo. There is a massive backlog of prosecutions, and the failure to adequately address the protection of witnesses continues to prevent prosecutions coming before the courts. Some war crimes cases returned for retrial by the Supreme Court have not been retried for almost five years . According to the Acting Head of the UNMIK Department of Justice this backlog will have to be addresses by the planned European Security and Defence Policy (ESDP) mission. Victims and their families are not able to obtain the reparations to which they are entitled under international law in civil cases.

The extent of the failure of UNMIK’s international prosecutors and judiciary will only become apparent when UNMIK police and the Department of Justice conclude the current – still entirely confidential - review, required before cases may be transferred from UNMIK to the appropriate authorities in Kosovo. Amnesty International demands that the results of that review be made public. Amnesty International not only reaffirms each of the recommendations in the report, but also urges the UN not to undertake any similar international justice missions in the future until effective steps have been taken to ensure that none of the extensive flaws identified in this report are repeated.

Research for this report concerning the UNMIK International Judges and Prosecutors Programme established in 2000 on a temporary basis to investigate and prosecute war crimes and crimes against humanity and to help rebuild the local justice system was carried out between early 2006 and April 2007. Amnesty International intended to publish the report following a United Nations Security Council (UNSC) meeting in March 2007, at which it was envisaged that the proposals set forth in the Comprehensive Proposal for the Final Status of Kosovo (Ahtisaari Plan) would be agreed and a settlement reached which would have included the continuation of the international justices and prosecutors programme and have been implemented under the auspices of the ESDP mission. These events did not take place, and so the report was not published at that time. It is now clear that no such settlement will be agreed at the United Nations (UN), however, following a decision of the Council of the European Union (EU) on 14 December 2007, it appears that the planned ESDP mission will now be deployed.

INTRODUCTION

Of all the models for combating impunity for crimes under international law in a state whose criminal and civil justice system has collapsed or been severely damaged, the approach taken by the UN in 2000 in the Kosovo province of Serbia in what was then the Federal Republic of Yugoslavia showed the most promise. Although the International Criminal Tribunal for the former Yugoslavia (ICTY) had jurisdiction over Kosovo, it was clear that it would only be able to try a very limited number of cases. It was, therefore, necessary for there to be another judicial body to conduct the majority of trials for crimes committed during the conflict within the jurisdiction of Kosovo. Instead of another international criminal court established by the Security Council acting pursuant to Chapter VII of the Charter of the UN or by a treaty between the UN and the state for an internationalized special chamber or panels with jurisdiction over such crimes, each of which would have been extremely expensive and able to investigate and prosecute only a small number of cases, the UN established a programme to incorporate a limited number of foreign judges and prosecutors into the local criminal justice system. These judges and prosecutors were expected to ensure that trials would be conducted in an independent and impartial manner consistent with international law and standards.

The Kosovo Judges and Prosecutors Programme was also heralded as providing the possibility of a longer-term legacy for the Kosovo judicial system. By introducing experienced international jurists to work alongside their local counterparts, it was claimed that there would also be capacity-building of local lawyers and judges in conducting trials of persons accused of crimes against humanity and war crimes according to international fair trials standards and establishing the rule of law.

Regrettably, however, the performance over more than seven years of the International Judges and Prosecutors Programme established by the UNMIK Department of Judicial Affairs, later renamed the Department of Justice, has failed to meet up to expectations. Local prosecutors and judges are little better prepared to conduct proceedings in cases involving crimes under international law and legal reforms essential for conducting such proceedings still have not been enacted into law. No date has been set for completing the rebuilding of the justice system so that it can operate without a continuing international component. As explained in this report, this effort has largely failed for a variety of reasons, including flaws in its conception and execution, limited resources and the low priority that international justice has been given in comparison to other UNMIK goals. This failed experiment will soon draw to a close when UNMIK fully transfers its responsibilities to the government of Kosovo. Although at the time of writing, the future of internationalized justice in Kosovo remains to be resolved it is envisaged that a European Union Defence and Security Policy Mission (EDSP) will assist Kosovo in its efforts to rebuild the local justice system.

The model of internationalizing national courts by importing, on a temporary basis, experienced international staff to work alongside national staff in all parts of the collapsed or damaged national justice system, with sufficient resources and training programmes meeting international standards is still one which could prove an effective method in the long-term, sometimes in a complementary role with international courts, to investigate and prosecute large numbers of crimes under international law, provide reparations to victims and re-establish the rule of law through a reconstituted judicial system. However, the structure and operation of the International Judges and Prosecutors Programme have been so flawed that the example in Kosovo cannot serve as a model for internationalizing national judicial systems without major changes such as those recommended in this report.

Furthermore, while the Secretary-General’s Special Envoy on Kosovo urged against the withdrawal of international participation in the Kosovo judicial system, which he considered would be premature and counter-productive,^¹it is telling that his report notes, “The Kosovo justice system is regarded as the weakest of Kosovo’s institutions” and a lack of respect for the rule of law remained a major problem.^²While the International Judges and Prosecutors Programme has been beneficial in ensuring individual cases are conducted impartially, the overall structure and operation of the Programme has set a poor example in terms of establishing an independent, impartial functioning judiciary in Kosovo, which upholds the rule of law. Therefore, a number of important changes need to be made to ensure international judges and prosecutors deliver the benefits they were promised to bring to the Kosovo justice system.

This report briefly describes the collapse of the judicial system in Kosovo which led to the creation of the International Judges and Prosecutors Programme. It compares the stated aims of the UN, and UNMIK in particular, and the broader international community in setting up a transitional justice model with the results of this programme. The report also compares the performance of the programme with international law and standards concerning the right to fair trial and the rights of victims to justice and full reparations. It draws lessons to be learned when developing and implementing future initiatives to incorporate an international component into collapsed national judicial systems. The report concludes with extensive recommendations to the EDSP mission or any other similarly mandated international body for improving the International Judges and Prosecutors Programme so that it will satisfy international law and standards and for rebuilding the Kosovo justice system within a reasonable, but clearly defined time so that a fully local justice system will be able to administer justice in a manner that can guarantee fair trials in all cases and full reparations to victims of crimes under international law and their families.

PART ONE - BACKGROUND

I. Collapse of the judicial system in Kosovo

UNMIK was established by the UN Security Council on 10 June 1999, the day after the North Atlantic Treaty Organization (NATO) suspended air strikes in its eleven-week campaign against Yugoslav and Serbian armed forces. In Resolution 1244 (1999), the Security Council mandated UNMIK to promote, “the establishment . . . of substantial autonomy and self-government in Kosovo, perform “basic civilian administrative functions where and as long as required” and maintain “civil law and order”.^³ In a formulation that lay at the root of many of the problems with UNMIK’s approach to addressing the problem of the collapse of the judicial system, the Security Council declared: “All 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[.]”^⁴ As discussed below, the consolidation of legislative, executive and judicial functions in one person, instead of ensuring the classical separation of powers with checks and balances between the three branches that Montesquieu considered were necessary for political liberty, led directly to abuses.^⁵

UNMIK faced a huge challenge immediately. The majority of the population of Kosovo’s population had been expelled. As they began to return over the next few weeks:

…an increasing number of returnees resorted to violence and intimidation as a means of retrieving some semblance of their previous lives. Looting, arson, forced expropriation of apartments belonging to Serbs and other non-Albanian minorities, and in some cases, killing and abduction of non-Albanians became daily phenomena. Moreover, organized crime, including smuggling, drug trafficking, and trafficking in women, soon flourished. It was apparent, within the first few days, that the previous law enforcement and judicial system in Kosovo had collapsed.^⁶

As the UN Secretary-General noted: “The security problem in Kosovo is largely a result of the absence of law and order institutions and agencies. Many crimes and injustices cannot be properly pursued.”^⁷The judicial system was in a state of collapse. The withdrawal of the Yugoslav People’s Army, Serbian police and paramilitary forces following the Kumanovo Military Technical Agreement on 9 June 1999 also saw the withdrawal of the Serbia state authorities, which included the judiciary. During the Serbian administration of Kosovo the ethnic Albanian population had been all but excluded from the judiciary and the legal profession. In his report to the UN Security Council on the Interim Administration in Kosovo the UN Secretary-General noted; “Politically-motivated and ethnically one-sided appointments, removals and training led to a judiciary in which, out of 756 judges and prosecutors in Kosovo only 30 were Kosovo Albanians.”^⁸

With the departure of Serbian authorities, much of the Serbian judiciary also left and went to Serbia, fearing reprisals from the ethnic Albanian population or in solidarity with Serbia’s decision not to participate in or serve the new UNMIK administration.^⁹

Furthermore, concerns had already been raised regarding fair trial rights in Kosovo, prior to escalation of the conflict and NATO intervention.^¹⁰In a report on the human rights situation in the former Yugoslavia in 1997, the UN Secretary-General found:

Fair trials standards are particularly at risk in cases connected with political activities. Major breaches of international standards for due process and also of several Yugoslav procedural requirements were found by an observer from the Belgrade Office of the United Nations Office of the High Commissioner for Human Rights who attended most of two trials of Kosovo Albanians conducted in the District Court, Pristina, between May and July 1997. The cases were recently described in a special report of the Special Rapporteur.^¹¹

Therefore, one of the initial goals identified by UNMIK to be a priority was the establishment of, “an independent, impartial and multi-ethnic judiciary with high standards of competence and professional ability”.^¹²

II. The UNMIK response

A. The attempt to rebuild a multi-ethnic judicial system with exclusively local staff

UNMIK first attempted to rebuild the local criminal justice system entirely with local staff. On 28 June 1999, two weeks after the arrival of the first UNMIK staff, UNMIK established a panel of local and international legal experts, the Joint Advisory Council on Judicial Appointments (subsequently replaced by the Advisory Judicial Commission), including two ethnic Albanians, one Bosniak and one Serb, all with previous experience in administration of justice in Kosovo, and three international lawyers from different international organizations, to assist with the appointment of judges and prosecutors.^¹³ Throughout July and August 1999 local judges and prosecutors identified selected by this panel were appointed to the Kosovo Interim Judiciary, which formed part of what UNMIK referred to as the ‘Emergency Judicial System’. While observers for the Organization for Security and Cooperation in Europe (OSCE) suggested from the outset that there was a need to introduce international experts, it was decided that the judiciary was best re-built using members of the local legal and judicial community. This was in part due to fears of appearing ‘colonial’ in its approach and in part due to the fact that no established, easily deployable body of international judicial personnel existed.^¹⁴

However, UNMIK’s attempt to build an independent, multi-ethnic judiciary was thwarted by the two problems discussed above: the absence of an experienced ethnic Albanian judiciary and the withdrawal of the Serbian judiciary, who had relocated to parallel courts within Serbia proper. Those Kosovo Albanians that had participated in the judiciary throughout the 1990s were widely viewed as collaborators with the Serbian regime.^¹⁵ Therefore, it fell to Kosovo Albanian jurists who had not practised law since prior to 1989, if ever, to take up appointments in the new judiciary. Meanwhile, when appointments were made in September 1999 to the Ad Hoc Court of Final Appeal, not a single Serb candidate applied.^¹⁶ Therefore, the judiciary established by UNMIK largely consisted of ethnic Albanians.

As the ethnic Albanian community had been almost completely excluded from government and other administrative positions from 1991 onwards, there were very few professionals with sufficient skills and experience to conduct serious cases. A number of the cases involving local prosecutors involving alleged ethnically based crimes were poorly prepared^¹⁷. There have also been numerous problems with local judge panels or panels in which they were a majority, including conducting trials in absentia even when prohibited under UNMIK regulations.^¹⁸ Furthermore, in addition to the continuing concerns about the quality of the jurisprudence of local judges, in the climate of ethnic tension a judiciary composed almost entirely of ethnic Albanians did little to inspire confidence among Serb and other minority communities of the likelihood of a fair trial before an impartial panel. Finally, it soon became clear that in some instances there was more than just an appearance of bias. Independent monitors reported examples of cases being dismissed and defendants released when those involved were ethnic Albanians and Serb defendants being detained and convicted of war crimes on minimal evidence, either due to sympathy on part of court or due to fear of intimidation from Kosovo Albanian community. ^¹⁹

In September 1999 the Special Representative of the Secretary-General (UN Special Representative), established the Technical Advisory Commission on Judiciary and Prosecution Service to advise on the structure and administration of these two institutions. As the UN Secretary-General in his report to the Security Council in December 1999 noted:

One of UNMIK’s priorities has been the establishment of an effective, impartial and independent judiciary. To this end the Institution-Building and Civil Administration components have worked together closely on the Emergency Judicial System. A total of 572 interviews have been conducted for the local judiciary database. A total of 328 judges and prosecutors and 238 lay-judges have been recommended for appointment by the Advisory Judicial Commission. However, the Emergency Judicial System at present has only 47 judges and prosecutors – 41 Kosovo Albanians, 4 Muslim (Bosniac), 1 Roma and 1 Turk – following the resignation of 6 Kosovo Serb judges for security reasons and the departure of another to Serbia. Reportedly, judges, prosecutor and lawyers, particularly those belonging to ethnic minorities, have been threatened. As a result, preserving a multi-ethnic judiciary in Kosovo is becoming increasingly difficult.^²⁰

B. The proposed Kosovo War and Ethnic Crimes Court (KWECC)

In order to address the difficulties faced by the new judiciary in dealing with ethnically and politically sensitive cases, in December 1999 and the inability of the ICTY to investigate and prosecute more than a handful of the crimes against humanity and war crimes committed in Kosovo, the Technical Advisory Commission on Judiciary and Prosecution Service recommended to UNMIK Department of Justice that a separate court be established to try war and ethnically-motivated crimes: the Kosovo War and Ethnic Crimes Court (KWECC). This court was proposed as an extraordinary court within the Kosovo legal system, composed of local and international judicial personnel. It was to have jurisdiction over cases involving grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, crimes against humanity and other crimes committed on political, racial or religious grounds in Kosovo since 1 January 1998. Crimes identified were murder, extermination, enslavement, deportation and imprisonment:^²¹

It was anticipated that the KWECC would operate as part of a broader system of adjudication between the domestic courts and those of ICTY, and would handle difficult cases at the same time that it would increase the capacity of Kosovar judges. It would have concurrent jurisdiction with other regular courts, with its Chief prosecutor to determine that it would hear the case or remain in other courts. The KWECC would have primacy over other domestic courts, and would be able to assume jurisdiction over a case at any given point. It would have concurrent jurisdiction with ICTY and would defer to ICTY’s competence. The KWECC was to be composed of panels with both local and international representatives, but its President, Vice President, Chief Prosecutor, Deputy Chief Prosecutor, Registrar and staff would all be international. It was planned that the KWECC would work together with Kosovar judges and prosecutors on these difficult cases as one form of capacity building.^²²

According to a report commissioned by the Canadian Department of Foreign Affairs and International Trade, “[i]nitially the proposal to create the KWECC enjoyed good support and the UNMIK Department of Judicial Administration [DJA] spent a great deal of time and effort in developing operational plans to establish the court”.^²³The UN Secretary-General in his March 2000 report to the Security Council also referred to the Court’s establishment:

UNMIK is also making concerted efforts to establish a war and ethnic crimes court as soon as possible. The Technical Advisory Commission on Judiciary and Prosecution Service, established pursuant to UNMIK regulation No. 1999/6 of 7 September, 1999, recommended the creation of such a court. The particular nature of war and ethnically related crimes requires that these crimes be tried by panels with both local and international representatives. In this connection, the support of Member States in identifying and fielding expert personnel and in providing material and financial support will be essential.^²⁴

UNMIK did not consult civil society in the drafting of the proposal, which has never been made public, despite attempts by Amnesty International to obtain a copy. Indeed, secret preparations for the Court continued well into 2000. In a press release issued on 17 May 2000, UNMIK stated:

The [Department of Justice] is also in the process of setting up the Kosovo War and Ethnic Crimes Court (‘KWECC’). The court will be competent to try persons for war crimes, crimes against humanity, genocide and other serious crimes committed on the grounds of race, ethnicity, religion, nationality, association with an ethnic minority or political opinion. KWECC will have both local and international judges and prosecutors.^²⁵

It was reported in June 2000 that the chief international prosecutor for the KWECC had been appointed and had arrived in Kosovo and that the Court was expected to start work in the summer.^²⁶However, despite the obviously continuing planning throughout 2000, the Court never materialised. The reasons suggested for its abandonment vary, but it seems concern as to the financial implications, United States reluctance and the establishment of the International Judges and Prosecutors Programme in February 2000 led to the proposal being quietly laid to rest by the end of 2000.^²⁷

C. Establishment of the International Judges and Prosecutors Programme

In the meantime, the first international judge and first international prosecutor were introduced into the District Court of Mitrovica/Mitrovicë in response to riots and inter-ethnic violence, which broke out following an attack on 1 February 2000 on a UN High Commissioner for Refugees (UNHCR) bus carrying Serbs into Serb-dominated northern Mitrovica/ë.^²⁸On 15 February 2000, the then UN Special Representative, Bernard Kouchner promulgated Regulation 2000/6, On the Appointment and Removal from Office of International Judges and International Prosecutors. This regulation provided for the appointment of international judges and prosecutors to conduct criminal cases within the jurisdiction of the Mitrovica/ë District Court (for the full text, see Annexe One).

In May 2000 Serb detainees in other parts of Kosovo began hunger strikes to protest against their lengthy pre-trial detention periods, which in some cases were up to 10 months. Many of the detainees had not even been indicted.^²⁹The detainees called for immediate trials with international judges and prosecutors as the detainees in Mitrovica/ë were now receiving. Regulation 2000/6 was therefore amended to allow for more international judges and prosecutors to be appointed and, on 27 May 2000, the regulation was amended to cover all regions of Kosovo.

By December 2000 it was decided that the mere presence of one international on a judging panel was insufficient to ensure a lack of bias as the international judge could still be out-voted by a majority of ethnic Albanian judges. The UN Special Representative therefore promulgated a further regulation; Regulation 2000/64, On Assignment of International Judges/Prosecutors and/or Change of Venue (see Annexe Two for the full text of this regulation). This regulation provided for a case to be assigned by the Special Representative, to an international prosecutor, international investigating judge and/or a majority international panel of judges, on application by the accused, defence counsel, the prosecutor or the UNMIK Department of Judicial Affairs (later Department of Justice) itself. It was not possible for an application to be made once a trial had commenced but the regulation provided that a Regulation 64 panel could be appointed for any appellate proceedings.

Following the promulgation of this regulation all cases involving war crimes, genocide or crimes against humanity are supposed to have been dealt with by Regulation 64 panels ^³⁰(although the reality is that this has not been the case, as discussed in Part Four of this report). International judges and prosecutors have also been responsible for cases involving serious inter-ethnic crimes, organised crime and corruption. They have operated within the domestic court system in the form of mixed international/local, majority international or, in certain particularly sensitive cases, all international judicial panels. Originally the international judges and prosecutors were located in the Supreme Court in Pristina and in district courts in each of the municipalities of Kosovo. However as of 2006, apparently in an attempt to capitalize better on the limited numbers of international judges and prosecutors, the UNMIK Department of Justice has relocated all internationals back to Pristina from where they are to handle cases from around Kosovo under the ‘single jurisdiction’ approach.^³¹ As discussed below in Part Four, the single jurisdiction approach has had a number of adverse effects, including further limiting access to international judges and prosecutors and reducing the possibility for interaction with, and mentoring of, the local legal community.

Further changes to the International Judges and Prosecutors Programme by UNMIK before the expected EU takeover of the administration of Kosovo are expected. While in Kosovo in April 2006, Amnesty International delegates were told of a planned restructuring of the International Judges and Prosecutors Programme. A new prosecutor’s office (the Special Prosecutor’s Office) was planned, which would be made up of ten local and ten international prosecutors who will jointly prosecute organised crime, trafficking in human beings, inter-ethnic crimes, terrorism and corruption.^³²There was also a proposal that was being circulated by Chief International Judge Carol Peralta, which Amnesty International understands envisages a special chamber of the Supreme Court made up of mixed international/national panels to hear the cases dealt with by the Special Prosecutor’s Office. As the proposal has not yet been made public, the details of the structure are not yet known. However, it currently appears that this could be a return to the KWECC model proposed by the Technical Advisory Commission on Judiciary and Prosecution Service back in 1999. It is not, however, envisaged that this chamber would conduct many war crimes cases, but would rather primarily address issues of corruption and organised crime.

PART TWO – THE FAILURE TO RECRUIT AND TRAIN PROPERLY INTERNATIONAL JUDGES AND PROSECUTORS

I. The ineffective recruitment of international staff

“Some internationals may not be ‘up to scratch’ but they are better than the locals…”^³³

Many members of the Kosovo legal community and civil society told Amnesty International that they considered the introduction of international judges and prosecutors as an important and useful step towards re-establishing the Kosovo justice system and inspiring public confidence in it as an institution. However, they also expressed doubts as to whether all of those recruited were sufficiently qualified to be capable of this difficult task. This concern was echoed by a number of UNMIK staff^³⁴and has been commented upon by numerous other international observers. A review of the recruitment procedures adopted by UNMIK makes this concern unsurprising. By failing to adopt an aggressive, targeted approach to recruitment, UNMIK has created a programme in which the standard of judges and prosecutors has varied considerably. Furthermore, as clearly thought-out and detailed selection criteria do not appear to ever have been employed, those recruited have often not held the necessary skills or experience to carry out an extremely challenging and sensitive role in rebuilding the Kosovo judicial system.

A. Absence of an aggressive recruitment programme

In February 2000 Amnesty International made a number of recommendations to UNMIK on the judicial system, including the introduction of a small number of international personnel into the domestic courts to assist local judiciary with sensitive cases and to raise their awareness of international human rights standards.^³⁵ It was recommended that the international personnel recruited be carefully selected from countries with a civil law tradition, to ensure respect for the domestic legal system within which they would be required to operate. Amnesty International also recommended that, “[a]ny international professionals chosen to work in Kosovo should also have training and experience in the application of international human rights law”.

Considering the seriousness of the crimes the international personnel were introduced to try - crimes such as war crimes, crimes against humanity^³⁶and genocide - it seems self-evident that the highest calibre candidates, with the greatest experience possible, should have been chosen to serve in Kosovo. In addition, international judges and prosecutors were considered necessary in Kosovo because local judges and prosecutors had, in war crimes cases, been unable to ensure fair trials and human rights protections in accordance with international law and standards.

For those who believed international participation within the judicial system was necessary (at least in the early stages of Kosovo’s reconstruction), the international judges and prosecutors were intended not merely to act as outsiders who could give an appearance of independence and impartiality to proceedings, but also to bring experience and knowledge of international law and standards. The additional challenge posed by the decision to insert internationals into the domestic legal system required some attempt to be made to ensure that the internationals selected were both willing and able to work within the system and apply both the applicable domestic law and international human rights conventions and standards incorporated into applicable law under UNMIK Regulations 1999/1 and 1999/24. In order to ensure the most appropriate individuals were appointed, it was necessary for there to be a clear, focused and aggressive recruitment programme.

Amnesty International, in recommendations made concerning the International Criminal Court and the African Court on Human and Peoples’ Rights detailed a number of principles for the nomination and selection of judges for international courts. A number of these recommendations are equally applicable in the context of the internationalized panels in Kosovo. For example:

Ensuring all attempts are made to achieve gender balance among those appointed;
Ensuring wide advertising of the nomination process;
Providing transparency in the nomination and selection procedure; and
Allowing for the inclusion of civil society in nomination process.^³⁷

The UN Office of the High Commissioner for Human Rights (OHCHR), in its Rule-of-Law Tool for Post-Conflict States entitled, ‘Prosecution Initiatives’ released in 2006 also notes the importance of recruiting qualified and dedicated international staff to ensure the effectiveness of a transitional justice model. Among other recommendations, the Tool suggests:

“Targeted searches and loan arrangements with host countries may help, as may attractive conditions of service…Rigorous selection criteria should apply, and the process should have similar requirements for international and domestic candidates.”^³⁸

Unfortunately, in Kosovo it seems none of these possible approaches were ever employed. The first international judge was a member of the UNMIK mission who was ‘persuaded’ to take the role in response to the emergency situation, which had emerged in Mitrovica/ë (detailed above in Part One of this report). This ad hoc approach set the trend for UNMIK’s entire approach to the International Judges and Prosecutors Programme (other aspects of this ad hoc approach are discussed in Part Four of this report). In terms of recruitment, it appears that at no stage were serious efforts made to identify and recruit the most highly qualified, experienced and appropriate candidates in the world for the job. UNMIK’s failure to make these efforts has been reflected in concerns that have been raised ever since regarding the efficacy of the international judges and prosecutors programme.

A former Deputy Special Representative of the UN Secretary-General for Police and Justice and his Senior Adviser have written:

“Candidates must have substantial experience as a professional judge dealing with criminal law cases in their home jurisdiction, as well as a knowledge of the civil law system and be familiar with international human rights standards and legal principles.”^³⁹

These criteria have not been reflected in the job advertisements until very recently. The May 2006 advertisement on the UNMIK website for international judge and prosecutor positions requires no more than an advanced law degree, fluency in English and five years experience as a judge for judicial appointments, or as a public prosecutor for international prosecutor positions.^⁴⁰Despite numerous oral and written requests to the UNMIK Department of Justice, Amnesty International has not been provided with a copy of any selection criteria for recruitment, making it difficult to ascertain whether any other qualifications or skills were sought. Former international judge, Judge Lortie of the Court of Quebec believes the UNMIK Department of Justice simply did not develop more detailed selection criteria than those set out in Regulation 2000/6.^⁴¹Judge Lortie also stated that his interview for the position of international judge consisted of little more than a test of his ability to speak English and to check whether he had any preconceived opinions regarding the various parties involved in the war in Kosovo.^⁴²Since Amnesty International’s raised concerns about the qualifications during its visit in 2006, there have been some improvements in the professional qualifications listed in the advertisements for international judges.^⁴³

In some cases it appears even basic language requirements were not met by those recruited. In the 2005 report of the Council of Europe Committee on Legal Affairs & Human Rights, the Rapporteur noted anecdotal evidence of international judges recruited with insufficient command of any of the official languages of Kosovo (Albanian, English and Serbian). He also reported instances of judges applying their own national laws instead of the law applicable in Kosovo and of judges lacking familiarity with European human rights principles.^⁴⁴The report made the following recommendation to UNMIK to reinforce the judicial system, which was adopted by the Parliamentary Assembly of the Council of Europe (PACE) in Resolution 1417 (2004):

“Ensuring that all international judges have a proper command of at least one of the official languages, along with sufficient experience of a relevant legal system and of the applicable international human rights instruments.”^⁴⁵

Similar findings have been made in a government-commissioned report and in reports of non-governmental organizations. For example, a report commissioned by the Canadian Department of Foreign Affairs and International Trade in 2001, also referred to the lack of prosecutorial experience of the international judges and prosecutors:

[T]he second wave of recruitment was desperate in an effort to bring in any one who formally filled the bill and these are with judges that often do not speak English well, have little prosecutorial experience, have little experience in criminal law or in war crimes. Even international judges and prosecutors emphasized that they are not well-versed in Kosovar or international war crimes and humanitarian law upon recruitment.^⁴⁶

A report published in 2005 by the Center for International Peace Operations made a similar recommendation:

Better recruitment procedures and preparatory training should ensure that international jurists are sufficiently qualified and experienced. Judges and prosecutors should be deployed to post-conflict missions only on condition that they have substantial experience in rule of law based judiciaries, that they are able to adapt to a different legal system and that they have sufficient command of the English language in general and of legal terminology in particular.^⁴⁷

In 2004, former OSCE legal advisers, John Cerone and Clive Baldwin, also criticised UNMIK’s recruitment process for failing to ensure sufficient “quality control”.^⁴⁸According to a report published by the International Center for Transitional Justice (ICTJ) in March 2006 the selection process now involves the Chief International Judge reviewing the applications and a telephone interview of short-listed candidates, usually by two current international judges, the head of the International Judicial Support Section and a representative of UNMIK’s personnel office. The ICTJ report however notes that, “this system has been criticized for being haphazard and for the difficulty in exercising quality control at such a distance”.^⁴⁹

Despite all of the observations and recommendations listed above, in 2006, six years after the creation of the international judges and prosecutors programme, the UNMIK Department of Justice has still failed to address this issue.

The global pool of judges and prosecutors qualified to carry out the functions required of international judges and prosecutors in the Kosovo courts is a small proportion of all judges and prosecutors in the world. However, the apparent complete failure on the part of the UNMIK Department of Justice even to attempt to institute recruitment processes that would draw in the most suitable candidates is a matter of deep concern. Despite the small number of lawyers around the world with extensive experience in international criminal law, the pool of lawyers with practical experience in judging, prosecuting and defending criminal cases in the ICTY, ICTR, Special Court for Sierra Leone and the Special Panels for Serious Crimes in Dili, Timor-Leste is sufficiently large to select highly qualified candidates for the small number of judicial and prosecutorial posts in the Regulation 64 panels. With the closure of the Special Panels and as the exit strategy of the ICTY and ICTR progresses, the numbers of such lawyers is continuing to rise. Indeed, the new International Criminal Court and the Extraordinary Chambers for Cambodia do not appear to have any trouble locating qualified international judges and prosecutors.

B. Failure to recruit adequately qualified personnel

Amnesty International has not been provided with copies of the curriculum vitae of those recruited, despite having made a written request to UNMIK Department of Justice. This is in marked contrast with the International Criminal Court, the ICTY, the ICTR and the Cambodian Extraordinary Chambers, where a curriculum vitae of each judicial and prosecutorial candidate has been made publicly available on the internet prior to appointment. The website for the Special Court for Sierra Leone also provides basic biographical details about each of the judges’ professional careers. Without copies of these curriculum vitae it is difficult for civil society to determine conclusively whether the international judges and prosecutors who have served or who continue to serve in Kosovo have the appropriate skills and expertise for the task. However, anecdotal evidence suggests that the extent to which those recruited have been adequately skilled and experienced has varied greatly.

Lack of relevant experience and knowledge of international human rights and humanitarian law

It may be unrealistic to expect the international judicial personnel introduced into Kosovo to have a sound understanding of the domestic law prior to arrival (although there is no reason they cannot be provided some training). However, in light of the nature of the crimes the internationals were initially expected to prosecute or conduct trials and their intended function as role models in applying international human rights and fair trials standards, it is not unrealistic to expect that those introduced should have some practical experience of international human rights and international humanitarian law. However, a former international judge who spoke to Amnesty International stated that he could not recall during his interview having been asked any questions about his knowledge of or experience in international humanitarian or human rights law– neither of which he had.

As noted above, although there is a limited number of judges and prosecutors with experience in international humanitarian, criminal or human rights law, the number is adequate to supply the small number of international posts in the Regulation 64 panels. Therefore, it is of concern that, apart from the very recent listing in advertisements of knowledge of human rights and experience in criminal law, no real attempt seems to have been made to conduct an aggressive international search effort to locate candidates with such experience. No attempt seems to have been made to seek the advice or assistance of the International Criminal Court, ICTY, ICTR, the Special Panels for Serious Crimes, the Special Court for Sierra Leone or the Extraordinary Chambers for Cambodia for recommendations as to how to recruit appropriate candidates, to secure the temporary loan of judges and prosecutors or to ask retired judges and prosecutors of these tribunals if they would be willing to serve in Kosovo.

Lack of experience in criminal prosecutions

The failure to recruit judicial personnel with international humanitarian and human rights law experience might have been mitigated if those recruited had extensive criminal experience. The UN Secretary-General in his report, The rule of law and transitional justice in conflict and post-conflict societies notes:

“It is highly desirable…that those nominated, elected or appointed to serve as judges in international and hybrid tribunals possess extensive criminal trial experience, preferably as a judge.”^⁵⁰

However, one former local judge of the Supreme Court, who served from 2000 until 2002, told Amnesty International that he has often asked himself whether the internationals introduced had the competence or experience as judges to be capable of judging the cases they were brought in to handle.^⁵¹

He was not alone in voicing this concern. For example, an official in the UNMIK Police told Amnesty International delegates that he believed, even if prosecutors did not have war crimes experience, they at least needed to have strong prosecution backgrounds so that they could properly take statements, ensure searches conducted are legal and evidence is collected properly. In a review that Amnesty International conducted of the still unpublished judgments in war crimes and crimes against humanity cases, the organization noted at least one case that had to be dismissed due to improperly collected evidence. This problem was also observed by the Humanitarian Law Center (HLC), which is the non-governmental organization that has most closely monitored the war crimes and crimes against humanity cases in Kosovo.^⁵²Amnesty International also found an example of a case in which the prosecution’s application for leave to appeal was refused as it was filed out of time by the international prosecutor.^⁵³In another example, an international judge told Amnesty International of a war crimes case over which he had presided where he had acquitted the defendant. The international judge stated that he believed at least one of the defence alibi witnesses could have been verified by the International Prosecutor but was not due to incompetence on the part of the prosecutor.^⁵⁴

Lack of expertise in dealing with cases of sexual violence

Various international and local non-governmental organizations, including Amnesty International, documented numerous cases of rape in Kosovo.^⁵⁵ In addition, according to the head of the UNMIK Victim Assistance and Advocacy Unit (for the work of this unit, see Part Four below), NATO forces also documented rape testimonies immediately after they arrived.^⁵⁶This along with the experience of Bosnia, where both the 1992 Independent Commission of Expert’s Report and the evidence put before the ICTY in a number of cases, should have alerted the international community to the need to ensure sexual violence committed during the conflict was properly investigated and prosecuted. However, it seems no attempts were made to seek any international judges or prosecutors with specific expertise in gender-based or sexual violence. The apparent failure to do so may be a major reason that there has not been a single prosecution for sexual violence as a war crime or crimes against humanity in Kosovo initiated by an international prosecutor, although there was one such prosecution initiated by a local prosecutor against a Montenegrin, which led to a conviction in the Jokić case that was reversed on appeal by an international panel of the Supreme Court of Kosovo on the ground that the District Court had failed to consider the evidence carefully and failed to call defence witnesses. A prosecution by an international prosecutor in a retrial led to an acquittal on the ground that the eye-witness identification was not credible.^⁵⁷

Conclusion

The head of the OSCE Legal Systems Monitoring Section has stated that the UN had experienced real difficulties getting qualified professional people, was constantly recruiting and, for that reason, the internationals, while being less than perfect for the job, were considered “better than nothing”. This cannot be an excuse for providing second-class justice. If there have been problems attracting the right sort of candidate, the UN needs to reconsider the overall recruitment strategy and incentives provided, in the light of the experience of the International Criminal Court, the ICTY, the ICTR, the Special Panels for Serious Crimes, the Special Court for Sierra Leone and the Extraordinary Chambers of Cambodia to ensure the best possible candidates are attracted. Considering the international judges and prosecutors are being required to conduct trials for the most serious crimes imaginable in the world, including war crimes, crimes against humanity and genocide, the recruitment of international judges and prosecutors for the Regulation 64 international panels and for other international and internationalised courts, should meet the highest standards. This is essential both in terms of ensuring the best-qualified candidates are brought in to assist with local capacity building and enhancing the credibility and integrity of international criminal law. The failure to put in place rigorous recruitment procedures to ensure a consistent selection of the most qualified judges and prosecutors in the world has seriously damaged the credibility of the International Judges and Prosecutors Programme as a model for future internationalized courts. It has also undermined the effectiveness of the model in assisting to establish a strong, solid, well-respected judicial system in Kosovo.

II. Lack of training

Amnesty International is deeply concerned by the failure of the UNMIK Department of Justice to provide even the most basic training in the applicable law, the Kosovo justice system or in international human rights and international humanitarian law, to international prosecutors and judicial personnel introduced into the Kosovo legal system. This is especially worrying, bearing in mind the concerns raised above, regarding the lack of qualifications or experience among some of those recruited. It is not simply a failure to develop and implement training programmes in accordance with international standards, such as Amnesty International’s A 12-Point Guide for Good Practice in the Training and Education for Human Rights of Government Officials”, ACT 30/001/1998, February 1998. At no stage has the UNMIK Department of Justice established either an initial training programme or a continuing legal training programme for international judges and prosecutors, despite recommendations by independent observers. There also appear to be serious shortcomings in the training provided by the UNMIK Department of Justice for local judges, prosecutors, court administrators, defence lawyers and detention personnel.

Some training was provided initially to international judges and prosecutors by the Kosovo Judicial Institute set up by the OSCE, not by UNMIK, in 2000. However, in its review of the criminal justice system in August 2000, the OSCE Legal Systems Monitoring Section recommended:

The Kosovo Judicial Institute should provide more comprehensive training on the application of international human rights law in the criminal justice context to both local and international judges and prosecutors. In particular, all appointed judges and public prosecutors should be required to undergo an intensive legal training course prior to taking their official posts.^⁵⁸

Although it appears there are still improvements necessary,^⁵⁹the Kosovo Judicial Institute has made significant progress in developing a continuous and comprehensive training programme for the local judiciary in national and international law and in specialized areas, such as crimes of sexual violence.^⁶⁰However, the director of the Kosovo Judicial Institute told Amnesty International delegates that it was not entitled to train international judges and prosecutors. International judicial personnel would sometimes be invited for specific training sessions, but generally any involvement was as trainers.^⁶¹

Representatives of the UNMIK Department of Justice International Judicial Support Division told AI that stated it did not have any programme in place for the induction and ongoing training of new international personnel and that this was the responsibility of the Kosovo Judicial Institute. When Amnesty International informed the International Judicial Support Division that it had been told the Kosovo Judicial Institute’s mandate did not include the international judiciary, the Division conceded that no training at all was provided.

As explained in the previous section, many of the international personnel recruited have little or no practical experience or knowledge of international criminal law, international humanitarian law and human rights law. This serious gap, coupled with their lack of knowledge or experience of the domestic legal tradition, system and applicable substantive and procedural law, makes it essential for the UNMIK Department of Justice to provide the international judges and prosecutors with comprehensive initial and continuing training.

A number of the international judges interviewed by Amnesty International described a feeling of just being “dropped in”. One judge told Amnesty International delegates that he was allocated a case the day after he arrived. By way of training he stated he had, “four or five hours of chat over a couple of weeks with a local law professor. That was about it.” He understood that there were also seminars once every three months but that on top of the workload it was almost beyond the capacity of international judges to participate. ^⁶²Another international judge described a situation in which his lack of awareness of local culture and customs led to him offending a witness who promptly left court and refused to testify.^⁶³

All the international judges, both current and former, interviewed by Amnesty International stated they had simply requested a copy of the criminal and criminal procedure code and familiarised themselves with it in their own time, prior to or upon arrival. This is not sufficient to allow the international judicial personnel to fulfil their role. It is disadvantageous to the international judges and prosecutors, who are forced to apply the law within a legal system which many of them have no familiarity with, in very serious cases with serious consequences for the individuals involved. It is also disadvantageous to the accused as the certainty of the law and its application is undermined because the international judges and prosecutors are forced to rely on their own legal traditions and principles.

The combination of a lack of training and the lack of clarity regarding applicable law and the ways in which the various sources of applicable law should be read together has also added to this uncertainty. As one former international judge told Amnesty International, “It was never clear to us (international judges) how exactly international standards should be applied to the laws”. This judge also told Amnesty International:

[there was a] giant problem of interpretation between civil law and common law judges. As the first common law judge there I took a lot of hits. I couldn’t get a clear answer on how to handle this – it seemed to be ‘do your own thing time’ so I did!

One respected local defence lawyer told Amnesty International that he believed international prosecutors simply copied ICTY indictments, without consideration for the fact that Article 7 of the ICTY Statute is different from the applicable law in Kosovo.^⁶⁴He told Amnesty International that in his opinion, “the first problem the international judges and prosecutors are facing here is that they don’t know the applicable law. This is especially a problem for war crimes.” ^⁶⁵This criticism of the over-reliance on ICTY indictments was echoed by a former international judge.^⁶⁶The recent ICTJ report also notes concerns regarding the influence of the different legal traditions from which prosecutors have come on the drafting of indictments and charging practices.^⁶⁷

The Council of Europe Committee of Legal Affairs and Human Rights also noted with concern the lack of training received by international judicial personnel:

As for international judges, whilst in general well appreciated for their experience and ability to deal with politically or ethnically sensitive cases, not all have had the training necessary for the job.^⁶⁸

For this reason, the following recommendation was made to UNMIK by the Parliamentary Assembly in Resolution 1417 (2004):

Reinforce the judicial system, including by:

…

e. providing full and effective training to judges, prosecutors and lawyers on all aspects of the law, in particular new instruments such as the Provisional Criminal Code and Provisional Criminal Procedure Code and international human rights applicable in Kosovo.^⁶⁹

This recommendation has still not been implemented.

PART THREE – THE DENIAL BY REGULATION 64 INTERNATIONAL PANELS OF THE RIGHT TO A FAIR TRIAL

The UNMIK Department of Justice has failed through its International Judges and Prosecutors Programme to fulfil its core mandate to “to build a multi-ethnic, independent, impartial and competent judiciary, while ensuring in the shorter term that inter-ethnic and organised crime are addressed through international judges and prosecutors who can act, and be seen to act, without fear or favour”.^⁷⁰ As a body established by the UN, it must operate in a manner consistent with the purposes of that organization, which include “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.^⁷¹ The human right to a fair trial is recognized in Articles 9, 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR) and a wide range of other international instruments. In particular, anyone arrested on a criminal charge is “entitled to trial within a reasonable time or to release”.^⁷² Everyone charged with a crime is “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.^⁷³ In addition, everyone charged with a criminal offence is entitled “[t]o have adequate time and facilities for the preparation of the defence”, “[t]o be tried without undue delay” and “[t]o have the free assistance of an interpreter if he cannot understand or speak the language used in court”.^⁷⁴

As discussed below, the UNMIK Department of Justice and its International Judges and Prosecutors Programme has failed to ensure that each of these guarantees was fully respected. The international judges and prosecutors are not properly accountable, they lack independence and they do not operate with the transparency required by a court. They have also failed to ensure that the rights of suspects and accused are fully respected, in particular, by failing to ensure that proceedings are fully and correctly interpreted and that transcripts of proceedings are available in the language of the accused and that an equality of arms between the prosecutors and the accused is maintained.

I. Lack of accountability

The international judges and prosecutors are not accountable to any independent and impartial body. This is in contrast with local judges and prosecutors, who have been subject to a separate (though not fully independent) body, which is now being replaced by two separate bodies, one for judges and the other for prosecutors. Even more disturbing, as detailed in Part Three, Section II, is that international judges and prosecutors are subject to executive interference, seriously undermining their independence. Furthermore, while the OSCE monitoring programme originally monitored and reported on cases conducted by international judges and prosecutors, Amnesty International was told by the head of the Legal Systems Monitoring Section that this is no longer the case.^⁷⁵

In an interview with Amnesty International delegates in April 2006, the Deputy-Director of the UNMIK Department of Justice, Ms Annunziata Ciaravolo, stated that:

“The main goal of a mission is to establish the rule of law. Without a functioning judiciary you cannot establish democracy.”^⁷⁶

That the re-establishment of the judicial system was of paramount importance in Kosovo has already been noted. However, while efforts have been made by the UNMIK Department of Justice to create an independent functioning domestic judiciary, these initiatives have not been applied to the international judges and prosecutors.

The Kosovo Judicial and Prosecutorial Council was established in April 2001 to appoint, regulate and, where necessary, discipline members of the local judiciary.^⁷⁷ However, despite the presence of international judges and lawyers on the Council, it was not mandated to recruit, appoint or discipline members of the international judiciary. This omission was in spite recommendations made to the contrary.^⁷⁸The Deputy Director of the UNMIK Department of Justice, Annunziata Ciaravolo, herself a former international judge in Kosovo and currently Chief International Prosecutor (Amnesty International’s concerns regarding the appropriateness of all three positions being held by the same person are detailed below in Part Three, Section II), stated that she did not consider it appropriate for international judicial personnel to be subject to a council consisting of members of the local legal community, on the ground that it would make them vulnerable to accusations that they were motivated by political reasons (see discussion below Part Three, Section II).^⁷⁹However, no attempts have been made to ensure that the international judges and prosecutors are at least answerable to some independent body within Kosovo.

The issue was raised with UNMIK in October 2004 by the Ombudsperson, after he received a complaint of alleged misconduct on the part of an international prosecutor. In a letter^⁸⁰addressed to Jean-Christian Cady, the Deputy Special Representative of the UN Secretary-General for Police and Justice, the Ombudsperson noted that he had attempted to follow up the complaint and sought an investigation into the alleged misconduct, but had been informed by the Kosovo Judicial and Prosecutorial Council that, while it could investigate local judges and prosecutors, it was not competent to carry out such an investigation of an international prosecutor. The Ombudsperson stated that he also sought to raise the issue with the then Director of the Department of Justice, Thomas Monaghan, but “Mr Monagham (sic) could also not give me an entirely satisfying answer”. The Ombudsperson concluded:

This is just another example of the lack of legal mechanisms in Kosovo with regard to the conduct of international staff members working for UNMIK or related institutions. Such double standards greatly undermine the efforts of UNMIK to build a legal system that is in accordance with European principles and values.

I consider it very important that effective action be taken to put an end to this absolute lack of accountability, at least for international prosecutors and judges, whose task is particularly important as it constitutes the basis for a proper and qualitatively adequate administration of justice in Kosovo, in particular regarding the most serious and sensitive criminal cases.

As seems to have been generally the approach of UNMIK to issues of accountability, no response to the Ombudsperson was forthcoming until 28 February 2005. When a response was finally sent to the Ombudsperson, it stated:

It is fully accepted and acknowledged that the citizens of Kosovo deserve a right to recourse to a regulatory body that would investigate and adjudicate upon allegations of professional misconduct in relation to [international judges and prosecutors]. However, the system whereby [international judges and prosecutors] are integrated in the Kosovar justice system is unique and unprecedented in the annals of UN peacekeeping operations. Upon due consideration of all legal and procedural aspects of the matter and following consultation with the [Kosovo Judicial and Prosecutorial Council], the Department of Justice is currently considering the establishment of such a regulatory body. This body would submit its recommendations to the authority that is competent to take appropriate disciplinary action against the [international judges and prosecutors], which could be the [UN Special Representative], the UN Administration or the national jurisdiction of the respective [international judges and prosecutors]^⁸¹

The regulatory body referred to by Thomas Monaghan has not been established. Furthermore, when the issue was raised in various interviews with staff of the Department of Justice conducted by Amnesty International, no one within the Department could point to any attempts to remedy the current situation. On 20 December 2005 the SRSG promulgated a regulation establishing a new Kosovo Judicial Council which replaces the Kosovo Judicial and Prosecutorial Council.^⁸²A Prosecutorial Council is also to be established shortly. However, as with the Kosovo Judicial and Prosecutorial Council, the Kosovo Judicial Council does not have jurisdiction over international judges and prosecutors, but only over local judges and prosecutors.^⁸³

At least two of the international judges interviewed by Amnesty International said they would have considered it acceptable to be regulated by the Kosovo Judicial and Prosecutorial Council. Judge Clayson, who served as chairperson of this body for 15 months, said that he felt the concerns regarding international judiciary being vulnerable to politically-motivated attacks could, “easily have been fixed, especially as the KJPC was majority international, but it was not a high priority”.^⁸⁴

Another international judge said he felt the main reason for the reluctance of internationals to be subject to the Kosovo Judicial and Prosecutorial Council was a, “lack of communication between international and local judges”. He said he felt the Council being given the mandate to regulate internationals, “could have been done”.^⁸⁵

The OSCE has also repeatedly recommended that international judiciary be subject to the same requirements of tenure, accountability and discipline as the locals, including investigation by the UNMIK Judicial Inspection Unit and the Kosovo Judicial and Prosecutorial Council^⁸⁶but this recommendation has fallen on deaf ears. Even within UNMIK, the Department of Justice’s approach has been met with disbelief. Representatives from the UNMIK Office of the Legal Adviser also told Amnesty International that they considered the Kosovo Judicial and Prosecutorial Council (now the Kosovo Judicial Council) to be the appropriate regulatory body and that they did not understand why this recommendation had not been implemented.^⁸⁷

Amnesty International’s concerns in relation to this apparent lack of accountability are twofold. First, it appear that there are insufficient safeguards in place, aside from the non-renewal of the international judge or prosecutor’s contract, to ensure professional misconduct is properly investigated and disciplined. Second, there exists a complete lack of accountability of international judges and prosecutors to Kosovo institutions and to human rights standards in applicable law, which is unacceptable and must be remedied. This is particularly significant if they are to remain, as recommended by the Secretary General’s Special-Envoy (see above in the Introduction to this report), and envisaged by the international community, after Kosovo’s final status is decided.

If the international judiciary are to serve alongside their local counterparts within the domestic system then it is imperative that they are subject to the same regulation and standards of accountability. This would address the perception within the local legal community that the internationals are “in a separate world of their own”. It would also establish greater equality between the locals and internationals, which would foster greater possibilities for interaction and cooperation. Finally, ensuring proper accountability of all individuals within the justice system, international and national, would also enhance the integrity of a judicial system, which up until now has suffered from a serious lack of credibility in the eyes of the local Kosovar community.

Annunziata Ciaravolo’s justification for the present situation was, “we don’t want to be judged by a body that is not independent”. Amnesty International agrees with the concerns of Annunziata Ciaravolo, but it notes that no attempt has been made to establish a truly independent council. This is of importance for both the international and local judiciary. If the Kosovo Judicial Council and its predecessor, the Kosovo Judicial Prosecutorial Council, are not independent, then there is a need to remedy this situation. It seems the current Kosovo Judicial Council contains the Minister of Justice of the Provisional Institutions of Self-Government (PISG). This is unacceptable in terms of judicial independence for both the international and local judiciary. It is not clear why the UNMIK Department of Justice feels this situation is satisfactory for local judiciary, but not for internationals.

Furthermore, as demonstrated in the next section, the asserted concern about the need for the regulatory body to be independent is not reflected in relationship between the UN Special Representative and international judges and prosecutors. As explained in the next section, Annunziata Ciaravolo drew the distinction between the possibility of being fired (or not having the contract renewed) and being disciplined, which she considered far more serious and could potentially damage the individual’s career. This is unacceptable. If an individual is found to have acted in a way that is inappropriate to his or her office, whether their future career may be damaged should not override UNMIK’s obligations to ensure an independent system of accountability for all judges and prosecutors in accordance with international law and standards. This is regardless whether they are appointed on an international basis or by local authorities.

In addition, accountability of international judges and prosecutors to their home regulatory bodies is not a solution. Rather, they should be accountable to Kosovo’s institutions, as the system within which they operate. This is all the more important if they are to remain after determination of Kosovo’s final status.

II. Lack of independence

Although, as outlined above, there are serious concerns regarding the lack of appropriate procedures in place to hold international judges and prosecutors accountable, it is also a matter of serious concern that the current ways of holding them accountable seriously undermine their independence. It is a fundamental principle of justice that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”^⁸⁸

Article 14 (1) of the ICCPR recognizes the right of an individual, “to a fair and public hearing by a competent, independent and impartial tribunal”. The right to an independent and impartial court is recognized by other international criminal courts.^⁸⁹

It is generally recognised that for a judicial system to be effective it must be independent – and to appear to be independent - of interference by other arms of government, as well as any other external source. As the UN Special Rapporteur on the situation of human rights in the former Yugoslavia explains: “Independence presupposes the judiciary to be institutionally protected from undue influence by the executive branch.”^⁹⁰

However, the International Judges and Prosecutors Programme is tainted by the fact that all international judges and prosecutors, through various structural aspects of the programme, are ultimately subject to the executive arm of the UNMIK administration.^⁹¹As one former international judge put it, “You can’t have one man responsible for all arms of government [the UN Special Representative]” – that’s nonsense!”^⁹²The 2006 International Center for Transitional Justice report makes the observation; “A hindrance to the ‘demonstration effect’ in Kosovo has been the perceptions of interference by UNMIK executives in the judicial sector, which reinforces the impression that courts can be manipulated.”^⁹³

Similarly, US law professor, Edwin Villmoare who worked in Kosovo with the American Bar Association notes:

The international judges who were brought in as role models for local judges have had little impact. They work on short-term contracts of less than a year and are tightly controlled by UNMIK’s Department of Judicial Affairs. The Department of Judicial Affairs selects particular judges for particular cases. The judges know they are assigned to cases at bureaucratic whim. The judges enjoy nothing approaching judicial independence and act accordingly.^⁹⁴

A. Contractual restrictions

Recruitment of international judges and prosecutors as UN Employees

Amnesty International has real concerns regarding the recruitment of international judges as UN employees. As one former international judge notes, the title of his position was not ‘judge’ but ‘Senior Judicial Affairs Officer’, making him an international civil servant. In his letter of appointment it stated:

As a staff member of the United Nations, you are accorded certain privileges and immunities to enable you to carry out your functions. The standards of conduct and obligations of international civil servants are set forth in article 1 of the Staff Regulations and Rules and include the obligations to conduct oneself only with the interests of the United Nations in view to observe strict neutrality, and to seek or receive instructions from no source external to the United Nations.^⁹⁵

Former International Judge Patrice de Charette, in his book Les Oiseaux Noirs du Kosovo (“The Black Birds of Kosovo”) also notes:

On occasion, during the interviews with candidates for the position of international judge in which I have participated, an official of the Department of Judicial Affairs [now Department of Justice] has asked the candidate about his or her loyalty to the United Nations if recruited.^⁹⁶

The recruitment of international judges as if they were any other UN employee fails to recognise their distinct roles. Judge de Charette notes that this point was made by a number of judicial candidates in response to that question.^⁹⁷

It is a widely recognised principle that, “Judges’ appointment, retention and behaviour should always be in conformity with the Basic Principles on the Independence of the Judiciary.”^⁹⁸

Furthermore, according to General Principle 1.3 of the European Charter on the Statute for Judges: