An examination of the role of hybrid international tribunals in prosecuting war crimes and developing independent domestic court systems: the Kosovo experiment.(War Crimes Symposium)

I. INTRODUCTION

Prior to the year 2000, international involvement in the judicial affairs of post-conflict regions was entirely separate from the local court systems of those regions. Jurists presiding over international tribunals such as the International Criminal Tribunal for Yugoslavia (ICTY) (1) located in The Hague, and the International Criminal Tribunal for Rwanda (ICTR) (2), located in Arusha, operated separately from the local courts already in place in those areas. (3) Moreover, although peacekeeping missions in post-conflict regions of the world typically involve the monitoring and oversight of local judiciaries, these missions do not normally entail participation within those domestic judicial systems. (4)

In February 2000, however, this limited role of international involvement changed. International prosecutors and judges began working in the domestic court system of Kosovo, a province of Yugoslavia then being administered by the United Nations Interim Administration Mission in Kosovo (UNMIK). (5) The international judges and prosecutors generally had the same authority and duties as their domestic colleagues, although this authority was limited to the prosecution and trial of criminal cases. (6) With the addition of international judges and prosecutors to Kosovo's court system, an experiment began. This experiment entailed the use of "hybrid courts" to address war crimes and international human rights violations. Although hybrid courts vary in their historical bases, the composition of their personnel, and the scope of their jurisdiction, most hybrid courts have a mixture of domestic and international personnel and apply a mixture of international and domestic law. (7)

The Kosovo hybrid courts were created by UNMIK pursuant to the implied authority of United Nations Security Council Resolution 1244. The hybrid court that came into existence in Kosovo in 2000 was created after the United Nations adopted Resolution 1244 on June 10, 1999. (8) Resolution 1244 authorized UNMIK on an interim basis (9) to: (A) govern the Province of Kosovo while denying Serbia any role in Kosovo's governance; (B) maintain civil law and order through deployment of international police and maintain the peace through a NATO-led peacekeeping force; (C) enact legislation, suspend existing legislation, issue executive orders, and administer the judiciary; and (D) facilitate a political process to determine Kosovo's future final status. (10) In essence, the head of UNMIK, the Special Representative of the Secretary General ("SRSG"), was allowed to exercise proconsul powers in what was now, on an interim basis, an international protectorate.

The fighting between the ethnic Albanians and the Serbian authorities began in 1989 after the Serbian President of Yugoslavia, Slobodan Milosivic, stripped the province of Kosovo of its autonomy, purged most ethnic Albanians from government offices and the court system, and closed the university and the law school. Resolution 1244 was adopted at the end of a seventy-eight day NATO-led bombing campaign that began on March 24, 1999. (11) The bombing campaign commenced after fighting between Serbian paramilitary forces and the Kosovo Liberation Army ("KLA") escalated, peace negotiations broke down, and over 800,000 ethnic Albanians fled from Kosovo. The bombing ended on June 10, 1999, when President Milosevic agreed to withdraw Yugoslav and Serbian troops from Kosovo and agreed to allow 50,000 NATO troops into Kosovo. (12)

II. HISTORY OF KOSOVO

The history of Kosovo played an important role in the way the hybrid courts operated in Kosovo. Kosovo used to be part of the Roman Empire and was a part of the 'Dardinians' tribal land. (13) In the Seventh Century A.D., after the Roman Empire had fallen, Kosovo became part of Serbia. (14) It remained a part of Serbia until 1389, when the Ottoman Turks defeated the Serbian Prince Lazar at the Battle of Kosovo Polje, near the modern day capital of Kosovo, Pristina. (15) Since the Seventh Century, ethnic Serbs have deemed Kosovo to be the spiritual center of Serbia and the Serbian Orthodox Christian Church. (16) In modern day Kosovo there are many Serbian Orthodox churches and monasteries located in Serb enclaves that are closely guarded by NATO-sponsored Kosovo Force (KFOR) soldiers. From the Fourteenth Century until the end of World War I, the Ottoman Turks controlled much of the Balkans and Kosovo. (17) Before the Ottoman Turks controlled the Balkans, most people were Christian, regardless of whether they were Slav or Albanian. (18) As Judith L. Holmes notes:

 
    During the time of the Ottoman rule Balkan people had two choices: 
    they could convert to Islam and become full citizens of the Ottoman 
    Empire or they could maintain their religion and some autonomy as 
    second class citizens. Many people in the urban areas of Bosnia 
    converted to Islam to avoid persecution and the exorbitant taxes 
    levied on non-Muslims. (19) 

Many Albanians in Kosovo converted to Islam, which led to ethnic tension between the Serbs and the Albanians. (20)

In 1912-1913, Muslims in the Balkans were victims of extensive ethnic violence as Serb nationalists led a war of independence that liberated much of the Balkan Peninsula from Ottoman rule. In 1914, on the anniversary of the 1389 Battle of Kosovo Polje, a Bosnian Serb nationalist assassinated Austrian Archduke Ferdinand and his wife in Sarajevo, Bosnia-Herzegovina, which was then under the control of the Hapsburg Empire. (21) The assassination precipitated the outbreak of World War I. After World War I, the Allied powers redrew the boundaries in the Balkan Peninsula and created a country called "Yugoslavia," which means "the Land of the South Slavs." (22) King Alexander of Serbia was then allowed to ascend to the throne of Yugoslavia. (23) In 1934 an ethnic Croatian assassinated King Alexander. (24) In 1941, the Axis powers invaded Yugoslavia, and the Italian military dominated Kosovo. Throughout this period it was estimated that the Croatian paramilitary known as the "Ustasha" killed over 300,000 Serbs. (25) During World War II, Croatian-born Josip Tito led a Communist resistance to the Axis. Supported by the Allies, Tito's forces gained control of Yugoslavia at the end of World War II. (26) When the Ustasha surrendered, the Communist-controlled forces killed almost 100,000 Croatians. (27)

After World War II, Marshall Tito created a federal system of government in Yugoslavia with six republics: Slovenia, Croatia, Bosnia, Macedonia, Montenegro, and Serbia; Kosovo was one of two autonomous provinces of Serbia. (28) In 1980, Marshall Tito died and left a political vacuum in Yugoslavia. (29) Slobodan Milosevic, a Serbian Communist Party functionary, succeeded Tito. (30)

On April 24, 1987, Slobodan Milosevic traveled to Kosovo and gave a speech to the local Serb population urging them to retake and gain control of Kosovo and the rest of the Balkans. (31) On June 28, 1989, the 600th anniversary of the defeat of the Serbs by the Ottoman Turks, Milosevic traveled to Kosovo Polje and gave a speech to over one million Serbs urging them to reclaim control of Kosovo. (32) From that point forward, Serb paramilitaries started taking steps to drive ethnic Albanians out of Kosovo, stripping it of its autonomy. (33) In 1990, Yugoslav Army troops were sent into Kosovo and Milosevic dissolved Kosovo's government. (34)

III. EVOLUTION OF THE HYBRID COURT IN KOSOVO

Pursuant to the authority granted to him by Resolution 1244, on July 25, 1999, Bernard Kouchner, the Special Representative of the Secretary General of the United Nations ("SRSG"), issued Regulation 1999/1. (35) That regulation defined the SRSG as the sole executive and legislative authority for Kosovo and granted him the power to appoint judges. (36)

By July 1999, the court system in Kosovo was in shambles. Most court facilities were badly damaged and many court records were lost or destroyed. (37) Virtually all of the existing court personnel were Serbian, and most of them refused to work in the new court system out of fear for their safety or because Slobodan Milosevic's government paid them not to work by immediately paying them their pensions. (38) Most of the ethnic Albanians had little or no experience in the court system because they had been purged from the judiciary ten years earlier and were not allowed any legal training. (39) At the same time, thousands of ethnic Serbs had fled from …