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Parallel Courts in Post-Conflict Kosovo T Elena A Article Parallel Courts in Post-Conflict Kosovo t Elena A. Baylis 1. IN TR OD UCT ION ................................................................................................................................ I 11. THE PARALLEL COURTS ............................................................... 9 A . PoliticalH istory .................................................................... ....................... 9 B. Source of the Parallel Courts ........................................................................................ 10 C. Development of the Parallel Systems ........................................................................... 12 D. The Parallel Systems' Current Role ............................................................................. 14 1. In C ivil Cases .................................................................................................... 14 2. In C rim inal Cases ............................................................................................. 18 3. Political Significance ........................................................................................ 19 III. C IV IL JUDG M ENT S .......................................................................................................................... 2 1 A . Tw o Civil Cases ................................................................................................................ 25 B. Bypassing Sovereignty as the Basis for Jurisdiction .................................................... 26 C. Framework for Recognition: A Default Rule and Exceptions ..................................... 30 D. Grounds and Procedures for Non-Recognition ........................................................... 32 1. Contrast between E. U. & U.S. Foreign Judgment Models .............................. 35 2. Contrast between Arbitration Award and Out of Court Settlement Models ......... 37 E. A Civil Judgm ent M odel ................................................................................................ 38 F. An Exception for Property .......................................................................................... 40 IV . C RIM INAL JUDG M ENTS .................................................................................................................. 4 1 A . Two Crim inal Cases ...................................................................................................... 43 B. International Human Rights Norms ............................................................................. 45 C. Frameworks for Recognition and Non-Recognition .................................................... 48 1. Sovereignty ............................................................................................................ 49 2. Default Rules and Grounds for Non-Recognition ............................................ 49 3. A Criminal Judgment Model: Case by Case Assessments ................................ 53 V . C O N C LU SIO N .................................................................................................................................. 5 5 I. INTRODUCTION In Kosovo' today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the t Associate Professor, University of Pittsburgh School of Law. Thanks to the Center for International Legal Education at the University of Pittsburgh School of Law and the University of Pittsburgh's Russian and East European Studies Center for funding my trips to Kosovo, and to Mark Walter and James Stockstill for facilitating my research there. I am grateful to Judge Kaplan Baruti, Daniel Deja, Enver Fezjullahu, Dara Katz, Francesca Marzatico, Lyubomir Pantovic, Knut Rosenhaug, Michael Scheutz, Alice Thomas, and Adem Vokshi for discussing these issues with me in Kosovo; to Dusan Jelic, Vegim Rugova, and Xhyli Selimi for interpreting for me; to Vjosa Osmani, Luljeta Plakolli, and Jeremy Seeman for their research; and to Paul Berman, Ron Brand, John Burkoff, Paul Dubinsky, Amanda Frost, Jamie Munro, John Parry, Matthias Reiman, Michael Scharf, Dinah Shelton, Linda Tashbook, Melissa Waters, Stephanie Zai, David Zaring, and the participants in the American Society of Comparative Law Workshop "Comparative Law in Progress," for their comments, advice, and encouragement. 1. Most place names in this Article are given in both Serbian and Albanian, as is the common practice within the United Nations and other international organizations operating in Kosovo. However, 2 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 32: 1 United Nations Interim Administration Mission in Kosovo ("UNMIK"), the other by the government of Serbia ("Serbia"). The UNMIK courts are new creations, staffed mostly by Kosovo Albanians and a few members of the minority Serb population, but controlled primarily by the international UNMIK administration. 2 For the United Nations, these courts are the incarnation of its claim to have established rule of law under principles of non-discrimination and ethnic integration. For Serbia, they are illegitimate occupiers' courts, symbolizing the continued foreign domination of Serbian territory. The Serbian parallel courts3 are courts-in-exile, transplants of the official Kosovo courts that existed before the NATO bombing and the UNMIK administration. To Serbia, they represent the original and legitimate courts of Kosovo and are an expression of Serbia's continuing claim to sovereignty over the province. To the United Nations, they are an obstacle to the resolution of Kosovo's still uncertain political status, since its "Standards for Kosovo" require that "parallel structures have been dismantled ' 4 when UNMIK yields administration to a permanent government. Kosovo's parallel courts raise a classic question of post-conflict justice: How should a transitional government and its courts address the legacy of the past regime? 5 "In the public imagination, transitional justice is commonly linked with punishment and the trials of ancien regimes,', 6 yet Kosovo's parallel courts represent the under-recognized reality that this legacy is not just a matter of historical events, but rather, permeates the very structures of transitional societies, including the legal system itself.7 Shaped in settings of violence and repression, post-conflict legal systems like Kosovo's maintain core features of these settings even after the conflict itself has formally ended. The very existence of the dual systems in Kosovo is a product of the Serbian- Albanian conflict. In their opposing claims to sole jurisdiction and their corresponding stance of mutual non-recognition, the parallel courts replicate, because it would be cumbersome to refer to "Kosovo/Kosova" throughout the Article in light of the frequency with which I use the term, I will refer solely to "Kosovo" throughout, as is also common practice in the U.N. and other organizations. This choice is purely a pragmatic one and is not intended to have political or other implications. 2. S.C. Res. 1244, 5, U.N. Doc. S/RES/1244 (June 10, 1999); U.N. Mission in Kosovo, On the Appointment and Removal from Office of InternationalJudges and InternationalProsecutors, U.N. Doc. UNMIK/REG/2000/6 (Feb. 15, 2000), available at http://www.unmikonline.org/exam/ testdata/doc/5948d29e 06.pdf; U.N. Mission in Kosovo, On Assignment of International Judges/Prosecutors and/or Change of Venue, U.N. Doc. UNMIK/REG/2000/64 (Dec. 15, 2000), availableat http://www.unmikonline.org/regulations/2000/reg64-O0.htm. 3. Although these sets of courts are in a structural sense parallel to each other, and could thus technically both be called "parallel courts," it is common practice in Kosovo to use this term only for the Serbian courts. The UNMIK courts, in contrast, are never referred to as such. Accordingly, in order to be as clear as possible about which courts I am referring to for readers within and without Kosovo, I refer throughout this Article to the "Serbian parallel courts" on the one hand, and to the "UNMIK courts" on the other. Like the other linguistic choices in this Article, this one is purely pragmatic and is not intended to have any political or other implications. 4. Press Release, U.N. Mission in Kosovo, Standards for Kosovo, U.N. Doc. UNMIK/PR/1078 (Dec. 10, 2003), available at http://www.unmikonline.org/press/2003/ pressr/pr1 078.pdf. 5. See generally RUTI TEITEL, TRANSITIONAL JUSTICE (2002). 6. Id. at 27. 7. M. Cherif Bassiouni, Introduction to POST-CONFLICT JUSTICE xv (M. Cherif Bassiouni ed., 2002). 2007] ParallelCourts and thus perpetuate, the divisions and disputes of the conflict that produced them, serving as a potential catalyst for ongoing divisions and violence. Indeed, the legacy of parallel courts in Kosovo hampers everyday decisions, as well as the pursuit of justice on a larger scale. For the people of Kosovo, these parallel systems create legal uncertainty and conflict on a basic, day-to-day level. Judgments from one system are not recognized by the other, nor do the two systems share court files, cadastral records of title to land, or records of births, deaths, marriages, or divorces. To ensure enforcement of a divorce, a land sale, or a civil judgment, a Kosovo resident must pursue her claims in both systems. This presents a confusing, costly, and complex proposition that gives rise to conflicting judgments and to speculation and arbitrage. Because neither system recognizes the other's judgments, criminal suspects may face trial in both
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