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Table of Contents TABLE OF CONTENTS 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. ......................................... 4 INTRODUCTION .......................................... 4 I. Collapse of the judicial system in Kosovo ................ 7 II. The UNMIK response ................................. 9 A. The attempt to rebuild a multi-ethnic judicial system with exclusively local staff ...................................... 9 B. The proposed Kosovo War and Ethnic Crimes Court (KWECC) ........................................................ 12 C. Establishment of the International Judges and Prosecutors Programme .......................... 14 PART TWO – THE FAILURE TO RECRUIT AND TRAIN PROPERLY INTERNATIONAL JUDGES AND PROSECUTORS . 18 I. The ineffective recruitment of international staff . 18 A. Absence of an aggressive recruitment programme . 18 B. Failure to recruit adequately qualified personne l . 24 II. Lack of training ................................ 28 PART THREE – THE DENIAL BY REGULATION 64 INTERNATIONAL PANELS OF THE RIGHT TO A FAIR TRIAL . 32 I. Lack of accountability ................................................ 33 II. Lack of independence ................................................ 38 A. Contractual restrictions ............ 39 B. Executive allocation of cases ...................................... 44 AI Index: EUR 70/001/2008 Amnesty International January 2008 2 Kosovo (Serbia): The challenge to fix a failed UN justice mission C. Executive interference in the conduct of cases . 49 III. Lack of transparency ................................................ 50 A. Failure to provide copies of indictments .. 52 B. Failure to provide copies of judgments ... 52 IV. Failure to protect the rights of the accused effectively . 57 A. Lack of resources and training ................................ 58 B. The failure to provide effective translation and interpretation ............................................................... 60 C. Protracted proceedings and denial of access to documents ...................................................................... 62 D. Failure to establish a funded Office of Defence . 65 PART FOUR: THE FAILURE TO IMPROVE THE KOSOVO JUSTICE SYSTEM ................................................................................ 66 I. Impunity ..................................................................... 70 A. Continuing impunity for war crimes and other crimes under international law ...................... 70 B. The failure to investigate and prosecute sexual violence committed during the conflict as war crimes . 75 II. Lack of useful jurisprudence ...................... 77 A. Common problems with investigations, prosecutions and jurisprudence ............................................... 79 B. A brief review of selected cases ................ 83 SECTION FIVE – AMNESTY INTERNATIONAL RECOMMENDATIONS ............................................. 90 ANNEXES .................................................................... 96 Kosovo (Serbia): The challenge to fix a failed UN justice mission PRELIMINARY NOTE ABOUT THIS REPORT 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 Amnesty International January 2008 AI Index: EUR 70/001/2008 Kosovo (Serbia): The challenge to fix a failed UN justice mission 3 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 the 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 the 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 by the Supreme Court have waited for almost five years for retrial. 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 to 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. Amnesty International January 2008 AI Index: EUR 70/001/2008 4 Kosovo (Serbia): The challenge to fix a failed UN justice mission 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
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