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Published online by Cambridge University Press: 27 February 2017
1 See Hansjörg, Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AJIL 46 (2001)Google Scholar; International Crisis Group [ICG], Courting Disaster: The Misrule of Lawin Bosnia & Herzegovina 8–11 (ICG Balkans Report No. 127, 2002), available at <http://www.crisisweb.org/> ; ICG, Rebuilding Liberia: Prospects and Perils 24 (ICG Africa Report No. 75, 2004), available at id.
2 See, e.g., The Missing Priority: Post-Conflict Security and the Rule of Law (Dec. 2003)Google Scholar (report prepared for the Office of Counterterrorism, U.S. National Security Council) (on file with authors) [hereinafter The Missing Priority].
3 See Hartmann, Michael E.. International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping (U.S. Institute of Peace Special Report No. 112, 2003), available at <http://www.usip.org/pubs/specialreports/sr112.html>Google Scholar .
4 UNMIK Regulation 2000/6, On the Appointment and Removal from Office of International Judges and International Prosecutors (Feb. 15, 2000)Google Scholar; UNMIK Regulation 2000/34, Amending UNMIK Regulation 2000/6 On the Appointment and Removal from Office of International Judges and International Prosecutors (May 27, 2000)Google Scholar; UNMIK Regulation 2000/64, On Assignment of International Judges/Prosecutors and/or Change of Venue (Dec. 15, 2000)Google ScholarPubMed. UNMIK regulations are available online at <http://www.unmikonline.org>>Google Scholar .
5 Memorandum from Director of the Department of Justice to All DOJ Staff Members, Criminal Division (Mar. 14, 2003) (on file with authors).
6 SC Res. 1244, para. 11 (June 10, 1999), 38 ILM 1451 (1999) (outlining the scope of UNMIK’s authority).
7 UNMIK Regulation 1999/1 (July 25, 1999).
8 SC Res. 1244, supra note 6, para. 11(i).
9 KFOR is the NATO–led military presence in Kosovo.
10 SC Res. 1244, supra note 6, para. 9(d).
11 HARTMANN, supra note 3, at 6–7.
12 UNMIK Regulation 2000/6, supra note 4. For a more detailed discussion, see Hartmann, supra note 3.
13 UNMIK Regulation 2000/64, supra note 4. International prosecutors were placed in the five district prosecutor’s offices (Prishtina, Peja, Gjilan, Mitrovica, and Prizren), and the Office of the Public Prosecutor of Kosovo. Competencies of local prosecutors are outlined in the Law on Public Prosecutor Office, Official Gazette No. 32/76, 1988 (Kosovo).
14 The number fluctuates constantly because IPs sign six–month renewable contracts, and generally leave after one or two years. Because of UN hiring regulations, vacant slots remain unfilled for several months.
15 For example, the Criminal Division reviewed the caseload of an IP in preparation for his departure from UNMIK in June 2003. Of twenty–six cases that he had taken on, thirteen were handed back to local prosecutors because there was no justifiable reason for IP involvement. In these thirteen cases, Kosovo Albanians were accused of common crimes, and none of the suspects was involved in major organized crime or extremism. The charges included giving a false statement, vehicle registration fraud, and low–level smuggling. The Criminal Division found that local prosecutors were willing and able to deal with such cases.
16 For example, in February 2003, one IP in Prizren had taken on four cases, and another IP in Peja had taken on twenty–six cases. All of the Prizren IP’s cases involved high–ranking crime figures, and charges included war crimes, attempted murder of a judge, and terrorism. The Peja IP’s caseload was more varied, and few of his cases involved serious crimes or high–ranking crime figures.
17 UNMIK Regulation 2001/9, On a Constitutional Framework for Provisional Self–Government in Kosovo, ch. 8 (May 15, 2001)Google Scholar.
18 ICG, Starting From Scratch in Kosovo: the Honeymoon Is Over 2–5 (ICG Balkans Report No. 83, 1999), available at <http://www.crisisweb.org/>>Google Scholar .
19 See ICG, Kosovo’s Ethnic Dilemma: The Need for A Civic Contract 4–14 (ICG Balkans Report No. 143, 2003), available at <http://www.crisisweb.org/>>Google Scholar . In one case involving the murder on December 22, 2002, of a Serb resident of Cernica village (Gjilan/Gnjilane), statements of village residents led police investigators to suspect two Kosovo Albanians, which resulted in their arrest. An international prosecutor ultimately withdrew from prosecuting the Albanians because of lack of evidence and has instead found sufficient evidence to investigate a Serb resident of the village. Public Prosecutor v. Dervishi and Sylejmani, Withdrawal of Prosecution, Gjilan/Gnjilane District Prosecution No. PP 225/2002 (June 25, 2003). The ethnic riots in mid–March 2004 were sparked by accusations that an Albanian had shot a Serb in Čaklavica, and that Serbs had chased a group of Kosovo Albanian children into a river in Mitrovica. Investigations into each of these incidents have failed to reveal suspects, much less an ethnic motive.
20 See, for example, the prosecutions against former KLA Llap zone commander Rrustem Mustafa and former high–ranking members of the Dukagjini Command unit. Prosecutor v. Latif Gashi et al., C.C. No. 425/2001 (Dist. Ct. Prishtina July 16, 2003); Prosecutor v. Idriz Balaj et al. [Dukagjini Case], C.C. No. 190/02 (Dist. Ct. Peja sitting in Prishtina, Dec. 17, 2002).
21 See generally Hartmann, supra note 3, Phase One: International Police but Kosovan Judges and Prosecutors, at 3–7.
22 EUROPOL, 2003 European Union Organised Crime Report 14–15.
23 See generally Hartmann, supra note 3, at 3–7; The Missing Priority, supra note 2, at 34–36.
24 See Prosecutor v. Qamil Shabani et al., Request for Investigation and Imposition of Detention, No. HEP 273/04 (Dist. Ct. Prishtina Mar. 29, 2004). In this case, the prosecution and the police worked together in a six–month investigation that included numerous wiretaps; the development of relationships with law enforcement authorities in Germany, Serbia, Turkey, and other countries; and extensive expenditures for day–to–day operations from translations to guaranteeing secrecy.
25 Extremist organizations attempted to use explosive devices to disrupt public order in March 2003 at the Kosovo–Serbia boundary line, and in April 2003 at a bridge near Mitrovica. Both attempts failed.
26 For example, widespread corruption in vehicle registration centers facilitates a thriving trade in cars stolen throughout Europe.
27 UNMIK has cited controlling corruption as an important goal, as evidenced by the formation of a Financial Investigation Unit (composed of investigators from the Italian Guardia di Finanza); the issuance of UNMIK Regulation 2003/17, On the Promulgation of a Law Adopted by the Assembly of Kosovo on Public Financial Management and Accountability (May 12, 2003)Google Scholar; and the issuance of UNMIK Regulation 2004/2, On the Deterrence of Money Laundering and Related Criminal Offences (Feb. 5, 2004)Google Scholar.
28 Strohmeyer, supra note 1, at 48–50, 51–56.
29 These contentions are based upon the authors’ personal experiences in conducting investigations with the UNMIK police.
30 ICG, Finding the Balance: The Scales of Justice in Kosovo 11, 14–16 (ICG Balkans Report No. 134, 2002), available at <http://www.crisisweb.org/>>Google Scholar .
31 This is the assessment of informant handlers in the Kosovo Organized Crime Bureau.
32 For more on the use of KFOR intelligence, see Elizabeth, Abraham, The Sins of the Savior: Holding the United Nations Accountable to International Human Rights Standards for Executive Order Detentions in Its Mission in Kosovo, 52 Am. U. L. Rev. 1291, 1321–31 (2003)Google Scholar.
33 A particularly good example is the case against the former Albanian insurgent leader Shefqet Musliu. KFOR suspected Musliu of extremist activities in Kosovo, and the Serb authorities suspected him of extremist activities in southern Serbia. KFOR detained Musliu and turned him over to civilian police authorities in Kosovo in July 2003. While Musliu was probably involved in a variety of criminal activities, law enforcement authorities had not collected evidence that would lead to a particularly effective prosecution prior to his KFOR arrest. See v, Prosecutor. Shefqet Musliu, Indictment, No. PP 107/03 (Dist. Ct. Gjilan/Gnjilane Dec. 9, 2003)Google Scholar.
34 In recent months, cooperation between Kosovo law enforcement authorities and the law enforcement authorities in Albania has increased. The Albanian police recently arrested and transferred Florim Ejupi, who was accused of killing eleven Serbs in a bus bombing in February 2001.
35 For a similar discussion of the systematic approach taken by the U.S. Department of Justice’s Organized Crime and Racketeering Section, see Coffey, Paul E.. The Selection, Analysis, and Approval of Federal RICO Prosecutions, 65 Notre Dame L. Rev. 1035 (1990)Google Scholar.
36 This hierarchical structure was outlined in UNMIK draft Regulation 2003/XX, On the Supervision of International Prosecutors (July 2003) (on file with authors). The draft regulation was never enacted, however, because of an internal conflict between the DOJ and the Office of Legal Affairs. The elements of the draft regulation were nevertheless implemented by the DOJ.
37 Interoffice Memorandum from Director of DOJ to All International Prosecutors, Case Initiation Report (Mar. 25, 2003) (on file with authors).
38 International CIVPOL officers have headed each of these units and held the key investigative positions. The units have also included some KPS officers who actively participate in investigations.
39 For example, IPs supervise applications pursuant to UNMIK Regulation 2002/6, On Covert and Technical Measures of Surveillance, as the statute contains vague standards for obtaining and implementing judicial orders for wiretapping. For more on Regulation 2002/6, see note 81 infra and corresponding text.
40 See, e.g., Prosecutor v. Ruzhdi Saramati, No. AP–KZ 76/2002 (Sup. Ct. Oct. 9, 2002). The Supreme Court quashed a murder conviction and remanded the case for retrial. Despite the IP’s intention to move forward, there was no hope of obtaining evidence to support a conviction on retrial, and the prosecution was withdrawn.
41 In early 2004, IPs brought cases against prominent public officials and important organized crime figures for war crimes and narcotics trafficking. Prosecutor v. Qamil Shabani et al., Request for Investigation and Imposition of Detention, No. HEP 273/04 (Dist. Ct. Prishtina Mar. 29, 2004); Prosecutor v. Selim Krasniqi et al„ Request for the Conduct of Investigations, No. HEP 26/2004 (Dist. Ct. Prizren Feb. 17, 2004).
42 There are plans to incorporate this structure into the domestic prosecutorial services by establishing the Kosovo Special Prosecutor’s Office, which will consist of specially trained Kosovo prosecutors who function along the lines of those in the Criminal Division. As of October 2004, the office remained in the planning stages.
43 For example, the plans to create the Kosovo War and Ethnic Crimes Court were scuttled. See the discussion in Marshall, David & Inglis, Shelley, The Disempowerment of Human Rights–Based Justice in the United Nations Mission in Kosovo, 16 Harv. Hum. Rts. J. 95, 130 (2003)Google Scholar.
44 The criteria are set out in §4.1 of draft Administrative Direction 2003/XX, Implementing UNMIK Regulation No. 2003/XX On the Supervision of International Prosecutors (July 2003). The administrative direction was not officially put into effect because of the impasse reached regarding the regulation of IP supervision. The principles of the draft administrative direction, however, were put into effect in practice.
45 The factors in using this discretion are spelled out in §4.2 of draft Administrative Direction 2003/XX, supra note 44.
46 From 2002 to 2003, the secretary–general has waived the immunity of numerous international staff hired by the United Nations to allow for investigations and prosecutions to proceed within the domestic court system. These suspects are prosecuted by international prosecutors with international judges as triers of fact. IPs have prosecuted international police officers for manslaughter, murder, and abuse of office. Prosecutor v. John Atanga, No. C.C. 13/03 (Dist. Ct. Prishtina Feb. 3, 2003); Prosecutor v. Sherif Abd Elaziz, No. Pr. 70/02 (Dist. Ct. Peja Nov. 12, 2002); Prosecutor v. Martin Aimer, No. P128/2003 (Orahovac Mun. Ct. Oct. 7, 2003). In some cases in which immunity has been waived, the international suspected of a crime has been dismissed or the case is still in the investigative stages.
47 UNMIK officials thought that if IPs assumed these prosecutions, UNMIK would send a strong message to the prison population in response to rising prison violence. In all but one case, the defendants were not high–level criminals.
48 Other examples abound. In early 2004, IPs were asked to intervene in debt collection cases for KEK, the Kosovo electric company. UNMIK leaders thought it was important to “send a message” on issues related to revenue for the Kosovo Consolidated Budget, and arbitrarily determined that IP participation in these low–level criminal cases was necessary. However, local prosecutors had already prosecuted numerous persons for stealing electricity and there was no indication that the local prosecutors were not effective.
49 This should have been done along the lines proposed in the draft Regulation and Administrative Direction on the Supervision of International Prosecutors, supra note 44.
50 Law on Public Prosecutor Office, supra note 13.
51 In such situations, the SRSG invoked provisions pursuant to UNMIK Regulation 2000/64, supra note 4, to permit IPs to act in another jurisdiction.
52 For example, the Supreme Court reversed and remanded a case in which twelve individuals were convicted of possessing a large number of weapons simply because an IP appeared once at trial without the requisite authorization from the SRSG. Prosecutor v. Saqip Ibrahimi et al., No. AP 303/2001 (Sup. Ct. Mar. 18, 2002). On retrial, a district court panel convicted the suspects again, largely along the same lines as the first trial panel. To have appeared one day in court, the IP from a different district would have had to receive special permission from the SRSG pursuant to UNMIK Regulation 2000/64.
53 Prosecutor v. Qamil Shabani et al., supra note 24.
54 The United Nations cannot issue security clearances. Accordingly, IPs do not have access to intelligence information unless it is declassified.
55 Paragraph 9 of Resolution 1244, supra note 6, reads:
the responsibilities of the international security presence to be deployed and acting in Kosovo will include . .. [e]stablishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered;.. . [and] [s]upporting, as appropriate, and coordinating closely with the work of the international civil presence.
56 The United Nations has recognized that the reluctance to use intelligence in peacekeeping has “not served it well.” United Nations Department of Peacekeeping Operations, Lessons Learned Unit, Comprehensive Report on Lessons Learned From United Nations Assistance Mission for Rwanda (UNAMIR): October 1993–April 1996, at 4 (1996)Google Scholar, available at <http://www.un.org/Depts/dpko/lessons/UNAMIR.pdf>. However, the potential for abuse should be noted. Intelligence in this context has a very limited role—to support efforts at investigating individuals by lawful means.
57 On April 6, 2004, a new provisional criminal procedure code and a provisional criminal code entered into force in Kosovo. This Note, however, makes reference to the legislation in effect prior to 1999 (the preconflict legislation), and the period between July 1999 and April 2004. The preconflict legislation consisted of the Kosovo criminal law, Serbian criminal law, the criminal law of the Socialist Federal Republic of Yugoslavia (SFRY), and the SFRY criminal procedure code. All provisions discussed were incorporated into the new codes, and all cases cited were initiated prior to April 2004.
58 UNMIK Regulation 1999/24, On the Applicable Law in Kosovo (Dec. 12, 1999).
59 UNMIK Regulation 2001/22, On Measures Against Organized Crime (Sept. 20, 2001). International human rights covenants, like the European Convention on Human Rights, are part of the applicable law in Kosovo. UNMIK Regulation 1999/24, supra note 58.
60 United Nations Convention Against Transnational Organized Crime, GA Res. 55/25, Annex I (Nov. 15, 2000), available at <http://www.un.org/documents>>Google Scholar .
61 UNMIK Regulation 2001/22, supra note 22, §1(a). In section 1(b) a “serious crime” is defined as “conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years.” Section 1(c) defines a “structured group” as
a group of three or more persons that:
(i) exists for a period of time and acts in concert with the aim of committing one or more serious crimes;
(ii) is not randomly formed for the immediate commission of an offence; and
(iii) does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
62 SFRY Crim. Code Art. 26; Serbian Crim. Code Art. 227.
63 Serbian CRIM. CODE Art. 227.
64 SFRY CRIM. CODE Art. 26.
65 In February 2004, the Prishtina district court convicted a defendant of possession of sixteen kilograms of heroin with intent to distribute, organized crime, and illegal gun possession. The combined sentence was eleven years: five years for intent to distribute the narcotics, five years for organized crime, and one year for gun possession. Under the preconflict code, the defendant could not have been sentenced consecutively, pursuant to Article 48 of the SFRY criminal law. Prosecutor v. Islam Haxha et al., No. PP 563/2003 (Dist. Ct. Prishtina Feb. 9, 2004). In the case cited supra note 24, the maximum sentence for Qamil Shabani, who headed a major heroin–smuggling ring, is thirty years with a seven–year mandatory minimum. The maximum sentence under the preconflict code would have been fifteen years with a one–year minimum.
66 EUROPOL, supra note 22; The Missing Priority, supra note 4.
67 UNMIK Regulation 2001/12, On the Prohibition of Terrorism and Related Offences (June 14, 2001). Section 1(a) of the regulation includes in the list of terrorist acts murder, grave bodily injury, hostage taking, kidnapping, unlawful detention, poisoning of food or water, causing general danger, destroying or damaging public utilities, making or procuring weapons or instruments, unlawful possession of weapons or exploding substances, endangering internationally protected persons, hijacking of aircraft, jeopardizing the safety of an aircraft’s flight, unauthorized acquisition or use of nuclear materials, and jeopardizing safety by the use of nuclear materials.
68 Suppression of the financing of terrorism is the subject of an international convention. International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, annex (Dec. 9, 1999), available at <http://www.un.org/documents>>Google Scholar .
69 SFRY CRIM. CODE Art. 125.
70 Id.
71 See, e.g., Prosecutor v. Xhavit Morina et al., Indictment, No. PP 37/2003 (Dist. Ct. Prishtina Oct. 20, 2003) (Xhavit Morina prosecuted for terrorist acts and for being a leader of a terrorist organization); Prosecutor v. Ilmi Abazi and Tasim Zymeri, Indictment, No. PP 532/03 (Dist. Ct. Prishtina Sept. 30, 2003) (prosecuted for unlawful weapons possession); Prosecutor v. Naser Azemi and Gazmend Zeqiri, Amended Indictment, No. PP 178/02 (Dist. Ct. Gjilan Apr. 8, 2003) (prosecuted for being leaders of a terrorist organization); Prosecutor v. Nevzat Halili and Ismet Kryeziu, Amended Indictment, No. PP 734/2002 (Dist. Ct. Prishtina Apr. 2, 2003) (prosecuted for being leaders of a terrorist organization).
72 The AKSH (or ANA) must be distinguished from the Kosovo Liberation Army, which disbanded in 1999. There is no direct link between the two, although some AKSH members may have belonged to the KLA.
73 AKSH was declared a terrorist group by UNMIK Administrative Directive 2003/9, Implementing UNMIK Regulation 2001/12 (Apr. 17, 2003); see also ICG, Southern Serbia’s Fragile Peace 6–9 (ICG Europe Report No. 152, 2003), available at <http://www.crisisweb.org/> .
74 The AKSH General Regulations are available online (in Albanian) at the AKSH Web site, <http://www.geocities.com/shqiponja2001al/letra.htm>>Google Scholar (trans, in text by UNMIK translator).
75 UN Convention Against Transnational Organized Crime, supra note 60, Annex 2, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
76 UNMIK Regulation 2001/4, On the Prohibition of Trafficking in Persons in Kosovo §1.1(a) (Jan. 12, 2001).
77 Id. §2.
78 SFRY CRIM. CODE Art. 249(2).
79 Id., Art. 251.
80 See International Organization For Migration, Victims of Trafficking in the Balkans: A Study of Trafficking in Women and Children For Sexual Exploitation in, Through and From The Balkan Region (2001), available at <http://www.iom.int>>Google Scholar .
81 UNMIK Regulation 2002/6, On Covert and Technical Measures of Surveillance and Investigation (Mar. 18, 2002), amended by UNMIK Regs. 2003/5 and 2004/6.
82 P. G. and J. H. v. United Kingdom, 2001–IX Eur. Ct. H.R. 195; Khan v. United Kingdom, 2000–V Eur. Ct. H.R. 279.
83 UNMIK Regulation 2002/6, supra note 81, §1.
84 Articles 151 and 155 of the law on criminal procedure gave the police and the prosecutor broad investigative powers but did not define what was needed legally for different investigative actions.
85 Witnesses fail to do so either because they are beneficiaries of corruption or because organized crime rings are able to intimidate them with impunity.
86 Prosecutor v. Driton Hasani et al., Indictment, No. PP 979/03 (Dist. Ct. Prishtina June 28, 2004); Prosecutor v. Hasan Shala et a 1 , Indictment, No. PP 925/03 (Dist. Ct. Prishtina May 28, 2004); Prosecutor v. Qamil Shabani et al., Decision to Conduct Investigations, No. HEP 273/04 (Dist. Ct. Prishtina Mar. 29, 2004); Prosecutor v. Shpend Gashi, Indictment, No. PP 860/03 (Dist. Ct. Prishtina Jan. 26, 2004).
87 UNMIK Regulation 2001/20, On the Protection of Injured Parties and Witnesses in Criminal Proceedings (Sept. 20, 2001), amended by UNMIK Regulation 2002/01 (Jan. 24, 2002).
88 Section 3.1 lists possible measures but does not restrict the prosecutor or judge from creating new measures that are not listed, as it states that “[t]he Court may order such protective measures as it considers necessary, including but not limited to … .”
89 See Van Mechelen v. Netherlands, 1997-III Eur. Ct. H.R. 691; Doorson v. Netherlands, 1996-11 Eur. Ct. H.R. 446.
90 See cases cited supra note 89.
91 The preamble to the regulation, in explaining the reasons for its drafting, specifically states, “Recognizing that the intimidation of injured parties and witnesses severely undermines efforts to effectively investigate and prosecute serious crimes in Kosovo . . . .” UNMIK Regulation 2001/20, supra note 87, pmbl.
92 OSCE Mission in Kosovo, Review of the Criminal Justice System (March 2002–April 2003): Protection of Witnesses in the Criminal Justice System 10–28 (2003), available at <http://www.osce.org/kosovo>>Google Scholar .
93 Id. at 19. The main practical limitation is that most foreign states are unwilling to help relocate witnesses.
94 M. at 19–21.
95 Foreign governments have been unwilling to accept witnesses from Kosovo, and protected witnesses remain in the safe house for many months. This creates further limitations, as protection cannot be offered to prospective witnesses because of lack of space in the safe house.
96 See Prosecutor v. Selim Krasniqi et al., supra note 41. An international investigating judge granted protective measures that allowed several witnesses to come forward in a war crimes case involving ten former KLA officers accused of running a detention camp.
97 UNMIK Regulation 2002/7, On the Use in Criminal Proceedings of Written Records of Interviews Conducted by Law Enforcement Authorities (Mar. 28, 2002).
98 Id., section 3 includes safeguards that must be met before a statement can be used by the court in criminal proceedings.
99 Articles 83 and 333 of the SFRY law on criminal procedure provided for limited instances in which a court could accept records of prior testimony when the witness could not appear. The testimony could be read into die trial record only if the witness had died, become mentally ill, could not be found, or could not appear because of age or illness.
100 UNMIK Regulation 2001/21, On Co–operative Witnesses (Sept. 20, 2001).
101 Id. §1(b).
102 Article 18 of the law on criminal procedure states that “[t]he public prosecutor shall undertake the criminal prosecution if there is evidence that a criminal act which is prosecuted ex officio has been committed.”
103 There were very limited exceptions: for example, in minor cases where the maximum sentence was less than one year.