Sunday, March 8, 2009
On March 4, a Kosovo court, consisting of one national judge and two judges from the EU Rule of Law Mission in Kosovo (EULEX), sentenced a Kosovo Albanian to 17 years in jail for murder, attempted murder and grievous bodily harm. This represents a milestone as it is the first war crimes trial to be held under the auspices of EULEX.
EULEX, the largest civilian mission ever launched under the European Security and Defence Policy (see Title V of the Treaty on European Union) was established by Council Joint Action 2008/124/CFSP of 4 February 2008 and works under the general framework of United Nations Security Resolution 1244. I should note, in passing, that the EU Joint Action provides that third States may be invited to contribute to EULEX on the condition “that they bear the cost of the staff seconded by them” and contribute to the running costs of EULEX as appropriate (Article 13). It is on this basis that an agreement between the EU and the US on the participation of the US in EULEX was signed in October 2008.
According to Article 2, EULEX’s main task is to “assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service…”
With respect to EULEX’s competence to exercise judicial power in conjunction with national officials, see Article 3(d) which provides that EULEX shall “ensure that cases of war crimes, terrorism, organised crime, … and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law, including, where appropriate, by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges or independently, and by measures including, as appropriate, the creation of cooperation and coordination structures between police and prosecution authorities.”
The association of national and international judges is not an entirely new phenomenon in post-conflict countries in Europe. For instance, the Constitutional Court of Bosnia and Herzegovina consists of six “national” judges (in practice, two Croats, two Bosniaks and two Serbs) and three “international” judges. These international judges are selected by the President of the European Court of Human Rights after consultation with the Presidency of Bosnia and Herzegovina. It may be worth mentioning that the Constitution of Bosnia was in effect drafted by the United States (see the 1995 Dayton Agreement). In my experience, this innovative idea of associating national and international judges proved, in practice, highly positive as far as Bosnia is concerned (I had the privilege to clerk for Prof. Favoreu when he served as one of the three international judges between 1996 and 2002). To put it briefly, the presence of “external observers” exercised a "peer pressure" effect which led national judges to tackle the most sensitive cases in pure legal terms. It also added prestige and authority to the Court’s judgments and made political pressures on the Court less likely to succeed.