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Judicial Application of International Law in Kosovo
Abstract
The Kosovo Constitution provides for a strong regime of domestication of international human rights instruments and respect for international law. Against that background the jurisprudence of Kosovo Constitutional Court and of EULEX international judges embedded in Kosovo courts reveals a rich interaction with United Nations law, international criminal law, state succession and international human rights law. Their practice in the latter area shows a level of conformity as well as inconsistency with international conventions and case-law of the European Court of Human Rights. Whereas, war crimes adjudication is associated with significant controversies regarding non-retroactivity of law, nullum crimen sine lege and the place of customary international law in the Kosovo legal order. The jurisprudence pertaining to state succession, extradition and terrorism uncovers differences between judicial and executive branches in their responses to some complex legal and political questions in the aftermath of Kosovo’s independence.
An unprecedented case emanating from a refusal by EULEX international judges to recognise and apply post-independence Kosovo laws, allegedly contradicting certain United Nations obligations, has raised a heated debate between the Constitutional Court and EULEX international judges on fundamental international and domestic constitutional norms.
While observing a scarce application of international law by domestic judges of courts of general jurisdiction the analysis suggests tools that could be used in order to overcome the inherited judicial and educational problems and to assist in installing a sustainable and competent local judiciary capable of complying with international legal standards.
Nineteen armed conflicts took place in 2003, but in terms of political, media, and scholarly attention there was really only one that mattered: Iraq. It dominated the headlines and aroused passions worldwide, particularly amongst members of civil society, on a scale unseen since the Vietnam War. The military campaign itself followed on some of the most emotional and divisive debates ever seen at the Security Council, which were interpreted by many as exposing not so much the cracks but the fault lines in the system of collective security, and the sharp divide between those states committed to it — and the Security Council's role as the exclusive decision-maker in matters pertaining to the use of force — and thelone rangers.
Introductory remarks My intention is to address the structural dimension of ‘democracy’, i.e. the question, how to make the organs of the state capable of reflecting the principle of ‘rule by the People’. Such a question cannot be discussed in abstract terms, but must be related to a particular historical and geographical setting. The evolution of constitutionalism in post-Communist Europe in the 1990s, in which I had the privilege to participate, seems to meet this requirement. The term ‘international influences’ can be understood in different ways. In particular, ‘international influences’ can be associated with attempts of the outside world to impose certain solutions upon the constitution-drafting process in a particular country. Short of military intervention and/or economic pressure, the most civilised way of imposing certain standards upon national processes of constitution drafting is to ‘universalise’ these standards by expressing them in the norms of international law. Such norms, if vested with sufficient binding authority, can pre-define the content of national constitutions leaving to the framers of a particular constitution no alternative but to reproduce them in the text of the constitution. In consequence, the choices reserved for the sovereign decisions at the national level may become rather limited. If ‘international influences’ develop in such a direction, it would inevitably lead to a conflict between democracy (or, rather, national sovereignty) and international law. Professor Rubenfeld’s concern seems quite legitimate from this perspective.
The book studies the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military commander, a civilian leader or the leader of a terrorist, paramilitary, or rebel group could be held criminally responsible in relation to crimes committed by subordinates even where he has taken no direct or personal part in the commission of these crimes. The basis of this type of liability lies in a grave and culpable failure on the part of the superior to fulfil his duties to prevent or punish crimes of subordinates. Though it first developed in the international arena, the doctrine of superior responsibility has now spread into many domestic jurisdictions, thus offering judicial and prosecutorial authorities a ready-made instrument to hold to account the leaders of men who knew of the crimes of their subordinates and failed to respond adequately to prevent or punish those crimes. This book provides a dissection of the doctrine of superior responsibility, the scope of its application, its elements as well as the evidential difficulties involved in establishing the criminal responsibility of a superior in the context of a criminal prosecution.
This book offers critical analysis of international attempts to resolve the Kosovo crisis, presenting a first-hand perspective of settlement attempts from the Carrington conference to the Rambouillet and Vienna negotiations. That twenty-year period saw the application of the entire arsenal of diplomatic tools available for crisis management, including good offices, negotiation, mediation through proximity talks and shuttle diplomacy, high-level conference diplomacy, action at the United Nations Security Council, and even the use of force. Despite this level of engagement, the provisional end result was the very one the organized international community had most wanted to avoid: independence for Kosovo. The book traces international diplomatic attempts to grapple with the crisis against the backdrop of Kosovo's struggle for statehood. It asks how Kosovo managed to achieve its aims and what this result will mean for the future of international relations. The relevance of this latter aspect - the impact of the Kosovo episode on the international system - was demonstrated most recently by the actions of the Russian Federation in South Ossetia and Abkhasia. After locating the Kosovo crisis within the wider context of the dissolution of Yugoslavia and tracing the various attempts at international diplomacy, the book concludes with an analysis of the comprehensive proposal for a settlement submitted by UN envoy Martti Ahtisaari, and its eventual recasting into the constitution of Kosovo upon unilateral independence.
In this article, the author first looks at recent constitutional developments in post-status Kosovo by providing an overview of Kosovo's constitutional system from the perspective of both the Constitution and the Comprehensive Proposal for the Kosovo Status Settlement prepared by UN Special Envoy Martti Ahtisaari. The author then explores the foundations of the constitutional review in Kosovo and provides an overview of the process pertaining to the establishment of the 2008 Constitutional Court in Kosovo. After analyzing organizational and jurisdiction-related matters of the Court, the article addresses selected procedural concerns that triggered a lively debate among the framers of the Constitutional Court Act. In particular, the author addresses the right of judges to attach dissenting opinions and whether the publication of such opinions is appropriate in the context of this newly born constitutional democracy. Finally, the author concludes that the lack of a tradition of judicial review and the complex nature of certain morally or politically controversial issues related to finding a constitutional compromise-satisfying both the Settlement and the Constitution-will inevitably make the mission of the Court a very challenging one.
This Essay uses the conceptual framework of hybridity to analyze the early experience of the Constitutional Court of the Republic of Kosovo. While recognizing the difficulties in ensuring an effective form of hybridity and the legitimate integration of international standards into domestic law, this Essay aims to show that the new example of Kosovo’s Constitutional Court — and the engagement of the International Civilian Office as part of the Comprehensive Proposal for the Kosovo Status Settlement (CSP) arrangement — offers useful instruction on how international institutions can serve to consolidate, rather than undermine, democratic legitimacy in post-conflict contexts. Drawing on insights from both local and international actors involved in designing and establishing the Constitutional Court, this Essay re-examines the potential to reach beyond the international-national dichotomy and to understand the foundations of sustainable and legitimate capacity-building in the implementation of hybrid arrangements.
This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established
sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges
facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals
such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence
of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated
into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer
are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks
of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national
(domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence
of these international tribunals has, aside from finding its way into customary international law, also begun to seep into
the domestic (mainly criminal) law of several countries.
The first months of the Obama administration have led to expectations, both in the United States and abroad, that in the coming years America will increasingly promote the international rule of lawâa position that many believe is both ethically necessary and in the nationâs best interests. With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalismâan idealistic belief that law can be effective even in the absence of legitimate institutions of governance. After tracing the historical roots of the concept, Posner carefully lays out the many illusionsâsuch as universalism, sovereign equality, and the possibility of disinterested judgment by politically unaccountable officialsâon which the legalistic view is founded. Drawing on such examples as NATOâs invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitionsâand that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short- or long-term interests. Provocative and sure to be controversial, The Perils of Global Legalism will serve as a wake-up call for those who view global legalism as a panaceaâand a reminder that international relations in a brutal world allow no room for illusions.
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