Making laws for others: managing complexity
The law that was applied to the territory of the former Yugoslavia did not rely sufficiently on accepted principles of international law. This problem was prevalent throughout the whole territory of former Yugoslavia. Nevertheless, the degree of unlawfulness proved to be much higher in Kosovo than in other federal units, especially after the abrogation of its autonomy in March 1989.
Empowered to exercise legislative power in the territory, soon after their deployment the UNMIK authorities embarked on a mission to build up a legal system which would strengthen the rule of law. However, this commitment faced innumerable challenges. It required the establishment of a legal framework which would enable citizens to regain trust in public administration and judicial organs, and protect and promote their human rights.
This chapter analyses sets of legal issues concerning the legislative power of UNMIK by examining its legal framework, its limitations, as well as the activities performed within the framework of its competencies. In particular, it examines the legal implications of actions taken during the initial phase. In addition, it discusses the law-making procedure, the legal nature of enactments promulgated by UNMIK’s law-making body, their powers and the implementation process, as well as their compatibility with international human rights law.
Reconstructing the legal system: “the initial law-making process”
Transforming a weak and devastated country such as Kosovo into a “rule of law society” required a proper identification of problems, allocation of human and financial resources, and finally a proper strategic plan. Above all, the UN needed to create a legal framework within which these activities could be carried out. Yet this undertaking highlights a number of gaps which caused extraordinary difficulties for achieving practical outcomes.
About common characteristics regarding the UN’s involvement in reconstructing the post-war judicial system, see Carstein Stahn, Justice under Transitional Administration: Contours and Critique of a Paradigm, Houston Journal of International Law, Vol. 27, 2004-2005.
Given that UNSC Resolution 1244 tailed to determine the applicable law in Kosovo, it caused confusion amongst both international and local actors as to which law should govern the administered territory. The confusion created a legal vacuum for several months. Restricted by the narrow mandate set out in UNSC Resolution 1244, which secured the sovereignty of the FRY over the territory of Kosovo, the UNMIK administration insisted on the application of FRY laws. On the other side, the local actors strongly opposed the application of FRY/Serbian laws, claiming that these laws belonged to an oppressive regime and that many of them contained discriminatory provisions especially designed for the purpose of oppressing the Albanian population.  Consequently, UNMIK found itself between a rock and a hard place. There were two options: “continuity”, which implied the continuation of the discriminatory laws; and “reform”, which required the enactment of new laws?
Despite insisting on total discontinuity with the FRY/Serbian legal system, surprisingly, in the middle of the consultation process the local actors proposed the application of the pre-1989 laws, in particular the Kosovo criminal code, which was unlawfully revoked by the Serbian parliament during the Milosevic regime. Some judges even began to apply this code in court proceedings.   The proposal came as a result of frustration with the ongoing violence and the code’s application was seen as a pragmatic choice that would speed up the process of establishing a justice system?
Interestingly, the pre-1989 laws proposed by the Albanian lawyers were almost as inconsistent with international human rights standards as the laws of the post-1989 period?
Designed under the Communist umbrella, they failed to meet basic human rights standards, in particular those related to property and civil law.
However, on 25 July 1999, after a long debate, the first legal act (Regulation 1999/1 ) by which the applicable laws in Kosovo were identified was promulgated under the authority of the SRSG. In this light, it was decided that the applicable laws should consist of the laws of the Federal Republic of Yugoslavia, laws which were valid until 24 March 1999, to the extent that they did not conflict with the accepted standards of international human rights law.
However, despite the fact that the applicable law had been determined, it was not possible to establish a functional legal system and ensure law and order for several months as no formal local government structures existed.
Consequently, in the aftermath of UNMIK’s deployment different legal systems were applied: those belonging to the countries whose military troops were present in the territory, namely the US, Germany, France, and Italy.
Nevertheless, it is difficult to identify in which circumstances these foreign laws were applied during this period.
-  See International Crisis Group’s Balkan Report, Starting from scratch in Kosovo, No. 83, 13 December 1999, p 12.
-  Russia has insisted on applying FRY laws. See Simon Chesterman, You the People, the United Nations, Transitional Administration, and State-Building, Oxford University Press, 2004, p. 166. In addition, it has been argued that the international community was largely unprepared to govern Kosovo. It was not clear which functions should be performed by international actors and which should be shared with local actors. See lock Covey, Michael Dziedzic, and Leonard Hawley, The Quest for Visible Peace, International Intervention and Strategies for Conflict Transformation, US Institute for Peace Press, 2005, p. 166.
-  Blcrim Reka, UNMIK as an International Governance in Post War Kosova: NATOs Intervention, UN Administration and Kosovar Aspirations, Shkup: Logos, 2003, p. 189.
-  See International Crises Group’s Balkan Report, supra n. 2, p. 12.
-  See Rosa Ehrenreich Brooks, The New Imperialism, Violence, Norms, and the “Rule of Law”, Michigan Law Review, Vol. 101, lune 2003, p. 2292.
-  See International Crises Group’s Balkan Report, supra n. 2, p. 12.
-  Regarding the criminal justice system, the Model Codes for Post-Conflict Criminal Justice offered by the United States Institute for Peace and the Galway Centre for Human Rights in collaboration with the UN Office on Drugs and Crime should be seen as a useful tool for future missions that can be implemented in transitional post-conflict situations. It takes into account the particular challenges presented by post-conflict societies and could enable those societies to move quickly towards re-establishing a criminal justice system. See Vivienne O’Connor and Colette Rausch (eds.), Model Codes for Post Criminal Justice, Peace Building and Rule of Law, United States Institute of Peace, 2007.
-  See Ehrenreich Brooks, supra n. 6, Michigan Law Review, Vol. 101, June 2003, p. 2293.
-  Later amended by Regulations 1999/25 and 2000/54.
-  See Report of the Secretary General on the United Nations Interim Administration in Kosovo, 12 July 1999, UN Doc.S/1999/779, para. 35.
-  To this extent the following laws were applicable: Criminal Law of the Autonomous Province of Kosova, Criminal Procedure of the Federal Republic ofYugoslavia (SFRY), Law on General Administrative Procedure of SFRY, and several civil laws.
-  Military contingents were grouped into four regionally based multinational brigades. For more about the initial phase of international presence deployment, see Reka, supra n. 4, p. 186. Blerim Reka was a member of the Joint Advisory Council on Legal Matters (JACLM).
-  According to de Brabandere, in the cases where the establishment of a territorial administration has been preceded by military intervention the military forces should be governed by the laws of occupation. See Eric de Brabandere supra n. 1, p. 126.