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Under the authority of UN Security Council Resolution 1244, the
International Civil Authority in Kosovo, in cooperation with the
military authorities, have began to establish an interim judicial
system to try individuals arrested since the entry of the international
forces into Kosovo. At this point, it is not clear whether these
judicial authorities also have jurisdiction over civil cases.
These judicial authorities have been directed to apply the law
of Kosovo except when it conflicts with International Human Rights
Law or resolutions of the Security Council. By implication, orders
and rules issued by officials acting under the authority of Security
Council Resolution 1244 will have the same statutes as the Security
Council Resolution itself.
Initially, there was some confusion over how to determine the
law to be applied in particular cases. This essay explains that
the confusion can be reduced by applying well-understood principles
used in resolving federal preemption controversies in the United
States and conflicts between European Law and the law of Member
States of the European Union.
The first step analytically in a particular case is to identify
any potential conflicts between Kosovo law and the superior sources
of law derived from International Human Rights Law or the Security
Council Resolution. When a conflict cannot be resolved by interpreting
one or another of the potentially conflicting sources, the superior
source must be given effect. Before this conflicts analysis can
proceed, the substantive law from the sources must be understood.
Marshaling the Sources of Law
The Law of Kosovo
Kosovo, as a part of the Federal Republic of Yugoslavia, was
bond by the Criminal Code of Yugoslavia. There is room for argument
that customary law actually applied by informal Albania tribunals
operating within Kosovo should be given the same status. This
is a questionable argument because the Albania tribunals were
not formal legal institutions.
UN Law
Security Council Resolution 1244 is the starting point for UN
Law. Its most concrete provisions authorize the establishment
of a civil administration and the maintenance of civil law and
order. It also articulates broad policies and purposes for the
international presence. There may be room for argument in particular
cases that Kosovo law must be modified so as to permit accomplishment
of these policies.
Moreover, the civilian and military authorities in Kosovo have
implied legislative power under Security Council Resolution 1244
and customary martial law doctrines, and after they promul gate
rules that define certain conduct as criminal, these rules also
are a competent source of criminal liability, but only prospectively.
International Human Rights Law
The principle sources of international human rights law are the
International Covenant on Civil and Political Rights and the Geneva
conventions. Interpretations of these documentary sources of law
by national and international courts such as the European Court
on Human Rights, the ICTY are useful guides. The decisions of
the European Court on Human Rights have no direct effect because
Yugoslavia is not a member of the Council of Europe; nor is it
a signatory to the European Human Rights Convention. On the other
hand, the ICTY does have jurisdiction over Kosovo, and its decisions
should be given binding affect.
Types of Conflicts
In some cases, a prima facie crime may be established by reference
to the international sources of law rather than to the Law of
Kosovo. Under the doctrine of nulla poena sine crimen crimes should
not be inferred from general norms of the International Covenant
or Security Council Resolution 1244. On the other hand, the Statute
for the ICTY, as it has been interpreted by the ICTY is a competent
source of prima facie criminal liability.
In other cases, the Law of Kosovo will be the source of prima
facie criminal liability, but the defendant will argue that imposing
such liability conflicts with international law. An example might
be a provision of Kosovo law that criminalizes certain political
speech. Another example might be a procedural provision of Kosovo
law that denies procedural rights recognized by the International
Covenant. In this category of conflicts, there is more room for
broad interpretation of international sources of law because the
international sources of law are being used to circumscribe criminal
liability rather than to expand it. There is thus no occasion
to employ the doctrine nulla poena sine crimen.
A third type of conflict involve possible conflicts of jurisdiction
as between Kosovo judicial authorities and the ICTY. As Professor
Bartram Brown has explained, the ICTY has power to supplant the
jurisdiction of national courts when it explicitly exercises the
power. This type of conflict would be triggered only in those
cases in which the ICTY explicitly takes jurisdiction of a case.
Otherwise, Kosovo judicial authorities can proceed on their own.
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