Title

Parallel Courts

Comments

Forthcoming in the Winter 2006 issue of the Yale Journal of International Law.

Abstract

Even as American attention is focused on Iraq’s struggles to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society – Kosovo – has just begun negotiations to resolve the question of its political independence. The persistent ethnic divisions that have obstructed Kosovo’s efforts to establish multi-ethnic “rule of law” offer lessons in transitional justice for Iraq and other states. In Kosovo today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the United Nations administration in Kosovo and is mostly, although not exclusively, staffed by Kosovar Albanians. The other system, run primarily by Kosovar Serbians, is essentially a set of courts-in-exile, the remnants of the previous judicial system that existed before the Serbian government was forced out of Kosovo by NATO bombing in 1999. The parallel courts present a transitional justice issue that is as crucial to rebuilding Kosovo’s post-conflict society as convening a truth commission or conducting criminal trials. On one level, the existence of the parallel courts is a manifestation of the ongoing political dispute over sovereignty. For the residents of Kosovo, the lack of any recognition of judgments between these systems has also created legal chaos in their everyday lives. Conflicting judgments have been issued in civil cases, and criminal defendants are subject to prosecution and punishment in both systems. The palpable injustices that result from these conflicting judgments and repeated trials are undermining confidence in the ongoing process of legal and political transition. This article undertakes an assessment of Kosovo’s parallel systems and of the existing legal models for recognition and enforcement of judgments, with the aim of proposing an appropriate framework for Kosovo to recognize the Serbian parallel judgments. In my survey of the relevant national and international models, I find that each strives to strike a balance between two competing values: (1) certainty in the finality and consistency of legal judgments and (2) ensuring those judgments’ essential fairness. Using these two values as a guide, I assess whether and how the existing models might be adapted to Kosovo’s context, concluding that the proper balance between legal certainty and fairness will permit categorical recognition of most parallel civil judgments, but will require case by case, discretionary review of criminal judgments. Finally, from this analysis, I develop a set of factors for other transitioning states to consider when faced with judgments from ethnic and religious legal institutions or other parallel courts.

Disciplines

Civil Law | Conflict of Laws | Courts | Criminal Law | Criminal Procedure | Dispute Resolution and Arbitration | Human Rights Law | International Law | Jurisdiction | Law and Politics | Law and Society

Date of this Version

2-19-2007

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