Elena Baylis on Parallel Courts
Professor Elena Baylis has posted a new article to SSRN, titled "Parallel Courts in Post-Conflict Kosovo." The abstract:
Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states. In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is maintained by the government of Serbia, the remnants of the courts that existed before Serbia 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. The parallel courts also represent an extreme example of the legal pluralism that has developed in other divided societies. Finally, the lack of any recognition of judgments between these systems has created legal chaos for the people who depend on those judgments. Conflicting judgments have been issued in civil cases, and criminal defendants are subject to prosecution and punishment in both systems. This article addresses the problem of the mutual non-recognition of judgments between Kosovo's parallel systems in light of existing national and international models for judgment recognition and enforcement. Each of these models 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 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 consideration by other states.
The article has been published at 32 Yale Journal of International Law 1 (2007). Link