Criminal Justice Section  

   Welcome

Criminal Justice Magazine
Winter 2004
Volume 18 Number 4

To Live and Work in Kosovo
Justice in the Aftermath of War

Hon. Marilyn Justman Kaman

Hon. Marilyn Justman Kaman is a judge in the Hennepin County District Court in Minneapolis, Minnesota. She served as an international judge in Kosovo from November 2002 through June 2003.

Few state court judges in America expect when appointed, or later, to serve in another country under the auspices of the United Nations. Yet such an experience was mine as a result of the UN’s historic and important action taken in 1999 for the war-torn province of Kosovo in what was once Yugoslavia. On June 10, 1999, the United Nations Security Council enacted Resolution 1244, creating the United Nations Mission in Kosovo (UNMIK) in response to that region’s most recent ethnic strife, killings, and war. The UNMIK mandate was broad: to act as the interim and transitional civilian administration for the region. Part of that mandate would be to maintain civil law and order, including establishment of the rule of law. On November 17, 2002, I became a participant in that process as one of four American judges to serve as international judges in Kosovo. The decision to leave my husband, children, friends, and familiar job surroundings in the Twin Cities of Minnesota was not easy. I can say, however, it was more than worthwhile. The focus of this article will be to provide some personal reflections on the establishment of the rule of law in a postwar environment.

The challenge

The rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. In particular, anyone accused of a crime has the right to a fair, prompt hearing and is presumed innocent until proved guilty. The central institutions of the legal system, including courts, prosecutors and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law abiding.

(Thomas Carothers, The Rule of Law Revival, 77 Foreign Affairs, No. 2 (1998).)

This statement is the ideal. As my UN car made its first trip from Pristina to my assigned city of Pejë/Pec, I had my first glimpse of the challenges to establishing the rule of law in Kosovo. Looking out the window, I saw homes that were destroyed and abandoned, with only the cement framework standing. An Eastern Orthodox Church, in ruins by the side of the road, was a grim reminder of the ethnic distrust and hatred that existed in the region. Roadside graves were monuments to soldiers fallen for their cause. As I made that first drive, on a gray November day, a steady drizzle fell from the skies. It was just five short days since I had left my home in Minneapolis, Minnesota, but that world already seemed light-years away. My notions about the “rule of law”—evoking thoughts of an orderly courtroom and gold-lettered, maroon-colored law books—seemed quaint and antiquated.

It is easy to call forth lofty thoughts about the rule of law while adjudicating in a fully developed and democratized society. It is another matter to implement a fair and impartial adjudicative process in a war-torn society. A look out my car window showed me that the existence of a “government embedded in a comprehensive legal framework” where officials “accept” that the law will be applied to their own conduct, and where the government seeks to be law abiding, was fine on paper. Creating that reality would be another task altogether and one far removed from our American frames of mind in which this is taken for granted.

The social fabric of Kosovo was most recently torn apart by the region’s ethnic strife during the 1980s and 1990s. The conflict is between the Kosovar Albanians and Kosovar Serbs, who have made competing claims for the region for centuries. Historians mark an important date as 1389, when the Ottoman Empire engaged in battle at Kosovo Polje/Fushë Kosovë, on the outskirts of present-day Pristina, followed by Ottoman conquest of the region in 1459. Four hundred years of rule by the Ottoman Empire ensued. In 1912, Turkish domination ended and Serbia annexed Kosovo, while an independent Albanian state was declared at the same time. In 1943, communist Yugoslavia was formed. With the death of Yugoslav President Josef Tito in 1980, the uneasy truce keeping the republics of Yugoslavia together unraveled. In 1987, Serbian leader Slobodan Milosevic returned to Kosovo Polje/Fushë Kosovë, by then fabled as a place of humiliating defeat to the Serbs. Milosevic rallied ethnic Serbs by declaring “No one should dare to beat you!” and set the stage for Kosovo’s conflict between Kosovar Serbs and Kosovar Albanians. (Noel Malcolm, Kosovo: A Short History 341–42 (N.Y. Univ. Press (1999).) During the 1990s, Kosovar Albanian judges were dismissed from their posts, Serbian police took over from Kosovar police, and Albanian schools were closed. Kosovar Albanian resistance to Serbian actions grew, and in late 1997 the Kosovo Liberation Army made its first public appearance. Serbian authorities planned and implemented a campaign of expulsion from Kosovo of the Kosovar Albanian population. Newspapers across the world carried pictures of the forced exodus, as well as mass graves. On March 23, 1999, NATO intervened. The 1999 war ended on June 8, with the signing of the Kumanovo Agreement.

Ethnic distrust

In 2000, as a result of the continuing distrust between the two ethnic groups, UNMIK asked international judges and prosecutors to participate in Kosovo’s judicial processes in order to ensure the independence and impartiality of the judiciary and the proper administration of justice. An experience I had outside of Kosovo, at the Skopje, Macedonia, airport, vividly illustrates the depth of the animosity and distrust each ethnic group harbors toward the other and how it colors their attitudes about the rule of law.

I was assigned to sit as an international judge in the city of Pejë/Pec. Pejë is the Albanian name for the city; Pec is its Serbian name. Immediately upon arrival in Kosovo, I was “schooled” in the necessity of using both names as though they were one. Afterwards, I was scrupulous and recited both names whenever referring to my town.

To be a judge, but particularly an international judge, requires a strict adherence to neutrality and decision making based on fact. Such a commitment to impartiality can be communicated not only by conduct within but also outside the courtroom. Indeed, I found that lawyers appearing before an international judge sometimes make sport of trying to figure out what a judge is thinking. They will interpret (or misinterpret) even the smallest comment. For my part, it was important to communicate the goal of rendering impartial decisions, without regard to ethnicity. Thus, I always used both names for my city; I gave the same greeting to all persons in the courtroom; and I greeted Albanian and Serbian parties and witnesses in their native languages.

In January, though, I had a lapse. Upon returning to Kosovo from a short break, my flight to Pristina was diverted to Skopje, Macedonia, because of a winter storm. The day was dark and snowy. Arriving in Skopje, I did not know anyone or how I would get back to Pejë/Pec. My luggage was lost; I was very tired. I approached the baggage claims person and asked how I might locate my luggage. “I work in Pejë, Kosovo,” I said. A sharp glance, filled with resentment, came back at me. “We don’t use that word here. The name of the city is Pec.” The distrust was immediate. A hot, searing feeling enveloped me, oddly combined with the sensation of cold water in my face. I had been labeled and categorized. I was one of “them,” even though my sole purpose was to return to my job of judging as best I could.

It is this distrust that brought international prosecutors and judges to Kosovo in the first place. It is this distrust that needs to be overcome in order to establish the rule of law. It is this distrust that cannot be allowed to develop into violence and murder, and that only the rule of law can dissipate.

Kosovo judicial system

The role of a judge in Kosovo, as I experienced it, is very different from that of a state-court trial judge in the United States. The judicial system in Kosovo has its origins in the European civil law system. (A new draft criminal code and draft code of criminal procedure have been issued, which make modifications to the legal system now in place.) Not only was I a trial judge, I was also called upon to be an “investigative judge.”

An investigative judge assumes a quasi-prosecutorial role. Generally speaking, the process is as follows: Once a prosecutor receives arrest reports from the police and requests that an investigation be conducted, the investigating judge reviews the police reports that have been forwarded to him/her. Within 72 hours of arrest, the suspect is brought before the investigating judge, who questions the suspect about his/her possible involvement in the crime. The international prosecutor and local defense counsel are present for this questioning. An interpreter translates the questions from English (UNMIK’s official language) into the witness’s native language, Albanian or Serbian. The court recorder writes down all questions and answers, and afterwards prepares an English transcript of the hearing; that transcript later will be translated by international interpreters into the witness’s and defendant’s native language. After hearing from the suspect, the investigating judge determines whether there is ground for an investigation. If there is, the judge conducts the investigation and is empowered to take any action that the judge deems necessary. (Law on Criminal Proceedings, Art. 166.) This includes determining which other witnesses must be questioned, and when. The investigative process may span several months, and the suspect, not-yet charged with a crime, may remain in custody. After the investigating judge determines that the state of facts has been “sufficiently clarified,” he/she declares the investigation at an end. All statements are forwarded to the prosecutor, who has 15 days in which to file an indictment. The investigative judge may not act as the trial judge in future proceedings.

The other immediate and obvious difference to the Kosovo legal system is that juries do not exist. Instead, panels of judges adjudicate a defendant’s guilt or innocence and determine the appropriate sentence. A judge on a trial panel hears courtroom testimony from witnesses, as is done in courtrooms throughout the United States. However, the sequence of witness testimony, prescribed by the Kosovo Code of Criminal Procedure that was in effect when I presided called the defendant to testify first (although not required to make a statement, all defendants invariably did). Defendants or witnesses would make an initial narrative statement to the panel, as long as they wished and without interruption from the presiding judge. The presiding judge then questioned the defendant(s) (or witnesses), followed by questions from other panel judges. After the entire panel of trial judges had finished questioning the defendant(s) (or witnesses), the prosecutor asked questions, followed by defense counsel. Kosovo law has a concept known as the “injured party,” defined as the person injured or threatened by the defendant’s criminal act, such as the widow of a homicide victim. The injured party’s right to question the defendant(s) (or witnesses) came after the defense counsel’s. Unlike trial proceedings in the United States, defendants do not remain mute during trial but may question other codefendants or witnesses. Even expert witnesses had the right to question defendant(s) (or witnesses), which is done after the injured party has asked questions.

Types of cases heard

Cases assigned to UNMIK international judges include genocide, war crimes, organized crime, murder, terrorism, ethnically motivated offenses, trafficking in drugs and human beings, and the smuggling of weapons and ammunition. The list speaks volumes about a society struggling to overcome its past and to establish the rule of law.

While in Kosovo, I either acted as presiding judge or a panel judge on three trial panels, in addition to the investigative hearings. Two were lengthy cases, almost mirror images of one another and of the 1999 conflict that existed in Kosovo. Because these cases may be appealed, I will simply give factual information without further comment.

The first lengthy case was a war crimes case involving a defendant of Montenegrin origin, Veselin Besovic, accused of committing crimes in 1998–99 against the Kosovar Albanian population in outlying villages of the Pejë/Pec region. Trial began in late January 2003 and concluded with the oral announcement of the verdict on June 26, 2003. The trial panel of three judges (two international judges and one professional Kosovar judge, of Bosnian ethnicity) found the defendant guilty of war crimes against the Kosovar Albanian population in the villages of Poqest and Qyshk. A sentence of seven years was rendered.

The second lengthy case involved two codefendants, both Kosovar Albanians, accused of killing another, Kosovar Albanian, allegedly for collaborating with the Serbian authorities. Both defendants had been members of the Kosovo Liberation Army (KLA), although neither defendant had been a commander. The killing occurred on February 21, 1998, before an “internal conflict” was recognized to exist in Kosovo. The trial panel of five judges—one international presiding judge, one professional Kosovar judge, and three “lay” judges—found Dibran Fylli guilty of “murder in complicity,” and acquitted Tahir Desku of aiding in the commission of the murder. A sentence of seven years was rendered.

The third case was a short one, involving Mentor Bala, an Albanian, charged with “illegal use of a weapon and causing general danger.” The defendant had fallen in love with a young British woman who had come to Kosovo to do humanitarian aid work. The defendant became infatuated with her, and gave her a ring, which she kept. She later indicated she did not wish to have a romantic relationship with the defendant, whereupon, as an act of protest, he detonated a hand grenade under the car outside her apartment while she was sleeping. The defendant’s act of protest may have resulted from his antisocial personality. Or, it may have stemmed from the defendant’s anger at being shamed within society. At trial, the defendant explained to the court that his honor had been sullied by the victim’s actions of spurning him. When the victim accepted and kept the friendship ring, she unwittingly may have violated ancient traditional codes of law that still are in force in Kosovo, known as the “Kanun of Leke Dukagjijni.”

Influence of the “Kanun”

The “Kanun” is a set of traditional laws that developed over the centuries and that has governed all essential areas of human life, including marriage, inheritance, pasture rights, and criminal acts. The foundation of the Kanun is the principle of personal honor: If a man is dishonored (women only have honor through the man), then his honor may be avenged by the “blood feud.” One historian explains it as follows: “The honor is cleansed by killing any male member of the family of the original offender, and the spilt blood of that victim then cries out to its own family for purification.” (Noel Malcolm, Kosovo: A Short History 20 (1999).) One way a man is dishonored is if someone reneges on his pledged word or if someone does not repay a debt or obligation. (Kanuni I Lekë Dukagjinit, The Code of Lekë Dukagjini (Collected and Arranged by Shtjefën Gjeçov), § 601(c)(h).)

Under the Kanun, a woman’s life is bound by intricate rules of betrothal and marriage. Thus, in July 2002 a young woman by the name of Leonora Atashi was murdered in the Pejë/Pec region when she told her prospective father-in-law that she did not want to marry his son. The marriage had been arranged by Leonora’s parents in 1999 after the war ended and when Leonora was 14 years old. The prospective father-in-law had agreed to rebuild her parents’ home, in exchange for which Leonora would be betrothed to the neighbor’s son, to marry when she turned 17. When Leonora turned 17, she decided she did not want to marry the neighbor’s son. The prospective father-in-law lured her into the woods and shot her four or five times. Her own family claimed no knowledge of the events that were investigated by international police.

According to the Kanun:

§ 43. The girl who is betrothed may not reject the young man, even if she does not like him.

If the girl refuses to submit to her fate under any circumstances, and her parents support her, she may never marry another man.

In this case, the parents of the girl are obliged to return to the family of the young man everything they have been given for the girl—to the last coin. . . .

If the girl does not submit and marry her fiancé, she should be handed over to him by force, “together with a cartridge;” and if the girl tries to flee, her husband may kill her with her parents’ cartridge and the girl’s blood is lost, because it was with their cartridge that she was killed.

(Kanuni I Lekë Dukagjinit, The Code of Lekë Dukagjini, Collected and Arranged by Shtjefën Gjeçov) (The author interprets “cartridge” to mean a bullet; the “parents’ cartridge” means the bullet given to the groom by the bride’s parents; and “the girl’s blood is lost” means the death will remain unavenged).)

The ancient traditions of the Kanun have a continuing impact on the rule of law in Kosovo today.

On one occasion, my trial panel heard testimony from a defendant accused of killing another Albanian, allegedly for collaborating with Serbian authorities. As the presiding judge, I initiated questioning of the defendant, to be followed by questions from other panel members. The remaining judges on the panel were Kosovar Albanian. After I had completed my questioning, I turned the panel over to a competent and experienced professional Kosovar Albanian judge. It came as a surprise to me when he asked the defendant, “Did you attend the funeral? Did anyone from your neighborhood attend the funeral? Did you send any representative of your family over to the victim’s family?” It mattered to these judges that the defendant answered, “No.” Such an answer, under the Kanun’s complicated rules, bore indicia of guilt. Questions that were seemingly irrelevant to me had legal significance for other panel judges. In the eyes of these judges, whether the defendant (or his neighborhood) attended the victim’s funeral had something to say about that defendant’s guilt or innocence being decided in a Kosovo courtroom in 2003.

Silenced witnesses

During the period of Ottoman rule in Kosovo, the Kanun was opposed by both the church and the state. The Kanun’s continuing legacy, however, is apparent. Such laws have force not only today in Kosovo, but in other cultures, as well. ( See, e.g. “Honor Killings” Defy Turkish Efforts to End Them, N.Y. Times, July 13, 2003, at 3.) As in the case of Leonora Atashi, killings occur in Kosovo according to the Kanun’s dictates and contrary to published criminal codes proscribing murder. A murder in the eyes of the law may “only” constitute an honor killing warranted by tribal tradition.

According to the Kanun, “blood follows the finger.” If you accuse someone, then the consequences may return to you or your family. In the context of investigating, prosecuting, and adjudicating criminal offenses, this means that witnesses do not want to “point the finger,” or tell police or the courts what they know about a given case. To do so would violate notions of maintaining family “honor.” Similarly, the potential witnesses (or their families) may “pay” for their testimony. In Leonora Atashi’s case, her family professed to the international police that it knew nothing about the circumstances surrounding her murder.

The silencing of witnesses is caused not only by the Kanun’s continuing legacy. Witnesses today also are being silenced by certain “criminal elements” presumably vying for power once UNMIK transfers local governance back to Kosovar officials. Witnesses may be threatened with death even before they have given their statements to the investigating judge. Witnesses were killed while I was in Kosovo for having testified at trial.

In one case, a witness looked at me with pleading eyes during trial and said, “I am afraid to testify. I have my family to think of, and the police are so far away.” Variations of this statement were heard frequently—code words for “someone may kill me or my family.” The witnesses clearly knew more than they were willing to say. This was a realm into which few judges or lawyers in the comfort and safety of America have ever ventured. It is one from which, having returned, I can never forget.

UNMIK first addressed this rule of law issue in Regulation 2001/20: “On the Protection of Injured Parties and Witnesses in Criminal Proceedings.” A court may consider necessary protective measures, which include excluding the public from court sessions; ordering defense counsel not to reveal the identity of injured parties or witnesses; ordering defense counsel not to disclose information that may lead to revealing identity; ordering the temporary removal of the accused from the courtroom (if a witness refuses to give testimony or if circumstances indicate the witness will not give truthful testimony in the presence of the accused).

Confronted with the witness’s statement, “I am afraid to testify,” as well as his imploring looks, the trial panel gave him the witness protection measures described above. He still refused to testify. The fear of retribution was too great. (The new draft Code of Criminal Procedure includes witness protection measures in it, including one providing for anonymity of the injured party or witness even from the defendant and defense counsel.)

The killings and the silence about them defy prosecutions under modern criminal codes for murder. Such killings challenge the rule of law. Silence about the killings challenges the rule of law. The challenge is to establish a legal system that garners respect and confidence, displacing outmoded customary notions of governance.

“Nuts and bolts” measures

It is not possible, within the confines of this article, to catalog every rule of law initiative taken in Kosovo since June 1999. Many “nuts and bolts” measures have been implemented, such as the revision of the Kosovo Criminal Code and Code of Criminal Procedure, the training of judges by the Kosovo Judicial Institute, and initiatives like the American Bar Association’s Central and East European Law Initiative (ABA-CEELI). To characterize such initiatives as “nuts and bolts” reforms is not to diminish their importance, but rather to acknowledge the many reforms that are needed in a postwar society in order to establish the rule of law. A few are mentioned here.

A proposed draft Criminal Code and Code of Criminal Procedure has been written, which integrates and modernizes the law applicable in criminal proceedings. This reform was much needed in the wake of the breakup of Yugoslavia and the 1999 war. A detailed analysis of code changes is not possible here. The most notable change is the reallocation of responsibility from the investigating judge to the prosecutor, who now will be responsible for opening, conducting, and supervising an investigation. The prosecutor’s authority extends to the police, also authorized to carry out investigative functions. During the investigation, it will be the public prosecutor or the police who will examine the suspect. Further, under the new proposed code, the parties themselves will assume a primary role at trial in presenting evidence and questioning the accused and witnesses, instead of a panel of trial judges.

CEELI has been busy in Kosovo. It established a presence in Kosovo immediately following the cessation of hostilities in June 1999. CEELI’s primary focus has been the establishment of basic legal institutions in the post-conflict environment and the promotion of self-sustaining training for judges (especially related to judicial independence), private attorneys, and prosecutors. Thus, CEELI offered initial judicial training for approximately 300 newly appointed Kosovar judges, created the Kosovo Judges’ Association in May 2001, and has rebuilt the bar association, the Kosovo Chamber of Advocates. CEELI has conducted training in human rights, substantive and procedural criminal law, has helped to revise the Kosovo ethics code, and has helped improve the internal disciplinary system. These are just some of its initiatives. CEELI also has served as an organizational board member for Kosovo-based rule of law organizations, including the Criminal Defense Resource Center and the Kosovo Law Center. While in Kosovo, I and another American judge had the privilege of working with CEELI and local Kosovar judges discussing topics of concern to them.

Intimidation of judges

As I drove to work in Kosovo on January 23, 2003, I approached the parking lot and noticed standard yellow “Police Line Do Not Cross” tape extending around the perimeter of my building, the Regional Police Headquarters in Pejë/Pec. I subsequently learned that an antitank rocket had been fired the evening before at the building, which housed the offices of all Pejë/Pec international judges, international prosecutors, international interpreters, UN support staff, and international civilian police. About a week later, a Kosovar Albanian judge was severely beaten outside his home in the city of Prizren, by persons unknown to this day. One theory regarding the first incident is that certain elements of the populace were expressing displeasure over a verdict rendered in December by my international colleague from Uganda. The event was interpreted by some as an act of threat and intimidation for law enforcement authorities, including international judges. One theory regarding the second incident is that the local judge was too enthusiastic in his support of the prosecution of certain “criminal elements.” Other theories, for each incident, also exist.

No one knows for certain who has perpetrated these crimes. However, the genesis is clear: to create fear in an attempt to manipulate judges, to erode confidence in the rule of law, and to destroy the judicial processes.

A judge does not carry weapons for protection. A judge’s authority derives from the respect accorded to his or her office, in which a judge is vested with ultimate decision-making authority for resolution of citizen disputes. This decision-making authority, to do what is fair and just, must not rely either on fear of reprisal or favors owing to any person. Once fear enters the equation, the judicial outcome is dictated by politically or personally expedient considerations. It ceases to be the rule of law.

Not everyone welcomes the stability that the rule of law represents. Certain elements vie for power by “influencing” a judge’s decision, either through the threat of violence or through inducement by bribe. While in Kosovo, two armed bodyguards accompanied me wherever I went. My Kosovar judicial colleagues did not have any protection. I often put myself in their shoes: Would I be able to make the correct decision, without protection and in a society filled with ethnic distrust, intimidation, and fear? It was not an easy question to ask myself. It is even more difficult to come up with an answer. Kosovar judges are people, with the same concerns as you or I. Being susceptible to fear and intimidation is a very real rule-of-law issue that will need to be addressed. As judicial authority is transferred back to Kosovar judges, vigilance will need to be maintained to ensure that these judges will be able to apply the rule of law in their courtrooms.

Reliable infrastructure

Journal entry, February 18, 2003: “It was cold in court today. We didn’t have electricity for much of the session. We could see our breath in the courtroom. Luckily, I put on an ankle-length skirt when I got dressed this morning. While listening to the testimony in the courtroom, I looked down at my legs, and realized that underneath my skirt was my long wool underwear that I have been using as pajamas. My down coat was draped over my legs. I looked at the defendant, and he looked cold and forlorn. The witnesses who came to testify also looked cold and forlorn.”

By Minnesota standards, this past winter in Pejë/Pec was not cold. The coldest temperature was in the 20s Fahrenheit. In Minnesota, that would be a mild winter. Without reliable electricity in Kosovo, the mild winter became very cold.

A mission environment is, by definition, one without luxury. Being “in mission” means doing without the conveniences taken for granted at home, such as reliable heat and light. But this fragile infrastructure hinders the establishment of the rule of law.

I am routinely asked what kind of cases I heard while I was in Kosovo as well as the volume of my caseload. “Was it one case per day? One case per week? Do you mean you only tried three cases and you were in Kosovo for over seven months?” People are polite, but incredulous.

As indicated above, two of the cases were lengthy matters, extending over a period of months and involving some thorny legal issues. That being said, the obstacles to a fully functioning legal system were constant. What would have been routine case-processing issues at home became hurdles to overcome: Would the witnesses in the outlying villages receive their subpoenas on time? Would any witnesses show up for court today? How could we contact village witnesses and tell them we were running behind? Was there any money with which to pay the witness fee? Would the court’s backup generator work, or not? If not, how long would the court recorder’s laptop function without electricity? Would the courthouse telephone land lines function on any given day?   How cold should the courtroom be before court is cancelled? Sitting in my fully heated chambers back in the United States, it is clear to me how important a fully functioning infrastructure is to advancement of the rule of law.

The people “in mission”

Of course, being “in mission” means doing without; it is not a life of luxury. Being in mission also means being creative and working to get the job done. This is what we did—internationals and Kosovars together—in order to finish the cases. Overcoming challenge constituted both the goal of our work and our mental attitude surrounding it. One of my greatest surprises and pleasures was working with people from the many nations of the United Nations.

For my war crimes trial, not all trial witnesses lived in Kosovo. Except for a couple of witnesses, all other witnesses of Serbian ethnicity had fled Kosovo, either during the 1999 fighting or after the war ended in June of that year. In order to hear these witnesses, it was necessary to travel to Belgrade for a week of testimony.

Thus, on June 5 “we” boarded a Russian MI-8 helicopter for Belgrade. We were: the international presiding judge from Mauritius, an international judge from the United States, a Kosovar Bosnian judge, the international prosecutor from Malawi, the legal officer from Sierra Leone, and the court recorder from Canada. Joining us in Belgrade was an international interpreter who worked with us in Pejë/Pec and who was returning from a trip home to Bosnia. Back at our office in Pejë/Pec, we additionally had an international prosecutor from Germany, an international judge from Uganda, a legal officer from Italy, an interpreter from Croatia, three interpreters from Albania (all possessing higher education either in the United Kingdom or the United States), and a court recorder from Australia. Our team in Belgrade, and our office in Pejë/Pec, reflected the international community—people from all over the world who had voluntarily left their homes to work in a foreign land.

One German police officer summed it up thus: “We are all strangers here; therefore, we are all friends.” Of extraordinary dedication, these men and women all were dedicated to the task of rebuilding the rule of law in Kosovo.

Law and belief

When I first arrived in Pejë/Pec, I had assumed my most important role would be to “do cases,” trial after trial, investigation after investigation. As time progressed, I came to view my job there in a very different light—as a mentor to my Kosovar colleagues.

Every Monday the two Pejë/Pec international judges would meet with the local Kosovar judges in the morning to discuss issues and concerns of the court. The topics of discussion were as you might find in any judicial district in the United States: case assignment (is everyone doing their fair share?); job assignment (should one be an investigative judge indefinitely, or should some sort of job rotation be implemented?); time standards for case processing (how could cases be done quicker, was the district “falling behind” other districts?); sentencing disparities between judges (some judges are too “light” and some are too “harsh”), and so on.

Faced with these judicial governance issues, the process at home would be to list a topic as an agenda item, raise the discussion at the next bench meeting, determine the need for further information on the topic, eventually vote on the issue, and implement a course of action. From issue to issue, democracy is in action. Debate occurs, majority will governs. If an unwise decision is chosen, another debate can take place. Corrective action can occur.

This sense of the ability to affect the institution of the court was curiously absent among my Pejë/Pec colleagues. Even considering the fact that UNMIK constitutes the civilian administration and is making many interim decisions, my Kosovar colleagues exhibited curious difficulty discussing court governance issues at out Monday morning meetings. At first such reticence probably stemmed from the fact that we were outsiders. Perhaps they did not wish to air out their problems in front of others. As the months passed, this did not seem to be the case.

It then occurred to me that these people did not benefit from a firmly established tradition of civil debate and discourse. The judges sitting with me (I did not have the opportunity of working with Kosovar Serbian judges, so my comments focus on Kosovar Albanian judges) had been dismissed from their positions as judges in 1989 and did not work again in their field until appointed by UNMIK. A decade of legal experience was missing. In the room, one could almost feel the legacy of communism, where expressing one’s true viewpoints could be a treacherous affair. Language used on any topic was a curious double-speak. If asked a direct question, my colleagues might answer with an analogy. Or they might switch the topic. Or they might simply sit in silence, waiting for someone else to speak. One had to interpret the true meaning behind the analogy, the change of topic, or the silence. Stating one’s opinions openly clearly was not the norm. I came away with the impression that the desire for discourse existed, but that my colleagues could not find the proper words and lacked experience in discussing matters in a group setting. Finally, they needed to have the important ingredient of trust—they needed to trust me before they could answer. They needed to believe that the confidences given to me would not come back to harm them.

One final issue is that of law and belief, as posited by Supreme Court Justice Anthony Kennedy in his August 2, 1997, speech to the American Bar Association. Justice Kennedy then addressed the issue and the importance of law and belief to the rule of law. Justice Kennedy’s principal focus was our own rededication, in America, to simple, fundamental principles. His comments, however, apply equally to judges in societies in transition. Said Justice Kennedy:

Law must live in the consciousness of a people. In a free society, law must be part of our intellectual conscience. The belief must be constant in order to precede and then secure this consciousness. It might risk hyperbole were I to say there is a crisis of disbelief in our nation, but our task of rededication and recommitment is urgent all the same. We must not wait until we are at the edge of the abyss. We must rededicate and recommit ourselves to the law in its most fundamental sense, not just for ourselves but for those new and emerging democracies which look to us as proof that the rule of law works. In these places, too, there is, or soon may be, a crisis of disbelief.

In Kosovo I discovered that history has left its unkind mark on my Kosovar colleagues and friends. They do not have first-hand experience in democracy such that the law lives in their consciousness. Rule of law principles exist, but are as yet only abstract and theoretical. In some measure, these judges disbelieve that their society can, or ever will, be founded on the rule of law. They listen with scepticism. Make no mistake, the yearning to apply rule of law principles exists. The judges want to believe, but are afraid to believe, lest their hopes be dashed again. These judges will need practice in applying rule of law principles in order for those principles to be firmly rooted in consciousness. If the principles are firmly rooted, the judges will turn to the principles first, relying upon them automatically and reflexively. The judges will not first test the waters of intimidation, fear, and ethnic distrust as the basis for their decision making.

With this awareness, my time and energy turned to investing in the people who would remain in Kosovo after my own mission ended. My focus shifted from “doing cases” to creating an awareness in these judges that, one day, they would be entrusted with the functioning of the judicial system. With freedom comes responsibility. No longer functionaries in a communist system, these men and women would not be able to place the blame elsewhere. These judges would bear responsibility for making decisions affecting the administration of justice in their community. Met with defeatist looks when I first urged them to initiate change, when I left I saw the glimmer of the will to effect positive change in the future.

The continuing challenge

My own mission in Kosovo ended on June 30, 2003. The months of July and August saw more unrest in Kosovo. On July 16, 2003, a panel of international judges convicted four ex-KLA members (the Llap group) of war crimes committed primarily against Kosovo Albanians in 1998–99. The next day, a hand grenade exploded outside the police station northeast of Pristina; three days after that a rocket-propelled grenade was fired at the district court building in Pristina, causing significant damage. On August 3, 2003, a United Nations police officer in Kosovo was killed in an attack on a police vehicle, the first fatality suffered by UN police since entering Kosovo in 1999. In August, two Serbian teenagers were killed while they were swimming in a river in the Pejë/Pec region, and in early September an attack in the Gnjilane/Gjilan region left one Serb dead and four others injured. The work of international judges has become the topic of discussion and debate; their work is being praised by some and criticized by others. This author will not comment on the controversy, but merely notes its existence. For further inquiry on this issue, the reader is referred to commentary of the Humanitarian Law Center, whose founder and executive director is this year’s ABA-CEELI award winner, Natasa Kandic. See Facing the Past: Articles, Interviews and Polemics, available at www.hlc.org.yu/english.)

Since enactment of Resolution 1244 in June 1999, many committed individuals and international organizations have participated in establishing the rule of law in Kosovo. Success on some measures has been achieved, while clear obstacles remain. It is easy, as some have done, to criticize UNMIK’s efforts in Kosovo, but systemic change is not easy, nor is it quick. The people I left behind in Kosovo desire real change, but need assistance in implementing it.

“Real change in government” requires “a level of interventionism, political attention, and visibility that many donor governments and organizations cannot or do not wish to apply. Above all, it calls for patient, sustained attention, as breaking down entrenched political interests, transforming values, and generating enlightened, consistent leadership will take generations.” (Thomas Carothers, The Rule of Law Revival, 77 Foreign Affairs, No. 2 (1998).)

I have returned to my work as a state court trial judge in Minnesota. My perspective has been permanently altered, as is my appreciation for the rule of law. It is now difficult for me to conceive of a world without the United Nations and its men and women whose mission is:

To save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights . . . in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from . . . international law can be maintained. . . .

(Preamble to the Charter of the United Nations.)

I am grateful to have lived and worked in Kosovo.

--------------------------------------------------------------------------------

Legal Work Abroad

Interested in exploring opportunities to utilize your legal training abroad (as an international prosecutor or judge, or in another capacity)? Start by visiting these Web sites:

• www.unmikonline.org (United Nations mission in Kosovo)

• www.ohr.int (Office of High Representative for Bosnia-Herzegovina, created under the General Framework Agreement for Peace in BiH (Dayton Peace Agreement) of Dec. 14, 1995, to oversee the implementation of the civilian aspects of the peace agreement.) You can also check on the status of the international criminal tribunals in both Rwanda and Yugoslavia on the U.N.’s Web site.

• www.un.org (United Nations, international law)

Return to Table of Contents - Winter 2004

Return to Criminal Justice magazine home page