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A Fragile Peace:
Threats to Justice in Kosovo


Washington, D.C. Advocacy Report

Introduction

Four months into the UN Security Council-authorized mission to secure human rights in Kosovo, is the goal of rebuilding a stable and multi-ethnic society within sight? The murder of a UN employee on October 11 in the streets of Pristina—apparently sparked by his use of the Serbian language—encapsulates both the volatility of the situation and the persistence of ethnic tension.

Unfortunately, this tragedy is not isolated. Throughout Kosovo, many Serbs and other minorities, including Albanians in the Serb-dominated northern part of Mitrovica, are confined to their apartments or neighborhoods 24 hours a day. They have no access to markets, health or other services and depend entirely on direct assistance delivered to them by the UN and humanitarian organizations. At the same time, exploiting the security vacuum is an increasing wave of organized criminal activity, often linked with Kosovo Liberation Army (KLA) supporters. Kosovar Albanians without strong KLA ties are frequently the targets of violence and property crimes. For example, a self-styled KLA "Commission for Investigation on Social and Private Property" has recently been demanding payments from families on penalty of forced eviction. Both trends illustrate the serious challenges still faced by the international community in Kosovo.

The Lawyers Committee for Human Rights examined conditions in Kosovo, including the operation of international institutions, in two missions to the region, in July-August 1999 and September-October 1999. This report summarizes the most pressing concerns arising from our field research. A full report, A Fragile Peace: Laying the Foundations for Justice in Kosovo, is available from the Lawyers Committee and on the web site www.lchr.org.

The Lawyers Committee believes that a strong and independent legal system is one of the cornerstones in building a democratic society and secure future for Kosovo based on the rule of law. As a consequence, laying the groundwork for an independent and impartial justice system, and a fair and effective system of policing, is an essential task for the international community—and one of its most urgent challenges.

The lack of effective judicial and policing mechanisms is a key factor in perpetuating a climate of insecurity in Kosovo. The impact has been severe: in the absence of any effective deterrent, the level of crime and violence continues to be high. This applies not only to ethnically motivated crime against Serbs and other minorities, including murders, abductions, destruction of property, forced evictions, threats, and intimidation, but increasingly also to organized criminal activities which affect the security of all inhabitants of Kosovo. Moreover, creating a legal system able to administer justice for war crimes and crimes against humanity committed in Kosovo, most notably since March 1998, is also important for future stability. If justice is seen to be done in such cases, tensions between Kosovar Albanians and others, particularly Serbs and Roma, may decrease, improving the conditions for dialogue and, eventually, peaceful co-existence.

Unfortunately, the legal system in Kosovo is being built in a way that raises serious doubts about its capacity to provide security and administer justice with the fairness required by international human rights standards. Lack of resources, as well as pressures and interference, including threats and intimidation, are the major obstacles to effective justice and policing systems.

In Resolution 1244 (1999), the UN Security Council set forth an expansive role for the UN Mission in Kosovo (UNMIK), including establishment of "basic civilian administrative functions where and as long as required." However, the resources necessary to run these institutions, and prevent sources of pressure and interference, have not been provided. Because the current system is the seed from which the future of Kosovo will grow, it is essential for the international community to take immediate steps to respond to these challenges.

Though the focus of this report is Kosovo, the urgent challenge of helping Kosovars establish an effective and stable legal system must be seen in light of the ongoing political and social crisis in the Balkans: the growing stresses in Montenegro as it approaches its referendum; the unresolved problems in Bosnia-Herzegovina; the humanitarian disaster in Serbia. This crisis will be worsened if Kosovo sinks into greater lawlessness where ethnic supremacy and impunity prevail over notions of pluralism, tolerance, respect for minority rights, and a commitment to principles of international human rights law.

  1. Justice System

The justice system is being re-established and organized under the direction of UNMIK. In the past four months, four district courts and an appeals court have been created, and 57 judges and prosecutors have been appointed. Thus far, the new courts have focused on reviewing the detention of suspects arrested by KFOR and UNMIK Police, and initiating criminal investigations for some of these cases. Although no cases have yet reached the trial stage, a review of the first months of operation raises serious concerns about the capacity of the system for effective, independent, and impartial justice.

  1. Resource Constraints

    Though UNMIK has been tasked by the Security Council with rebuilding Kosovo’s judiciary, the US and other UN member states have not provided the resources needed to fund the system. The courts lack even the most basic office supplies necessary to process cases, not to mention computers, copiers, or even typewriters to make work more efficient. In many cases, limited access to security, transportation, translators, and forensics experts has hindered investigations. In addition, though many judges have been working for more than three months, UNMIK has only been able to pay a one-time stipend of $285. Their staff has worked without any salary to date. Funding has only recently been secured for a monthly stipend for judges of a paltry $170, until salaries are established. Given this track record, there is concern that the salary levels eventually set by the UN budget will not be sufficient to provide the modicum of professional recognition necessary to preserve judges’ dignity and prevent risks of corruption. As one judge put it, "we have high ethical standards, but we have to feed our families."

    Resources have also limited agreement on a stable set of laws to govern Kosovo’s transition to autonomy. Though a committee of Kosovar lawyers has been drafting interim legislation, the process is being slowed by the lack of specialized translators to prepare the texts for UN review. Once completed, resources will be needed to distribute the legal materials throughout Kosovo. Until funds are allocated for these tasks, legal reform will continue to proceed slowly, and the judges and police dependent on these laws will be hampered in their work.

  2. Pressure and Interference

    It is also clear that judges and prosecutors work under enormous political pressure, though they are reluctant to speak about this. Judges have requested protection from KFOR, including the installation of steel doors and new locks to protect their homes and offices from intrusion. The few Serb and minority judges face extreme difficulties; KFOR transportation and protection are required just for them to attend work in safety. Though examples of violence are not widely discussed, one Serb judge was attacked outside of his home, and the beating of a relative of an ethnic Albanian judge was linked to his work. Judges face particular pressure when reviewing the detention of former KLA members. The Lawyers Committee was told that, in many cases, defendants with links to the KLA are simply released from detention. In at least one case, KLA members were seen speaking with a judge moments before an order to release a defendant was issued.

  3. Release Rates

The statistics on release decisions support these concerns. Policing efforts have been able to concentrate on only the most serious crimes, and offenders are usually caught by the police or military "red handed" or arrested on substantial evidence of guilt. However, release rates average approximately 40%, a figure that strikes many observers as particularly high. Police tell of staking out suspects and arresting them, often multiple times, only to have the offender returned to the streets the next day. Even though many suspects are released on bail, resource constraints make continued investigation and trials in such cases extremely unlikely.

The high release rates appear to be the result of a combination of resource constraints and pressure. In many cases of release, although KFOR or UNMIK Police have provided eyewitness accounts of criminal activity, this has had no effect on the decision to release. In some cases, lack of translators has prevented evidence from entering the record; in others, written testimony has been rejected by judges as insufficient. Observers believe some of these difficulties reflect insufficient resources while others mask intimidation or sympathy with the suspect.

  1. War Crimes Trials

Upcoming trials on charges of war crimes, crimes against humanity, and genocide confirm the seriousness of these problems and will serve as the acid test of the fairness of the new judicial system. It is estimated that thousands of Kosovar civilians were killed by Serb forces from March to May 1999, when 90% of ethnic Albanians were driven from their homes. Investigators have already uncovered 400 sites of mass graves and extensive testimony and other evidence of atrocities. Although there are only around 12 people in detention facing investigations or charges of war crimes, this number is expected to rise. Since the ICTY has made clear that it will be able to prosecute only a very limited number of cases in the Hague, most suspected war criminals will face trials in the new Kosovo courts. There is widespread concern that pressures and potential conflicts of interest will hinder fairness in these sensitive cases, especially given the lack of resources and the tense political climate. Thus, the likelihood of these defendants—all Serbs—receiving a fair trial under current conditions is very slim.

Concerns about overt bias have been raised. The Lawyers Committee was told that one judge publicly stated that all Serb judges should be tried for war crimes; other judges even walked out of a room because a Serb was present. This behavior suggests that impartiality in the war crimes context will be difficult for some judges to maintain. More broadly, the possibility for fairness in any of these cases is questionable given that each judge, prosecutor, and lawyer is likely to have personal experience of expulsion and violence. Most judges have lost one or more family members or had their property destroyed during the recent conflict. Many communities are so small that judges are likely to be familiar with the events charged against the defendants tried before them. All judges, however hard they strive to be impartial, will feel extreme pressure to convict a Serb defendant, especially in light of the lack of resources to provide security protection for judges.

Trials of war crimes, crimes against humanity, and genocide will present the most difficult test for the new judicial institutions in Kosovo. Even if, despite extraordinary pressures and constraints, these trials are conducted in a fair manner, that alone is not sufficient. They must also be seen to be fair as well, particularly by vulnerable minority populations. International support is necessary to ensure that these proceedings are conducted in accordance with international standards.

Recommendations:

The Lawyers Committee believes that immediate steps must be taken by the US, in cooperation with its partners in the UN and OSCE, to strengthen the capacity of the Kosovo judicial system to function fairly and impartially, particularly in cases involving charges of war crimes, crimes against humanity, and genocide.

  • The U.S. should take the lead in providing necessary funding for the Kosovo judicial system in all areas. UNMIK is financially unable to support the judicial institutions it has been mandated to create by the Security Council. Until such time as an autonomous Kosovo is able to generate its own funds, it is critical for the court system to be given needed resources. An immediate infusion of funds is needed to pay judges and staff, conduct investigations and trials, and purchase basic office supplies.
  • The U.S. should take steps to ensure those suspected of committing war crimes, crimes against humanity, and genocide in Kosovo are prosecuted by courts that are fair, independent and impartial. War crimes trials challenge the fairness of even the most sophisticated legal systems; resources are needed to ensure that Kosovo’s courts are able to handle these cases in accordance with international standards. This requires:
  • A separate chamber of the district court, which is international in character and is composed of international judges, and Kosovar judges who are recognized as independent and able to handle these sensitive cases. A special chamber will help Kosovo address these crimes in a fair manner without draining resources needed to address the growing backlog of ordinary cases. This follows the example of the use of international judges in Bosnia in a tribunal created by the Dayton Accords.
  • A review of these cases by the ICTY, in its office in Pristina, as a screen to prevent politicized prosecutions. A review into the sufficiency of the evidence prior to indictment will help allay concerns about fairness while drawing upon the resources and expertise of the international tribunal. This follows the example of the "Rules of the Road" procedure in Bosnia.
  • The U.S. should support the legislative reform process by providing funds and translation assistance to support the efforts of UNMIK to promulgate interim laws. These resources should supplement those currently provided by institutions such as ABA/CEELI and the Council of Europe.

III. Policing

One of the most important objectives of the international presence in Kosovo is the establishment of law and order and the protection of vulnerable populations from violence and intimidation. KFOR, and increasingly the UNMIK Police, are currently responsible for policing and crime prevention. Eventually, the Kosovo Police Service, staffed by local graduates of the new training facility, will inherit police power. To date, however, policing efforts have been far from successful. Rising levels of violence and crime paired with virtual impunity make for an increasingly precarious security situation in Kosovo. The vacuum in policing has created a climate of criminality and empowered organized criminals, including some former KLA members and their supporters. These conditions raise serious concerns about the capacity of UNMIK and KFOR to maintain security in Kosovo.

Performance of KFOR and UNMIK Police

KFOR, though primarily experienced as a military force, initially took responsibility for security in Kosovo, using checkpoints and foot patrols for community interaction and quick-response units for deployment of force in emergencies. Given its resource commitment, however, KFOR readily admits that it has been able to focus on only the "tip of the iceberg" of criminal activity in Kosovo, limiting its response largely to the most serious offenses, such as murder, rape, and serious assault. This has left unchecked the majority of crime, including organized criminal activity, property offenses, and, increasingly, trafficking in women and children. Even within the allocated resources, KFOR performance has been uneven. In some areas, security concerns are less pressing, particularly in Pristina where British troops have adopted a robust approach to policing. U.S. and Italian forces, on the other hand, have acted more passively and have often been ineffective in combating crime despite adequate resources. In the U.S. case, the Lawyers Committee was told that many lower-ranking officers have expressed frustration at the conservative approach and would like to be more active.

As the UNMIK Police have slowly taken over from KFOR in some parts of Kosovo, the security situation has actually worsened. UNMIK has had difficulty in deploying sufficient force and has not yet implemented a style of policing that emphasizes interaction with the local population, a model some KFOR units have used with success. The police have also shown little capacity to replicate the 24-hour physical protection KFOR has offered to some particularly threatened minorities. Most observers have concluded that, at best, the UNMIK Police will only maintain the limited level of security provided by KFOR.

Establishing effective policing in any post-war situation is extremely challenging, and the ethnic tension in Kosovo only makes this task more difficult. However, the Lawyers Committee believes that the response to this challenge has been inadequate, and can be explained in part by a lack of resources. The level of policing is a reflection of the resources allocated to the task, and the low capacity of both KFOR and the UNMIK Police is thus a result of the decision to focus on only the most serious offenses. The Security Council’s mandate requires these entities to provide security, and sufficient resources should be allocated by the international community to achieve this objective. However, an increase seems unlikely in light of recent reports of shortfalls in contributions to the UNMIK budget and trust fund for civil administration.

KLA Accountability

In the face of inadequate policing, organized criminal elements have increasingly become involved in both ethnic violence and ordinary crime. Much of this activity—one observer labeled it "coextensive"—has been linked to former members of the KLA.

Much of the violence and many of the crimes committed since the arrival of KFOR are attributed to persons linked with the KLA, including killings, kidnappings, and threats and intimidation of Serbs and other minorities. Increasingly, Kosovar Albanians who are seen as opponents of the KLA or "collaborators" with Serbs are facing violence and threats, particularly in rural areas that are effectively controlled by the KLA. Organized crime, including extortion and forced evictions, is also rampant, and increasingly targeted at both minorities and ethnic Albanians lacking close KLA ties. In many parts of Kosovo, KLA-appointed "ministers" exercise de facto control of government, and use this power to collect "taxes," fees, and other payments. Though in some areas these unofficial structures have restored local services, the current direction appears to be a drift toward greater criminality, and alienation of the populace. The KLA political leadership routinely denies any involvement of its members in these acts.

There is widespread concern about the international community’s failure to take a more assertive stance with regard to the KLA’s illegal exercise of authority and alleged responsibility for human rights abuses. The notion that the KLA should be favored as a stabilizing factor, regardless of human rights abuses and undemocratic structures, is particularly dangerous. Although the KLA could be a voice of moderation, in reality it is often quite the contrary.

Kosovo Police Service

Of course, the future security of Kosovo ultimately depends upon the creation of an independent Kosovo Police Service (KPS), the institution that will serve as the legacy of international policing assistance to Kosovo. Though the program is still a work-in-progress, some concern has been raised about the composition of both the training program and the first class of students.

An eight-week classroom program for the KPS is conducted by international experts, who have been slow to develop a curriculum, especially regarding presentation of international policing and human rights standards. A 19-week mentoring portion of the training, to be conducted in the field, is similarly flawed, as it relies upon the UNMIK Police, who themselves receive very little training in international standards, raising questions about their capacity to provide effective mentoring. However, training officials should be credited for quickly admitting these shortcomings and seeking to alter the curriculum to address concerns.

The composition of the first class of KPS students is also an area of serious concern because of the close association between the KLA and the KPS students. School officials admit that KLA influence in the school is pervasive, and note that opening of the school was delayed over negotiations with KLA officials over composition of the class. These ties are troubling given the close association between former KLA members and organized crime; as the new force begins service, loyalties of officers could be compromised. Allowing quasi-official connections between the KPS and the KLA will only make this pressure worse.

Recommendations:

The Lawyers Committee believes that immediate steps must be taken to ensure that policing in Kosovo is independent and effective, and that organized participation in ethnic violence and crime is not tolerated.

  • The U.S. should make certain that no political party or group is allowed to exercise authority without accountability. In particular, the U.S. should require the leadership of the KLA to assume responsibility in cases where human rights violations have been committed by its members or supporters, and to take effective steps to prevent any such acts. The U.S. should also make clear to KLA political leaders that continued participation in illegal activities by organized KLA supporters will erode international support.
  • The U.S. should require the KLA, and all other groups or parties with aspirations to civilian power in Kosovo, publicly to undertake to honor and implement basic human rights treaties and norms.
  • The U.S. should support full funding of independent and professional policing in Kosovo. Rapid deployment of UNMIK Police is necessary for security and crime prevention. The international community should fully fund an effective international police force for Kosovo until independent local institutions are fully trained and available.
  • The U.S. should focus military training and resources specifically for peacekeeping and policing functions in international operations, with an emphasis on international rights standards. As the military is modernized to meet new challenges, training troops for peacekeeping responsibilities, consistent with international standards, should be made a priority.

IV. Conclusion

The Lawyers Committee believes that establishing effective legal institutions is one of the most pressing challenges facing the international community in Kosovo. These institutions—together with bold political leadership—are the sine qua non for long-term stability, respect for human rights, and the creation of conditions that will ensure the rights, dignity, and freedoms of all the people of the province. Conversely, failure to make progress in this area will contribute to the long-term instability not only of Kosovo but also of South-Eastern Europe as a whole. While responsibility ultimately lies with the Kosovars themselves, it is increasingly clear that the capacity of the international community to realize the civil objectives implicit in its humanitarian and military intervention is inadequate and under-resourced. The Lawyers Committee urges the United States to take a leading role in securing the future of Kosovo through support for the international effort to rebuild its civil institutions.


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