A Fragile Peace: Threats to Justice in Kosovo
(Oct. 1999) 8pp / $5
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Introduction
Justice
System
Policing
Conclusion
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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.
- 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.
- 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.
- 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.
- 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.
- 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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