Justice a foreign term in Kosovo

Foreign judges are one way the UN is establishing civil order, more than a year after taking control.

The day after one of Kosovo's first war-crimes trials has begun, Judge Christer Karphammar feels close to quitting, and not for the first time.

Mr. Karphammar, a dapper Swede, is one of six foreign judges brought to Kosovo to help restore confidence in a judicial system that has floundered since the province of Serbia came under United Nations administration a year ago, following 11 weeks of NATO bombing. The foreign judges' job is to help try the most sensitive cases, especially crimes involving minority Serbs and majority ethnic Albanians.

Karphammar is struggling. Kosovo law is difficult for an outsider to understand, he says. And there are more basic problems: The day before, the trial of a Serb charged in the "ethnic cleansing" of Albanian villages had to be postponed because the courtroom lacked translation equipment.

More ominous, Karphammar had just received a death threat. "This is an everyday thing," he says, slumping wearily in his chair at the Mitrovica courthouse, a dingy four-story building surrounded by barbed wire. Threats are common not only against him, but against local judges and witnesses. "It is very, very difficult to get any justice here as long as some extremists are still operating," he says.

A working court system has long been seen as a key to peace in Kosovo, where violence against Serbs and other ethnic minorities remains a daily occurrence. Serbs have been victims of retaliatory violence ever since June 12, 1999, when NATO-led forces began to occupy Kosovo, ending the mass expulsion of ethnic Albanians and a year and a half of armed struggle between ethnic Albanians and Serbian security forces.

Punishing Serbs who committed war crimes, Western officials say, could relieve innocent Serbs of the burden of collective guilt. And punishing crimes against ethnic minorities since the war ended could end "the climate of impunity" that allows attacks to continue.

Lack of impartiality

But after more than a year, the courts are still barely working. When they do work, say police officers, UN officials, and human rights activists, they often cannot be trusted to act impartially.

Almost all court officials are ethnic Albanians and thus perceived as vulnerable, observers say, to bias against Serbs and to intimidation from their own people. David Marshall, a UN official who monitors the courts, says bluntly, "A judge who sits on an interethnic case has a gun on his back, or he potentially has."

Though few trials have been completed, officials and independent investigators say there is already evidence that judges and prosecutors treat Serbs more harshly than ethnic Albanians. A group of British lawyers who studied the issue reported problems ranging from "a lack of impartiality to a compete disregard of evidence."

The case of Miroljub Momcilovic and his sons, Boban and Jugoslav, is often cited as an example. The Momcilovics are Serbs from Gnjilane, in Kosovo's American-run sector. On July 10, 1999, five ethnic Albanians showed up at the motorcycle shop run out of their home, demanding to be let in. A gunfight broke out, drawing in American soldiers stationed nearby.

When the shooting ended, two Albanians lay dead. The Momcilovics were arrested and accused of killing Afrim Gagica, a former member of the rebel Kosovo Liberation Army (KLA). A local prosecutor concluded that the soldiers had killed the other man in self-defense.

A video recorded by the Momcilovics' security camera shows the Albanians brandishing guns and kicking at the outside gate. Despite this suggestion that the Momcilovics may have acted in self-defense, an Albanian judge ordered the men to stand trial for murder. When the trial opened on April 25, the tape was not admitted as evidence.

It was admitted this month, when the trial reopened after a long delay and the addition of a French judge to the five-judge panel that is hearing the case. There was also new evidence: a 130-page report from US authorities suggesting that American troops were responsible for both casualties. Neither the Americans nor the UN have explained why it took 13 months for them to produce the new evidence. Meanwhile, the Momcilovics have been in jail for more than a year.

Judges and prosecutors have shown less zeal in prosecuting ethnic Albanians. One of the more poignant cases involves the murder of Asllan Hyseni, a Gypsy from the town of Kosovo Polje. The UN police arrested four former KLA members in the killing. Three gave statements admitting involvement, but naming the fourth as the murderer. The police found parts of a gun that matched the caliber of the murder weapon, but before the pieces were analyzed, an Albanian judge ordered the men released.

Rebuilding from scratch

Kosovo's court system has been fraught with troubles from the beginning. Before the UN took over, Serbs ran the judiciary. When they left, it had to be rebuilt.

The lack of Serb judges has been especially damaging. UN officials say Serb jurists are under pressure from Belgrade not to cooperate, or are simply afraid. Of 275 judges and prosecutors in Kosovo, only one is a Serb.

In the absence of an ethnically mixed judiciary, the UN hopes that foreign judges will improve the chances of impartiality. It wants to place them in each of the province's five district courts, where they will sit with local judges on sensitive cases. It also plans for them to serve in a special court for war and ethnic crimes which could begin working this fall.

But finding qualified judges is difficult, officials say. Nor have Albanian judges exactly welcomed them.

"We didn't need the help, and it's not necessary," says Kapllan Baruti, head of the Mitrovica court. Mr. Baruti dismisses suggestions that his Albanian colleagues might not be impartial. But he acknowledges that they have received threats from Serbs and that "there could be greater risks" when they begin to try Albanian defendants, especially former KLA members, who still inspire fear in Kosovo.

(c) Copyright 2000. The Christian Science Publishing Society

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