July 2002

Kosovo: Detention Review Commission

by Jack F. Nevin

Twenty-four-hour security for judges, courtrooms with soldiers, and grenade launchers in chambers. Not a typical day in Pierce County District Court, or probably any court in the United States. But all of these were part of my eastern European judicial adventure last fall.

Last September, I served as a judge on the U.N. Detention Review Commission (DRC) in Kosovo (former Republic of Yugoslavia). The DRC is the result of a 1999 U.N. Security Council resolution placing Kosovo (among other areas in the Balkans) under U.N. control. The resolution created an interim government designed to rebuild education, health, welfare, courts, and a host of other activities.

The U.N. secretary general, through his senior representative, can promulgate rules and regulations which have the force and effect of law. These regulations can supplement or supplant local laws. Detention orders concerning individuals charged with crimes, and the creation of the DRC are examples of this authority. While local courts may release those accused of crimes for lack of evidence, the senior representative of the secretary general can still order their detention and create an independent judicial body to adjudicate the appropriateness of the detention. It was this executive order that brought me to Kosovo along with two other judges. Our mission: to determine whether three Kosovar Albanians charged with murder were to remain in confinement pending trial.

To understand the situation in Kosovo, one must go back more than 600 years to the defeat of Serbia by the Turkish Empire. With that defeat began a 400-year period of Serbian oppression at the hands of Muslims, at least according to the Serbs. Not unlike the Palestinian-Israeli relationship, this conflict has existed for centuries, causing a deep-seated ethnic hatred between Christian Orthodox Serbs and Muslims — Kosovar Albanian Muslims in particular.

The formation of Yugoslavia resulted from peace agreements following World War II. Yugoslavia's first and only leader was Josip Broz Tito, the man ultimately known as Marshall Tito. He was effectively placed in his leadership position by western nations rewarding him for his leadership of the Yugoslav communist resistance during World War II.

Tito's rise to power was a result of his soldierly and political skills. The Yugoslav communist resistance possessed some of the bravest guerilla fighters of World War II. Although a communist country, under Tito, Yugoslavia gained favor with the West. During even the darkest hours of the Cold War, Tito's Yugoslavia was considered a nation of "enlightened communism," welcoming western tourists and otherwise maintaining an active and energetic dialogue with the West. Tito ruled Yugoslavia with a firm hand, effectively suppressing the Serbian-Muslim conflict. While he professed neutrality on the issue, most Muslims considered Tito a pro-Serbian leader.

Until his death in May 1980, Tito brought prosperity and unity to all of Yugoslavia. Tito's death triggered a re-organization of the Balkans and the emergence of other leaders, all fighting for control of land. One of these, Slobodan Milosevic, appeared in 1989 as leader of the Serbian people, and with his arrival began an extraordinary chapter in the history of the Balkans.

Serbs and Muslims present an interesting demographic comparison. The Serbs were generally less-educated citizens from rural areas. Historically considered less sophisticated and traditionally of lower socio-economic status, the Serbs were perceived as socially inferior to the Muslims. The Muslims in contrast were educated city dwellers, schooled in the arts and humanities, and presumably of greater sophistication.

Despite the seeming disadvantages, it was the Serbs who took the initiative in this re-organization marked by genocide and unspeakable atrocities committed on Muslims. While less educated and fewer in number, the Serbs constituted the vast majority of the Yugoslav Army at the time of Tito's death. Under the leadership of Milosevic, using the ruse of geographical realignment, the Serbs began the wholesale slaughter of Muslims, exiling them to relocation camps and engaging in various atrocities in the process. In 1999, an estimated 7,000 Muslims were allegedly massacred by Serbian troops at Srebrenica. The same year, the bodies of 600 Kosovar Muslims were discovered in Kosovo.

In an effort to end these atrocities and bring peace to the area, western nations, including the United States, attempted to broker peace between the parties. An example of this was the Dayton Peace Agreement of 1995. The efforts were not successful, and in the late 1990s the United Nations brought NATO troops to the Balkans. The mission of the U.N. Protective Force (UNPROFOR) was primarily humanitarian, but included numerous air strikes and the commitment of ground troops.

The U.N. effort was partially successful. Muslims previously exiled from cities to relocation camps were allowed to return home. In Kosovo, the Muslims, most of whom are ethnic Albanians, were now in the majority, and the Serbs, a minority, were forced to live in enclaves at the outskirts of Kosovo for their own protection. Now it was the Serbs who were the objects of Muslim retribution. Even such routine tasks as Serbian trips to the marketplace became major endeavors requiring U.N. protection. One such trip and its tragic aftermath brought me to Kosovo.

Not unlike many eastern European cities ravaged by war, Pristina, the principal city in the province of Kosovo, presents a startling anomaly. On the outskirts of the city are lush farmland and abundant crops. Nearer the city, new homes under construction dot the landscape. As I descended into downtown, I viewed what appeared to be a vital and thriving eastern European metropolis marked with beautiful structures having both artistic and religious significance, reflecting a complex culture over 600 years old. A closer look, however, revealed bombed buildings and destroyed homes.

The evolution of modern warfare is apparent through the precise bomb damage created by so-called "smart bombs." Seeing buildings with damage limited to only certain floors was curious and difficult to comprehend until I considered the evolution in air warfare technology following the Persian Gulf War. In the city center of Pristina, there are beautiful mosques, probably centuries old, bordered by bomb-damaged buildings. These buildings are considered memorials to the Kosovar Muslims, symbolizing the U.N. action which restored their freedom.

On September 9, I received the State Department invitation to participate as one of three judges in the Detention Review Commission. I had previously participated in overseas missions for the State Department, although this would be my first as a civilian. Two days later, I was sure the mission would be cancelled. However, on September 12 I was advised the mission was a "go." I was an Army Reserve troop commander at the time, and given the heightened level of security after 9/11, this trip took on a new meaning. First, I secured the permission of my commanding general, because all military personnel were on alert following the World Trade Center attack.

Upon arrival in Kosovo I was met by U.S. mission representatives who were my hosts for the next eight days. They briefed me on the issues before the commission, avoiding any comments that could be construed as attempts to influence the decision. After settling into my rather austere (but highly secure) quarters at the U.S. mission, I faced my first challenge. Representatives at U.N. headquarters confessed that while they required our presence on September 15, they had failed to copy the necessary documents (about 700 pages) for our review.

Eventually the copies were assembled, and my judicial colleagues, Eberhard Sigersmund from Germany and Edward Brown from England, joined me. Also joining us was Sally Bennett-Jenkins, a delightful and engaging veteran criminal defense lawyer from London who was selected to represent the accused during those parts of the proceedings devoted to the review of classified materials. The common denominator for all of us was that we held top-secret (or the equivalent) security clearances from our respective governments. Eberhard, a judge for nearly 30 years, had presided over major terrorist cases in Germany. Edward and Sally both had litigated major graft and bribery cases involving law enforcement in England. My security clearance was tied to my status in the military.

Our first task as commission members was to rewrite the rules of procedure, initially prepared in draft form by the United Nations. As the presiding judge of the three (based more on arrival time than merit), I represented our collective opinion that the draft procedures promulgated by the United Nations were inadequate. Most disturbing to us as a group was that the United Nations desired the entire process be closed to the public, particularly the media. We voiced strong opposition to that approach, in that it countered the democratic goals of the U.N. mission to Kosovo. Allowing the presentation of nonclassified portions in a public forum could send a strong message to both Serbian and Muslim citizens of Kosovo that democracy allows for press and public access to court proceedings. Therefore, we reviewed nonclassified material in a public hearing and adjourned to an in-camera session for review of the classified documents.

Our task was to decide whether there was a basis to hold three Muslim detainees or to release them pending trial. This is not dissimilar from the bail hearings we conduct every week. However, we would render this decision surrounded by armed soldiers, in an emotionally charged community, applying an unpopular law for the first time.

The case concerned three Muslims (Kosovar Albanians) who allegedly planned and executed the bombing of a bus transporting 45 Serbian women, children and elderly to market. The bus, called the "Nis Express," came from one of the Serbian enclaves surrounding Pristina, and was escorted by two U.N. armored personnel carriers. The bombing was so sophisticated that the carriers were not damaged, although they were in close proximity to the bus. Virtually everyone aboard the bus was injured, with nine Serbian women and children killed, generating an understandable outcry from the Serb (now a minority) community.

To maintain its credibility as a neutral peacekeeping entity, the United Nations made it clear that Serbians and Muslims accused of crimes would receive identical treatment; however, this was easier said than done. Initially, the case was heard in the Kosovo court (albeit without access to the classified material) and the defendants were released. Now, through executive order, the United Nations was detaining prisoners and implementing yet another proceeding to determine the same issues. This did not sit well with the Kosovar Muslim citizens who believed the matter had been decided by the Kosovo court.

Local feelings became crystal clear when my colleagues and I were assigned armed NATO soldiers as security in both the open hearing and the in-camera session. At the conclusion of every recess and adjournment, our courtrooms and "chambers" were swept for bugging devices. At one point during the proceedings, we were advised by a witness that our lives were now at risk by virtue of our role and the overwhelming sentiment in the community.

The course of the proceedings was fairly typical. In the public portion of the hearing, the defendants were zealously defended by a prominent Kosovar defense counsel. His argument essentially revolved around the "finality" of the decision of the Kosovo courts and the authority of the United Nations to create the Detention Review Commission. He further argued that the U.N. executive order creating the DRC violated Title V of the European Convention for Human Rights. Since Kosovo has been effectively without laws until recently, the defense counsel was compelled to argue laws from the former Yugoslavia, not as controlling but as "instructive." Since the DRC derived its authority from the U.N. Security Council resolution, the court held that the question of jurisdiction must be answered by the appellate court, which in this case would be the European Court in Strasbourg, a court which hears alleged human-rights violations.

Thereafter, testimony was presented; exhibits were offered and admitted. At the conclusion of the public hearing, the commission adjourned to an in-camera session where the three judges and special defense counsel heard testimony and reviewed classified documents. After approximately 20 hours of proceedings we reached a decision, concluding there was sufficient evidence connecting the three accused with the crime and that accordingly they be held until trial, but in any event no longer than 90 days from the date of our decision (the U.N. executive order creating the commission had allowed for no longer than 90-day detention). The order also included language prohibiting its publication until the judges left the country.

Ninety days elapsed without the accused going to trial. On December 13, I received a call asking if I could return to Kosovo the next week because the United Nations wanted the period of detention continued to allow them to obtain more evidence. I was not available, nor were my colleagues. As a practical matter, we had made it clear that the accused be tried or released within the 90-day period. Additionally, none of us wanted to spend Christmas in Kosovo. I was told that ultimately the accused were released. While I have no express knowledge on this point, I infer the government concluded it could not proceed without publishing the classified material. The implications of publication would have been profound, with citizens' personal safety placed at risk.

What did the Detention Review Commission accomplish? The U.N. mission to Kosovo made an important statement to both Muslim and Serbian citizens that all crime will be vigorously pursued regardless of the ethnicity of the victims. The first free election in 10 years was held in November 2001, with substantial voter turnout, both Serb and Muslim.

The newly elected leader is committed to the same goals as the United Nations, and vows to bring people together. Kosovo is preparing for its first bar examination in 10 years. Prosecutors and defense lawyers are learning how to try cases in a democratic justice system. The people of Kosovo continue to live their lives, enjoying peace but knowing that conflict is never far away. They are an incredibly strong people, reflecting the kind of strength and resilience that only centuries of enduring armed conflict can develop. They will survive, as have generations before them. But what is the future of Kosovo?

Many Kosovars would prefer it become a recognized state or country, like Bosnia. Critics suggest this will do little more than establish a hotly disputed geographic division between the Serbs and Muslims, not dissimilar from that of the Palestinians and Israelis. Before Kosovo can become a thriving democracy, 600 years of ethnic hatred must be reconciled. The final chapter is yet to be written.