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| Lending a Hand: Minnesotans in Kosovo So, people
keep asking me, where and what is Kosovo, and what are we doing here?
First, Kosovo is part of the former A HISTORY OF CONFLICT After World War I, President Wilson expressed
a plan to give every ethnic group their own country. Unfortunately, geopolitical concerns got in
the way, and many ethnicities were left out of the final plan. (See, for example, the ongoing plight of the
Kurds). In the Balkans, where
the war started, a plan was hatched to clump all the various ethnicities
together in one nation that ultimately came to be called After Tito died in 1982, the presidency
of In late 1998 and early 1999, United Nations
observers reported atrocities against the Albanian citizens of Kosovo
that could no longer be tolerated by the civilized world. On In July 1999 the five leading humanitarian
nations — the United States, the United Kingdom, Germany, France and
Italy — with the support of 30 other nations sent in military forces
under a NATO -led “Kosovo Force” or KFOR.
The United Nations established a civilian structure to organize
a government in Kosovo, called the “United Nations Mission in Kosovo”
or UNMIK. These are the two principal international organizations
keeping peace and bringing stability and structure to society.
In addition, some 500 non-government organizations [NGOS],
ranging from the Red Cross to the American Bar Association, have contributed
to the efforts in Kosovo. CHALLENGE OF SELF GOVERNMENT So, what’s the problem? The war is over; why can’t we just go home and
let the Albanian majority in Kosovo govern themselves? The clearest answer may have come from an Albanian
whose home I was visiting last week.
We were discussing the problems here, and he said, “We have
been occupied for over 1300 years.
You can’t expect us to jump up and start governing ourselves
immediately.” Indeed, it may take a generation to develop
the necessary foundation for effective self government. For example, the U.N. conducted local elections
in 2000. That was great. But throughout the history of this land, government
office meant the opportunity to steal, to give jobs to your family
and friends, and to abuse your enemies.
It is no wonder that some elected officials have a hard time
understanding the spirit of public service.
One of the jobs that falls to the
U.N. judges like myself is to handle major cases of alleged corruption
by the newly elected officials. Local judges are paid 350 euros per month
— about $420 at current rates. Most
U.N. personnel — typists, police, judges, and others — pay $450 or
more per month in rent for a small apartment.
Most of the local judges are dedicated and hard working.
But it may not be surprising that it is hard to attract the
best legal minds. The best lawyer in the country spent five years
in jail in the ’90s for speaking out against the oppression.
There are few attorneys in the country who were allowed to
practice law during the ’90s, and none were allowed to attend law
school. One can see that top legal talent is hard to find.
The same applies to teachers and other professionals. The national budget of Kosovo is nearly
$1 billion. Yet there was no
one in the country with any real budgeting experience.
This year, 2004, is the first time the Ministry of Finance
and Economy prepared a budget.
UNMIK started by doing it while the locals watched, and little
by little the program has been turned over to the locals.
So, government officials are slowly being trained in the basic
functions of government. THE ECONOMY Another major problem has been uncertainty
regarding the ownership of property. During the communist era, after WWII, anyone
who owned more than a minimal amount of property had it expropriated
by the government. In theory,
they were compensated unless they “donated” it.
Extraordinary measures were used to encourage these “donations.” Some of this property was owned by the government,
but much was turned over to so-called “Socially Owned Enterprises”
(SOES). In this way much of
the farmland, many homes, and most businesses were conveyed to the
SOES. Today, with the abolition of communism many
of the SOES no longer exist. Those
that do are in a limbo of ownership — no one quite knows who owns
them. During the 1999 war, some property records were
destroyed, some migrated to UNMIK has reported that the principal source
of income in the nation is funds sent home by the diaspora. A large number of Albanian Kosovars have migrated legally or illegally over the past
50 years. Many are working
in There in a nutshell is the problem. The U.N. is a great organization, but it was
constructed at the end of WWII to address the problems of that war. So the five winners were given a veto in the
all-powerful Security Council. Serbia
is a client state of Russia, and Serbia wants Kosovo to be part of
it. Russia supports Serbia, and the West won’t allow
it. In fact, if Kosovo returned
to Serbian control civil war would break out, and we would be back
where we started SECURITY The function of the NATO-led Kosovo Force
(KFOR) is to prevent another such war from breaking out, and secondarily,
to secure domestic peace. Shortly after KFOR was established, On March 17, 2004, riots erupted all over
Kosovo, resulting in 800 Serbian homes and 35 Orthodox churches burned
and 19 dead. Much newsprint
has been spent in trying to explain the riots and the reaction to
them. The best and most thorough report on them was
that done by the International Crisis Group.
After reading that and other reports and living and working
with the people of Kosovo, I think I understand the riots. Public demonstrations and riots all over
the world come from a common source. This source is the same if the
participants are American Blacks in Watts, Chinese in Tienanmen
Square, or Kosovars in Prizren. It is despair, frustration with government inaction,
and the hope that mass action will get the attention of someone who
will care. Unfortunately, when
police action is lacking or inadequate, great damage can be done. In Kosovo the people are frustrated to the
point of despair because they are given no future. The official U.N. line is that Kosovo is part
of Serbia. The most myopic
observer knows that is impossible.
Kosovars suffer from 70 percent unemployment, with no progress,
and everyone knows there will be no progress until a future separate
from Serbia is assured. So the people rioted. The reaction of the police and KFOR has been
widely criticized. French troops
fired on Kosovar police who were trying
to maintain order. German troops
were told not to fire and so abandoned their security positions.
In the end only the American KFOR held the line, and ultimately
brought the rioting to a halt. (Lord
knows what the end result might have been were it not for the Americans.) In defense of most other nations’ KFOR units,
they were equipped to fight a war with machine guns, tanks, and helicopters.
They were not equipped to handle riots with tear gas, gas masks,
clubs and shields (there is no evidence any of the rioters were armed).
I understand the American commander told the troops that they
were to shoot anyone lighting a Molotov cocktail — this was translated
to Albanian and broadcast. Suddenly
one could hear the petrol-filled bottles crashing to the ground. What can we learn for the future here?
First and foremost, we need a plan for the future.
People cannot live in limbo.
Second, we need to recognize if and when our military is to
be given responsibility for civilian police work. When this happens, we should train them and
equip them for that job. You
can’t swat mosquitoes with a .22, and you can’t handle riots with
machine guns. I’m confident we won’t have a repeat of
the March 17 riots in Kosovo. Even
though I don’t think the military is yet properly equipped to handle
riots, the Americans set an example.
The people know the next time a riot starts KFOR will shoot
if necessary to stop it. THE RULE OF LAW After the war of 1999, the U.N. asked various
people to provide an assessment of how to build a working nation in
Kosovo. Judge John Tunheim
of the U.S. District Court for Because of Judge Tunheim’s
work, several Overall, the new legal system in Kosovo
is a mix of various systems, including elements of both the American
and Continental systems. Both
systems have advantages and we work to preserve those.
Nevertheless, problems remain. One problem that permeates the legal system
in Kosovo and all former Communist countries is the issue of the independence
of the judiciary. An Austrian
judge who works with me here told me the following story — that occurred
in East Germany, but could have been in Kosovo, Poland, or any former
Communist country: She was
visiting in East Germany in 1990 after the collapse of the Communist
state. An East German judge was complaining that she
was not being retained by the new regime.
She said: “I don’t understand why they are unhappy with me,
I always decided as they told me.
They are particularly criticizing one decision.
In that case the secretary to the party commissar told me how
they wanted the case decided, and I did as she asked. Later it seems they wanted a different decision.
If they had told me, I would have decided the other way.”
As my Austrian friend said: “She still didn’t get it. After a life under communism, she had no concept
of the independence of the judiciary.” Many of the current judges in Kosovo were
persecuted by the Serbians. Some
were outspoken critics of the regime.
So they have some sense of independence.
Plus there is no longer a commissar telling them what decision
to make. The old system made it difficult for a defense
attorney to object to evidence the judge presented. Generally, the role of the defense was only
to argue sentencing, as the conviction was a foregone conclusion. We can hope that, under the new code where the
judge is not producing the evidence, the defense counsel will get
more aggressive. Both the former and present code here include a presumption of pretrial detention. In fact, if the prosecutor wants a person detained,
the judge cannot release the accused on bail, but can only recommend
bail to a three-judge panel. The
prosecutor then makes a recommendation to the panel (defense counsel
often don’t even know of the panel hearing) and the panel automatically
orders detention. In the case
of an overly aggressive or careless prosecutor, this can be grossly
unfair. For example, in one case, a man was accused
along with others of a vicious assault.
He was arrested and jailed.
His attorney presented to the local judge proof that the accused
had been in jail far away for a minor license violation at the time
of the alleged offense. No matter, he was detained. In Kosovo, everything can be and is appealed
endlessly, the result being the appeals are meaningless. So this decision was appealed to various panels
and the Supreme Court at least 12 times over the next two years, and
at each level the defense counsel was able to prove the accused was
in jail. No matter, he was detained. Finally, the case came for trial before a wonderful
international judge from Uganda — 27 months after the detention started. That judge quickly realized the injustice and
released the accused, and the case against him was dismissed. But the unreasonable detentions continue. Some international judges have begun ord The rule of law, in my opinion, is one of
the essentials of a modern society; without it the society cannot
exist. That means one must have a system of laws that
are generally known, consistently applied, and promptly and finally
adjudged. In Kosovo, as in many other former Communist
countries, there was an expressed law that judicial precedent has
no role. To westerners this
made no sense, but it was the law until April 6th this year.
If the Supreme Court ruled that a law meant such and such in
this case, it was irrelevant in the next case, so the same facts could
produce the opposite result. Now,
where the decision of the judge was dictated by the political commissar,
perhaps this was understandable. But
this violates the most fundamental principles of the rule of law.
Among the various consequences of this law
has been that every significant case is appealed. And the appellate decision is unpredictable.
The Supreme Court can sustain or reverse the trial court on
any ground. It can even call witnesses and retry the case.
Indeed in some cases, including cases of international judges,
the Supreme Court reverses an acquittal simply because the Supreme
Court judges think the accused ought to be convicted. One case I sat on involved a first trial before
local judges resulting in a conviction.
The Supreme Court reversed.
The second trial was before an international panel — acquittal. The Supreme Court reversed. I sat on the third trial — acquittal. Now the third appeal is under way. I decline an opinion on whether he is guilty
or not. But the populace in
Kosovo cannot have confidence in such a system.
Sadly, after the first trial, all the decisions were made by
international judges. I do believe we are making progress. I believe that the new Legal Procedure Code
can provide a basis for a modern legal system.
I believe the local judges are growing and maturing into effective
jurists. I hope we internationals
will have the good sense to turn over cases to the locals, to follow
consistent standards of justice, and to reach finality in our cases. LIFE IN KOSOVO This isn’t a fun place to be — but an interesting
and rewarding one. The food
is strange, tap water is available from time to time on most days,
but we don’t drink it. The
electricity is supposed to go on and off at regular hours.
But sometimes it goes off when it is supposed to be on. Most days we can take a shower. In cities, cars park on the sidewalks and people
and cattle walk in the streets. There
are a lot of cars suddenly, and some are probably purchased legally.
The horns all work quite well.
The farmers bring their milk to town to sell in their reused
Coke bottles on a wagon drawn by their tough little horses.
It isn’t unusual to hear a shepherd taking his flock across
town to pasture early in the morning. People often ask me if I feel insecure here. No. I
feel safer walking the streets at night here than walking the streets
of Minneapolis. These are basically
a peaceful people. They want
to live in harmony — but not with Serbia running things!
They appreciate the U.N. and they love America. The only real boulevard in the country is in
the capital city of Pristina. It is named “Bill Clinton Boulevard.” When people meet me and learn I’m an American
they invariably give me a “thumbs up,” and want to do me a favor. I live in a small apartment. Ten yards from my window is a minaret rimmed
with a set of loudspeakers. They
go off five times a day, the first time about an hour before sunrise. The muezzin has obviously not had any music
lessons. The locals have learned
to ignore this. Indeed, though
most of the locals say they are Moslems, they are secular Moslems. The men and women one sees on the streets dress
mostly like they do in the U.S. If
there is a difference, maybe the skirts are shorter, the bare midriffs
more common, and women’s heels a little higher.
Unfortunately, cigarette smoking is ubiquitous. I’ve had the privilege of living in a family
compound, eating dinner in several homes, and getting to know many
locals as friends. I am reminded
that people are the same the world over.
We all have the same intelligence, the same compassion for
loved ones, the same hopes, and the same dreams for the future.
But those dreams change when you live in a country that doesn’t
exist, and where there is no hope. Of equal significance to me has been the
opportunity to work with the dedicated U.N. people from all over the
world. My own staff includes
people from WHAT NEXT? But back to the long-range
problem. Where do we go next in Kosovo? First, whether we like it or not, the Lacking that, the second best approach would
be to turn the UNMIK mission over to the European Union with the same
objective. This would get the
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