Southwest residents judge war criminals in Kosovo

Braving fear, Hennepin County judges among first Americans to bring rule of law to former Yugoslavia

Minnesota U.S. District Court Judge John Tunheim traveled to Kosovo eight times for the United Nations, working to reestablish a legal system in that war-torn Serbian province. When the U.N. decided to use American judges to handle war crimes, Tunheim recruited the first four from Minnesota -- including two Southwest residents.

Hennepin County judges Dan Mabley of CARAG and Fulton's Marilyn Kaman were among a group that became known in Kosovo as the Minnesota Four. Their hard work extended Minnesota's reputation for jurisprudence and paved the way for other state judges to continue the difficult work they started.

Mabley was the first to go, to Pristina, Kosovo's capital. A week later, Kaman arrived in Peja, a city of 90,000 at the base of the Albanian Alps. Both say they went to Kosovo to expand their professional and personal experience judging those accused of war crimes, organized crime and other serious charges. Neither was disappointed, but fear was also part of the deal.

Although years of intense fighting between Orthodox Christian Serbs and the Muslim Kosovo Liberation Army (KLA) have ended, hatred and hardship remain. Kaman likened her seven-month stay in Peja to urban camping because the electricity went on and off all the time. At night, she read by candlelight and an REI headlamp. So she worked seven days a week, 10 hours a day at the U.N.'s judiciary and police headquarters because it had its own generators, and therefore heat and light. After a rocket-launched grenade exploded in the building, the U.N. never let Kaman go anywhere without armed guards.

Was she scared?

"Yes," said the 13-year-veteran of the bench. "But I was of the opinion that we couldn't let thugs defeat our purpose, which was to reestablish the rule of law in Kosovo."

In Pristina, Mabley had four bodyguards.

"I've never seen witnesses so afraid during their testimony." Mabley said. "They were not cooperative because they were threatened by these former army commanders. Two witnesses and their entire families were murdered. A defense attorney was killed, too, because he lost his case and they felt he hadn't done a good job."

(The man was a local Albanian defense attorney who was not part of the international legal community brought in by the U.N.)

Mabley worked on the trial of four defendants including Rhusten "Remi" Mustafa, a zone commander of the KLA. It was the first time that ethnic Albanians had ever been put on trial for war crimes. Following the war and the ensuing chaos, Mustafa became a warlord, using his men and guns to enrich himself and others, smuggling weapons, heroin and young women from places such as Ukraine to Western Europe to work as prostitutes.

Kaman worked on the trail of a Serbian military commander Veselin Besovic, accused of murder, arson, forced expulsion and torture, and two KLA officers accused of murdering an Albanian who collaborated with the Serbs.

A Polish judge warned Mabley that sentences are much more lenient in Europe than they are in America. He didn't lie.

Guilty verdicts were returned in each case. Kaman's defendants were given seven years in prison, Mabley's 17. The newspapers decried the fact that the Serbian defendants got seven years and the Albanian got 17, citing it as proof that the judiciary was biased against the Albanians.

"However, many people were satisfied with the verdict because they were sick of the lawlessness that permeated their society," Mabley said. "Everybody knew what they had done and privately told us that if we had not found them guilty, we'd have looked like fools."

Both returned to work at Hennepin County at the beginning of summer.

How did it inform their experience as Hennepin County judges?

"I'm still processing all that," said Kaman. "We have everything here that makes the justice system work -- respect for the law, witnesses coming to court on time who are willing to testify, attorneys who are respectful and juries that are honest. It's a wonderful system, and I am incredibly grateful for it."

Mabley said that his experiences have made him more patient. After inquiring about murder, torture and forced deportation in Kosovo, he said, the imperative of ruling about traffic tickets and nuisance crimes strike him as less.

Mabley and Kaman literally had to learn a new rule book in Kosovo, however. Although U.N. leaders were reluctant to use local judges, who they felt were too biased or too at risk of retaliation, they would not use Americans for the first three postwar years. A major reason is that the U.S. system of law is so different than Europe's.

"Two or three weeks after our arrival, they realized that we knew what we were doing," said Kaman. "They gave us the rule book, showed us the court room and put us to work."

The differences lay in the fact that in Europe law is based on a civil code system, whereas in America, the practice is a common law adversarial system.

"At an American trial, the theory is that if you have two lawyers fighting as hard as they can for their position, the truth will emerge and the jury will see it," Mabley said. "In a civil code system, they believe that you should get a neutral judge inquiring into an event with the minimal assistance of lawyers."

Mabley noted other differences. In America, the higher courts set precedents and lower courts reference those decisions to justify their case. In Europe, a high court's ruling has bearing only on that specific case and not any other. "The law is not bound by precedent in Europe," he said. "While in America that precedent from a higher court is as strong as the legislative law itself. Plus they do not use juries, they use a panel of judges who interview witnesses and make the case for a prosecutor, who decides whether or not to proceed."

Despite those procedural differences, Kaman said the international community of judges and lawyers in Kosovo were easy to work with because premises like the presumption of innocence, burden of proof, finding a defendant guilty beyond a reasonable doubt, were identical. However, one difficulty for the Southwest duo was that with so many native tongues involved, everything was done through translators.

Tunheim said the judges did a terrific job in Kosovo.

"The U.N. called me and said 'please send us some more,'" Tunheim said. "It took the Minnesota judges a little while to understand the system, but not too long. They fit in well, and they were helpful to other judges, both local and international."

Since the original Minnesota Four returned from Kosovo, two more Minnesota judges left for the same assignment to Bosnia. Five more Minnesota judges have been approved and are waiting assignment, though none is from Southwest. The only other Americans involved in the U.N. program are two judges from New York.