make the tough call , rather than take the easy way out , even though she would have done almost anything to avoid the case . After a tortuous and lengthy appellate process , Kabashi finally began his prison sentence .
Tales from Kosovo
Assignment in Pristina
After eight months , I was transferred to the capital , Pristina , a gritty city of about 200,000 , crawling with internationals , swarming with EULEX vehicles , and full of contrasts . While there were many modern amenities you would expect in any European city , such as good restaurants , internet service and an international airport , Pristina could also be grey and dirty , with poor sanitation and undrinkable water , poverty , unregulated urban sprawl , little green space and clogged with traffic .
At the courthouse on my first day , I learned that USAID had not yet renovated this building and that there were no western toilets in the building , only so called Turkish toilets or squatter toilets in unlocked restrooms . These toilets were used by everyone-- judges , court staff , litigants and members of the public . As the day progressed , the toilets would become foul , creating a very unpleasant experience , not to mention a health hazard . As a result of constant cajoling , I was finally able to get a locked restroom with a western toilet installed , much to the delight and appreciation of my EULEX colleagues . This may be my lasting legacy in Kosovo . “ Yes , I remember Judge Pineles . Wasn ’ t he the American who got the toilet installed ?”
Security was virtually non-existent in this courthouse . Members of the public could wander in , use the common restrooms , and go directly to a judge ’ s office . The same was true for prosecutors and defense attorneys who would show up at your office unannounced , wanting to talk about a case , often on an ex parte basis . I tried to get a locked door installed in our corridor , but no one seemed to care .
During trials , which often involved prominent personalities with many supporters packed into the courtroom , we would have to enter the courtroom through the public entrance , then walk to the bench through the gathered masses . There was no entrance or exit behind the bench . While there were usually heavily armed police officers in the courtroom , I was never quite sure whose side they would be on in an emergency . When entering and leaving the building , we would also have to use the public entrance , and walk the gauntlet through the throngs of people out on the street and banks of TV cameras filming us .
The Case of Fatmir Limaj
Fatmir Limaj was a charismatic commander in the KLA and a very popular war hero . After the war he became a powerful politician and achieved several high governmental positions , including Minister of Transportation . He was prosecuted and acquitted in The Hague , but was subsequently indicted in Kosovo for unrelated war crimes . The case unfolded as follows . During the war in 1998-99 , there was a detention facility in the village of Klecka operated by the KLA , and allegedly under Limaj ’ s command . The facility housed Serbian prisoners and Albanian collaborators . One of the KLA guards was a man named Agim Zogaj who kept a secret diary , including what happened to all the prisoners .
After the war , Zogaj did not disclose the diary to anyone . However , in the mid- 2000s , Zogaj came to believe that Limaj and his associates had learned about the diary , which contained incriminating evidence , and Zogaj feared for his safety . He finally went to the Kosovo police in 2009 where he told his story in great detail and disclosed his diary .
Zogaj claimed that a number of Serbian prisoners and Albanian collaborators from the detention center had been marched to a nearby field where they were summarily executed by KLA soldiers under Limaj ’ s command , then buried . He said that one of the prisoners had been killed with a blow to the neck from a scythe .
Zogaj then led a forensics team to the scene where they discovered the bodies . One of the bodies displayed a wound to the neck that was consistent with a blow from a scythe . In addition , the scythe itself was recovered from the grave . Limaj and nine other former KLA soldiers were then indicted by the EULEX prosecutor for war crimes under Yugoslav law and the Geneva Convention . This caused a furor within Kosovo society because Limaj and the others were considered freedom fighters and war heroes . Zogaj was then placed in the
EULEX witness protection program , and would thereafter be known as “ witness X .”
The EULEX prosecutor then arranged for the defense attorneys to question Zogaj under oath , similar to our deposition . This took place over four days in July 2011 . They questioned Zogaj for 19 hours and asked him over 1000 questions , and his answers were consistent with the story he told the police .
The trial was to begin in early November 2011 . I was on the trial panel with a judge from the UK and a local judge . In late September , just several weeks before the trial was to begin , we received an urgent message from the witness protection program . Witness X , was found hanging from a tree in a park in Duisberg , Germany where he had gone to visit his brother . The German authorities ruled the death a suicide .
Zogaj and his family had been under enormous pressure , not only because of the threatening reach of Limaj and his associates , but also because the prosecutor was depending on him to build the case against popular war heroes . Apparently Zogaj decided that suicide was the only way to end the misery for himself and his family . His death was a human tragedy , but also represented a significant failure of the witness protection program . It also presented a serious legal dilemma . We had to decide whether evidence from a dead man was admissible at trial , or not .
This is how the dilemma was described in the New York Times :
“ Death of War Crimes witness Casts Cloud on Kosovo . The death of a key witness in Germany in the war crimes trial of one of Kosovo ’ s most powerful politicians has cast doubt on the effective prosecution of the case and threatens to derail local and international efforts to establish the rule of law here . Intimidation , fear , clan loyalties and a culture of silence have long impeded the development of a functioning justice system in Kosovo , analysts say , and the death is seen as a www . vtbar . org THE VERMONT BAR JOURNAL • SPRING 2017 27