An innocent Serb family spends a year in jail after a botched Army murder investigationGuilty until proven innocent
Joshua Hammer
August 22 2000
Did an innocent Serb family spend one year in jail at an American military base in Kosovo because of U.S. Army incompetence-or worse? That’s the question that Army investigators are now probing following the dramatic conclusion on Aug. 8 of the murder trial of Mirolub Momcilovic and his two sons, Boban and Jugoslava in Gjilan, Kosovo.In one of the most controversial legal proceedings to take place in Kosovo since Serb troops withdrew last year, the three men had been held without bail under U.S. guard at Camp Bondsteel since July 1999 following a shootout with a group of Albanians who had attacked their shop. A Kosovo Liberation Army war hero died in the exchange of gunfire, which also involved U.S. soldiers stationed nearby. The Momcilovic family maintained its innocence as the case dragged through Kosovo’s rudimentary courts. Then last month, in a development that embarrassed prosecutors and the U.S. military, a U.S. Army sniper testified in a statement read in open court that he, not members of the Momcilovic family, had fired the fatal shots. Now, United Nations officials and human rights monitors legal experts charge that Army investigators knew from the beginning that the American sniper was responsible for the killing-and they want to know why the Army might have withheld that vital piece of evidence for 12 months.
As NEWSWEEK first reported last June, the murder case against the Momcilovic clan was hardly air tight. At five o’clock on the afternoon of July 10, 1999, five armed Albanian men approached the family-run auto parts store in the center of Gjilan. Like much of Kosovo, Gjilan was chaotic at the time, gripped by a series of revenge attacks on Serb civilians by ethnic Albanians, including lootings, house burnings, and assassinations. The auto-parts store confrontation, which was captured by security video cameras mounted on the Momcilovic family rooftop, shows Afrim Gagica, the KLA fighter, approaching the front door and asking if he can purchase spark plugs. Brandishing a pistol, Gagica then demands that Momcilovic and his sons surrender their weapons. “Come out immediately,” he warns. “You are surrounded.” At that point, a shot rings out from the shop, and Gagica and his Albanian comrades respond with a flurry of gunfire. U.S. soldiers rush to the scene. By the time they restore order, Gagica lies dead in the street. A second Albanian named Naser Azemi is shot dead while fleeing in a Mercedes, and Nebi Aslani, who was traveling in the car with Azemi, was injured.
American NATO forces arrested the three Serbs and the surviving Albanians on the spot and held them at Camp Bondsteel, the American base near Gjilan. Agents of the U.S. Army’s Criminal Investigation Division (CID) then launched a probe of the killings, examining the videotape and interviewing the Momcilovic men, their Albanian assailants, and numerous American soldiers. They finished their report on July 17th and turned it over to the Gjilan district court. The report blamed the killing of Azemi on U.S. snipers, but declared that Gagica had been shot dead by the Momcilovic family. Still, the report found extenuating circumstances: “The Momcilovic family felt threatened and defended there (sic) homes and lives,” the report declared. “The Momcilovic residence has been subsequently ransacked and looted. . . This action is closed in the files of this office and anticipates no further investigative activity.”
The American military then dropped out of the picture. The three men remained imprisoned in Camp Bondsteel, but the case was left to be handled by Kosovo’s rudimentary courts. What happened next, monitors charge, was indicative of bias that riddles the province’s judicial system. The president of Gjilan’s district court, an ethnic Albanian, released all of the Albanians from custody one month later, but ordered the three Momcilovic men to be tried for murder. Monitors of the trial, which took place over three days in April, called the proceedings a “farce.” None of the American soldiers who participated in the shoot out were called upon to testify. An autopsy was never performed on the body of Afrim Gagica to determine whether he might have been shot to death with an M16 rifle, the kind carried by U.S. snipers. The court refused to allow the exculpatory videotape to be used as evidence, because the prosecutor challenged its authenticity. After three days of hearings, the trial was suspended, pending deliberations on whether the video should be admitted.
As the Momcilovics languished in prison, reporters began to probe the case. The American military at Camp Bondsteel declined all comment. Journalists were denied access to the Momcilovic family; in June, NEWSWEEK attempted to speak to U.S. Army legal affairs officers at Camp Bondsteel, but was informed that they were unavailable. “This is a sensitive issue right now,” a public affairs officer told NEWSWEEK. As it turned out, the military command had good reason for avoiding media inquiries. Elizabeth Rubin, a freelance journalist researching a piece for Harpers magazine on Kosovo’s judiciary, managed to track down and interview several of the U.S. snipers in Fort Benning, Georgia. U.S. military sources now admit that inconsistencies exist between the July 17 report and the snipers’ accounts of what happened on July 10. As a result of Rubin’s probing, the Army reopened the investigation, gathering 130 pages of new statements that contradicted the initial findings of the CID.
The Momcilovic trial resumed during the last week of July. This time, the exculpatory video was shown to the panel of three judges. But the bombshell came days later. The court was read a sworn statement by Corporal Robert Black, a U.S. Army sniper who had been stationed on the thirteenth floor of Radio Gjilan headquarters during the shoot-out between the Albanians and Momcilovics. Black’s statement was unambiguous: He admitted that he had killed the KLA man from his perch in the building as he ran toward him in an alleyway, brandishing his pistol: “I shot him center mass. They dug him out of the alleyway,” he testified. He further testified that CID had his testimony all along; that he had been interviewed four times immediately after the incident by CID investigators, both at ‘the tower’-the 13-story headquarters of Radio Gjilan from which he had fired the shot-and at CID headquarters at Camp Bondsteel. Black’s admission of responsibility stunned the court. Days later, Momcilovics were acquitted of murder and set free.
Why did it take a full year for Black’s admission of guilt to come to light? In an interview with Stars and Stripes last month, David Marshall, chief of human rights and rule of law for the Organization for Security and Cooperation in Europe in Kosovo, accuses the CID of a cover up. Based on the 130 pages of witness statements released last month, “There’s absolutely no doubt that they knew exactly what happened on the night of July 10, and yet failed to release that information until July 22, 2000,” Marshall told the U.S. Military newspaper. Some Kosovo legal experts theorize that CID investigators hid Black’s role in the killing because of Albanian sensitivities, fearing that he might be accused of using excessive force.
U.S. Military officials deny that they hid anything. “There was no malice, no coverup,” insists Marc Raimondi, public affairs officer for the U.S. Army’s Criminal Investigations Division at the Pentagon. Refusing to go into detail because “there’s an ongoing investigation,” Raimondi contends that Black never told CID investigators during his first interview that he had shot and killed Gagica. “Black’s statement [that he “shot him center mass”] was not available at the time of the shootings,” Raimondi says. Raimondi also contends that CID investigators were “overwhelmed” at the time of the Gagica shooting and may not have gathered statements as carefully as they could have. “This was not an isolated incident. There were acts of violence going on all over the city that day-killings and shootings everywhere.”
The army’s top commander in Europe, Gen. Montgomery Meigs, told Stars and Stripes last month that sloppy investigative work following the shoot-out was to blame. “If we had done a better job early on collecting information, we would have picked that up,” Meigs said, refusing to elaborate. Meigs, “has directed a comprehensive systemic review of the circumstances in this matter,” says Millie Waters, a public affairs officer for the United States Army command in Europe. “That review is ongoing. It will include a look into the procedures as to how the incident was handled.”
Yet evidence indicates that the CID conducted a thorough and methodical investigation. A half dozen other snipers were interviewed by the CID immediately after the shoot-out. In sworn statements before the court last month, all confirmed that Black had shot Gagica. Capt. Robert McCoy stated that Gagica was shot because ‘the guy was going for his pistol that was by his left knee.’ Sniper Stephan Parkin stated that McCoy first shot Gagica, and that Black shot him subsequently because ‘he was still moving around, pointing his weapon. Capt. Black shot him using his M16.’ Another sniper, Sgt. Gregory Hotaling, who said he was sitting next to Black during the firefight, confirmed that Black informed him that ‘the guy was reaching for his weapon and he shot him and he hit him with his M16. A few days after the incident, a CID agent questioned all of us about the incident, and we were all interviewed on the 13th floor of Radio Gjilan.’ Yet another sniper, Major Stephen D. Russell, states ‘he was able to gather that Black shot Gagica in the chest.’
Still, it’s not clear exactly what Black or the other snipers told CID on July 10. Nor has anyone explained why the Army snipers kept silent as the Momcilovics languished in prison. “The U.S. Military owes the Momcilovic family an answer,” says a source at the OSCE, which is set to release a report critical of both the Army investigation and the trial. Raimondi says that “what exactly happened will come out, but it would be premature to speculate on what went on.” The Momcilovics, meanwhile, have left Kosovo and taken refuge in Serbia. They were found guilty only of illegal weapons possession and sentenced to time served-a face-saving gesture by the Gjilan court.