Kosovo: first sentence for war crimes issued

(To Antonino Lombardi)

The trial of Salih Mustafa, a former commander of the Kosovo Liberation Army (UCK), has concluded before the Specialized Chambers of Kosovo (KSC). With the sentence Specialist Prosecutor v. Salih Mustafa KSC-BC-2020-05 the special tribunal based in The Hague sentenced the criminal to 26 years' imprisonment.

The news comes precisely at a moment of high tension in which the escalation of tensions between Belgrade and Pristina, which has been witnessing for weeks now, linked to the decision of the representatives of the Serbs in northern Kosovo to abandon the Kosovar institutions is a cause for great concern for the international community1.

The court, composed of Justices Roland Dekkers, Gilbert Bitti, Vladimir Mikula and Mappie Veldt-Foglia (President), found Mustafa guilty of the war crimes of arbitrary detention, torture and murder but not cruel treatment.

The criminal conduct was committed by the convict in April 1999 in the Gollak region, north-eastern Kosovo. KLA members ran the Zllash detention center allegedly used by the BIA (Security Information Agency) as a refuge and as a place of detention and interrogation of prisoners, mostly Kosovo Albanians, accused of collaborating with Serbian forces.

Concerning the crime of arbitrary detention, it was found that at least six people were arrested by members of the BIA or other KLA members and deprived of their liberty in the Zllash compound without any reason being given and without the possibility of challenging the legitimacy of their detention. With regard to the crime of torture, the judges specified that the detainees were accused of being spies, collaborators of the Serbs, traitors or liars and detained in inhumane conditions. Also, often, the prisoners were left without food and when they asked for water, the BIA soldiers urinated on them, saying: "here is the water for you". "Inmates were beaten with baseball bats, iron and rubber batons, burned, electrocuted, stabbed, punched and slapped."the magistrates added.

Mustafa and his BIA subordinates intentionally inflicted severe pain and suffering on detainees in order to obtain information or confessions, punish, intimidate and discriminate against them for political reasons. "Physical and psychological abuse, together with the inhuman and degrading conditions of detention, has left permanent injuries, both physical and psychological, in the detainees" the court said. The charge and conviction for murder was imposed after establishing that the cause of death was the severe ill-treatment inflicted for almost three weeks and the absence of medical treatment as well as some gunshot wounds found on the body of a victim. The panel of judges also established that Mustafa personally interrogated and mistreated two inmates on several occasions. The particular cruelty of the torture, Mustafa's superior hierarchical position and his direct and personal involvement were considered aggravating factors.

The defense disputed the numerous witness statements during the hearings, pointing out inconsistencies in the testimony, including a lack of clarity about the number of buildings on the site or the number of nights spent in detention. "All these testimonies cannot be true on all counts", said lawyer Julius von Bone adding that while Mustafa was part of the Security Information Agency, did not command any armed forces. There was not "no enlistment, no rank, no uniform, no command structure", opposing the prosecution's argument that the KLA was similar to a military command. "He never committed any crime"von Bone said in the latest hearing, asking the court to acquit his client of all charges.

Mustafa, who was arrested in 2020 while working as a defense ministry consultant, expressed his contempt for the KSC at the opening of the trial, calling it a "Gestapo office". Since then, lawmakers in Kosovo have twice tried to repeal the law that allows the court to function. The KLA is widely perceived in the country as a liberating force that fought valiantly against its Serbian oppressors.

In the trial, 28 witnesses were heard (13 called by the Specialized Prosecutor and 15 by the defense), including eight prison survivors. The Panel considered written statements, documentary evidence and expert reports. Witnesses said they were tortured by both Mustafa and his men. "You were just waiting for death, when it would come. Today, tomorrow, you were waiting to be killed," said one survivor.

In handing down the sentence, the judges recognized the enormous courage of the witnesses and victims who testified despite being labeled in Kosovo as "traitors" o "collaborators" and subjected to threats and intimidation for cooperating with the Specialized Chambers of Kosovo. The court explained that this climate of fear and intimidation is why the judges ordered protective measures for many witnesses and victims of this case and stressed that it was also one of the reasons why the special court was created and why was transferred to The Hague.

In 2010, Swiss prosecutor and Council of Europe rapporteur Dick Marty published a report highlighting serious crimes committed by KLA members during the Kosovo war including trafficking in human organs. Among the various accused of war crimes and crimes against humanity in November 2020 also appeared Hashim Thaci who became president of Kosovo in 2016. Following this report EULEX (see article The EULEX mission strengthens its contingent and New forces in Kosovo: the carabinieri implement EULEX's strength) opened a criminal investigation into Marty's allegations which ended after three years arguing that c 'was enough evidence to indict KLA leaders for war crimes.

In 2015, Kosovo begrudgingly adopted a constitutional amendment to create a tribunal based in The Hague and staffed by international staff to prevent manipulation of witnesses. Prior to Marty's report, the International Criminal Tribunal for the former Yugoslavia's attempt to hold KLA leaders accountable for criminal justice had led to the acquittal of some of them and the intimidation of witnesses.

Crime, the latter, of which the former president and vice president of the Organization of Veterans of the KLA Hysni Gucati and Nasim Haradinaj were accused, sentenced in May with sentence KSC-BC-2020-07.

1 The president of Kosovo, Vjosa Osmani, has postponed the municipal elections of 18 December in 4 municipalities with a Serb majority in the face of the serious situation of uncertainty that has arisen in the last few days until 23 April next year.

Photo: KSC

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