Today, 16 December 2022, Trial Panel I pronounced its Judgment in the case of The Specialist Prosecutor v. Salih Mustafa. The Judgment marks a milestone for the Kosovo Specialist Chambers (KSC), as it represents the first judgment by this tribunal in a war crimes case.
The Trial Panel found Mr. Mustafa guilty of the war crimes of arbitrary detention, torture and murder and sentenced him to a prison sentence of 26 years. For legal reasons, the Panel acquitted Mr. Mustafa for the crime of cruel treatment. When pronouncing the judgment, the Trial Panel emphasized that the charges in this case relate solely to the individual criminal responsibility of Mr. Mustafa and his involvement in the alleged war crimes of detention, cruel treatment, torture and murder of the victims. Noting that the victims in this case are Kosovo Albanians, the Trial Panel further emphasized that, “their efforts to seek justice and truth lies at the heart of these proceedings”.
The crimes for which Mr. Mustafa was found guilty took place in April 1999 at a compound in the village of Zllash/Zlaš, Kosovo, which was used as a base by the BIA Guerrilla unit of the Kosovo Liberation Army (KLA), of which Mr. Mustafa was the commander.
In its judgment, the Trial Panel established that during the conflict between the KLA and Serbian forces, Mr. Mustafa was the only and overall commander of the BIA Guerrilla unit of the KLA until it was disbanded; that he was in command of the Zllash/Zlaš compound during the period of the alleged crimes; and that he had the power to make appointments within the BIA Guerrilla unit, issue orders to his subordinates and to discipline them.
As regards the crime of arbitrary detention, the Panel found that at least six persons were apprehended by BIA members or other KLA members and deprived of their liberty at the compound in Zllash/Zlaš without being given any reasons, and with no possibility to challenge the lawfulness of their detention. The evidence proved that Mr. Mustafa was present on several occasions at the Zllash/Zlaš detention compound and ordered subordinates to take detainees to their place of detention. As such, the Panel found that Mr. Mustafa knew of their detention and the conditions thereof.
As regards the crime of torture, the Judges specified that detainees were accused of being spies, Serb collaborators, traitors, thieves, or liars and held in inhumane, degrading conditions, without sufficient water, food and medical care, not being allowed to wash themselves or change clothes and without access to sanitary facilities. Mr. Mustafa and his BIA subordinates intentionally inflicted severe pain and suffering upon the detainees for the purposes of obtaining information or a confession, punishing, intimidating, coercing and/or discriminating against them on political grounds.
The Trial Panel noted that, “the physical and psychological abuse, coupled with the inhumane and degrading conditions of detention, left the detainees with life-long injuries, both physical and psychological”.
As regards the crime of murder, the Trial Panel found that the murder victim was left in a near to death state when, in view of the Serbian offensive in April 1999, the BIA Guerrilla unit released their prisoners, except for the two that had been subject to the most severe beatings. The Panel established as the cause of death the severe mistreatment inflicted by the BIA Guerrilla members over almost three weeks and the lack of medical aid provided to the victim, as well as certain gunshot wounds identifiable on his body.
As regards the criminal responsibility of Mr. Mustafa, the Panel established that Mr. Mustafa personally interrogated and mistreated two of the detainees on different occasions, including subjecting one of them to a mock execution. With regard to the remainder of the factual allegations underlining the crimes, the Panel found Mr. Mustafa to be criminally responsible through his individual contribution as a participant of a joint criminal enterprise.
When determining the sentencing of Mr. Mustafa, the Panel considered the gravity of the crimes and Mr. Mustafa’s personal contribution to the crimes. The particular cruelty of the torture, Mr. Mustafa’s superior position as well as his personal direct involvement in this crime, were considered by the Panel as aggravating factors.
When pronouncing the trial judgment, the Panel acknowledged the tremendous courage of witnesses and victims who testified, despite being labelled in Kosovo as “traitors” or “collaborators” and subjected to threats and intimidation for cooperating with the Specialist Chambers or with the Specialist Prosecutor. The Panel explained that this climate of fear and intimidation is the reason why Judges ordered protective measures for many witnesses and victims in this case and pointed out that it was also one of the reasons why this Court was created and why it is relocated to The Hague.
In the course of the trial, the Panel heard 28 witnesses, 13 called by the Specialist Prosecutor and 15 by the Defence. The Panel further considered written statements, documentary evidence and expert reports.
Eight victims participated in the proceedings, all of whom benefitted from protective measures.
Finally, the Panel clarified that it will issue in due course a Reparation Order and retains the necessary jurisdiction to that effect.
Here is the link to the summary of the judgement in English.
