By Janet Sankale
The Kosovo Specialist Chambers are set to start hearing their first war crimes case this week.
The trial against former Kosovo Liberation Army (KLA) leader Salih Mustafa will start at The Hague-based court’s Trial Panel I on September 15, 2021.
The indictment against Mustafa, confirmed on June 12, 2020 and made public on September 28, 2020, charges him on the basis of individual criminal responsibility and superior criminal responsibility with crimes committed by certain KLA members against persons held at the Zllash detention compound. His initial appearance before Pre-Trial Judge Nicolas Guillou took place in September 2020. He pleaded not guilty. His trial will create a precedent for the next KLA cases.
The former guerrilla leader is facing four counts of war crimes, namely arbitrary detention, cruel treatment, torture, and murder. At the time Mustafa was alleged to have committed the offences, he was the commander of a BIA guerrilla unit that operated within the Llap Operational Zone of KLA.
The Specialist Prosecutor’s Office arrested Mustafa in Kosovo on September 24, 2020 and transferred him to the Detention Facilities of the Kosovo Specialist Chambers in The Hague.
Mustafa’s in one of four cases against eight persons that are before the Kosovo Specialist Chambers. The other three, including one against former Kosovo President Hashim Thaçi, are at various pre-trial stages. All four cases stem from alleged crimes against humanity, war crimes, and other crimes under Kosovo law.
The war occurred in the 1990s in Kosovo, a province of Serbia, then part of the Socialist Federal Republic of Yugoslavia in the Balkan Peninsula, in the southeast of Europe. The Albanians and Serbs living in Kosovo had for long been in conflict about the control of the region. The Albanians are predominantly Muslim and are now the majority in Kosovo, the historic cradle of the Serbian nation; the Serbs are traditionally Orthodox Christians. The Albanians opposed the government of Yugoslavia, then composed of the republics of Serbia, Montenegro, Croatia, Bosnia and Hercegovina, Slovenia, and Macedonia. The federal republic fell apart, leading to the Yugoslav Wars of the early 1990s. For several years afterwards, Serbia and Montenegro formed the Federal Republic of Yugoslavia, but eventually became independent states in 2006.
Kosovo was an area sacred to the Serbs and their president, Slobodan Milošević, planned to limit the influence of the Albanian language and culture. Tensions between the Albanians and Serbs escalated. The ethnic Albanians in Kosovo formed the Kosovo Liberation Army (or UÇK in Albanian) in the early 1990s and by 1998 had started attacks on Serbian police and politicians. The Serbian and Yugoslav forces tried to fight the growing KLA through oppressive tactics and violence. They engaged in ethnic cleansing and many people fled their homes.
The war led to the displacement of thousands and lasting tensions between Serbs and Albanians. The severity of the unrest in Kosovo and the involvement of the North Atlantic Treaty Organisation (NATO) brought the Kosovo conflict to international attention in the late 1990s. In February 2008, Kosovo declared independence from Serbia after years of strained relations between its Serb and mainly Albanian inhabitants.
The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) were established pursuant to an agreement between Kosovo and the European Union (EU) on August 3, 2015. The Kosovo Assembly amended the entity’s constitution and passed the law to establish KSC and SPO within its justice system. The judicial organs have a specific mandate to investigate and prosecute crimes against humanity, war crimes, and other crimes under Kosovo law commenced or committed in Kosovo between January 1, 1998 and December 31, 2000 by or against citizens of Kosovo or the Federal Republic of Yugoslavia. This covers the period during and in the aftermath of the conflict in Kosovo.
The Kosovo Specialist Chambers and the Specialist Prosecutor’s Office have a seat in The Hague, the Netherlands. Their staff is international, as are the judges, the Specialist Prosecutor, and the Registrar.
The organs resulted from allegations reported in the Council of Europe Parliamentary Assembly Report of January 7, 2011. The EU established a Special Investigative Task Force (SITF) in September 2011 to conduct an independent investigation into the allegations contained in the report as well as other crimes connected to the allegations.
The KSC and SPO trace their origins from allegations contained in the memoirs of former International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor Carla Del Ponte. In her book, The Hunt: Me and War Criminals, she alleged that serious crimes had been committed during the conflict in Kosovo and immediately following the NATO bombings and withdrawal of the Serbian and Yugoslav forces in June, 1999. She said the crimes included trafficking in human organs, crimes that had not been seriously investigated or punished.
Her book alleged that those involved in the trafficking included leaders of the separatist Kosovo Liberation Army, which fought Serbian and Yugoslav forces in mid-1999, and who were now in leadership positions in the country.
She claimed that around 300 prisoners were kidnapped and transported from Kosovo to Albania, where they were locked up and some had their organs removed. “These organs were then sent from Tirana Airport to private clinics to be implanted in patients abroad who paid,” she said.
A report by Dick Marty titled Inhumane Treatment of People and Illicit Trafficking in Human Organs in Kosovo (2010), which was commissioned by the Parliamentary Assembly of the Council of Europe (CoE), said there was evidence of serious crimes committed during the conflict in Kosovo.
The CoE expressed concern about the allegations that “serious crimes had been committed during the war in Kosovo, including organ trafficking.”
“Many former KLA commanders went on to leadership positions after Kosovo gained its independence and some indictments prepared by the EU SITF are against top figures still actively involved in politics,” Clint Williamson, an American prosecutor appointed by the EU in 2011 to investigate ethnic cleansing in the Kosovo conflict, said.
“We believe that the evidence is compelling that these crimes were not the acts of rogue individuals acting on their own accord, but rather that they were conducted in an organised fashion and were sanctioned by certain individuals in the top levels of the KLA leadership. The widespread or systematic nature of these crimes in the period after the war ended in June 1999 justifies a prosecution for crimes against humanity,” the SITF report said.
The report upheld Marty’s findings that stated that in a “handful” of cases organs taken from executed prisoners were trafficked for profit.
Some of the war crimes committed by both the Serbian forces and the KLA were tried by the ICTY, a United Nations ad hoc (temporary) tribunal that was also based in The Hague. According to the ICTY jurisdiction mandate, it brought some prosecutions against senior Serbian officials for crimes against humanity and war crimes for acts directed at Kosovo Albanian victims. However, the ICTY was prevented from prosecuting crimes in the post-war period, which was a primary focus of SITF investigations, as ICTY’s jurisdiction did not allow prosecution of crimes against humanity outside armed conflict. This means that the ICTY could not engage in any prosecutions after the NATO bombings ended in June 1999. (The so-called Operation Allied Force lasted from March until June 1999.) The ICTY could only prosecute crimes against humanity committed during armed conflict, as any events subsequent to that were not within its mandate.
In 2000, Del Ponte requested revisions to the tribunal’s statute to allow the ICTY to investigate and prosecute crimes during the relevant period, but her request wasn’t acted upon. In a statement to the United Nations Security Council on November 21, 2000, she stated that for the tribunal’s jurisdiction to encompass crimes against humanity committed in Kosovo after the deployment of the NATO-led peacebuilding Kosovo Force, Article 5 of the tribunal’s statute should be modified and the reference and requirement for there to be an “armed conflict” omitted.
She acknowledged that the statute precluded her office from dealing with crimes in Kosovo at the time and that they lay outside the tribunal’s jurisdiction. She formally requested the council to extend the tribunal’s jurisdiction.
The ICTY dealt with both Serb and Albanian perpetrators. The specialist court in The Hague will now fill the void left by the ICTY’s jurisdictional limitations. According to its findings and based on its own investigations, the Specialist Prosecutor’s Office was able to file indictments against certain senior officials of the former KLA. The Kosovo Specialist Chambers will only hold accountable persons for crimes they committed individually but not committed by the community, ethnic group, or organisation. The court will apply the principle of individual criminal responsibility.
The court is funded and hosted by the EU. “It is important for justice to be done, so we are pleased to be able to offer the court a home,” former Dutch Foreign minister Bert Koenders said.
The KSC is an independent court established by Kosovo law and located in The Hague. It is not an international tribunal, but a Kosovo national court that administers justice outside Kosovo. It is a temporary institution that will continue its mandate until the Council of the European Union informs Kosovo that the investigations and proceedings have been concluded.
The Specialist Prosecutor’s Office is considered a separate institution and investigates, indicts, and prosecutes individuals according to its mandate. The trials will be conducted by the judges of the Kosovo Specialist Chambers.
KSC has primacy over all other courts in Kosovo. Both the KSC and SPO may order the transfer of proceedings within their jurisdiction from any prosecutor or court in the territory of Kosovo to the KSC or SPO at any stage of an investigation or proceedings.
To ensure greater witness protection and a neutral environment, the court was set up in The Hague in 2015. On June 24, 2020, the KSC and the SPO indicted then Kosovo President Thaçi, leader of the Democratic Party of Kosovo Kadri Veseli, and other former members of the KLA for war crimes and crimes against humanity.