Kosovo Specialist Chambers wraps its first war crimes trial

Two years after his arrest and a year to the day after the beginning of his trial, former Kosovo Liberation Army commander Salih Mustafa heard the closing arguments before the Kosovo Specialist Chambers, in The Hague. He’s been accused of murder and torture committed in 1999 during the war that led to Kosovo’s independence from Serbia. It’s the first war crimes trial to be completed before the EU-sponsored court established in 2015.

Salih Mustafa's lawyer (Julius von Bone) faces and greets prosecutor Jack Smith during the trial in The Hague for the allegated war crimes commited by Mustafa in Kosovo.Defence lawyer Julius von Bone (right) greets prosecutor Jack Smith (left) at the opening of the trial of Salih Mustafa on 15 September 2021. © Robin van Lonkhuijsen / Pool / AFP
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The trial of Salih Mustafa, a 50-year-old former commander of the Kosovo Liberation Army (KLA), a separatist group fighting for Kosovo independence from Serbia, concluded before the Kosovo Specialist Chambers (KSC) on September 15. It marked the end of the first war crimes trial before the Hague-based special tribunal created by the European Union in 2015.

Prosecutors have charged Mustafa with arbitrary detention, cruel treatment, torture and murder of civilians during the 14-month Kosovo fight for independence in the late 1990s. Prosecutors say he was the commander of Llap Operation Zone in the north-east part of Kosovo and his forces operated the Zllash detention center which held mostly fellow ethnic Kosovo Albanians accused of collaborating with Serb forces. “There was no evidence the unit wasn’t under his control or doing things he didn’t want them to do,” prosecutor Cezary Michalczuk said in his closing arguments on September 13.

Over 49 trial days, the court heard from 29 witnesses, including eight survivors of the prison. Detainees were held in a makeshift facility sometimes described as a cowshed, without adequate food, water, bedding, medical care or toilets, survivors said. They described being beaten, subjected to electric shocks and burned with candles, both by Mustafa and his men. “You were just waiting for death, when it will come. Today, tomorrow, you were waiting for you to be killed,” one witness, who testified anonymously, said.

“The accused was a respected commander with authority,” prosecutor Jack Smith argued, describing to the court how Mustafa was in frequent contact with the men at the prison via a satellite phone. One protected witness testified that “Commander Cali,” as Mustafa was known, shouted at him and beat him, before leaving him with soldiers who beat them unconscious.

“All of these testimonies cannot be true”

Mustafa denied the charges when his trial opened last year. "I am not guilty of any of the counts brought here before me,” he said. He attended the trial intermittently, sometimes appearing in court, other times watching the proceedings from a live stream in the detention facility. Although he waived his right to have the last word on the last day of his trial, he has maintained his innocence. The defense took issue with numerous witness statements, highlighting inconsistencies in the testimony including a lack of clarity about how many buildings were at the site or how many nights someone spent in detention. “All of these testimonies cannot be true in all the points,” his lawyer Julius von Bone argued. The Dutch lawyer claimed that while Mustafa was part of the Security Information Agency, or BIA, he did not command any armed forces. There was “no enrollment, no ranks, no uniform, no command structure,” von Bone said, pushing back against the prosecution narrative that the KLA was akin to a military command. “He has never committed any crime,” von Bone said on the last day in court, asking the court to acquit his client of all charges.

At times von Bone seemed to struggle with the complications of an international legal proceeding. After he repeatedly revealed confidential information during his closing arguments, presiding judge Mappie Veldt-Foglia became exasperated. “I don’t know how to make myself more clear,” she told von Bone at one point, after asking him several times to stop reading the dates of certain events in open court.

A controversial court

In 2010, Swiss prosecutor and Council of Europe rapporteur Dick Marty published a report highlighting grave offenses committed by members of the KLA during the Kosovo war. The report itself was controversial. It alleged among other things that the KLA engaged in organ harvesting but failed to provide concrete evidence. However, it did make allegations that prominent KLA leaders were tied to war crimes and crimes against humanity, including Hashim Thaci – who would become Kosovo’s president in 2016 – and one of the group’s founders Kadri Veseli, a future president of the National Assembly.

The EU’s rule-of-law mission in Kosovo, EULEX, opened a criminal investigation into Marty’s allegations later that year. Three years later, that investigation concluded there was sufficient evidence to charge KLA leaders with war crimes. In 2015, facing mounting international pressure, Kosovo reluctantly passed a constitutional amendment to create the court, which was established in The Hague and staffed with internationals in an effort to forestall witness tampering. Prior to Marty’s report, the most high-profile attempt to hold KLA leaders accountable – the trial of three of its top leaders before the International Criminal Tribunal for the former Yugoslavia - ended with the acquittal of two of two of them among allegations of witness intimidation.

But Mustafa’s defense capitalized on the perception of the court as picking on the oppressed. Mustafa himself expressed disdain for the KSC when his trial opened, calling it a “Gestapo office.” Lawmakers in the country have since twice tried to repeal the law which allows the court to operate. The KLA is broadly seen back home as a liberating force that valiantly fought off its Serb oppressors. “People were united in liberating their country from one of the most oppressive regimes in modern history,” defense lawyer von Bone argued. The conflict, which started in February 1998, left 13,000 people dead. NATO airstrikes finally drove the forces of then Serbian President Slobodan Milošević out of the breakaway region in June 1999. More than a million people were displaced during the fighting and an estimated 6,000 are still missing.

Other proceedings

The KSC has indicted five other men for war crimes, including Kosovo’s former president Hashim Thaci. All of them are in court custody, but other than Mustafa, the proceedings remain in the pre-trial stage. The group has now been in detention for nearly two years.

The delay has added to the difficult plight of victims and their loved ones. “Victims are painfully aware of the atrocities committed that are left unaccounted for to this day,” Anni Pues, who is one of the lawyers representing the victims in the case, said in her closing statements.

Some of the hold-up is related to logistics. The investigation has reportedly amassed hundreds of thousands of pages of documents and thousands of video files, which must all be translated into the court's three languages: Albanian, Serbian and English. One of the members of Thaci’s legal team tweeted last week that over a million pages of documents have been disclosed in his case alone.

Thaci pled not guilty to six counts of war crimes and four counts of crimes against humanity in November 2020, telling the court: "The indictment is completely without basis.” The former KLA spokesperson, Jakup Krasniqi, who is one of Thaci's co-defendants, pled not guilty during the same hearing.

The prosecutor asks for 35 years in jail

If convicted, Mustafa won’t be the first defendant found guilty by the KSC. That distinction lies with the former chair and deputy chair of the KLA War Veterans Organization, Hysni Gucati and Nasim Haradinaj, who were found guilty of obstruction of justice in May. The pair released confidential information from the court, including information about protected witnesses, during a series of press conferences in September 2020. The results of an internal investigation on the embarrassing leak from the Office of the Prosecutor are yet to be known.

The prosecution has asked for a 35-year sentence for Mustafa. “The dual role of the accused as commander and participant constitutes a major aggravating factor for his conviction,” prosecutor Smith told the court. No date was set for the verdict but it is expected to be released in about three months.