Kosovo War Crimes Court’s First Trial Will Set a Precedent

His trial, which might last for over a year, will set a precedent for the rest of the KLA cases, experts told BIRN.

'Joint criminal enterprise' claim causes outrage

Salih Mustafa in court in October 2020. Photo: Kosovo Special Chambers/Screenshot.

The indictment charges Mustafa with "arbitrary detention… cruel treatment … torture … and murder" of civilians between "approximately April 1, 1999 and around the end of April 1999".

It alleges that he was part of a joint criminal enterprise uniting "certain other KLA soldiers, police, and guards", which had a "shared common purpose to interrogate and mistreat detainees".

Kosovo media and lawyers have interpreted user of the term 'joint criminal enterprise' as an attack on the KLA itself, claiming it can be seen as a suggestion that the KLA was a criminal organisation.

This interpretation has fuelled resentment among Kosovo Albanians, many of whom see the so-called 'special court' as an insult to the KLA's liberation war against repressive Serbian rule.

However, Amer Alija, a coordinator and legal analyst at the Humanitarian Law Centre in Kosovo, told BIRN the claim that there was a joint criminal enterprise should not "be interpreted in the context of the Kosovo Liberation Army because not every KLA soldier or member is responsible for the crimes committed by a soldier who has not complied with the rules of war".

Alija said that suspects can be judged to have participated in a joint criminal either by the actions - by "directly ordering or participating in violations" - or by their inaction - "by being the soldiers' of the soldiers and being aware that… war crimes were being committed" but taking no action to prevent or sanction the crimes.