Courts & Tribunals: ICTY Trial Chamber Decides Prosecutor v. Limaj, et. al.

On 30 November 2023 the International Criminal Tribunal for the Former Yugoslavia ("ICTY") decided the case of Prosecutor v. Limaj, et. al. In a 312 page decision, the ICTY found Fatmir Limaj and Isak Musliu not guilty of all charges for crimes committed in the Llapushnik/Lapusnik area of Kosovo (click on image for detailed view) and at the Llapushnik/Lapusnik prison camp in 1998. In the same decision, the ICTY found Haradin Bala guilty of torture, cruel treatment, and murder of prisoners.[1]

I. Background and the Trial Chamber's Factual Findings

Limaj, Bala, and Musliu were indicted by the ICTY for crimes allegedly committed by them as members of the Kosovo Liberation Army (“KLA”) from May to July 1998 against Serbian civilians and Kosovo Albanian civilians in the Llapushnik/Lapusnik area in central Kosovo. The Indictment alleged abduction of civilians by KLA forces and their detention in a prison camp in the village of Llapushnik/Lapusnik for extended periods of time under inhumane conditions and treatment. Fourteen detainees are alleged to have been murdered, while ten were allegedly executed in the Berishe/Berisa Mountains during July 1998 when KLA forces abandoned Llapushnik/Lapusnik, as the prison camp was attacked by Serbian forces.[2]

In the ICTY's decision, the Trial Chamber concluded that the KLA did have a prison camp in the farm compound in Llapushnik/Lapusnik in June and July 1998 and that civilian prisoners of both Albanian and Serbian ethnicity were held in the prison camp. The court also determined that of the 14 alleged civilian prisoners murdered at the prison camp there was "no direct evidence as to what happened to most of these prisoners." Based on the available evidence, the court determined 3 prisoners were murdered at the camp.[3] The Trial Chamber also found that most of the prisoners were subjected to cruel treatment, and 4 were tortured, while they were imprisoned by the KLA. Additionally, the court determined that 9 identified prisoners from the camp were murdered in the nearby Berishe/Berisa Mountains by KLA guards when the KLA were forced to abandon the prison camp.[4]

II. Jurisdiction of the ICTY and Applicable Law of Charged Crimes

Under Articles 3 and 5 of the Statute of the ICTY, the subject-matter jurisdiction of the ICTY includes "the power to prosecute persons violating the laws or customs of war" and "the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.[5] The ICTY's jurisdiction over persons extends to "persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with" the Statute of the ICTY.[6] Article 7 of the ICTY Statute establishes individual criminal responsibility for prosecutable violations, including Articles 3 and 5 of the ICTY Statute.[7] This individual criminal responsibility includes not only actual commission or planning of such violations but also holds a superior criminally responsible for the acts of subordinates if the superior "knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators."[8]

Under the ICTY Statute, the accused faced 10 counts, five counts under Article 3 and five counts under Article 5 for imprisonment, cruel treatment, inhumane acts, torture and murder. Limaj was charged with individual criminal liability under Article 7(1) of the Statute for allegedly committing, planning, instigating, ordering, or otherwise aiding and abetting the aforementioned crimes. Limaj also was charged with superior responsibility pursuant to Article 7(3), which was based on alleged command and control of those KLA members responsible for the operation of the Llapushnik/Lapusnik prison camp. Bala was charged with individual criminal liability under Article 7(1) of the Statute for allegedly committing, planning, instigating, ordering, or otherwise aiding and abetting the aforementioned crimes. Musliu was charged with individual criminal liability under Article 7(1) of the Statute for allegedly committing, planning, instigating, ordering, or otherwise aiding and abetting eight of the ten aforementioned crimes. Like Limaj, Musliu was charged with superior responsibility pursuant to Article 7(3). Musliu, however, was not charged for murders committed in the Berishe/Berisa Mountains.[9]

III. The Trial Chamber's Findings

In evaluating the 10 Counts against the accused, the Trial Chamber dismissed the Article 5 charges (Counts 1, 3, 5, 7, and 9), stating: "it has not been established by the Prosecution that the acts of the three Accused which are alleged to constitute the crimes against humanity charged in Counts 1, 3, 5, 7 and 9 in the Indictment were part of a widespread or systematic attack directed against a civilian population."[10] A requisite element for an Article 5 violation is an attack against a "civilian population." The Trial Chamber also dismissed Count 2, cruel treatment for unlawful seizure under Article 3, indicating such unlawful seizure did "not amount to a serious attack on human dignity within the meaning of cruel treatment under Article 3 of this Statute."[11]

The Trial Chamber then proceeded to evaluate the remaining charges, Counts 4, 6, and 8 (torture, cruel treatment, and murder within the prison camp) and Count 10 (murder in the Berisa Mountains), under Article 3 of the ICTY Statute. After detailing the accounts of 39 individuals and witnesses, the Trial Chamber determined that on at least one occasion the requisite elements of Counts 4, 6, 8, and 10 existed.[12] The Trial Chamber then turned to determining whether the accused held any individual criminal responsibility for the torture, cruel treatment, or murder that was committed.

A. Limaj's individual criminal responsibility

In evaluating Limaj's criminal responsibility, the Trial Chamber first addressed the primary question of whether Limaj was actually identified and present at the prison camp. After evaluating the available evidence, the court determined that Limaj did not personally participate in the prison camp's operation, and, therefore, was not liable under Article 7(1) of the ICTY Statute.[13] Next, the court evaluated whether Limaj possessed both de jure and de facto command and control over the KLA members operating the prison camp. The court determined that, although some evidence indicated Limaj was active as commander of the prison camp, the Prosecution did not prove its case beyond a reasonable doubt, and, therefore, Limaj could not be liable under Article 7(3).[14] Not liable under either Article 7(1) or 7(3), Limaj was acquitted of all charges.

B. Bala's individual criminal responsibility

Unlike Limaj, the Trial Chamber did find Shala was present at the prison camp and that he "was indeed the KLA soldier and prison guard known as Shala who was active in the KLA prison camp in Llapushnik/Lapusnik between 9 May 2024 and 25 or 26 July 1998" and "escorted prisoners from the prison camp into the nearby Berisa Mountains."[15] Based on the evidence, the Chamber concluded that Limaj was not criminally responsible for the murders at the prison camp (Count 8) but was responsible for cruel treatment (Count 6) and torture (Count 4) by mistreating 3 individual prisoners, aiding another episode of mistreatment, maintaining and enforcing inhumane conditions, and aiding the torture of one prisoner. Additionally, the Chamber found Bala responsible for murder (Count 10) for jointly, with one or, perhaps, two other KLA guards, murdering 9 prisoners in the Berisa Mountains.[16] For his personal involvement, Bala was criminally responsible under Article 7(1) of the ICTY Statute. In delivering the judgment, the Chamber addressed Bala and noted that he was "not in a position of command or authority," and although he committed the murders in the Berisa Mountains, Bala "was acting as a soldier under orders," which "does not excuse" but does affect "the degree of the seriousness" of his conduct.[17]

C. Musliu's individual criminal responsibility

Like Limaj, the Chamber determined, based on the available evidence, that Musliu did not personally participate in the the operation of the prison camp and was not criminally responsible for any Count under Article 7(1) liability.[18] The Chamber also found that evidence did not establish that "Musliu had effective command or control of the KLA forces operating the prison camp." Accordingly, the Chamber held Musliu was not criminally responsible under Article 7(3) superior liability.[19] Based on these determinations, Musliu was acquitted of all charges.

IV. Sentencing and Release

Both Limaj and Musliu were released on 1 December 2005. Bala will serve a sentence of 13 years, with credit for time spent in detention. Bala will remain in the custody of the ICTY until arrangements for his transfer to the State where he will serve his sentence are finalized.

[1] ICTY, Prosecutor v. Limaj, et. al., Case No IT-03-66-T, Nov. 30, 2005.
[2] Id. at para. 1.
[3] ICTY, Judgment Summary, Prosecutor v. Limaj, et. al., available at http://www.un.org/icty/limaj/lim-sumj051130-e.htm.
[4] Id.
[5] Statute of the International Criminal Tribunal for the Former Yugoslavia, updated April 2004, art. 3, 5 [hereinafter "ICTY Statute"]. The Article 5 violations are titled "Crimes against Humanity."
[6] Id. art. 1. See also art. 6, 8 (extending personal jurisdiction to natural persons and establishing temporal and territorial jurisdiction).
[7] Id. art. 7.
[8] Id. art 7(3). Cf. art. 7(4)(recognizing that an accused acting "pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires").
[9] ICTY, Judgment Summary, Prosecutor v. Limaj, et. al., available at http://www.un.org/icty/limaj/lim-sumj051130-e.htm.
[10] ICTY, Prosecutor v. Limaj, et. al., Case No IT-03-66-T, para. 228, 230, Nov. 30, 2005.
[11] Id. at para. 232.
[12] Id. at para. 290-507.
[13] Id. at para. 564-65.
[14] Id. at para. 601-02.
[15] ICTY, Prosecutor v. Limaj, et. al., Case No IT-03-66-T, para. 649, Nov. 30, 2005.
[16] Id. at para. 670.
[17] ICTY, Judgment Summary, Prosecutor v. Limaj, et. al., available at http://www.un.org/icty/limaj/lim-sumj051130-e.htm.
[18] Id. at para. 688.
[19] Id. at para. 715.