Tense Trial in Kosovo Showed Justice for War Crimes is Possible

A witness at the Hague Tribunal trial of Kosovo ex-President Hashim Thaci revived memories for EU rule-of-law mission judge Dean Pineles of a dramatic case in Kosovo 12 years earlier, when two Serb women courageously testified against guerrilla fighters.

The Kosovo Special Chambers in The Hague heard testimony last week from the Special Prosecution’s 17th witness in the war crimes trial of former Kosovo president Hashim Thaci and three other prominent wartime Kosovo Liberation Army figures.

This witness was identified as Dragica Bozanic, a Serb woman, who told the tribunal that on July 18, 1998, the KLA attacked her house in the village of Opterusa and abducted her husband and son. She never saw them again.

Articles about the August 17 hearing on BIRN’s website and on Kosovo Online also mentioned another Serb woman involved in the Opterusa incident, Slavica Bansic. I immediately recognised the names, the date, the village and the factual circumstances.

As an international criminal judge with EULEX from 2011-13, I was a member of a three-judge panel that heard and decided a war crimes case involving this very same situation and these very same women in the summer of 2011 – the case of Ejup Kabashi and others.

While I am unaware of the all the details of Bozanic’s testimony in The Hague, it is reasonable to assume that she presented the same evidence as in the Kabashi trial.

The Opterusa incident is obviously considered important by the Special Prosecution as it attempts to build the war crimes case against the four well-known KLA veterans who, in the eyes of many Kosovo Albanians, are war heroes and liberators, not war criminals. So the evidence adduced in the Kabashi case is as relevant today as it was 12 years ago.

It is important to note, however, that there was no evidence presented during the Kabashi case trial regarding Thaci or the others now on trial in The Hague. But the Special Prosecutor must believe this case can be linked to the defendants under the legal doctrine of command responsibility. This will not be known until the verdict is issued, which could be years away.

Temperature rises in the courtroom
Long after the end of the 1998-99 war between the KLA and Serbian forces, Dragica Bozanic and Slavica Bansic were located in Belgrade by EULEX investigators. They provided critical information about the Opterusa incident and agreed to come to Kosovo and testify. Both of their husbands were among the missing.

On March 30, 2011, based on evidence provided by the two women, Kabashi was indicted by the EULEX prosecutor for committing a war crime, specifically for terrorising the Serbs, including Bosanic, Bansic and others, all of whom had been civilian non-combatants.

A man named Haxhi Mazreku was also charged with the same war crime, while five other Kosovo Albanians were indicted, charged with giving false statements to investigators for the purpose of covering up Kabashi’s involvement, so-called alibi witnesses.

The case went to trial in Prizren from June to August 2011. Other members of the judicial panel were Judge Tore Thomassen from Norway, who was the presiding judge, and a local judge of Bosnian ethnicity. The local judge was clearly very nervous about participating in a war crimes case involving the KLA.

Kabashi was viewed as a war hero by the local Albanian citizenry, and the courtroom was packed each day with his supporters. Many men from surrounding villages showed up each day wearing a distinctive cone-shaped white woolen hat called a plis, which was common among Albanian villagers. They would all laugh and joke and pat Kabashi on the back before the proceedings began.

The courtroom was guarded by several uniformed police officers carrying automatic rifles to maintain order.

The weather was hot and humid under the Balkan sun during the trial, and the small air conditioners could not keep up. The courtroom would become like a sauna as the day progressed, especially for those of us on the bench wearing black robes.

Based on the evidence presented at trial, including the testimony of the two Serbian women, this is how the Opterusa operation unfolded.

In July 1998, during the war between Kosovo and Serbia, in the village of Opterusa, warnings went out that the KLA was planning to take military action against the Serb population of the village. About 15 Serbs decided to seek shelter in the village home of Dragica Bozanic and her family.

As darkness approached on July 17, KLA troops appeared in the yard. There was a knock on the door, then a man’s voice yelling threateningly: “Don’t leave the house tonight.”

Dragica Bozanic’s husband recognised the voice of Ejub Kabashi, or Jupa as he was known, who was one of the village residents of Albanian ethnicity. The man immediately told his wife, Dragica, that he had just heard Jupa’s voice outside the house, and what he had said.

Immediately afterwards, shooting began, and the house was under siege off and on throughout the night. Some of the men inside the house were armed and returned fire. Remarkably, no one was killed or injured.

When early morning arrived, the shooting stopped and the Serb occupants of the house were ordered outside. At the time, there were many KLA fighters in the yard.

Dragica Bozanic and Slavica Bansic both recognised Kabashi, who was carrying a rifle and wearing a black KLA uniform, among the large contingent of fighters. They also saw another KLA fighter whom they recognised, Haxhi Mazreku.

All of the Serbs were loaded onto a tractor-driven wagon and transported out of the village. Later, the women and children were separated from the men and taken to a nearby Serbian Orthodox monastery where they were given refuge.

The men were never seen alive again. In 2005, about six decomposed bodies were discovered in a cave far downriver from the village. DNA evidence proved that these were some of the Serb men from Opterusa.

Serb women give dramatic testimony
It is hard to overstate the drama when the two Serb women, one at a time, were ushered into the courtroom to testify. They displayed great courage in this very hostile atmosphere, though they were clearly terrified. Indeed, one of the women vomited in the women’s restroom before coming in to court.

Everyone in the courtroom was riveted during their testimony, and the women told their stories methodically, clearly implicating Kabashi and Mazreku.

While fuzzy on some of the details about what had happened so many years earlier, they were clear and consistent on the essential facts. The women knew Kabashi as one of the villagers; the husband of one of them had recognised Kabashi’s voice that evening; Kabashi had issued a warning not to leave the house just before the shooting began; the women saw him in the yard the following morning; and he was dressed in a KLA uniform and carrying a rifle. They also saw Mazreku that morning, in uniform and holding a rifle.

Kabashi’s defence was based on a purported alibi. While he admitted he was a member of the KLA and was very proud of his service, he testified that he had been wounded while attempting to flee from Serbian paramilitaries in early July, two weeks before the Opterusa incident, and was in a field hospital at the time. He also claimed that he had never heard of this incident, even at the time of the trial, which was clearly lacking in credibility.

His attorney presented several alibi witnesses, including the doctor from the field hospital, as well as those individuals who had been indicted for giving false statements.

The testimony of the doctor was evasive and inconclusive during the trial, but his field notes indicated that Kabashi was indeed treated for a wound in the hospital—but in August, after the Opterusa attack, not in early July, before the attack.

The other witnesses claimed to recall, all these years later, the exact date or nearly the exact date when Kabashi was wounded, and it was in July, before the attack, not after.

For example, one witness claimed to remember the exact day because it was the same day he ploughed a particular field on his farm. Another, because it had been the same day he paid an electric bill. Another, because it was his birthday on July 11. These stories were preposterous and obviously fabricated.

Kabashi’s lawyer also argued that, even if the women’s testimony was to be believed, it was not enough to convict Kabashi since there was no direct evidence that he himself had done anything wrong; he had simply been present at the scene.

Mazreku’s defence took a different tack. His evidence showed that he was a KLA fighter; that he was aware the attack was going to take place; that he opposed the attack; and that he had warned the Serbs in advance so they could protect themselves.

Yes, he was present in the yard that morning as observed by the two women, in uniform and with a rifle, but had only been there a short time. He had refused to participate, left a short time later, and was subsequently reprimanded by one of his commanders for not participating.

Verdict followed by shocking setback
As for Kabashi, we on the judging panel unanimously determined that the two Serb women were credible and that Kabashi and his alibi witnesses were not. We concluded that the evidence was sufficient to prove beyond a reasonable doubt that Kabashi had participated in the siege of the Serb household.

Although there was no direct evidence as to any specific acts committed by Kabashi other than issuing a verbal warning, he was criminally liable under the theory of being part of a joint criminal enterprise.

This was a theory developed in case law at the International Criminal Tribunal for the Former Yugoslavia, which was applicable in Kosovo. It allows the prosecution of each member of a group for actions perpetrated by the group as a whole. Thus, we found him guilty of a war crime.

There was a hush over the courtroom as Judge Thomassen announced the verdict and imposed a sentence of five years in prison.

As for Mazreku, two of us believed his defence was credible and we found him not guilty. Since we constituted a majority, our determination prevailed. The third member, Judge Thomassen, believed that the theory of the joint criminal enterprise should also apply to Mazreku, even if we accepted all of his defence evidence.

As to the five alibi witnesses, we found all of them guilty of providing false statements for the purpose of protecting Kabashi. We sentenced each of them to six months in prison but suspended the sentence for a period of one year, conditional on good behaviour.

Following the trial, Judge Thomassen wrote our decision and judgment order, to which I contributed, outlining in excruciating detail our findings of fact and legal conclusions, including a thorough analysis of the theory of joint criminal enterprise.

Kabashi and the alibi witnesses then appealed our verdict to the Kosovo Supreme Court.

To our shock, a three-judge panel of that court reversed our verdict on two grounds: that there was no evidence of any specific acts by Kabashi, and that we had committed a procedural error by not following the precise template for judgment orders, a hyper-technicality that had nothing to do with defendant’s guilt or innocence. The court then ordered a retrial.

The case was then retried before a different EULEX three-judge trial panel which heard all the same evidence we had heard in the first trial. However, again to our shock, this panel determined that the evidence was insufficient to support a conviction, and its verdict acquitted Kabashi and his alibi witnesses.

Nevertheless, the case continued. The prosecutor appealed the verdict to the recently established Court of Appeals, and the three-judge panel of that court, in January 2014, reversed the acquittal and found Kabashi guilty of a war crime against the civilian population.

This well-reasoned decision made it clear that the evidence presented in both our trial and the retrial was sufficient for a guilty verdict against Kabashi under the theory of joint criminal enterprise, and the court imposed the same five-year sentence. The alibi witnesses were also found guilty and given six-month sentences, suspended for one year.

This decision finally brought the Kabashi case to a proper conclusion. As for the trial of Hashim Thaci and his co-defendants in The Hague, in which one of the Kabashi case witnesses recently testified, it continues indefinitely.

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