Updates from the International Criminal Courts Mariam Ahmedani American University Washington College of Law

Human Rights Brief Volume 13 | Issue 3 Article 16 2006 Updates from the International Criminal Courts Mariam Ahmedani American University Washington College of Law Meghan Stewart American University Washington College of Law Brianne McGonigle American University Washington College of Law Lizzie Rushing American University Washington College of Law Anne Heindel American University Washington College of Law See next page for additional authors Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons Recommended Citation Ahmedani, Mariam, Meghan Stewart, Brianne McGonigle, Lizzie Rushing, Anne Heindel, and Leslie Thompson. "Updates from the International Criminal Courts." Human Rights Brief 13, no. 3 (2006): 61-68, 79. This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Authors Mariam Ahmedani, Meghan Stewart, Brianne McGonigle, Lizzie Rushing, Anne Heindel, and Leslie Thompson This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol13/iss3/16 Ahmedani et al.: Updates from the International Criminal Courts UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS INTERNATIONAL CRIMINAL TRIBUNAL Albanian collaborators,” who were detained selves. Many prisoners suffered injuries FOR THE FORMER YUGOSLAVIA in the Lapusnik prison camp for prolonged such as broken bones and gunshots for periods of time under inhumane conditions which no medical treatment was provided. PROSECUTOR V. LIMAJ, ET AL., and routinely subjected to assaults, beatings, The Prosecution also presented evidence CASE NO. IT-03-66 and torture. Fourteen named prisoners were that the prisoners were regularly blindfold- On November 30, 2005, Trial Chamber alleged to have been murdered in the course ed, tied, and severely beaten or subjected to II of the International Criminal Tribunal for of their detention. Ten additional prisoners other extreme violence by masked KLA the Former Yugoslavia (ICTY or Tribunal) were allegedly executed in the nearby Berisa guards. Prisoners were forced to bury the issued a judgment in the case of Prosecutor v. Mountains on or about July 26, 1998, when injured and disfigured corpses of fellow Limaj, et al. The Chamber acquitted Fatmir Serbian advances forced the KLA to aban- prisoners, which the Tribunal characterized Limaj and Isak Musliu, commanders in the don Lapusnik. as severe mental suffering. The Chamber found that the detention and treatment of Kosovo Liberation Army (KLA), for war Each of the accused were charged with prisoners in these conditions constituted crimes and crimes against humanity alleged- eight counts for their acts at the Lapusnik cruel treatment punishable as war crimes. It ly committed in central Kosovo between prison camp, including one count of impris- also concluded that the evidence estab- May and July 1998. The Chamber sentenced onment, two counts of torture, one count of lished four incidents of torture and three Haradin Bala, the third defendant and a for- inhumane acts, two counts of murder as a murders of civilian prisoners at the mer foot soldier in the movement, to thirteen crime against humanity punishable under Lapusnik camp. The Chamber held, how- years in prison for his role in the cruel treat- Article 5 of the ICTY Statute, and two ever, that the Prosecution had failed to pro- ment, torture, and murder of prisoners at a counts of cruel treatment punishable as war vide enough evidence to prove its allegation KLA prison camp in the village of Lapusnik. crimes under Article 3(7). The Prosecution that 14 prisoners were murdered. The KLA emerged in the mid-1990s as charged each of the accused for their indi- an armed resistance movement to the official vidual criminal responsibility for these Five of the ten counts of the indictment Serb-dominated regime in Kosovo and grew crimes pursuant to Article 7(1) of the ICTY alleged crimes against humanity. To consti- considerably in size from 1997-1999. It car- Statute. In addition, Limaj and Bala were tute a crime against humanity, the conduct ried out numerous attacks on members of the each charged with two additional counts of alleged must be part of a widespread or sys- Serbian police and army in Kosovo and set murder (one count charged murder as a tematic attack directed against a civilian up roadblocks in the countryside. Despite crime against humanity and one charged population. The Chamber dismissed these claims by Serbs and some observers that the murder as violation of the laws or customs of five counts because the acts did not consti- KLA is a terrorist organization, many war) for their alleged roles in the execution tute crimes against humanity. In its decision Kosovars regard it as a legitimate guerrilla lib- of detainees in the Berisa Mountains. the Chamber stated that “there is evidence of eration movement that was, prior to NATO’s Because Limaj and Musliu were alleged to a level of systematic or coordinated organisa- intervention, fighting against an oppressive have exercised both de jure and de facto com- tion to the abduction and detention of cer- and authoritarian regime. mand over the KLA forces in charge of the tain individuals.” The Chamber went on to camp, the Prosecutor also charged them explain, however, that “[w]hile the KLA Throughout its tenure, the ICTY has with superior responsibility for all of the evinced a policy to target those Kosovo struggled to strike a balance between the alleged crimes pursuant to Article 7(3) of the Albanians suspected of collaboration with international community’s demand that ICTY Statute. The Prosecution thus had to the Serbian authorities, the Chamber finds atrocities committed by Serbian forces be prove that the alleged crimes against the that there was no attack directed against a prosecuted and the perception that certain prisoners at Lapusnik did in fact occur and civilian population, whether of Serbian or individuals, such as those who fought for the that Limaj, Bala, and Musliu had committed Albanian ethnicity.” KLA, are not being held to equal account. them or were responsible for their commis- As to the allegations that Limaj and Bala Although the trial of Limaj, Musliu, and sion as superior officers within the KLA. Bala had been seen by many as an attempt participated in the execution of detainees, by the ICTY to avoid accusations of political Evidence established that most of the 30 the Chamber noted that when the KLA bias, critics contend that the acquittal of referenced detainees at the Lapusnik camp closed the Lapusnik camp in July 1998 half Limaj and Musliu proves that the Tribunal is were held in inhumane conditions and that of the remaining detainees were marched a “victor’s court.” the camp itself was grossly overcrowded. into the Berisa Mountains. The bodies, later Several prisoners were tied by their hands exhumed from graves in the area, were iden- The indictment against Limaj, Musliu, or feet, or both, and most were chained to tified as part of the group who had remained and Bala claimed that KLA forces abducted the wall and unable to move from their under KLA guard upon evacuation from at least 35 civilians, Serbs and “perceived positions, which forced them to soil them- Lapusnik. Forensic examination further Published by Digital Commons @ American University Washington College61 of Law, 2006 1 Human Rights Brief, Vol. 13, Iss. 3 [2006], Art. 16 established that six of the nine victims died KLA, which is often viewed as an amor- The Trial Chamber found that Simba from bullet wounds fired from Kalashnikov phous group of guerilla forces, as a coherent participated in a joint criminal enterprise rifles, which were the weapons traditionally and established political organization. The (JCE) with local leaders and other promi- used by KLA guards. The Chamber found judgments have also raised speculation nent individuals to kill Tutsi civilians at this evidence sufficient to conclude that about the potential outcome of the upcom- these three sites. Under the JCE form of lia- these nine individuals were prisoners from ing joint trial of former Prime Minister bility, individuals may be held criminally the Lapusnik prison camp and that they had Ramush Haradinaj and two others said to responsible for their “assistance in, or contri- been executed by KLA guards. have been his subordinates in the KLA. The bution to, the execution of a common announcement of the Limaj judgment was [criminal] purpose.” The actus reus for JCE The question of identification was central televised in Kosovo and celebrated in the contains three elements: (1) “a plurality of to the Prosecution’s case against Limaj and streets of Pristina. In Serbia, however, many persons,” (2) “the existence of a common Bala. Although the Tribunal noted that there continue to wonder who, other than purpose which amounts to or involves the was a “strong possibility” Limaj had been Haradin Bala, will be held responsible for commission of a crime provided for in the personally present at the prison, it held that the brutal crimes perpetrated against civil- Statute,” and (3) “the participation of the the Prosecution had failed to prove his per- ians at the Lapusnik camp. accused in the common purpose.” The basic sonal involvement in the crimes. Specifically, form of JCE, which the prosecutor alleged there was conflicting testimony about Limaj’s in this case, requires that “all the co-perpe- presence at the Lapusnik prison and in the INTERNATIONAL CRIMINAL TRIBUNAL trators, acting pursuant to a common pur- Berisa Mountains on the day of the execu- FOR RWANDA pose, possess the same criminal intention.” tions.

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