Fatmir Limaj, alias Celiku, was born on 4 February 1971 in Banja, Kosovo. He is accused of being involved in the following events:
– Between May and October 1998, Limaj was the commander of the 121th Brigade of the KLA. In this position, he was responsible for the secret Lapusnik prison camp in Kosovo, and directed KLA prison personnel operating in the camp including commander Isak Musliu and guard Haradin Bala. During this time, several detainees of the Lapusnik prison were subjected to violence and killed;
– In late July 1998, the KLA abandoned the Lapusnik prison camp as Serb forces regained control over the area. Ten Albanian civilians previously detained in the camp were guided by KLA personnel in the nearby Berisa mountains and killed;
– In October 1998, two Albanian civilians suspected of being Serb collaborators were taken by KLA soldiers near the mosque of the village Bellanicë and executed at the entry of the village of Kravasari. Limaj was informed of the killing and saw the two bodies.
– Between January and mid-June 1999, Limaj was responsible for the running of a KLA detention centre in the village of Klecka. During this time, several detainees including civilians and prisoners of war were subjected to extreme violence and killed by KLA prison personnel.
On 18 February 2003, Limaj was arrested in Slovenia. He was transferred to the ICTY (International Criminal Tribunal for the former Yugoslavia) on 4 March 2003.
PROCEEDINGS BEFORE THE ICTY
The Prosecutor of the ICTY, issued an indictment against Limaj, Isak Musliu and Haradin Bala on 24 January 2003, Limaj being hierarchically superior to both of the other accused persons.
Limaj pleaded not guilty to all of the charges brought against him.
He was charged on the grounds of his individual criminal responsibility and for his responsibility as superior for:
– 5 accusations of crimes against humanity (torture; inhumane acts; murder),
– 5 accusations of violations of the laws or customs of war (cruel treatment; torture; murder).
On 15 November 2004, his trial, along with Haradin Bala and Isak Musliu, started before the ICTY.
On 30 November 2005, Limaj was acquitted on all charges. He was released the following day.
On 29 March 2006, the Prosecution filed a motion of appeal against the acquittals of Fatmir Limaj and Isak Musliu. An appeals hearing was held on 5 and 6 June 2007.
On 27 September 2007, the Appeals Chamber upheld the acquittal of Limaj.
PROCEEDINGS BEFORE THE EULEX DISTRICT COURT OF PRISTINA.
On 19 July 2008, Serbia’s War Crimes Prosecutor announced that he had launched an investigation against Limaj.
On 16 March 2011, Limaj, together with other 8 suspects, were arrested. They were suspected of having committed war crimes for the events of Klecka detention center.
On 2 September 2011, the EULEX Court confirmed the indictment against Limaj. On 22 September, he was placed under house arrest. The trial proceedings against him started in early November 2011.
On 2 May 2012, the EULEX Court acquitted from all charges Limaj and the other defendants in the Klecka incidents. On 20 November 2012, Kosovo’s Supreme Court annulled this verdict and ordered a retrial for war crimes.
On 17 September 2013, the Basic Court of Pristina acquitted Limaj from all charges on grounds of insufficient evidence. On 26 January 2016, the Court of Appeals confirmed this judgment.
On 12 August 2016, the “Special Prosecution of the Republic of Kosova” (SPRK) operating under the auspices of EULEX appealed to the Supreme Court. On 12 May 2017, the Supreme Court rejected the appeal.
PROCEEDINGS BEFORE THE EULEX BASIC COURT OF GJAKOVA
Separate proceedings were initiated before the Basic Court of Gjakova, as territorially competent for the facts occurred in the village of Kravasari.
On 28 October 2016, SPRK indicted Limaj for failing to undertake reasonable and necessary measures within his competencies as KLA’s commander to prevent or stop the murder of two Albanian civilians in October 1998.
On 13 January 2017, he entered a not-guilty plea.
The trial of Fatmir Limaj, Isak Musliu and Haradin Bala was the first to be held by the ICTY against members of the UCK (Kosovo Liberation Army). The judgment of 30 November 2005 was the first to be handed down by the Tribunal relating to crimes alleged to have been committed in Kosovo.
In the judgment, the Trial Chamber specified a few points of international humanitarian law:
– the starting point of the conflict:
“The test for determining the existence of an armed conflict was set out in the Tadic Jurisdiction Decision and has been applied consistently by the Tribunal since:
‘An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.’
Under this test, in establishing the existence of an armed conflict of an internal character the Chamber must assess two criteria: (i) the intensity of the conflict and (ii) the organisation of the parties.” (Limaj et al., Trial Chamber, November 30, 2005, §. 84)
– assessing the intensity of the conflict:
“[I]n assessing the intensity of a conflict, other Chambers have considered factors such as the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and, whether any resolutions on the matter have been passed.” (Limaj et al., Trial Chamber, November 30, 2005, §. 90)
– crimes against humanity:
“To qualify as crimes against humanity the acts of an accused must be part of a widespread or systematic attack ‘directed against any civilian population.’” (Limaj et al., Trial Chamber, November 30, 2005, §. 181)
– torture need not be physical:
“[T]here [is no] requirement that the act or omission . . . caused a physical injury, as mental harm is a prevalent form of inflicting torture.” (Limaj et al., Trial Chamber, November 30, 2005, §. 236)
INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA
The conflict in former Yugoslavia from 1991 to 1999, shocked international public opinion because of the abuses revealed by the press, which were committed by all parties to the conflict (massacres, forced displacements of population, concentration camps …). The conflict is considered to consist of several separate conflicts, which were ethnic in nature – the war in Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995) and the war Kosovo (1998-1999), which also involved the NATO bombing of Yugoslavia in 1999.
The conflicts accompanied the break-up of Yugoslavia, when the constituent republics declared their independence. The wars mostly ended after peace accords were signed, and new republics were given full international recognition of their statehood.
In order to restore peace and security in the region, the Security Council acting under Chapter VII of UN Charter, created on 25 May 1993, by Resolution 827, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It was determined that pursuant to numerous reports of, among other, mass killings, systematic detention, rapes, practice of “ethnic cleansing”, transfers, etc., these acts constituted a threat to international peace and security, necessitating a reaction by Security Council. As the Tribunal was created during the ongoing conflict, the Security Council expressed its hopes that ICTY would contribute to halting violations in the region. Its headquarters are in The Hague, Netherlands.
The Tribunal has jurisdiction to prosecute persons responsible for serious violations of international humanitarian law – grave breaches of Geneva Conventions, violations of laws and customs of war, genocide and crimes against humanity – allegedly committed in the territory of the former Yugoslavia after 1 January 1991, (no end date was specified). Since its creation, the ICTY has indicted more than 160 people, including heads of states and government members.
The Tribunal’s mandate was originally meant to expire on 31 December 2009, but the Security Council voted unanimously to extend the mandate of the Court with several judges, including permanent judges, so that the ongoing trials can be completed. According to the “ICTY Completion Strategy Report” from 18 May 2011, all trials were supposed to be completed by the end of 2012, and all the appeals by the end of 2015. The exceptions were cases of Radovan Karadzic, Ratko Mladic and Goran Hadzic.
The Security Council adopted resolution 1966 on 22 December 2010, establishing International Residual Mechanism for Criminal Tribunals. The ICTY residual mechanism began functioning on 1 July 2013.
The Tribunal was called to finish its work by the end of 2014, in order to prepare closure and transfer of cases to the Residual Mechanism. The Mechanism is a small and temporary body, which plays important role in ensuring that the completion strategy of ICTY does not result in impunity of fugitives and in injustice. It is conducting all outstanding first instance trials, including those of Karadzic, Mladic and Hadzic. It is also to complete all appeals proceedings that were filed before 1 July 2013.
The ICTY is not the only court with jurisdiction to try alleged perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia. The Tribunal has concurrent jurisdiction with national courts. However, it takes precedence over them and may require the referral from the national court at any stage of the proceedings (Article 9 of the ICTY Statute). The Statute does not elaborate how the primacy is to be exercised, but it was asserted by the judges of the ICTY in the Rules of Procedure and Evidence. The primacy can be asserted in three cases: when an international crime is intentionally or unwittingly prosecuted before national court as an “ordinary criminal offence”, when a national court is unreliable, or when the case is closely related, or may be relevant to other cases being tried by the ICTY.
National courts also have jurisdiction to prosecute alleged perpetrators of serious violations of international humanitarian law.
In the former Yugoslavia, the trials of those accused of war crimes have been opened by the courts of Bosnia and Herzegovina. The Section for War Crimes was set up in the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina. The Special Chamber for War Crimes has jurisdiction to prosecute the most serious alleged war crimes committed in Bosnia, and was created to relieve the ICTY, so that it can focus on criminals of high rank. Its establishment was also considered necessary for effective war crimes prosecution in Bosnia. The opening of the Special Chamber was on 9 March 2005.
Additionally, pursuant to UN Security Council Resolution 1244 from 10 June 1999, UN administration was created in Kosovo. Consequently, in 2000 “Regulation 64” Panels in Courts of Kosovo were created, which are mixed chambers at the local courts. They have two international judges and one national. These panels work in collaboration with the ICTY. They have jurisdiction over those responsible for genocide, war crimes and crimes against humanity. They focus on prosecuting lower ranking offenders.
In Serbia, the Office of the War Crimes Prosecutor was established on 1 July 2003. It was created to detect and prosecute perpetrators of criminal offenses against humanity and international law, and offences recognised by the ICTY Statute, regardless of the nationality, citizenship, race or religion of the perpetrator and the victim, as long as the acts were committed on the territory of former Yugoslavia after 1 January 1991. Its seat is in Belgrade, Serbia.
Other relevant national jurisdictions are under the principle of universal jurisdiction, which allows states with a specific legal basis, to try perpetrators of serious crimes regardless of their nationality or that of the victims and regardless of where the crime was committed.