Judgment in the Case of Salih Mustafa

Court	Kosovo Specialist Chambers, The Netherlands
Case number	KSC-BC-2020-05
Decision title	Judgment
Decision date	16 December 2022
Categories	Torture, War crimes
Keywords	war crimes, arbitrary detention, cruel treatment, torture, murder, joint criminal enterprise, Kosovo, non-international armed conflict

Summary

Mr Salih Mustafa, a former commander of the Kosovo Liberation Army (KLA), was accused of four war crimes including arbitrary detention, cruel treatment, torture, and murder. For three weeks in August of 1999, Mr Mustafa and his subordinates imprisoned six civilians in a barn at a compound held by the KLA in Zllash, Kosovo.

The court found, through the testimony of the five detainees who survived, that Mr Mustafa and his men subjected the detainees to inhumane conditions and treatment. The detainees were beaten with batons and hatchet handles, burned, electrocuted, threatened, and given urine when they complained of thirst. The court found that Mr Mustafa and his subordinates committed these acts against these victims together as part of a joint criminal enterprise. Their actions and refusal to provide medical care to the victims even led to the death of one of the detainees.

The court convicted Mr Mustafa of the war crimes of arbitrary detention, torture, and murder. The court found that the crime of cruel treatment is included in the crime of torture so it would be unnecessary to convict the accused of both crimes. The court sentenced Mr Mustafa to 26 years imprisonment and ordered him to pay reparations of €207,000 to the victims.

Procedural history

On 19 June 2020, Mr Salih Mustafa was indicted by the Specialist Prosecutor’s Office for four counts of war crimes: arbitrary detention (count 1), cruel treatment (count 2), torture (count 3), and murder (count 4).

On 24 September 2020, Mr Mustafa was arrested in Kosovo and transferred to the detention facilities of the Specialist Chambers in The Hague, the Netherlands.

On 16 December 2022, Trial Panel I of the Kosovo Specialist Chambers issued a judgment finding Mr Mustafa guilty of war crimes on counts 1, 3, and 4. Mr Mustafa was sentenced to 26 years in prison and the panel retained jurisdiction to properly consider issuing a reparation order.

On 6 April 2023, the Trial Panel ordered Mr Mustafa to pay an overall sum of €207,000 as reparation for the harm inflicted on the victims of the crimes for which he was convicted.

Related developments

On 14 December 2023, the Appeals Chamber affirmed the convictions on all three counts but reduced the sentence from 26 years to 22 years in prison. The Appeals Chamber did not consider the reparation order as it was not appealed by Mr Mustafa.

On 10 September 2024, after a Supreme Court decision sending the case back to the Appeals Chamber, the Appeals Panel issued a second determination further reducing Mr Mustafa’s sentence from 22 years to a single 15-year sentence accounting for time served.

Legally relevant facts

The charged crimes took place during and in relation to a non-international armed conflict then taking place between the Kosovo Liberation Army (KLA) and Serbian forces (Judgement, paras. 48 and 701).

The compound in which the witnesses were kept was located at the highest point in Zllash, Kosovo. This compound was held by the BIA Unit (named for three of its members, Bahri Fazliu, Ilir Konushevci, and Argon Rrahmani) of the KLA during the events in April 1999 (paras. 349-53).

The accused was the commander of the BIA during this period and was known by the nickname “Commander Cali” (paras. 338-40).

The Accused was present in Zllash, at the relevant safehouse and moved in and out of the area during the time at issue in April 1999 (paras. 248-52).

At least six persons were deprived of their liberty at the BIA Compound in Zllash between 1 April and 19 April 1999 (paras. 495-96).

The detainees were kept in a barn, forced to sleep in water near animal excrement, denied food and water, urinated upon, denied medical care, physically beaten, and kept in constant fear of abuse or death (paras. 584-88).

One detainee was killed around the end of April due to acts or omissions attributable to the Accused or his subordinates (para. 639).

Core legal questions

Does the crime of arbitrary detention fall under the jurisdiction of the Specialist Chambers?

Does fairness to the accused prevent the SPO from charging both cruel treatment and torture concurrently?

Does the inhumane treatment forced upon the detainees rise to the level of torture?

Did the Accused and his subordinates commit these acts with the purpose of obtaining information or a confession, or punishing, intimidating, coercing or discriminating against, on any ground, the victims?

Were the alleged crimes sufficiently linked with an armed conflict?

Did the Accused actions create liability under direct commission, joint criminal enterprise, or superior responsibility?

Specific legal rules and provisions

Article 31(5) of the Constitution of the Republic of Kosovo.

Articles 3(2), 14(1)(c) and (2), 16(1)(a), 21, 23(1), 34, 40(5), 43, and 44(1), (2) and (5) of Law No. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office.

Rules 23(1), 24(1)-(3), 138, 139, 140, 158, 159(1)-(4) and (6), and 163(1), (3), (4) and (6) of the Rules of Procedure and Evidence.

Court's holding and analysis

The court found that arbitrary detention is a war crime over which the court retains jurisdiction because arbitrary detention existed as a rule of customary international law at the time of this detention. The arbitrary detention was also found to constitute a serious violation of Common Article 3 of the Four Geneva Conventions because it violated the principle of humane treatment (paras. 640-45).

At least six individuals were deprived of their liberty and mistreated by the accused and his subordinates without receiving any of the basic guarantees required by international humanitarian law. The accused had knowledge of this detention and intentionally deprived the detainees of their liberty (paras. 652-59).

Though the accused was charged with both cruel treatment and torture, the court found that the more specific crime of torture completely consumed the charge of cruel treatment out of fairness to the accused (paras. 664 and 667).

The accused’s actions satisfied the elements of torture because he and his subordinates routinely physically and psychologically assaulted the detainees. They beat them with various objects, electrocuted them, threatened them, and forced them to witness the physical abuse of their fellow detainees. This was all done for the purpose of obtaining a confession, punishing, intimidating, coercing or discriminating against the detainees (paras. 674-85).

The actions and omissions of the accused also led to the death of one of the detainees. The court found that the mistreatment of this detainee, refusal to provide medical assistance, and the decision not to evacuate the detainee established the intent to kill necessary for murder (paras. 689-95).

Accordingly, the court found the accused guilty of arbitrary detention (count 1), torture (count 3), and murder (count 4). The accused was found to have directly committed torture because he physically and psychologically assaulted at least two of the detainees personally. The court found that he is also liable for all three counts under the doctrine of joint criminal enterprise because he and his subordinates shared a common purpose in the commission of each crime (paras. 733, 742, 748, and 752-60).

Further analysis

Anni Pues, First War Crimes Conviction at the KSC: Developing Jurisprudence and the Right to Reparations, EJIL:Talk! (Mar. 22, 2024).

Kushtrim Istrefi & Robert Muharremi, Lex Mitior “on trial” Before the Kosovo Specialist Chambers: Whither Legality, EJIL:Talk! (May 21, 2025).

Rudina Jasini, Specialist Prosecutor v. Mustafa (Kos. Specialist Chambers), International Legal Materials vol 42(2), 2025, pp. 374-488.

Robert Muharremi, The Concept of Hybrid Courts Revisited: The Case of the Kosovo Specialist Chambers, International Criminal Law Review, vol 18(4), 2018, pp. 623-54.

Catherine Gregoire, Plea Negotiations on Reparations at the Kosovo Specialist Chambers, EJIL:Talk! (Jan. 10, 2023).

Robert Muharremi, Reparation for Victims of International Crimes at the Kosovo Specialist Chambers, American Society of International Law Insights, vol 29(10), 2025.

Instruments cited

Statute of the International Criminal Tribunal for the Former Yugoslavia

Statute of the International Criminal Tribunal for Rwanda

Common Article 3, Geneva Conventions

Related cases

ICTY Trial Chamber II, The Prosecutor v. Vlastimir Đorđević, IT-05-87/1-T, Judgment, 23 February 2011 (para. 48).

ICTY Trial Chamber III, The Prosecutor v. Milutinovic et al., IT-05-87-T, Judgment, 26 February 2009.

Additional materials

Laurant Berisha, Hague Court Upholds 15-Year Sentence for Kosovo’s ‘Commander Cali,’ Balkan Transnational Justice, 2025.

Molly Quell, War Crimes Conviction at Kosovo Court is First of its Kind, Courthouse News Service, 2025.

Euronews, Salih Mustafa: Kosovo’s Ex-guerilla Commander Gets 26-Year Jail Term for Crimes in 1999, Euronews, 2022.

Social media links

https://x.com/eulexkosovo/status/1309085199318253570

https://www.instagram.com/p/C-Fv5KTsZiQ/