Appeal Judgment in the Case of Salih Mustafa

Court	Kosovo Specialist Chambers, The Netherlands
Case number	KSC-CA-2023-02
Decision title	Appeal Judgment
Decision date	14 December 2023
Parties	Mr. Salih Mustafa Specialist Prosecutor's Office Victims
Categories	War crimes
Keywords	non-international armed conflict, arbitrary detention, cruel treatment, joint criminal enterprise, murder, torture, war crimes,
Links	Appeals Judgment
Other countries involved	Serbia-Montenegro

Summary

On 16 December 2022, the Kosovo Specialist Chambers (KSC) convicted Mr. Salih Mustafa of three counts of war crimes including arbitrary detention, torture, and murder. Mr. Mustafa was sentenced to twenty-six years in prison, and he was ordered to pay €207,000 to the victims. Mr. Mustafa appealed his conviction arguing the Trial Panel of the KSC made over fifty legal and factual errors when handing down the original judgment and sentence.

Mr. Mustafa first argued that the Trial Panel mistakenly relied on improper evidence and uncredible witness statements made by the victims to make its ultimate decision. The Appeals Panel of the KSC found that the evidence used in Mr. Mustafa’s trial was proper and credible, so it dismissed these issues. Mr. Mustafa then argued that there was not enough evidence to prove each crime for which he was convicted, and that the Trial Panel did not correctly apply the law when looking at each crime. The Appeals panel found that there was enough evidence to convict on each charge and that the Trial Panel applied the law correctly.

Mr. Mustafa’s last argument claimed that the Trial Panel did not properly follow the law when sentencing which led to an excessive sentence of twenty-six years. The Appeal Panel found that the Trial Panel followed the law when determining the original sentence, except that it failed to properly consider similar cases in international and domestic Kosovo law. The Appeals Panel considered sentencing in similar cases and decided to reduce Mr. Mustafa’s sentence from twenty-six years to twenty-two years total. After Mr. Mustafa brought the sentencing issue to the Supreme Court Chamber of the KSC, the Appeals Chamber again reevaluated its sentence on 10 September 2024 and further reduced the sentence from twenty-two years to fifteen years in prison including the time Mr. Mustafa had already served.

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.

On 14 December 2023, the Appeals Panel affirmed all the convictions of Mr Mustafa on all counts, affirmed the reparation order, but reduced Mr Mustafa’s sentence to 22 years.

On 29 July 2024, the Supreme Court returned the appeal to the Appeals Panel to reassess the determined sentence.

On 10 September 2024, The Appeals Panel reconsidered the appeal in light of the Supreme Court’s ruling and reduced the sentence imposed on Mr Mustafa to 15 years.

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 (Trial Judgment, paras. 48 and 701).

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

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

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 (Trial Judgment, paras. 584-88).

One detainee was killed around the end of April 1999 due to acts or omissions attributable to the Accused or his subordinates (Trial Judgment, para. 639).

On 16 December 2022, the Trial Panel convicted Mr. Mustafa of directly committing torture and committing arbitrary detention, torture, and murder as part of a joint criminal enterprise (JCE) (Appeal Judgment, para. 3).

Mr. Mustafa filed an appeal of his conviction on 2 February 2023, raising nine grounds of appeal divided into fifty-one sub-grounds (Appeal Judgment, para. 6).

Core legal questions

What is the proper standard of review for an appeal proceeding before the Appeals Chamber?

Did the accused raise and sufficiently substantiate relevant grounds for appeal?

Did the accused waive the right to appeal certain evidentiary admissions by failing to raise an objection before the Trial Panel?

Was Victim’s Counsel permitted to offer submissions during the appeal?

Did the Trial Panel err in admitting certain witness statements as evidence?

Was there sufficient evidence before the Trial Panel to prove the elements of mens rea and actus reus for the crimes of murder and torture?

Is arbitrary detention a war crime under customary international law?

Did the Trial Panel impose a proper sentence which considered applicable law and mitigating factors?

Specific legal rules and provisions

Articles 21, 22, 30, 31, 33, 38, 113(8), and 162(1) of the Constitution of the Republic of Kosovo.

Articles 1, 3, 6(1), 12, 13, 14, 15, 16(1)(a), 21, 22(3), 23(1), 31(1)(c), 34, 40(5), 37, 38, 43, 44, 46, 49(4), and 50 of Law No. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office.

Rules 23(1), 24(1)-(3), 38, 40, 43, 65, 97, 132, 137, 138(1), 139, 140, 143, 149, 151, 153, 155, 157(2), 158, 159(1)-(4) and (6), 163, 166(3), 172, 176, 181, 182, 183, and 185 of the Rules of Procedure and Evidence.

Article 6 of Additional Protocol II, Geneva Conventions.

Court's holding and analysis

The court found that they have the power to affirm, reverse, or revise the Trial Judgment if they found error in the findings of law, fact, or sentencing by the Trial Panel. The court emphasized that it would only overturn a fact finding where the original evaluation of the evidence was wholly erroneous (Appeal Judgment, paras. 17 and 23-24).

Mr. Mustafa first argued that the Trial Panel erred in finding a non-international armed conflict existed during the indictment period. The court found, however, that the trial court properly applied established law in assessing the conflict and dismissed Mr. Mustafa’s claim (paras. 52 and 64-70).

In grounds one and two, Mr. Mustafa claimed that the Trial Panel’s admission and reliance on certain evidence, including witness testimony, photographic identification, and expert reports, was a reversible error. The court found that many of these claims were not properly articulated for an appeal, but the Appeals chamber chose to review them and, in each instance, found that the Trial panel properly considered the evidence (paras. 71-72, 82-83, 86-87, 90-92, 94, 98-105, 107, 113, 115-16, 119-122, 129, 132, 135-136, 138, 143, 145-46, 153-56, 158, 163-66, 168, 171-72, 174-75, 178-79, 182-83, 186-91, 192, 196-98, 199-202, 211, 213, 215-17, 218, 220-21, 226-27, 230, 235-37, 240-42, 247-48, 249, 263, 266-96, 298, 301-309, 311-12, and 315-24).

In grounds three, four, and five, Mr. Mustafa challenged the Trial Panel’s findings on the actus reus and mens rea elements for the crime of murder on both legal and factual grounds. The court, however, found that the Trial Panel properly applied the law on causation and fairly considered the factual evidence. The court dismissed grounds three, four, and five finding no error in the Trial Panel’s consideration of law or fact (paras. 326, 328-30, 332-59, 367-76, 378-79, and 388-98).

In grounds six and seven, Mr. Mustafa challenged the findings of actus reus and mens rea for the direct commission of torture as well as the use of JCE as a mode of liability for the crime of torture. The court found that the witness testimony was sufficient to establish Mr. Mustafa’s direct involvement to show actus reus and sufficiently established purpose for mens rea. The court also found that Mr. Mustafa failed to establish any error in the Trial Panel’s analysis of JCE as a mode of liability for torture (paras. 400-401, 405-419).

In ground eight, Mr. Mustafa challenged the finding that arbitrary detention in a non-international armed conflict is a war crime that can be prosecuted by the Kosovo Specialist Chambers. The court found that this ground was actually a challenge to prior Appeals Chamber decisions and found no error in the Trial Panel following precedent set in prior cases that considered this issue. The court dismissed count eight as Mr. Mustafa failed to establish any legal error (paras. 422-25 and 428-34).

In ground nine, the final ground, Mr. Mustafa challenged the sentence handed down by the Trial Panel. He claimed the Trial Panel erred in several ways which include failing to acknowledge the purpose of sentencing, the principle of lex mitior, the number of victims, and the overall length of the sentence. The court found that Mr. Mustafa failed to establish error in the sentencing determination except that the Trial Panel did not properly consider the domestic sentencing regime in the Trial Judgement (paras. 437-41 and 449-72).

The court found, through its own analysis of international and domestic sentencing ranges, that the sentence imposed by the Trial Panel should be reduced from a total of 26 years to a total of 22 years, but having no effect on the reparation order (paras. 478-80).

Mr. Mustafa subsequently filed a Request for Protection of Legality to the Supreme Court Chamber challenging the Appeal Panel’s judgement. The Panel of the Supreme Court Chamber found that the Appeal Panel failed to identify relevant Kosovo law related to the concept of lex mitior and failed to properly take that concept into account in explaining the more lenient reduction to Mr. Mustafa’s Sentence (Supreme Court Decision, paras. 74-111).

The Appeals Panel reevaluated Mr. Mustafa’s sentence following the decision by the Supreme Court Chamber and based on the suggested analysis further reduced Mr. Mustafa’s sentence to a total of 15 years (New Determination of Sentence, paras. 9-27).

Further analysis

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

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

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).

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

Additional Protocol II, Geneva Conventions

European Convention on Human Rights

Related cases

Kosovo Specialist Chambers, The Prosecutor v. Salih Mustafa, KSC-BC-2020-05, 16 December 2022.

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 (para. 48).

ICTY Trial Chamber II, The Prosecutor v. Ljube Boškoski and Johan Tarčulovski, IT-04-82-T, Judgment, 10 July 2008 (para. 608).

District Court of Pristina, Kosovo, The Prosecutor v. Fatmir Limaj et al., P425/11, Judgment, 2 May 2012 (para. 742).

ICTY Trial Chamber II, The Prosecutor v. Popović et al., IT-05-88-T, Judgment, 10 June 2010 (para. 1998).

ICTY Appeals Chamber, The Prosecutor v. Anto Furundžija, IT-95-17/1-A, Judgment, 21 July 2000 (para. 250).

Additional materials

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

Xhorxhina Bami, Hague Court Cuts Jail Time for Kosovo’s ‘Commander Cali’ Again, Balkan Transnational Justice, 2024.

BalkanWeb, Sentenced to 26 Years in Prison Last Year, the Appeal of the Hague Court Reduces the Sentence for the Former KLA Commander, BalkanWeb, 2023.

Social media links

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

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

https://www.facebook.com/internationalcrimesdatabase/posts/%EF%B8%8Fthe-court-of-appeal-of-the-kosovo-specialist-chambers-has-reduced-the-sentence-/940935148049180/