It was the morning of May 14, 1999 when Serbian forces rounded up Rexhe Kelmendi, his brother Dema and a few other relatives and neighbours in a house in the ethnic Albanian-populated village of Qyshk/Cuska.

At the time, the village, near the town of Peja/Pec in north-western Kosovo, was still part of Yugoslavia and war was raging between the Yugoslav Army and Serbian police on one side and the guerrillas of the Kosovo Liberation Army on the other.

NATO had launched air strikes to try to make Slobodan Milosevic end his campaign of repression against Kosovo Albanians, but in response, Milosevic’s forces stepped up their offensive, surrounding villages, expelling and killing ethnic Albanians, looting their properties and burning them to the ground.

Kelmendi and the other villagers were held captive in the house with their hands behind their heads for more than an hour. When Serbian policeman ordered him to take some matches and set fire to the house with the captives inside, Kelmendi used the opportunity of being close to the window to jump out and run away into the nearby forest.

The others were killed and their bodies burned. In total, 44 people were killed that day in Qyshk/Cuska.

Since then, Kelmendi said that he and a few other survivors have been “waiting in vain for justice”, hoping that the killers will finally be sent to prison.

He has testified five times in court in Belgrade in the case against 11 former members of 177th Yugoslav Army Intervention Squad. The trial initially commenced in 2010, but after more than a decade, there is still no end in sight to the proceedings.

Disruptions and delays to the trial have raised suspicions that this is part of a wider pattern of denial and obstruction intended to cover up Serbia’s role in atrocities against Kosovo Albanians in the late 1990s.

Now, in a significant new development, BIRN has found that a recent decision by Serbia’s Constitutional Court indicates that high-ranking officers will not be prosecuted by Serbian courts for having command responsibility for crimes like the killings in Qyshk/Cuska that were committed by their subordinates, or for crimes against humanity.

‘I felt they would never be punished’

Massacre survivor Rexhe Kelmendi in the village of Qyshk/Cuska. Photo: BIRN.

Back in 1999, Kelmendi first told the story of what happened in Qyshk/Cuska to international campaign group Human Rights Watch, which published a report, ‘Village Destroyed’, identifying the Yugoslav units and personnel who were present during the attack.

Human Rights Watch’s investigation, backed by the Serbian war crimes prosecutor’s office, led to the first arrests, and more than a decade after the killings, the trial finally opened at a Belgrade court.

But even at the start of the trial, Kelmendi was worried about the potential outcome.

“When I first went to Belgrade in 2012, the atmosphere was grim and I felt they would never be punished. During the trial, I saw how the prosecutors and judges felt uncomfortable addressing those who committed crimes,” he said.

The charges against the 11 Yugoslav Army soldiers accused them of committing war crimes during attacks on four Kosovo villages around the town of Peja/Pec -Qyshk/Cuska, Pavlan/Pavljan, Zahaq/Zahac and Lubeniq/Ljubenic – which resulted in the killings of at least 120 ethnic Albanians.

Many of the victims’ bodies were later found in a mass grave in the Belgrade neighbourhood of Batajnica. Some are still missing.

A first-instance verdict handed down in 2014 initially found the defendants guilty, but a year later, the appeal court sent the case for retrial.

The Belgrade-based Humanitarian Law Centre NGO, which represented the victims and monitored the trial, says that the proceedings have been unjustifiably long.

“The trial in this case has been going on for over ten years and it is uncertain when the procedure will end,” Humanitarian Law Centre director Ivana Zanic told BIRN.

“In the retrial, a small number of hearings were generally held each year, so that in 2016, only five trial days were held, in 2017 six, in 2018 three, and in 2019 also three trial days, while in 2020, not a single trial day was held,” she added.

Over the past decade as the trial was progressing, the prosecution frequently filed new indictments to include new alleged perpetrators, resulting in a total of seven revised indictments. The latest was filed after a fugitive suspect, Predrag Vukovic, was arrested in Montenegro in 2018.

Some charges were also dropped against defendants who died or had health problems. One of the defendants, Ranko Momic, escaped the country and fled to Ukraine.

“The prosecution of crimes committed in these villages was approached very superficially, and issues which should have been resolved during the investigation were left to be resolved during the main trial, which delayed the procedure and exposed victims and family members to additional traumatisation because they do not know when the proceedings will end and whether justice will be done,” Zanic said.

Attempts to absolve Yugoslav commanders

Bullet holes in a home in Qyshk/Cuska marked by investigators from the UN war crimes tribunal. Photo: Fred Abrahams/Human Rights Watch.

As well as the frequent delays and the slow pace of proceedings, the trial was also shadowed by decisions that appeared to absolve senior Yugoslav Army officers of any responsibility for the killings in the four Kosovo villages.

In the first-instance verdict, the judge found that Yugoslav Army commander Toplica Miladinovic was aware of the crimes and that it was clear that the units that were killing and looting in Qushk/Cuska had not gone rogue.

But the appeals court, when it overturned the verdict and sent the case for re-trial, said that the first-instance court did not determine the structure of the 177th Yugoslav Army Unit with certainty, and that it therefore remains unclear whether its Intervention Squad existed at all, whether Miladinovic commanded it, and whether he was actually authorised to issue orders for military action. The judge who worked on the first-instance verdict was also removed from her position.

At the same time, the Serbian prosecution launched an investigation into the retired general Dragan Zivanovic, who during the Kosovo war was commander of the Yugoslav Army’s 125th Motorised Brigade, which had authority over the 177th Yugoslav Army Unit and its Intervention Squad.

Zivanovic issued an order on April 24, 1999 to his brigade’s units to establish military control over the villages of Qyshk/Cuska and Zahaq/Zahac, as it was believed that Kosovo Liberation Army fighters were hiding there.

The prosecution argued in 2014 that Zivanovic was aware that while following this order, these units, which included the 177th Intervention Squad, would also kill civilians, loot property and expel villagers from their homes.

The prosecution also alleged that several soldiers who had been convicted of war crimes in the first-instance verdict in the 177th Intervention Squad trial – including Toplica Miladinovic, Milojko Nikolic and Dejan Bulatovic – had acted under Zivanovic’s command.

Zivanovic was the only Yugoslav Army general to be investigated in Serbia for war crimes, as far as is publicly known. But in 2017, the prosecution dropped the investigation.

The same year, Rexhe Kelmendi and three other survivors, helped by the Humanitarian Law Centre, submitted a complaint to Serbia’s Constitutional Court against the War Crime Prosecution Office’s decision to close the investigation. The constitutional complaint claimed two violations – the right to a fair trial and the right to an effective investigation.

In October 2020, the Constitutional Court rejected the complaint.

But as well as rejecting the complaint about the fairness of the trial and the effectiveness of the investigation, the Constitutional Court made a ruling on the crucial issue of command responsibility.

“This issue [of command responsibility] merits an answer because of its wider importance to… suspects in similar situations,” the court said in its decision, which has been seen by BIRN.

The ruling sets a dangerous precedent for any other cases involving the potential prosecution of high-ranking commanders for crimes committed during the 1990s wars.

It says that it is not possible to prosecute someone in Serbia for having command responsibility for crimes committed by subordinates during the Kosovo war, because the concept of command responsibility was only introduced into the Serbian criminal code in 2006, while the alleged crimes took place in 1999.

Neither is it possible to prosecute someone for crimes against humanity allegedly committed before 2006, for the same reason.

“From the standpoint of the legality principle, it would be disputable to prosecute for these crimes if they were committed prior to 2006 because… retroactive application of the law is not possible,” the Constitutional Court ruling says.

“The Constitutional Court finds that in this specific case, the conditions for conducting an investigation/criminal proceedings against the suspect [Yugoslav Army general] Dragan Zivanovic for command responsibility have not been met, because command responsibility did not exist in the Serbian legal system prior to January 1, 2006,” the ruling said.

‘Justification for not charging generals’

Four members of the 177th Yugoslav Army Intervention Squad who are currently on trial. Photo: Fred Abrahams/Human Rights Watch.

Leading experts on human rights law and war crimes tribunals argued however that the Serbian Constitutional Court failed to make any reference to international law when analysing whether Zivanovic could be tried for command responsibility or crimes against humanity.

“It is well established that the principle against retroactive punishment is not violated if someone is prosecuted for conduct or omissions that were crimes under international law at the time they took place, and crimes against humanity were well established long before the 1990s conflicts in the former Yugoslavia,” Diane Orentlicher, a professor at the American University in Washington and former Deputy for War Crimes Issues at the US State Department.

“This point is unambiguously recognised in two treaties to which Serbia is a party – the European Convention on Human Rights and the International Covenant on Civil and Political Rights,” she added.

Orentlicher noted that the principle of command responsibility reflects a central premise of international humanitarian law – “that military commanders have a duty to ensure their subordinates do not commit war crimes. Command responsibility is explicitly recognised in the First Additional Protocol to the Geneva Conventions of 1949, to which Serbia is a party.”

“In my view, it would hardly violate the principle of legality for a Serbian prosecutor to charge a military commander for failing to meet his obligation to prevent his subordinates from committing war crimes in the 1990s,” she added.

Orentlicher said that there could be another option for charging commanders with responsibility for crimes committed by subordinates.

“It may be possible to charge someone who failed to meet his obligations as a commander under other principles of liability explicitly recognised in the 1976 Criminal Code [of Yugoslavia]. If so, in light of Serbia’s obligations under international law, it seems incumbent on the War Crimes Prosecutor to diligently pursue this option,” she said.

Manfred Nowak, an Austrian human rights lawyer and professor who served as the United Nations Special Rapporteur on Torture and was a judge at the Human Rights Chamber for Bosnia and Herzegovina, also argued that Serbia has a legal basis to prosecute these crimes.

“The UN Security Council, when establishing the ICTY [International Criminal Tribunal for the Former Yugoslavia] in 1993, clearly spelled out the crimes against humanity and war crimes which the ICTY was competent to prosecute and judge in the territory of the former Yugoslavia,” Nowak told BIRN.

“The special war crimes courts established in Bosnia and Herzegovina, Croatia and Serbia have the task to follow up and complete the work done by the ICTY and can, therefore, apply the same crimes, irrespective of whether these crimes were already part of the law of the former Yugoslavia or Serbia before. The respective decision by the UN Security Council is legally binding on all states,” he said.

Courts in Bosnia and Herzegovina have tried a number of cases in which officers have been prosecuted on the basis of criminal responsibility. Croatian courts have also used the concept of command responsibilty.

Serbia’s refusal to prosecute high-ranking officers has sparked repeated critisim by the European Union in its progress reports on the country’s progress towards membership.

But the Humanitarian Law Centre described the Constitutional Court’s ruling as a blow to any further attempts to prosecute generals for wartime crimes.

“Such a decision will serve as an excellent justification for the war crimes prosecutor’s office to continue the current practice of not charging anyone on the basis of command responsibility,” Zanic warned.

In the village of Qyshk/Cuska, as the anniversary of the mass killings is marked, the Constitutional Court’s ruling comes as yet another disappointment for the survivors.

Rexhe Kelmendi said he has only just found out about the decision because he did not receive any information from the court. But all the same, he isn’t surprised.

“They took the bodies of civilians and kept them hidden in mass graves,” he said. “It is understandable that they will try to hide the pardoning of crimes.”