(a) Legal basis

640. The Defence submits that the war crime of arbitrary detention in a non-international armed conflict has no legal basis in the applicable law of the Specialist Chambers. In particular, the Defence argues that arbitrary detention does not fall under Article 14(1)(c) of the Law, as it is not listed in this provision, nor under Article 3 of the four Geneva Conventions of 12 August 1949 (Common Article 3 and Geneva Conventions, respectively), particularly as the allegedly detained individuals were not protected persons within the meaning of the Geneva Conventions.Footnote ¹³⁸⁵

641. The SPO and Victims' Counsel disagree with the Defence, submitting, in particular, that the Court of Appeals has already confirmed the Specialist Chambers' jurisdiction over arbitrary detention as a war crime in a non-international armed conflict pursuant to Article 14(1)(c) of the Law.Footnote ¹³⁸⁶

642. At the outset, the Panel notes that, while arbitrary detention is not expressly mentioned in the list of acts under Article 14(1)(c) of the Law, the formulation “including any of the followings acts” means that the list is not exhaustive and that, accordingly, the Specialist Chambers' jurisdiction is not limited to those acts expressly enumerated under Article 14(1)(c) of the Law.Footnote ¹³⁸⁷ The Panel further recalls that the Court of Appeals confirmed that the Specialist Chambers has jurisdiction over arbitrary detention as a war crime committed in a non-international armed conflict, if such crime existed under customary international law during the Specialist Chambers' temporal jurisdiction and if it constitutes a serious violation of Common Article 3.Footnote ¹³⁸⁸

643. As to whether arbitrary detention constitutes a serious violation of Common Article 3, the Panel recalls the Court of Appeals' finding that, regardless of the (initial) legality of detention, detention becomes arbitrary and constitutes a serious violation of Common Article 3 when the principle of humane treatment is violated.Footnote ¹³⁸⁹ The Court of Appeals confirmed that failure to provide basic procedural guarantees to persons deprived of their liberty will render such deprivation of liberty arbitrary.Footnote ¹³⁹⁰

644. As to whether this crime existed under customary international law during the Specialist Chambers' temporal jurisdiction, the Panel recalls the Court of Appeals' finding that even before 1998, arbitrary or unlawful detention was widely condemned and recognised as constituting a serious violation of international humanitarian law, including in non-international armed conflicts, and that such a violation could trigger consequences in terms of criminal responsibility. More specifically, the Court of Appeals confirmed that already in 1998 a rule existed under customary international law criminalising arbitrary detention as a war crime in non-international armed conflicts.Footnote ¹³⁹¹

645. In light of the above, the Panel is satisfied that arbitrary detention committed in a non-international armed conflict constitutes a war crime pursuant to Article 14(1)(c) of the Law.

(b) Material elements (actus reus)

646. The war crime of arbitrary detention, within the meaning of Article 14(1)(c) of the Law, is committed through an act or omission resulting in depriving a person not taking active part in hostilities of his or her liberty without legal basis or without complying with basic procedural safeguards.

647. The deprivation of liberty is without legal basis when it is justified neither by criminal proceedings nor by reasonable grounds to believe that security concerns make it absolutely necessary.Footnote ¹³⁹²

648. The basic procedural safeguards encompass, in particular, the obligation: (i) to inform any person deprived of his or her liberty of the reasons for such deprivation; (ii) to bring any person deprived of his or her liberty promptly before a judge or other competent authority; and (iii) to provide any person deprived of his or her liberty with an opportunity to challenge the lawfulness of detention.Footnote ¹³⁹³

649. The rationale of affording basic procedural safeguards lies in the fact that the person deprived of his or her liberty is, at that point, hors de combat and, accordingly, does not pose any threat to the detaining power due to his or her detention condition.

650. When assessing the compliance with basic procedural safeguards, it is irrelevant whether: (i) the initial deprivation of liberty was justified;Footnote ¹³⁹⁴ or (ii) the perpetrator is personally responsible for the failure to have the detainee's procedural rights respected.Footnote ¹³⁹⁵

(c) Mental elements (mens rea)

651. The perpetrator must have acted intentionally in relation to his or her conduct. Intent to commit a crime may be inferred from the Accused's knowledge that crimes are being committed and by his or her participation in the very perpetration of such crimes.Footnote ¹³⁹⁶ In addition, the perpetrator must have no reasonable grounds to believe that security concerns of the parties to the conflict make the detention absolutely necessary, or the perpetrator must know that the detainees have not been afforded the requisite procedural guarantees, or be reckless as to whether those guarantees have been afforded or not.Footnote ¹³⁹⁷

a. Material elements (actus reus)

652. The Panel has established that at least six persons, including W01679, W03593, W03594, W04669, the Murder Victim, [REDACTED] were deprived of their liberty at the ZDC between approximately 1 April 1999 and on or around 19 April 1999.Footnote ¹³⁹⁸ The Panel is therefore satisfied that the first material element of the war crime of arbitrary detention is met.

653. The Panel has further established that, at no point during their detention, the detainees were provided with the basic guarantees that shall be afforded pursuant to international humanitarian law to any person deprived of his or her liberty.Footnote ¹³⁹⁹ Specifically, the detainees were not informed of the reasons for their deprivation of liberty; were not brought promptly before a judge or other competent authority; and were not provided with an opportunity to challenge the lawfulness of their detention. To the contrary, the victims were kept in detention, mistreated by BIA members, and one of them was even killed.Footnote ¹⁴⁰⁰ The Panel therefore finds that the second material element of the war crime of arbitrary detention is satisfied.

(b) Mental elements (mens rea)

654. The Panel has established that, throughout the timeframe of the charges, the Accused was the overall and only commander of the BIA and that the BIA controlled the ZDC.Footnote ¹⁴⁰¹ The Panel has also found that the Accused was present at the ZDC on multiple occasions during April 1999, including at critical times: (i) on or around [REDACTED] April 1999, when the Murder Victim was handed over [REDACTED] to a BIA member at the ZDC; and (ii) in the first two weeks of April 1999, specifically when the Accused personally mistreated or witnessed the mistreatment by his BIA subordinates of W01679 and W03593.Footnote ¹⁴⁰² Further, the Panel has established that the decision to release some detainees and to keep others in detention, despite the impending Serbian offensive, could only have been made by the Accused, in his capacity as BIA commander.Footnote ¹⁴⁰³ Finally, the Accused himself declared in his SPO statement that he was aware or at least heard that people (including possibly civilians) were detained at the ZDC. Footnote ¹⁴⁰⁴

655. Similarly, BIA members were present at the ZDC during the relevant time of the charges and kept the victims locked in the detention barns, took some of them out of the barns for harsh interrogations, and mistreated them in a variety of manners, before taking them back to the detention barns.Footnote ¹⁴⁰⁵ BIA members, including the deputy of the Accused, also personally released some of the detainees on or around 19 April 1999 ([REDACTED]), while keeping others in detention (the Murder Victim [REDACTED]).Footnote ¹⁴⁰⁶

656. Already on this factual basis, the Panel considers that the only reasonable conclusion is that the Accused and his BIA subordinates saw and knew that detainees were held at the ZDC between approximately 1 April 1999 and on or around 19 April 1999, and intentionally deprived them of their liberty during this time. With regard to the Accused in particular, the Panel recalls that he saw at least one detainee arriving at the ZDC, he personally mistreated two detainees at the ZDC, and after beating W03593, he ordered his BIA subordinates to bring him back to the detention barn.Footnote ¹⁴⁰⁷ The above demonstrates that, not only did the Accused know that the victims were detained in the ZDC, but he also had the intention to keep them detained.

657. Other circumstances confirm, unequivocally, the Accused's knowledge that detainees were held at the ZDC without basic guarantees, and that he intentionally kept them prisoners without such guarantees. In this respect, the Panel considers the Accused's position as the overall and only BIA commanderFootnote ¹⁴⁰⁸ to be of particular importance. By virtue of that position, the Accused was the person at the ZDC who had the responsibility to ensure that the detainees were afforded the basic guarantees. Notably, when W01679 was initially apprehended, BIA members stated that “[t]he commander needs to ask you something” and took him directly to the Accused upon arrival at the ZDC.Footnote ¹⁴⁰⁹ On another occasion, after the Accused personally interrogated and beat W03593, he ordered two BIA members to bring the witness back to the stable.Footnote ¹⁴¹⁰

658. Equally, the Panel considers that the Accused, in his capacity as overall and only BIA commander, was the only person at the ZDC empowered to release the detainees. The Accused in fact exercised his power in this respect, but only after some detainees were held and mistreated for almost three weeks. The Accused did so exclusively because of a critical change of circumstances — the Serbian offensive — which compelled BIA soldiers under his command, including his deputy Mr Mehmetaj (aka Bimi), to release detainees and evacuate the ZDC.Footnote ¹⁴¹¹ At the same time, the Panel has found that, notwithstanding the sudden release of the detainees and the evacuation of the ZDC, the Murder Victim [REDACTED], the two most mistreated detainees, were not released.Footnote ¹⁴¹² Based on the evidence, the Panel has established that the only reasonable conclusion is that these two decisions (releasing some of the detainees by calling their names, while keeping others in captivity) — taken in the very same context — could only have been made by the Accused, in his capacity as BIA commander at the ZDC.Footnote ¹⁴¹³

659. In light of the above, the Panel concludes that the Accused's personal participation in the mistreatment of two detainees, coupled with his knowledge that detainees were held at the ZDC, demonstrate that the Accused intentionally deprived these persons of their liberty and knew that no basic guarantees were afforded to them for the entire duration of their detention. The same holds true for the BIA members present at the ZDC during the relevant time of the charges. The Panel is thus satisfied that the mental elements for the war crime of arbitrary detention are established.

(a) Material elements (actus reus)

660. The war crime of cruel treatment, within the meaning of Article 14(1)(c)(i) of the Law, is committed through an act or omission, which causes serious mental or physical suffering or injury, or which constitutes a serious attack on human dignity.Footnote ¹⁴¹⁴

661. The seriousness of the harm or injury must be assessed on a case-by-case basis, taking into account such factors as: (i) the severity of the alleged conduct; (ii) the nature of the act or omission; (iii) the context in which the conduct occurred; (iv) its duration and/or repetition; (v) its physical, mental and moral effects on the victim; and (vi) the personal circumstances of the victim, including age, gender, and health.Footnote ¹⁴¹⁵

662. The suffering inflicted by the act or omission upon the victim does not need to be lasting, so long as it is real and serious.Footnote ¹⁴¹⁶

(b) Mental elements (mens rea)

663. The perpetrator must have acted intentionally or with the knowledge that the serious mental or physical suffering or injury, or the serious attack on human dignity, was a probable consequence of the act or omission.Footnote ¹⁴¹⁷

(a) Material elements (actus reus)

668. The war crime of torture, within the meaning of Article 14(1)(c)(i) of the Law, is committed by an act or omission inflicting severe pain or suffering, whether physical or mental,Footnote ¹⁴³⁰ upon another person.Footnote ¹⁴³¹ Whether an act or omission qualifies as an act of torture must be considered on a case-by-case basis,Footnote ¹⁴³² taking into account, for example: (i) the nature and context of the infliction of pain; (ii) the premeditated and institutionalised nature of the ill-treatment; (iii) the physical condition of the victim; (iv) the victim's age, gender and state of health; (v) the manner and methods used; (vi) the position of inferiority of the victim; (vii) the extent to which an individual has been mistreated over a prolonged period of time; and (viii) whether the victim has been subjected to repeated or various forms of mistreatment that are inter-related, follow a pattern, or are directed towards the same prohibited goal, in which case the severity of the acts should be assessed as a whole.Footnote ¹⁴³³

669. Conditions imposed during detention such as beatings, sexual violence, prolonged denial of sleep, food, hygiene and medical care, as well as threats involving the torture, rape, or killing of relatives have been considered sufficiently severe so as to amount to torture.Footnote ¹⁴³⁴ More specifically, exposing someone to the fear of, or threatening him or her with death, execution, torture or suffering, or more generally, instilling fear due to the conditions of detention, can cause severe mental anguish or psychological suffering and/or trauma.Footnote ¹⁴³⁵ In particular, severe mental pain or suffering can be caused when detainees are compelled to live in a constant atmosphere of fear and anxiety that they might be subjected to physical abuse, or even killed. This is particularly the case when detainees: (i) witness, see or hear others being beaten or otherwise abused; (ii) witness others being taken away for such purposes – possibly combined with a (seemingly) arbitrary selection of detainees for abuse; and/or (iii) see the resulting injuries afterwards.Footnote ¹⁴³⁶ Provided that the requisite mental element can be established, such acts can constitute torture.Footnote ¹⁴³⁷

670. Similarly, forcing someone to witness, by viewing or hearing, the mistreatment of others, be it their killing, execution, beatings, torture, or rape, can cause severe pain, suffering and/or psychological abuse,Footnote ¹⁴³⁸ and can constitute torture, provided that the requisite mental element is fulfilled.Footnote ¹⁴³⁹

671. The consequences of the act or omission need not be visible on the victim to constitute torture, nor is there a requirement that the injury be permanent.Footnote ¹⁴⁴⁰ Furthermore, it is not required that the perpetrator acted in a public official capacity or as a person in authority.Footnote ¹⁴⁴¹

(b) Mental elements (mens rea)

672. The perpetrator must have inflicted the pain or suffering intentionally and for such purpose as obtaining information or a confession, or punishing, intimidating, coercing or discriminating against, on any ground, the victim or a third person.Footnote ¹⁴⁴² This list of purposes is, however, not exhaustive.Footnote ¹⁴⁴³ It is sufficient that one of the prohibited purposes forms part of the motivation behind the conduct; it need not be the “predominant or sole purpose” behind the infliction of severe pain or suffering.Footnote ¹⁴⁴⁴ If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve another purpose is immaterial.Footnote ¹⁴⁴⁵

673. The purpose of intimidation can, for instance, be fulfilled if a person is forced to witness others being executed.Footnote ¹⁴⁴⁶ The purpose of intimidation can also be fulfilled if, for instance, violence is inflicted in a prison-camp setting by an armed person upon one detainee, with other detainees knowing that such violence is being inflicted, as this can create an atmosphere of fear and powerlessness among the detainees.Footnote ¹⁴⁴⁷ In addition, subjecting a person to a mock execution can be indicative of a purpose of intimidation, and can amount to torture, as it generally increases the anxiety felt by the victim throughout his or her detention about the prospect of his or her execution.Footnote ¹⁴⁴⁸

a. Material elements (actus reus)

674. The Panel has established that at least six persons, including W01679, W03593, W03594, W04669, the Murder Victim, [REDACTED], were routinely physically assaulted by the Accused and other BIA members at the ZDC.Footnote ¹⁴⁴⁹ The detainees were: beaten using various instruments such as baseball bats, handles of hatchets, iron batons or wooden/rubber batons; burnt with an iron or hot candle wax; electrocuted; stabbed with a knife; and kicked, punched and slapped on a daily basis.Footnote ¹⁴⁵⁰ The detainees were often mistreated by several BIA members at the same time and some were beaten for hours.Footnote ¹⁴⁵¹ The mistreatment left them bruised, swollen, bloodied, exhausted, unconscious, and unable to stand, walk or speak.Footnote ¹⁴⁵² The Murder Victim was mistreated so severely that he was almost dead by the time the other detainees were released.Footnote ¹⁴⁵³ Some of the detainees were particularly [REDACTED] at the time: [REDACTED].Footnote ¹⁴⁵⁴

675. The Panel has also established that the detainees were routinely psychologically assaulted by the Accused and other BIA members at the ZDC. They lived in constant fear that they could be subjected to physical abuse at any time or even killed.Footnote ¹⁴⁵⁵ On one occasion, the Accused subjected one of the detainees, W03593, to a mock execution.Footnote ¹⁴⁵⁶ The detainees were also forced to witness the physical abuse of their co-detainees: they saw them being beaten, saw the injuries on their bodies and/or heard their screams as they were being mistreated.Footnote ¹⁴⁵⁷ This atmosphere of constant fear was further fuelled by the fact that the detainees were not informed of the reasons for their deprivation of liberty, they had bags put on their heads when they were taken to or from the barn(s), were told not to look around, were held in darkness, were not allowed to speak to each other, and were not allowed to sleep.Footnote ¹⁴⁵⁸

676. The Panel has further found that BIA members established and maintained inhumane detention conditions at the ZDC.Footnote ¹⁴⁵⁹ The detainees were held in barns destined for animals.Footnote ¹⁴⁶⁰ They were not provided any beds and slept in the animal trough or on the ground, in water puddles, with livestock excrements lying around, having only some hay and some blankets as bedding.Footnote ¹⁴⁶¹ They were kept in the dark and prevented from talking to each other, under threat of death.Footnote ¹⁴⁶² They were provided inadequate amounts of food and water.Footnote ¹⁴⁶³ When W01679 asked for water, he was urinated on.Footnote ¹⁴⁶⁴ The detainees were not permitted to wash themselves or change their clothes.Footnote ¹⁴⁶⁵ They were not given unrestricted access to a toilet, forcing them to relieve themselves inside the barn, in front of each other, in a bucket.Footnote ¹⁴⁶⁶ Importantly, they were denied medical care, despite the serious injuries they suffered as a result of the mistreatment.Footnote ¹⁴⁶⁷

677. The physical and psychological abuse, coupled with the inhumane conditions of detention, left the detainees with long-lasting injuries, both physical and psychological, including: head injuries, burn injuries, broken arms, fingers and/or teeth, resulting in limited use of their hands; persistent and severe pain throughout their bodies; damaged eyesight; feelings of shame; and symptoms of post-traumatic stress disorder (nightmares, flashbacks and intrusive memories).Footnote ¹⁴⁶⁸

678. In light of the above, the Panel finds that the Accused and other BIA members inflicted severe physical and mental pain and suffering upon at least six persons detained at the ZDC, including W01679, W03593, W03594, W04669, the Murder Victim, [REDACTED]. The Panel therefore finds that the material element of the war crime of torture is satisfied.

(b) Mental elements (mens rea)

679. The Panel has established that the Accused: (i) personally slapped W01679 and ordered other BIA members to beat him until he lost consciousness;Footnote ¹⁴⁶⁹ (ii) subjected W03593 to a mock execution, on one occasions, as other BIA members were beating him and accusing him of collaborating with Serbs; and (iii) personally beat W03593 with a baseball bat all over his body, threatening to kill him, on another occasion.Footnote ¹⁴⁷⁰

680. The Panel has also established that other BIA members at the ZDC, including Nazif Musliu (aka Tabuti), Ilmi Vela, Mr Mehmetaj (aka Bimi), Dardan, Afrim, and Fatmir: (i) repeatedly mistreated the detainees in a variety of manners: kicking and hitting them with iron or wooden/rubber batons and handles of hatchets, burning them, electrocuting them and stabbing them, leaving them brused all over their bodies, bloodies, unable to stand or walk, unconscious, and – in the case of the Murder Victim – almost dead;Footnote ¹⁴⁷¹ (ii) had an established modus operandi, indicating that the mistreatment was institutionalised;Footnote ¹⁴⁷² (iii) threatened the detainees with death;Footnote ¹⁴⁷³ (iv) did not provide them with adequate amounts of food and water, and urinated upon one of them (W01679) when he asked for water, in front of the other detainees;Footnote ¹⁴⁷⁴ (v) denied them medical care and access to sanitary facilities;Footnote ¹⁴⁷⁵ (vi) saw the conditions of detention when they brought the detainees to the barn(s) and when they enterend the barn(s) to assault them;Footnote ¹⁴⁷⁶ and (vii) saw the condition the detainees were in and their injuries after interrogation and mistreatment when they brought the detainees back to the barn(s).Footnote ¹⁴⁷⁷

681. On this basis, the Panel finds that the only reasonable conclusion, based on the evidence as a whole, is that the Accused and other BIA members stationed at the ZDC in April 1999 intentionally inflicted severe pain or suffering on the detainees, including by keeping them in inhumane conditions of detention.

682. Further, the Panel has established that the Accused: (i) personally interrogated W01679 and accused him of being a spy, a liar and a thief; and (ii) personally interrogated W03593 and threatened him with death.Footnote ¹⁴⁷⁸

683. The Panel has also established that other BIA members at the ZDC, including Nazif Musliu (aka Tabuti), Ilmi Vela, Mr Mehmetaj (aka Bimi), Dardan, Afrim, and Fatmir: (i) interrogated the detainees and accused them of collaborating with Serbs, or of being spies, traitors, thieves, or liars;Footnote ¹⁴⁷⁹ (ii) ordered the detainees to shout: “[d]eath to the traitors, death to the thieves, death to the thugs, and glory to the Kosovo Liberation Army”;Footnote ¹⁴⁸⁰ (iii) detained some of the victims, at least in part, for being members or supporters of political parties perceived as opposing the KLA;Footnote ¹⁴⁸¹ (iv) threatenend the detainees with death;Footnote ¹⁴⁸² (v) forced them to witness the physical abuse of their co-detainees; Footnote ¹⁴⁸³ and (vi) compelled them to live in constant fear that they could be subjected to physical abuse at any time or even killed.Footnote ¹⁴⁸⁴

684. On this basis, the Panel finds that the only reasonable conclusion, based on the evidence as a whole, is that the Accused and other BIA members stationed at the ZDC in April 1999 inflicted the pain or suffering on the detainees for the purpose of obtaining information or a confession, punishing, intimidating, coercing and/or discriminating against them on political grounds.

685. In light of the above, the Panel finds, based on the evidence as a whole, that the mental elements of the war crime of torture are met, namely that the perpetrators intentionally inflicted pain or suffering, for the purpose of obtaining information or a confession, punishing, intimidating, coercing or discriminating against the detainees.

(a) Material elements (actus reus)

686. The war crime of murder, within the meaning of Article 14(1)(c)(i) of the Law, is committed through an act or omission resulting in the death of a person, including, for instance, by causing serious bodily harm or omitting/denying medical care to a detainee.Footnote ¹⁴⁸⁵

687. The perpetrator's conduct does not have to be the sole cause of death of the victim, but it must at a minimum have contributed substantially thereto.Footnote ¹⁴⁸⁶

(b) Mental elements (mens rea)

688. The perpetrator must have killed the person intentionally, or wilfully caused serious bodily harm or wilfully omitted/denied to provide medical care to a detainee, which the perpetrator should reasonably have known might lead to death.Footnote ¹⁴⁸⁷

a. Material elements (actus reus)

689. In its factual findings on Count 4, the Panel found that the only reasonable conclusion as to the death of the Murder Victim is that he was killed between on or around 19 April 1999 and around the end of April 1999, as a result of the combination between: (i) the severe mistreatment inflicted by BIA members who detained him, causing serious bodily harm; (ii) the denial of medical aid by BIA members; and (iii) gunshot wounds caused by bullets, in respect of which the Panel has established that there exists a reasonable doubt as to their attribution to the BIA members or to the Serbian forces. The Panel also established in its factual findings that the causes of death mentioned under (i) and (ii) above constitute substantial causes of the Murder Victim's death and are attributable to the Accused, in the context of the his decisions to neither release nor evacuate the Murder Victim, and irrespective of whether the Murder Victim was hit by one or more Serbian bullets.Footnote ¹⁴⁸⁸

690. Based on these causes of death, the Panel therefore finds that the material element of the war crime of murder is satisfied.

(b) Mental elements (mens rea)

691. The Panel recalls that the Accused knew that on or around [REDACTED] April 1999 the Murder Victim was handed over to a BIA member [REDACTED] at the ZDC.Footnote ¹⁴⁸⁹ The Panel has further found that the Accused had the intent to commit both the crimes of arbitrary detention and torture against the victims, including the Murder Victim.Footnote ¹⁴⁹⁰ The Panel also takes into consideration that the Accused used a gun during the interrogation and mistreatment of W03593, and ordered his subordinates to “finish” W01679.Footnote ¹⁴⁹¹ These factors, albeit not directly related to the Murder Victim, indicate that the Accused accepted that some of the detainees in his custody might die as a result of the mistreatment.

692. Moreover, the Panel recalls that on or around 19 April 1999, when the detainees were suddenly released by BIA members in light of the impending Serbian offensive, the Murder Victim [REDACTED] were not released. These two detainees were — not coincidentally in the Panel's view — the two most mistreated prisoners.Footnote ¹⁴⁹² While the Panel has found that the Accused must have exercised his authority as commander to release specific detainees and to evacuate the ZDC, he clearly exercised the very same authority to keep the Murder Victim in captivity, after he was subjected to far more serious mistreatment than any other detainee. In this respect, in its factual findings on Count 4, the Panel has found that the only reasonable conclusion, on the basis of the evidence taken as a whole, is that: (i) the decisions not to release or evacuate the Murder Victim could only have been made by the Accused, in his capacity as overall commander of the BIA at the ZDC; and (ii) the Accused's decision not to release the victim, as executed by his BIA subordinates, jointly with the decision not to evacuate him, effectively equalled a decision to kill the Murder Victim, considering that the other detainees walked away from the ZDC while the Murder Victim remained in detention and was denied a last opportunity to be saved.Footnote ¹⁴⁹³

693. The intent to kill is also confirmed by another important circumstance, namely the fact that the Murder Victim [REDACTED].Footnote ¹⁴⁹⁴ [REDACTED]. Accordingly, the Panel finds that the Accused, as well as the BIA subordinates who mistreated the victim, could not afford to keep the Murder Victim alive at that stage, [REDACTED].

694. In addition, [REDACTED]Footnote ¹⁴⁹⁵ [REDACTED].Footnote ¹⁴⁹⁶ [REDACTED].Footnote ¹⁴⁹⁷ On this point, the Panel finds [REDACTED] credible, as his recollection of such conversation is so peculiar that it is inconceivable that it could be fabricated or embellished. The Panel considers such exchange wholly plausible, as it fits within the evidentiary picture whereby the Accused intended to kill the Murder Victim and, subsequently, avoid any proceedings launched regarding his death.

695. All these circumstances taken together, lead the Panel to believe that the only reasonable conclusion, based on the evidence, is that through the acts and omissions attributable to the Accused and his BIA subordinates, they intended to kill the Murder Victim, thus establishing the requisite mental element for murder as a war crime.

(a) Legal Requirements

(b) Findings

a. Legal requirements

734. Joint criminal enterprise (JCE) as mode of liability encompasses three forms or categories (basic, systemic, and extended). In the basic form (JCE I), several perpetrators act on the basis of a common purpose. In the systemic form (JCE II), a variant of the first form, the crimes are committed within an organised system of ill-treatment, by members of military or administrative units, such as in concentration or detention camps. In the extended form (JCE III), criminal responsibility is established for acts of a co-perpetrator that go beyond the common plan, but which were a foreseeable consequence of the realisation of the plan.Footnote ¹⁵⁶³

735. The Court of Appeals found that the absence of explicit reference to JCE in the Law or the Rules should not be interpreted as a deliberate intention of the drafters of the Law to exclude JCE from the applicable modes of liability before the Specialist Chambers.Footnote ¹⁵⁶⁴ On the contrary, pursuant to Article 3(3) of the Law, the Judges may be guided by the jurisprudence of the ad hoc tribunals,Footnote ¹⁵⁶⁵ as well as by customary international law. The ad hoc tribunals have applied the doctrine of JCE to the core crimes of these courts as a form of commission on the basis of customary international law.Footnote ¹⁵⁶⁶ Therefore, considering that Article 16(1) of the Law reflects almost verbatim the wording of Article 7(1) of the ICTY Statute and Article 6(1) of the Statute of the International Criminal Tribunal for Rwanda concerning individual criminal responsibility, the Panel finds that Article 16(1) of the Law, including the term “commission”, must be interpreted in accordance with customary international law as applicable at the time the alleged crimes were perpetrated.Footnote ¹⁵⁶⁷ Finally, it would be inconsistent for the drafters of the Law to deliberately exclude from the jurisdiction of the Specialist Chambers one of the grounds upon which the tribunal was created, namely to ensure that persons acting jointly with others could be prosecuted.Footnote ¹⁵⁶⁸

736. In line with the principle set out in paragraph 725 above, the Panel will only entertain the individual criminal responsibility of the Accused under JCE I and not JCE III, on the basis that the former best reflects the criminality of the Accused as JCE member.

(b) Findings

(a). Gravity of the crimes and their consequences

(b) Personal contribution to the crimes

813. The Panel recalls that Mr Mustafa, directly committed the crime of torture and committed the crime of arbitrary detention, torture, and murder as part of a joint criminal enterprise with other BIA members.Footnote ¹⁶⁸³

814. At the outset, the Panel considers the superior position and central role of the Accused in a system of illegal detentions and tortures at the ZDC, together with his continued approval and endorsement of the same acts in the period between on or around 1 April 1999 and on and around 19 April 1999.

815. First, Mr Mustafa saw and knew that detainees were held at the ZDC between approximately 1 April 1999 and on or around 19 April 1999, and intentionally deprived them of their liberty during this time.Footnote ¹⁶⁸⁴

816. Second, Mr Mustafa, in his capacity as overall and only BIA commander, with full control over the ZDC: (i) ordered his BIA subordinates to torture the detainees, such as beating W01679 until he lost consciousness, and to detain them in the course of April 1999; (ii) did not provide the detainees with basic guarantees; (iii) denied medical care to the detainees despite their mistreatment and injuries; (iv) did not release the detainees, thus allowing his BIA subordinates to mistreat them, until an exceptional change of circumstances occurred, the Serbian offensive; and (iv) never released nor evacuated the Murder Victim [REDACTED], who remained in detention while Mr Mustafa and his BIA subordinates left the ZDC in light of the impending Serbian offensive.Footnote ¹⁶⁸⁵

817. Third, Mr Mustafa: (i) personally and intentionally slapped W01679, accusing him of being a spy, a liar and a thief; (ii) personally and intentionally subjected W03593 to a mock execution, while he was being interrogated and beaten by several BIA members under the accusation of collaborating with Serbs; and (iii) personally and intentionally beat W03593 with a baseball bat all over his body and threatened to kill him, while interrogating him about his knowledge of thieves.Footnote ¹⁶⁸⁶ By doing so, Mr Mustafa provided a model or incentive for his BIA subordinates to perform similar actions against the detainees at the ZDC.Footnote ¹⁶⁸⁷ He further witnessed the mistreatment of these detainees and gave orders to his BIA subordinates to mistreat them or to bring them back to the detention barn.Footnote ¹⁶⁸⁸

818. Fourth, in respect of the Murder Victim, Mr Mustafa was present on or around [REDACTED] April 1999, when the Murder Victim was handed over [REDACTED] to a BIA member at the ZDC. Mr Mustafa intended the lethal treatment inflicted upon the Murder Victim, and for such torture to carry on for around [REDACTED] days while denying him medical care, basic guarantees or releasing him, which he had the power to do as BIA commander. Eventually, Mr Mustafa, in his capacity as BIA commander, decided not to release the Murder Victim — which effectively equalled a decision to kill him.Footnote ¹⁶⁸⁹

819. In light of the above, the Panel assesses the degree of Mr Mustafa's personal participation in the crimes under consideration and intent as very high.

(c) Individual circumstances

820. At the outset, the Panel notes that the Defence has not expressly put forward any submissions with a view to mitigating Mr Mustafa's eventual sentence.Footnote ¹⁶⁹⁰ Whilst the Panel is of the opinion that it is not under the obligation to search for information in the case record that the Defence does not see fit to put before it, it has nevertheless considered the circumstances and factors set forth below.

821. The Panel notes that Mr Mustafa is 50 years old,Footnote ¹⁶⁹¹ [REDACTED]Footnote ¹⁶⁹² [REDACTED].Footnote ¹⁶⁹³ The Panel further notes that, to the best of its knowledge, Mr Mustafa has no relevant prior convictions.Footnote ¹⁶⁹⁴

822. In addition, the Panel observes that, during the closing statements, the Defence affirmed that Mr Mustafa:

823. The Panel also notes that Mr Mustafa cooperated with the SPO to the extent that he came voluntarily to The Netherlands to be interviewed by the SPO.Footnote ¹⁶⁹⁶

824. In the view of the Panel, compliance with the law or court-imposed orders are expected of any person, and therefore does not, on its own, constitute a mitigating circumstance, unless exceptional.Footnote ¹⁶⁹⁷ That being said, the Panel is not persuaded that Mr Mustafa's behaviour in detention and cooperation have been exceptional. Therefore, the Panel does not accord any mitigation value to this circumstance.

825. Furthermore, the Panel observes that, during the closing statements, the Defence indicated for the first time that “Mr. Mustafa feels sorry for the victims, but he is not responsible for their pain or suffering”.Footnote ¹⁶⁹⁸ Whilst this could be considered as a mitigating circumstance pursuant to Rule 163(1)(a)(ii) of the Rules,Footnote ¹⁶⁹⁹ the Panel notes that, throughout the proceedings, Mr Mustafa never expressed or displayed any sympathy for the victims. He declined to be present in the courtroom during the opening statements of Victims' Counsel.Footnote ¹⁷⁰⁰ The Panel also recalls its findings as to Mr Mustafa's attempts to prevent any investigation and case regarding the death of the Murder Victim.Footnote ¹⁷⁰¹ Therefore, the Panel will not count this circumstance towards mitigating the sentence.

826. In light of the foregoing, the Panel is of the view that, Mr Mustafa's individual circumstances cannot be given any significant weight considering the nature and gravity of the proven crimes and his contribution to them.

a) General considerations

209. At the outset, the Panel considers that Mr Mustafa is liable to repair the harm caused to all Direct and Indirect Victims of the crimes of which he was convicted, regardless of the different modes of liability relied on in the conviction, and regardless of whether others may have also contributed to the harm.Footnote ³⁷² The Panel also recalls that the indigence of the convicted person at the time of the issuance of the reparation order is neither an obstacle to the imposition of liability for reparations, nor does it give the convicted person any right to benefit from reduced liability.Footnote ³⁷³

210. Moreover, the Panel recalls the principle that the convicted person's liability for reparations must be proportional to the harm caused.Footnote ³⁷⁴ In other words, it must reflect the scope and extent of the harm suffered by the victims.Footnote ³⁷⁵ Thus, in setting the amount of Mr Mustafa's financial liability, the Panel will consider the scope and extent of the harm as established above.

211. Recalling that reparations at the KSC ought to be victim-driven and victim- centred,Footnote ³⁷⁶ the Panel will primarily rely on the Victims' Counsel Reparations Request and, more specifically, on her submissions as regards the amount of Mr Mustafa's financial liability (and corresponding reparations awards).

212. It will consider in this context any relevant submissions and material produced to assess the scope and extent of harm in financial terms.Footnote ³⁷⁷ Nevertheless, in the view of the Panel, it is not a requirement to furnish data as to the costs of medical treatments or other harms that are of a financial or patrimonial nature, considering notably: the lapse of more than twenty years since the commission of the crimes; and the fact that victims may not have sought medical treatment for mental harm or did not have the possibility to disclose what they had suffered, due to the climate in Kosovo with regard to victims of crimes allegedly committed by former KLA members or the fear of reprisals.Footnote ³⁷⁸

213. Furthermore, the Panel will refrain from exceeding the Victims' Counsel Reparations Request when setting the amount of Mr Mustafa's financial liability and corresponding reparations awards, except under exceptional circumstances. This stems from the fact that pursuant to Article 22(7) of the Law, a Trial Panel's power to include, on its own motion, in a trial judgment, a decision on the scope and extent of harm caused to victims, where it is not seized of a request to do so, presupposes the existence of exceptional circumstances.Footnote ³⁷⁹ In the Panel's view, this means that a Trial Panel is first and foremost confined to representations made on behalf of the victims and the requests contained therein, provided those are established to the requisite standard. Yet, the Panel is also of the view that a Trial Panel retains a degree of discretion in light of the variety of submissions a Trial Panel may consider when ruling on reparations,Footnote ³⁸⁰ and given that it may act without any representation and yet award reparations to victims.Footnote ³⁸¹ Thus, it finds that a Trial Panel may under exceptional circumstances depart from representations made on behalf of the victims and the requests contained therein.

214. Ultimately, by applying judicial discretion, the Panel will set an amount for each type of harm – and the overall amount of Mr Mustafa's financial liability – that it considers reasonable, in accordance with Article 22(3) of the Law, in the circumstances of the case, and that properly reflects the rights and interests of the victims, bearing in mind the rights of the convicted person.Footnote ³⁸²

b) International case law

215. Having carefully reviewed Victims' Counsel's outline and discussion on international case law,Footnote ³⁸³ the Panel takes note of the widely diverging amounts awarded, due in part to the different contexts in which the ECtHR, IACtHR, and ICC operate, and the specific circumstances of the cases concerned. Moreover, as rightly observed by Victims' Counsel,Footnote ³⁸⁴ whilst international case law may offer guidance as to the type of harms considered, a methodology on how to assess the extent and scope of such harms has yet to emerge. Therefore, the Panel is not in a position to take guidance from international case law to determine the scope of Mr Mustafa's liability for reparations.

c) Kosovo legislation

216. Victims' Counsel contends that although legislation in Kosovo which addresses harm and injuries suffered in the context of the war in Kosovo in 1998-1999 does not recognize the harm suffered by the Victims, it provides, in her view, “a useful baseline for what has been found feasible and fundable within Kosovo”.Footnote ³⁸⁵

217. The Panel concurs with Victims' Counsel that this legislation provides an indication of what is in Kosovo considered a proportionate level of redress for harm resulting from the war in Kosovo in 1998-1999Footnote ³⁸⁶ – even though these laws do not address the specific harm suffered by the Victims in this case, as the focus of those laws is the harm suffered as a result of the actions of the enemy, i.e. the Serb forces.Footnote ³⁸⁷

218. Having carefully reviewed Victims' Counsel's outline and discussion on such legislation,Footnote ³⁸⁸ the Panel decides that it will consider the Kosovo legislation – as a reference point – in order to set a reparation award that is deemed reasonable in the context of Kosovo.Footnote ³⁸⁹

219. More specifically, the Panel will consider the following laws: (i) Law No. 04/L-054 on the Status and Rights of the Martyrs, Invalids, Veterans, Members of the Kosovo Army, Civilian Victims of War and their Families of 8 December 2011Footnote ³⁹⁰ (Law No. 04/L-054), subsequently amended by Law No. 04/L-172 on Amending and Supplementing the Law No. 04/L-054 on the Status and the Rights of the Martyrs, Invalids, Veterans, Members of Kosovo Liberation Army, Sexual Violence Victims of the War, Civilian Victims and their Families of 20 March 2014Footnote ³⁹¹ (Law No. 04/L-172), to include victims of sexual violence; and (ii) Law No. 04/L-261 on Kosovo Liberation Army War Veterans of 23 April 2014Footnote ³⁹² (Law No. 04/L-261), subsequently amended by Law No. 05/L-141 on Amending and Supplementing the Law No. 04/L-261 on Kosovo Liberation Army War Veterans of 14 April 2017Footnote ³⁹³ (Law No. 05/L-141).

220. The Panel observes that these laws notably regulate the rights and benefits to which veterans and civilians who were harmed in the context of the war in Kosovo in 1998-1999 or participated in the war efforts, as well as family members of deceased or missing KLA members and civilians, are entitled. The benefits available vary pursuant to the category to which an individual belongs and range from monthly pensions to residential care and assistance, medical and physical rehabilitation, medical services abroad, professional rehabilitation, priority in employment, housing assistance, secondary school and university scholarships, and tax release.Footnote ³⁹⁴ The entitlements provided for by these laws do not apply retroactively.Footnote ³⁹⁵

221. The Panel further notes that Law No. 04/L-172, which amended Law No. 04/L- 054 to include victims of sexual violence, suggests that Kosovo aspires to provide a support to all the victims harmed during the war in 1998-1999. However, the use of the word “enemy” throughout the text of the legislation appears to exclude the victims participating in this case, since they were harmed by members of the KLA.Footnote ³⁹⁶

222. Nevertheless, given that this legislation seeks – for all intents and purposes – to repair the harm suffered by individuals during the war in 1998-1999 or support those who participated in the war efforts, the Panel finds the following figures of relative relevance for determining the financial liability of Mr Mustafa for reparations. The Panel will also consider the fact that the beneficiaries under these laws are entitled, in addition to pensions, to other (considerable) aids.Footnote ³⁹⁷

223. Pursuant to Law No. 04/L-054, monthly pensions for a “KLA Invalid”Footnote ³⁹⁸ range from €255 (with body injury over 31-40%) to €358,50 (with body injury over 80%).Footnote ³⁹⁹ A simple addition of monthly pension payments for a “KLA Invalid” from January 2012 to January 2023 would amount to a minimum of €33,660.Footnote ⁴⁰⁰

224. Monthly pensions for a “Civilian invalid of War”Footnote ⁴⁰¹ range from €96 (with body injury over 40-60%) to €122 (with body injury over 80%).Footnote ⁴⁰² A simple addition of monthly pension payments for a “Civilian invalid of War” from January 2012 to January 2023 would amount to a minimum of €12,672.Footnote ⁴⁰³

225. Close family members of a civilian victimFootnote ⁴⁰⁴ are entitled to a monthly family pension of €135 (as well as other benefits).Footnote ⁴⁰⁵ This means that, from January 2012 to January 2023, close family members of a civilian victim would have received at minimum €17,820, as family pension.Footnote ⁴⁰⁶

226. Pursuant to Law No. 04/L-261, unemployed veteransFootnote ⁴⁰⁷ not entitled to benefits under another pension scheme, such as for injuries sustained during the war in Kosovo in 1998-1999,Footnote ⁴⁰⁸ were eligible to a monthly pension of €170.Footnote ⁴⁰⁹ A simple addition of monthly pension payments from April 2014 to January 2023 would amount to €17,850.Footnote ⁴¹⁰

d) Lerz Report

227. Victims' Counsel submits that the Lerz Report provides a useful assessment of the material harm incurred by the Direct Victims as well of its different dimensions, even though to some extent it is hypothetical.Footnote ⁴¹¹

228. The Panel recalls that the Lerz Report was prepared by the financial expert appointed by the Panel to calculate the material damages and economic loss suffered by V08/05, V09/05, and V10/05.Footnote ⁴¹² The Panel notes that the Lerz Report offers a calculation of income loss that corresponds to “rough approximations of the real situations.”Footnote ⁴¹³ The Lerz Report bases its analysis on statistical data of average wages, personal income tax and pension contributions, pension benefits, and social security, in Kosovo, given the lack of information such as salary sheets and employments contracts, and relies “strongly on the starting points as given by the Victim's Counsel [sic]”.Footnote ⁴¹⁴ The Lerz Report indicates that the income loss consists of the sum of the yearly income losses from 2000 to 2022 plus the sum of future income losses capitalisedFootnote ⁴¹⁵ and the yearly income loss is equal to the difference between the calculated incomes “with and without the incident”.Footnote ⁴¹⁶ If the income is unknown, but expected to be very low, the Lerz Report assumes that it corresponds to a social assistance scheme benefit for a person who is living alone, equal to €60.Footnote ⁴¹⁷

229. Even though the Lerz Report provides rough estimations of the economic losses incurred by the Direct Victims, the Panel decides that it will consider such report as a reference point in particular for material harm, in order to set an amount – that is reasonableFootnote ⁴¹⁸ in the context of Kosovo.

230. Concerning V08/05, the Lerz Report states as a starting point that [REDACTED].Footnote ⁴¹⁹ The specific approach taken to calculate V08/05's income loss consists of comparing income without incident, [REDACTED], with income after incident, [REDACTED], with the pension age [REDACTED] as the last year of the calculation.Footnote ⁴²⁰ It points out that while this victim is earning a salary, he might have obtained a promotion due to a better performance than possible after the impact of the incident which, in turn, would have increased his income.Footnote ⁴²¹ Hence a wage increase of 20% for working in a higher position is assumed.Footnote ⁴²² It also indicates that the calculation of V08/05's income loss is more approximate than the others because the increase of income in a higher position of 20% can only be an estimation and it is unknown in which year that increase would have taken place.Footnote ⁴²³ It therefore suggests to place it 2011, i.e. in the middle of the period between 2000 and 2022.Footnote ⁴²⁴ In such a scenario, V08/05's income loss would equal €31,779.Footnote ⁴²⁵ The Lerz Report also provides the results for every other relevant year (from 2000 to 2022). Income loss ranges from €20,842 to €39,343.Footnote ⁴²⁶

231. Concerning V09/05, the Lerz Report states as a starting point that [REDACTED] and that income with incident is [REDACTED].Footnote ⁴²⁷ The specific approach taken to calculate V09/05's income loss consists of comparing income without incident, [REDACTED], with income after incident, [REDACTED], with the pension age [REDACTED] as the last year of the calculation.Footnote ⁴²⁸ The Lerz Report points out that [REDACTED], it suggests to take into consideration [REDACTED].Footnote ⁴²⁹ In such a scenario, V09/05's loss of income would amount to €150,703. The Lerz Report also provides the results for every other relevant year ([REDACTED]). Income loss ranges from €89,255 to €211,086.Footnote ⁴³⁰

232. Concerning V10/05, the Lerz Report states as a starting point that [REDACTED] and that income with incident is [REDACTED].Footnote ⁴³¹ The specific approach taken to calculate V10/05's income loss consists of comparing income without incident, [REDACTED], with income after incident, [REDACTED], with the pension age [REDACTED] as the last year of the calculation.Footnote ⁴³² The Lerz Report points out that V10/05 indicated that [REDACTED].Footnote ⁴³³ The Lerz Reports submits that [REDACTED]. It further submits that [REDACTED] is not relevant because it is unrelated to the incident [REDACTED].Footnote ⁴³⁴ The Lerz Report concludes that, based on the aforementioned approach, V10/05's loss of income would equal to €56,716.Footnote ⁴³⁵

e) Conclusion

233. The Panel notes that whilst Victims' Counsel avers that “[a]ny compensation will have to be proportionate to the gravity of the harm suffered”,Footnote ⁴³⁶ she proposes a breakdown of “minimum” amounts to be awarded to the Victims as compensation, especially with regard to material harm.Footnote ⁴³⁷ In the view of the Panel, it is unclear whether the position of Victims' Counsel is that these “minimum” sums reflect the gravity of the harm sufferedFootnote ⁴³⁸ and/or the scope and extent of harm suffered by the victimsFootnote ⁴³⁹ – which ultimately amounts to Mr Mustafa's financial liability for reparations.

234. Notwithstanding it, the Panel finds that the compensation awards requested by Victims' Counsel to repair the harm are proportional to the harm suffered by the Victims as well as reasonable as foreseen in Article 22(3) of the Law.

235. More specifically, with respect to V08/05, the Panel recalls that he has not sustained long-standing physical harm as a result of the war crimes of arbitrary detention and torture of which Mr Mustafa was convicted.Footnote ⁴⁴⁰ However, he has experienced significant mental harmFootnote ⁴⁴¹ even though V08/05's length of detention at the ZDC was substantially shorter than V09/05 and V10/05.Footnote ⁴⁴² The Panel also recalls that it concluded that V08/05 suffered a damage to his life plan as part of mental harm, as the crimes for which Mr Mustafa was convicted affected his personal and family development.Footnote ⁴⁴³ Moreover, while V08/05 was able to ensure employment, his career progression was negatively impacted as a result of his time at the ZDC, which in turn affected the level of his income.Footnote ⁴⁴⁴ According to the Lerz Report, estimations as to V08/05's income losses range from €20,842 to €39,343.Footnote ⁴⁴⁵ The Panel further recalls that it has considered in addition to income losses, a damage to his life plan also as part of material harm.Footnote ⁴⁴⁶

236. With respect to V09/05, the Panel considers that V09/05 has sustained extensive and long-standing physical and mental harm as a result of the war crimes of arbitrary detention and torture of which Mr Mustafa was convicted.Footnote ⁴⁴⁷ The Panel also recalls that it concluded that V09/05 suffered a damage to his life plan as part of mental harm, as the crimes for which Mr Mustafa was convicted affected his personal and family development.Footnote ⁴⁴⁸ Moreover, V09/05, [REDACTED], was deprived of the opportunity to pursue an “average career path”.Footnote ⁴⁴⁹ According to the Lerz Report, estimations as to V09/05's income losses range from €89,255 to €211,086.Footnote ⁴⁵⁰ The Panel further recalls that it has recognised in addition to income losses, a damage to his life plan also as part of material harm.Footnote ⁴⁵¹

237. With respect to V10/05, the Panel recalls that he has sustained extensive and long-standing physical and mental harm as a result of the war crimes of arbitrary detention and torture of which Mr Mustafa was convicted.Footnote ⁴⁵² Moreover, V10/05 was not able to return to his former occupation as a result of the injuries sustained at the ZDC [REDACTED]. According to the Lerz Report, it is estimated that V10/05's loss of income equals to €56,716.Footnote ⁴⁵³ The Panel further recalls that it has recognised, in addition to income losses, a damage to his life plan also as part of material harm.

238. The Panel further notes that the compensation awards requested by Victims' Counsel for the Direct Victims are within the findings of the Lerz Report and those only reflect estimations of income losses.

239. In the same vein, the Panel considers that these amounts are not disproportionate when compared with the benefits available under Kosovo legislation. The Panel recalls in this regard the minimum levels of pensions identified earlier under Kosovo law, ranging from €12,672 to €33,660, for veterans and civilians who suffered harm in the context of the war in Kosovo in 1998-1999 or participated in the war efforts, and their close family members, as well as the other considerable aids to which they are eligible.Footnote ⁴⁵⁴

240. As for the Indirect Victims, the Panel considers that the sums requested by Victims' Counsel to repair the harm suffered by these victims are in line with the ones pertaining to the Direct Victims – although they reflect a different type of mental harm. The Panel also considers it appropriate as submitted by Victims' CounselFootnote ⁴⁵⁵ to distinguish the Indirect Victims pursuant to [REDACTED] with the Murder Victim.

241. Lastly, the Panel recalls that the Defence did not present specific arguments to challenge the compensation awards requested by Victims' Counsel on behalf of the Victims.Footnote ⁴⁵⁶

242. In light of the above, the Panel finds that the sums of €4,000 for physical harm, €6,000 for mental harm, and €20,000 for material harm, for a total of €30,000, reflect the scope and extent of harm suffered by V08/05 and are reasonable as foreseen in Article 22(3) of the Law.

243. Likewise, the Panel finds that the sums of €20,000 for physical harm, €10,000 for mental harm, and €50,000 for material harm, for a total of €80,000, reflect the scope and extent of harm suffered by V09/05 and are reasonable as foreseen in Article 22(3) of the Law.

244. In the same vein, the Panel finds that the sums of €20,000 for physical harm, €10,000 for mental harm, and €30,000 for material harm, for a total of €60,000, reflect the scope and extent of harm suffered by V10/05 and are reasonable as foreseen in Article 22(3) of the Law.

245. Finally, the Panel finds that the sums of €10,000, €5,000 and €2,000 reflect the scope and extent of harm suffered by V05/05, V06/05 and V12/05, and V11/05, and V13/05, respectively, and are reasonable as foreseen in Article 22(3) of the Law.

246. The Panel further recalls that the Defence did not file any observations in response to the Victims' Counsel Reparations Request.

247. Taking all the above considerations into account, considering the scope and extent of the harm suffered by the Direct and Indirect Victims, resolving uncertainties in favour of the convicted person, pondering the need for accuracy of monetary estimates against the objective of awarding reparations promptly, the Panel sets the total reparation award for which Mr Mustafa is liable at €207,000.

248. Accordingly, the Panel orders Mr Mustafa to pay, as compensation for the harm inflicted:

1. - €30,000 to V08/05;

2. - €80,000 to V09/05;

3. - €60,000 to V10/05;

4. - €10,000 to V05/05, V06/05, and V12/05;

5. - €5,000 to V11/05; and

6. - €2,000 to V13/05.

249. Finally, the Panel notes that the present Reparation Order does not go beyond the crimes for which Mr Mustafa was convicted. Moreover, Mr Mustafa was afforded the opportunity to make submissions on the scope and extent of victimhood, the scope of reparations, and the types of reparations to be awarded, but refused to do so.

a) Crime Victim Compensation Program

261. The Ministry of Justice of Kosovo informed the Panel that victims of crimes under the jurisdiction of the KSC may be awarded compensation or restitution from the victim compensation program established pursuant to Law No. 05/L-036 on Crime Victim Compensation (Law No. 05/L-036) (Crime Victim Compensation Program),Footnote ⁴⁷¹ where it has been established that the convicted person is unable to pay the full, or part of, the restitution awarded.Footnote ⁴⁷² The victim may ask the Panel to forward the compensation order to the decision-making body.Footnote ⁴⁷³ A completed application must be submitted within six months from the entry into force of the final court judgment.Footnote ⁴⁷⁴

262. The Ministry of Justice of Kosovo further clarified that victims applying for compensation can remain anonymous but only “with regard to persons other than those in charge of processing and executing such compensation claims”.Footnote ⁴⁷⁵ Lastly, it argued that the Registrar cannot act as the Victims' “authorised representative” and submit a claim for compensation or restitution on their behalf “in order to avoid any conflict of interest”, but stated that the victim may request the assistance of a victims' counsel to whom he/she has given a power of attorney for acting on his or her behalf.Footnote ⁴⁷⁶

263. The Panel notes that Law No. 05/L-036 was abrogated and replaced by Law No. 08/L-109 on Crime Victim Compensation of 2 November 2022 (Law No. 08/L-109).Footnote ⁴⁷⁷ The Panel notes however that the abovementioned submissions by the Ministry of Justice of Kosovo remain relevant in the context of Law No. 08/L-109.

264. A the outset, the Panel reiterates that it must ensure the protection of the Victims as provided for in Article 23 of the Law throughout the entirety of the judicial process, including the reparations proceedings and the enforcement of any reparation order, irrespective of the forum in which such reparations proceedings, or the enforcement of any reparation order, are conducted.Footnote ⁴⁷⁸ The Panel recalls in this regard its finding as to the pervasive climate of fear and intimidation in Kosovo against witnesses or potential witnesses of the KSC, and their families.Footnote ⁴⁷⁹ It also recalls that the Pre-Trial Judge and this Panel ordered protective measures vis-à-vis the Victims, namely that their names and any identifying information be withheld from the public.Footnote ⁴⁸⁰ Lastly, it underlines that the Victims participated in this case under immense pressure and expressed fear as to what could happen to them or their families if their participation became known.Footnote ⁴⁸¹

265. In these circumstances, disclosing the identity of the Victims to a wider number of individuals, such as to Crime Victim Compensation CommissionFootnote ⁴⁸² and its staff, increases the risk that their identity is revealed – intentionally or unintentionally – to the public, including to individuals with harmful intentions. Yet, the Panel finds that these circumstances – which arise through no fault of their own – cannot preclude the Victims from obtaining reparations.

266. In light of the above, the Panel orders the Registrar, in coordination with Victims' Counsel, to seek compensation from the Crime Victim Compensation Program, on behalf of the Victims, in order to preserve the anonymity of said Victims and to ensure their protection. The Panel wishes to stress that, contrary to the Ministry of Justice of Kosovo's assertion, no conflict of interest arises in this context since the Registry is a neutral organ of the KSC, whose mandate is to administer and service the KSC and perform all affiliated functions pursuant to Article 34(1) of the Law. In the performance of this task, the Registrar and Victims' Counsel shall only disclose to the Crime Victim Compensation Commission publicly available information pertaining to the Victims.

267. The Panel requests, in accordance with Article 53(2) of the Law which mandates every natural person, corporation, authority or other entity in Kosovo to comply with any order issued by the KSC, the Crime Victim Compensation Commission to give due consideration to the Victims' claims for compensation, on the basis of the information provided by the Registrar and Victims' Counsel, including the present Reparation Order, in its public redacted version. In this regard, the Panel underlines that the Reparation Order – in its public redacted version – provides the Crime Victim Compensation Commission with the required information in support of the Victims' claims for compensation, such as the Panel's findings: (i) as to the harm suffered by each Victim as a result of the crimes committed by Mr Mustafa; (ii) as to the scope of Mustafa's liability for reparations and the compensation to be awarded to the Victims; and (iii) as to Mr Mustafa's lack of financial means to fully comply with the Reparation Order, i.e. his inability – at this time – to pay the full reparation award.

268. If the Crime Victim Compensation Commission were to grant any compensation, such award ought to be transferred to the Registrar in accordance with Article 53(4) and (5) of the Law. In turn, the Registrar ought to disburse the compensation award to the Victims, eventually on a pro rata basis.

269. The Registrar is to report to the judicial authority designated to monitor and oversee the implementation and execution of this Reparation Order, on any action taken before the Crime Victim Compensation Program, mindful of the deadline to apply for compensation to that Program, and no later than two (2) months after this Reparation Order may be implemented.

270. Notwithstanding the above, the Panel is aware that the Victims may not receive the full compensation awarded by the Panel through the convicted person – taking into consideration the available [REDACTED] as explained above – or the Crime Victim Compensation Program – taking into consideration the maximum sums which can be awarded by this program.Footnote ⁴⁸³ Thus other means of execution need to be considered with a view to implement and execute the present Reparation Order.

b) Establishment of a new reparation mechanism in Kosovo

271. The Ministry of Justice of Kosovo informed the Panel that the establishment of a new fund or programme for the specific purpose of compensating the victims of crimes under the jurisdiction of the KSC would require the Kosovo's legislative body to enact a “special law” such as in the case of the financing of the defence for suspects and accused before the KSC.Footnote ⁴⁸⁴

272. In this context, the Panel notes that, whereas Kosovo foresaw the need to financially support the defence of suspects and accused before the KSC,Footnote ⁴⁸⁵ it took no proactive steps to specifically prepare for the need to ensure reparations for victims of crimes under the jurisdiction of the KSC, should a convicted person not have the means to comply with a reparation order.

273. Furthermore, the Panel notes that the legislation in Kosovo which addresses harm and injuries suffered in the context of the war in Kosovo in 1998-1999 does not recognize the harm suffered by all victims during the war in Kosovo, as it refers exclusively to the victims of the enemy forces, therefore introducing a discrimination between the victims of this war.Footnote ⁴⁸⁶

274. While the Panel has no power to order Kosovo to pay the compensation awarded to the Victims, it finds it important to remind Kosovo of its obligations pertaining to the Victims' right to an effective remedy, as enshrined in Article 54 of the Constitution, Articles 6(1) and 13 of the ECHR, Articles 2(3) and 14(1) of the ICCPR, and Article 14 of the CAT.Footnote ⁴⁸⁷ This comprises also a duty to ensure that such a remedy is enforceable.Footnote ⁴⁸⁸

275. In this respect, the Panel urges Kosovo to enact the necessary laws and establish a reparation mechanism for the purpose of fully compensating victims of crimes under the jurisdiction of the KSC.Footnote ⁴⁸⁹ This would ensure, within the legal system of Kosovo, equal treatmentFootnote ⁴⁹⁰ between the victims and the suspects or accused, given that Kosovo legislation already provides for the financial support of the legal defence of suspects and accused before the KSC, without requiring any proof of indigence on the part of the suspects or accused, and even provides for compensation in case of their acquittal, while nothing is specifically provided for victims of crimes under the jurisdiction of the KSC.Footnote ⁴⁹¹

276. Crucially, such a new reparation mechanism for those victims ought to be independent, neutral, and free from political considerations. Moreover, it ought to integrate an application process tailored to the challenges facing the KSC, especially measures of protection for the victims applying to such mechanism, including those ordered with regard to victims participating in the proceedings before the KSC.

277. Furthermore, consideration should be given to fund the reparation mechanism through the budget of Kosovo inasmuch as the defence of suspects and accused before the KSC is also financed through said budget.Footnote ⁴⁹² This equal use of the budget of Kosovo would promote the mandate of the KSC pursuant to Article 1(2) of the Law, as upheld by Kosovo and Members States of the European Union, together with other contributing countries (Canada, Norway, Switzerland, Turkey, and the United States of America), when establishing the KSC and financially supporting its work.Footnote ⁴⁹³

278. Specifically, consideration may be given to include access to this reparation mechanism to other victims who sufficiently demonstrate that they have suffered harm within the parameters and scope of a case as established in the trial judgment.Footnote ⁴⁹⁴ This would not however affect the liability of a convicted person as determined by a Trial Panel in a reparation order pursuant to Article 22(8) and 44(6) of the Law.

279. Finally, the Panel recalls that, pursuant to Article 22(2) of the Law, if a victim does not apply to participate in proceedings before the KSC, or has not been accepted as a participant or determined to be a victim under the Law, his or her rights under other laws or through other reparation mechanisms in Kosovo must not be limited.

3. By a Newly Established Trust Fund for Victims at the Initiative of the KSC

280. The Panel wants to emphasize that if victims of crimes under the jurisdiction of the KSC cannot enforce their right to reparations,Footnote ⁴⁹⁵ this right, enshrined in Article 22(3) of the Law, becomes meaningless.

281. Thus, since Mr Mustafa's present-day assets and the maximum sums that the Crime Victim Compensation Program can or may grant under its current legislation are in any event insufficient to cover the full compensation awarded by the Panel, especially as regards the Direct Victims, the Panel is of the view that a permanent solution should be implemented by Kosovo as suggested in Section VII.B.2(b) of this Reparation Order. The Panel, however, also recommends the establishment of a trust fund for victims of crimes under the jurisdiction of the KSC, at the initiative of the KSC, in case Kosovo fails to upheld its obligations towards victims in a reasonable time through the establishment of a reparation mechanism.

282. The Panel is of the view that this trust fund for victims established at the initiative of the KSC should be administered by the Registrar of the KSC in accordance with rules to be adopted.Footnote ⁴⁹⁶ It should be financially supported above all by Kosovo,Footnote ⁴⁹⁷ taking into consideration its obligations towards victims as specified above,Footnote ⁴⁹⁸ as well as other States and donors wishing to support victims.

(i) Submissions of the Parties and Participants

329. Mustafa submits that the Trial Panel erred in law in that it failed to consider the principle of novus actus interveniens.Footnote ⁸⁵¹ Specifically, he argues that the Trial Panel failed to consider whether, in the circumstances prevailing at the time the Serbian forces launched an offensive in the area, the free, deliberate and informed killing of the Murder Victim by another person using a gun, was an intervening event which operated to break the chain of causation, thereby relieving Mustafa of any culpability for the ultimate result.Footnote ⁸⁵² In this regard, Mustafa submits that there is a wide time gap between the last time the Murder Victim was seen alive and the discovery of his dead body, and that no direct causal connection can be established between Mustafa's alleged action and the Murder Victim's death.Footnote ⁸⁵³

330. Mustafa further argues that the Trial Panel erred in law in that: (i) there can only be one cause of death;Footnote ⁸⁵⁴ (ii) death due to ill-treatment or denial of medical aid does not amount to the criminal offence of murder;Footnote ⁸⁵⁵ (iii) pursuant to Rule 40 of the Rules, the SPO failed to request authorisation and the Trial Panel failed to exercise its power to authorise an exhumation and post-mortem examination of the Murder Victim's body;Footnote ⁸⁵⁶ and (iv) in the absence of an exhumation and examination of the Murder Victim's body, the Trial Panel did not establish the nature of his injuries, cause of death and time of death.Footnote ⁸⁵⁷ With respect to the nature of injuries and cause of death, Mustafa submits that [REDACTED] are not experts, and that certain evidence indicates that only one entry hole was observed on the body.Footnote ⁸⁵⁸ With respect to the time of death, Mustafa argues that, in order to avoid a “violation of the provisions of the criminal procedure”, a finding on the time of death is “indispensable”.Footnote ⁸⁵⁹

331. The SPO responds that many of Mustafa's submissions are either obscure, cryptic, unsubstantiated or demonstrably incorrect.Footnote ⁸⁶⁰ Concerning Mustafa's novus actus interveniens argument, the SPO responds that it should be dismissed in limine as it is raised for the first time on appeal and Mustafa does not even attempt to demonstrate an error of law.Footnote ⁸⁶¹ On the merits, the SPO submits that, even if these deficiencies were overlooked, the Trial Panel applied the correct causation standard under customary international lawFootnote ⁸⁶² and that any interpretive quandary should be resolved in accordance with the hierarchy of sources under Article 3 of the Law, including recourse to the jurisprudence of the ad hoc tribunals.Footnote ⁸⁶³ This jurisprudence, the SPO submits, applies the substantial contribution test for causation, a test which it notes is higher than those applied in many domestic jurisdictions.Footnote ⁸⁶⁴ The SPO adds that, while domestic jurisdictions approach causation in different ways, the starting point in most common and civil law jurisdictions is establishing factual causation through the conditio sine qua non test, with most jurisdictions then moving on to assess legal causation through an additional normative requirement.Footnote ⁸⁶⁵ It submits that, while the form that this normative requirement takes varies across domestic jurisdictions, the objective offairly attributing criminal responsibility is the same.Footnote ⁸⁶⁶ The SPO further adds that under customary international law, this objective is achieved through the substantial cause test.Footnote ⁸⁶⁷ The SPO also notes that Mustafa does not appear to challenge the correctness of the substantial cause test, but rather its application by the Trial Panel.Footnote ⁸⁶⁸

332. Specifically concerning novus actus interveniens, the SPO submits that this principle is an exception to ordinary principles of causation, is unique to Anglo-American common law jurisdictions and does not reflect customary international law.Footnote ⁸⁶⁹ It further submits that there is no “legitimate path for this principle into the substantive law applicable to Count 4” of the Indictment.Footnote ⁸⁷⁰ The SPO cautions against directly importing a domestic legal concept into international criminal law, noting that the applicable threshold for using a domestic law rule to interpret customary international law is that the domestic rule must be “common to the major legal systems of the world”.Footnote ⁸⁷¹ It submits that the novus actus interveniens principle does not meet this threshold.Footnote ⁸⁷² Notwithstanding the above, the SPO contends that, in domestic jurisdictions, this principle does not significantly modify the ordinary principles of causation in that in most cases where a voluntary, criminal act has been found to break the chain of causation, the act was not reasonably foreseeable.Footnote ⁸⁷³

333. Moreover, the SPO submits that even if novus actus interveniens applied in customary international law, it would not exempt Mustafa from liability, as a direct perpetrator, for his omissions in relation to his failure to evacuate the Murder Victim and to provide medical care.Footnote ⁸⁷⁴ The SPO adds that on the same basis, Mustafa's liability for aiding and abetting would also be proven.Footnote ⁸⁷⁵ However, it notes that the Appeals Panel would only get to the point of having to examine aiding and abetting liability if it were to apply some other exceptional principle than the substantial cause test.Footnote ⁸⁷⁶

334. In response to questions raised by the Appeals Panel concerning the applicable causation standard, the SPO adds: (i) the Trial Panel made a “but for” causation finding and that regardless of whether the applicable standard for causation under customary international law includes “but for” causation, it would make no difference to the Trial Panel's overall finding on causation for murder;Footnote ⁸⁷⁷ (ii) an Appeals Panel previously held that the jurisprudence of the ad hoc tribunals was the most appropriate method of discerning the existence of customary international law;Footnote ⁸⁷⁸ (iii) the application of the substantial cause test is consistent with the factual findings by an ICTY trial chamber in the Limaj et al. case and the ICTY Appeals Chamber in the Lukić and Lukić case where the accused were convicted as direct perpetrators while the actions of others had a more direct effect on the victims' deaths;Footnote ⁸⁷⁹ (iv) there is a wealth of cases with similar facts in international jurisprudence that provide guidance on the application of the substantial cause test in the context of aiding and abetting and illustrate the reasonableness of the Trial Panel's findings;Footnote ⁸⁸⁰ and (v) if the Panel substituted the substantial contribution test for any of the causation standards under national law, it would make no difference to the Trial Panel's ultimate finding attributing the death of the Murder Victim to Mustafa and his BIA subordinates.Footnote ⁸⁸¹ Finally, the SPO referred to a Kosovo Supreme Court judgment wherein it was held that where a victim of a legal detention is found murdered, the responsibility for that death can be attributed to those responsible for the detention if the detention or conditions of release created an opportunity for a third party to commit murder, provided that the requisite causal link and mens rea are satisfied.Footnote ⁸⁸²

335. The SPO responds with respect to Mustafa's argument that there can only be one cause of death, that he conflates medical (or pathological) cause of death with legal causation and that while common usage of the word “cause” may imply that an accused's actions must be the sole cause of a given result, this is not how causation is defined in the law.Footnote ⁸⁸³ The SPO submits that the Trial Panel correctly set out the legal standard for causation applicable to the war crime of murder, arguing that a perpetrator's conduct need not have been the sole cause of the victim's death, but it must, at a minimum, have substantially contributed to it.Footnote ⁸⁸⁴ In this instance, the SPO submits that the acts and omissions of Mustafa and his subordinates had a substantial effect on the Murder Victim being shot, which in turn medically caused his death.Footnote ⁸⁸⁵ The SPO responds with respect to Mustafa's further argument that death due to ill-treatment or denial of medical aid cannot form the basis of a murder conviction, that Mustafa provides no authority for this proposition.Footnote ⁸⁸⁶

336. Concerning Mustafa's argument under Rule 40 of the Rules, the SPO responds that Mustafa raises this argument for the first time on appeal despite having had a specific opportunity to do so prior to opening statements,Footnote ⁸⁸⁷ and therefore, it should be dismissed.Footnote ⁸⁸⁸ The SPO nonetheless submits that Mustafa's argument is based on a fundamental misunderstanding of the Rule,Footnote ⁸⁸⁹ in that it neither obliges the SPO to conduct exhumations or post-mortem examinationsFootnote ⁸⁹⁰ nor does its plain language confer any power on the Trial Panel to order such measures independent of an SPO request.Footnote ⁸⁹¹ Further, the SPO responds that Mustafa fails to show that the absence of an exhumation and examination of the Murder Victim's body resulted in the Trial Panel's alleged failure to identify the body, cause and time of death and the nature of the injuries.Footnote ⁸⁹² Specifically, the SPO submits that the Trial Panel: (i) acknowledged the absence of an autopsy report; (ii) explained in detail what evidence it relied upon; and (iii) did not require corroboration.Footnote ⁸⁹³ Moreover, the SPO argues that it is well established that the elements of murder can be proven in the absence of a body.Footnote ⁸⁹⁴

337. Victims' Counsel responds, concerning Mustafa's novus actus interveniens argument, that a new act which breaks the chain of causation must constitute a “significant contributing factor” in the victim's death.Footnote ⁸⁹⁵ Victims' Counsel further responds that Mustafa's submissions in this regard are hypothetical, asserting only that “‘many new intervening factors could have caused the death of the victim’”.Footnote ⁸⁹⁶ Victims' Counsel adds that international case law, the major legal systems of the world, as well as Kosovo criminal law all clearly require a causal link between an accused's act or omission and the death of a victim of murder, and that attribution of responsibility is subject to normative correction based on what is fair and reasonable.Footnote ⁸⁹⁷ Emphasising that the Serbian advance was not an entirely new, autonomous event that would break the chain of causation, Victims' Counsel submits that it is fair and reasonable for Mustafa's conviction for murder to be upheld on the basis of the facts that the Trial Panel found beyond reasonable doubt.Footnote ⁸⁹⁸ Victim's Counsel contends that it is possible to have two different perpetrators committing the same crime, but one does not overtake the other, breaking the chain of causation.Footnote ⁸⁹⁹ In her view, a disruption of causation only comes in when there is an entirely new event.Footnote ⁹⁰⁰

338. Concerning Mustafa's arguments that there can only be one cause of death and that death due to ill-treatment or denial of medical aid cannot form the basis of a murder conviction, Victims' Counsel responds that Mustafa fails to acknowledge that, under the Law, the war crime of murder in a non-international armed conflict can be committed in a variety of ways by acts or omissions.Footnote ⁹⁰¹ Victims' Counsel adds that what is required is that the perpetrator's conduct substantially contributed to the death, which may be proven through circumstantial evidence, such as proof of incidents or patterns of mistreatment.Footnote ⁹⁰² Accordingly, Victims' Counsel submits that the Trial Panel correctly considered that the BIA's actions need not be the sole cause of death.Footnote ⁹⁰³

339. Victims' Counsel further responds with respect to Mustafa's argument under Rule 40 of the Rules that: (i) this provision imposes an obligation on the SPO and not on the Trial Panel;Footnote ⁹⁰⁴ (ii) there was no need for an identification due to the available evidence on this point;Footnote ⁹⁰⁵ and (iii) the Trial Panel was correct not to consider an exhumation in light of the Specialist Chambers' obligation to act in a way that respects the victims' interests, and their rights to family life and respect for human dignity.Footnote ⁹⁰⁶

340. Mustafa replies, concerning novus actus interveniens, that the SPO's submissions are either misplaced or unfounded.Footnote ⁹⁰⁷ Specifically, he submits that: (i) he should not be criminally liable if the Murder Victim was shot by Serb forces, as he could not have acted otherwise and tried to save civilians when the Serbs were advancing on Zllash/Zlaš;Footnote ⁹⁰⁸ (ii) the SPO's position in relation to the Serb advance, that under any legal system Mustafa would have been liable for the Murder Victim's death, is unreasonable;Footnote ⁹⁰⁹ and (iii) the SPO's submissions on the inapplicability of the novus actus interveniens principle are irrelevant, as they engage in matters falling outside of the scope of the appeal.Footnote ⁹¹⁰ In response to a question by the Appeals Panel concerning whether a new intervening event that resulted in lack of causation would impact other charged modes of liability, Mustafa responded that “where there is no murder, there is no responsibility for murder […] in any form, at least by the accused”.Footnote ⁹¹¹

(ii) Assessment of the Court of Appeals Panel

341. The Appeals Panel notes the following definition for the actus reus of murder set out by the Trial Panel:

342. Mustafa raises several interlinked challenges relating to the issue of causation, including the notion of novus actus interveniens, as it concerns the question whether his conduct satisfies the actus reus of murder. Causation is a component of the actus reus of murder. It is also a question of both fact and law.

343. As regards factual causation, the Appeals Panel notes that the Trial Panel found that the Murder Victim died as a result of a combination of: (i) the severe mistreatment inflicted by BIA members who detained him, causing serious bodily harm; (ii) the denial ofmedical aid by BIA members; and (iii) gunshot wounds. Thus, the Trial Panel was unable to isolate a single factual cause of the Murder Victim's death.

344. As it concerns legal causation, the question before the Trial Panel was how to fairly attribute responsibility to Mustafa for his conduct in relation to the Murder Victim's death in view of the multiple factual causes of death. In the Appeals Panel's view, in answering this question, the Trial Panel correctly applied the “substantial contribution” test which is well-established in the jurisprudence of international courts and tribunalsFootnote ⁹¹³ and is not, as such, challenged by Mustafa.

345. The Trial Panel found that, based on its factual findings, it was “uncontroversial”Footnote ⁹¹⁴ that the causal factors of severe mistreatment and denial of medical aid were “solely attributable” to Mustafa and his BIA subordinatesFootnote ⁹¹⁵ and that these were substantial causes of the Murder Victim's death.Footnote ⁹¹⁶ As regards the causal factor of the bullet holes in the Murder Victim's body, the Trial Panel found that there was reasonable doubt as to whether they could be attributed to BIA members or to Serbian forces.Footnote ⁹¹⁷ This being the case, and in view of the principle of in dubio pro reo, the Trial Panel was required to assume, and did assume, for the remainder of its analysis of legal causation, the factual scenario which is most favourable to Mustafa – namely that Serb forces shot the Murder Victim.Footnote ⁹¹⁸ Having acknowledged the existence ofa reasonable doubt, and with a view to the fair attribution ofresponsibility for the Murder Victim's death, the Appeals Panel considers that the Trial Panel was also required to address the question whether the assumed gunshots by Serb forces constituted a third party intervention so as to break the chain of causation, which is the question raised on appeal.Footnote ⁹¹⁹

346. The Appeals Panel notes in this regard that neither the Parties nor Victims' Counsel were able to direct the Panel to any case by an international court or tribunal where there was a new third party intervening event comparable to that in the present case.Footnote ⁹²⁰ Thus, the jurisprudence of international courts and tribunals does not seem to offer clear guidance as to the circumstances in which a new third party intervening event relevantly affects legal causation under the substantial contribution test for a direct perpetrator. As a consequence, there is no apparent basis on which to derive (subsidiarily) customary international law from international case law on this issue.

347. A closer look at major jurisdictions, however, offers some insights as to the proper treatment of a situation where a third party intervenes in the causal course of events. In common law jurisdictions the issue is dealt with under the heading of novus actus interveniens. Thus, courts consider that the chain of causation is broken where, for example, the third party intervening event is independent of an accused's conduct, superseding it either on the basis that it is: (i) not “reasonably foreseeable” or “extraordinary” (United States of America);Footnote ⁹²¹ or (ii) “free, deliberate, and informed”Footnote ⁹²² or “unreasonable or extraneous or extrinsic”,Footnote ⁹²³ being “so independent of [the accused's] acts, and in itself so potent in causing death, that they regard the contribution made by [the accused's] acts as insignificant”Footnote ⁹²⁴ or, put another way, “so overwhelming as to make the original wound merely part ofthe history”(England and Wales).Footnote ⁹²⁵ In civil law jurisdictions, courts may consider that the chain of causation is broken by the third party intervening event, where it is, for example: (i) “exorbitant” (Italy);Footnote ⁹²⁶ (ii) “[outside] the boundaries of what was foreseeable” and justifies “a different assessment of the offence”(Germany);Footnote ⁹²⁷ (iii) “completely unpredictable and anomalous” (Portugal);Footnote ⁹²⁸ (iv) directly the cause of the victim's deathFootnote ⁹²⁹ and not part of a single scene of violence (scène unique de violence) (France);Footnote ⁹³⁰ (v) “totally anomalous, unforeseeable and foreign to the defendant's behaviour […] [and not] within the same sphere of the risk created or increased by the defendant's own behaviour” (Spain);Footnote ⁹³¹ or (vi) “autonomous” and “generates its own causal relationship” (Argentina).Footnote ⁹³² Thus, the Panel sums up the key insights gleaned from this brief review of the position in various jurisdictions as follows: to have any impact on the chain of causation set in motion by the original conduct, a new supervening event must not be foreseeable, or not form part of the original sphere of risk belonging to the accused and create a wholly new risk that is so potent as to render the original risk insignificant.

348. While it would have been preferable for the Trial Panel to have directly acknowledged and set out its methodology for assessing a new third party intervening event in relation to the substantial contribution test, the Appeals Panel nonetheless understands the Trial Panel to have addressed this matter, at least implicitly, ultimately concluding:

Moreover, applying the essence of the above referenced standards for novus actus interveniens, the Appeals Panel observes that Trial Panel findings support the conclusion that the risk to the Murder Victim's life posed by advancing Serb forces was foreseeable. The Trial Panel found that Mustafa personally went to Zllash/Zlaš on or around 20 to 21 April 1999 in.order to evacuate wounded persons “because of a critical change of circumstances — the Serbian offensive”.Footnote ⁹³⁴ In other words, Mustafa knew about the advancing enemy Serb forces and was worried enough to move his own personnel from harm's way. The Trial Panel's findings also support the conclusion that the risk to the Murder Victim's life posed by advancing Serb forces was part ofthe original sphere ofrisk stemming from Mustafa's conduct. In this regard, the Trial Panel found, in the context of his knowledge of the advancing Serb forces, that Mustafa's decision to not release or evacuate the Murder Victim – a man in a “near-to-death state” when last seen by his co-detainees – “deprived [him] of any chance to survive”.Footnote ⁹³⁵ Finally, Trial Panel findings support the conclusion that the risk to the Murder Victim's life posed by advancing Serb forces was not so potent as to render the original risk insignificant. The Trial Panel found in this regard that “had the Accused and his BIA subordinates stopped such extreme mistreatment or provided medical aid to the Murder Victim, he would not have died”.Footnote ⁹³⁶

349. In view of the above, the Appeals Panel finds that, while the Trial Panel did not explicitly address the novus actus interveniens principle, Mustafa has failed to demonstrate that no reasonable trial panel could have found that Mustafa satisfied the actus reus of murder. The Appeals Panel therefore dismisses this argument.

350. Turning to Mustafa's argument that there can only be one cause of death, the Appeals Panel considers that Mustafa appears to confuse medical cause of death with legal causation. The Panel is of the view that, based on the principle of free evaluation of evidence, it is not necessary for a trial panel to be satisfied beyond reasonable doubt as to the medical cause of death (or even for the body of the victim to be recovered).Footnote ⁹³⁷ As it concerns legal causation, there may be, and there often is, more than one cause leading to a harmful result and more than one person to whom the law may attribute that result.Footnote ⁹³⁸ The Appeals Panel therefore dismisses this argument.

351. Concerning Mustafa's argument that death due to ill-treatment or denial of medical care does not amount to the “criminal offence of murder”, the Appeals Panel notes that it is well-established in the jurisprudence of international courts and tribunals that both acts and omissions resulting in the death of a person may qualify as murder.Footnote ⁹³⁹ Ill-treatment and denial of medical care are no different than any other act or omission. What is required is that the perpetrator's conduct substantially contributes to the victim's death,Footnote ⁹⁴⁰ without having a supervening event superseding this substantial causal contribution. The Appeals Panel therefore dismisses this argument.

352. Concerning Mustafa's argument that the SPO failed to request authorisation, and that the Trial Panel failed to exercise its power to authorise, pursuant to Rule 40 of the Rules, an exhumation and post-mortem examination of the grave believed to be that of the Murder Victim, the Appeals Panel observes that Mustafa raises this argument for the first time on appeal, while he had ample opportunity to raise it at first instance.Footnote ⁹⁴¹ For this reason, the Appeals Panel considers that Mustafa has waived his right to challenge this issue on appeal.Footnote ⁹⁴² The Appeals Panel therefore dismisses this argument.

353. Concerning Mustafa's argument alleging an error in relation to the cause of death, the Appeals Panel dismisses Mustafa's assertion that the Trial Panel erred by relying on non-expert testimony given that he has not articulated a legal basis for the alleged error.Footnote ⁹⁴³ The Panel therefore dismisses this unsubstantiated argument. Additionally, Mustafa submits that certain evidence is mutually corroborative of one entry hole having been observed on the Murder Victim's body.Footnote ⁹⁴⁴ However, Mustafa does not explain the relevance ofdetermining the number ofentry holes in the body.Footnote ⁹⁴⁵ In this regard, the Appeals Panel observes that Mustafa's conviction for the war crime of murder was not based on attribution of the bullet hole to him or to his BIA subordinates, as the Trial Panel found reasonable doubt as to its attribution. Instead, it was based on the attribution of the severe mistreatment inflicted on the Murder Victim and the denial of medical aid.Footnote ⁹⁴⁶ The Panel therefore dismisses Mustafa's arguments in this regard.Footnote ⁹⁴⁷

354. The Panel now turns to Mustafa's argument that, in order to avoid a “violation of the provisions of the criminal procedure”, a finding on the time of death was “indispensable”Footnote ⁹⁴⁸ and “more than necessary”.Footnote ⁹⁴⁹ In this regard, the Panel notes that the approximate time of death was a material fact pleaded in the Indictment, namely the SPO alleged that Mustafa was individually criminally responsible for the death of the Murder Victim between approximately 19 April 1999 and around the end of April 1999.Footnote ⁹⁵⁰ The Trial Panel found that: (i) the Murder Victim was last seen alive by his co- detainees at the ZDC, in a near-to-death state, on or around 19 April 1999,Footnote ⁹⁵¹ having been denied medical care after suffering an extreme level of mistreatment by BIA members for about [REDACTED] days in detention, including with a potentially lethal object;Footnote ⁹⁵² (ii) the Murder Victim was not released from the ZDC on or around 19 April 1999 when other detainees were released;Footnote ⁹⁵³ (iii) at some subsequent point in time, prior to when some BIA members returned to Zllash/Zlaš, on or around 20 to 21 April 1999,Footnote ⁹⁵⁴ Serbian forces shelled and fired at the ZDC, at least from a distance, causing damage to its infrastructure;Footnote ⁹⁵⁵ and (iv) the Murder Victim was found dead between approximately 3 and 6 July 1999, buried [REDACTED].Footnote ⁹⁵⁶ On the basis of these findings, the Trial Panel concluded that the Murder Victim died between on or around 19 April 1999 and around the end of April 1999.Footnote ⁹⁵⁷ The Appeals Panel considers that, depending on the facts of a case, a precise determination of the time of death may be necessary in order to attribute responsibility to an accused. Yet, in this case, a more precise determination of the time of death than the one given was not necessary for the purpose of attribution. Mustafa fails to show why it should have been necessary and that no reasonable trial panel could have found that Mustafa's conduct satisfied the actus reus of murder in the absence of such a finding. The Panel therefore dismisses this argument.

355. In light of the above, the Appeals Panel finds that Mustafa fails to demonstrate that the Trial Panel erred in law in finding that Mustafa's conduct satisfied the actus reus of murder. Accordingly, the Appeals Panel dismisses Mustafa's arguments alleging errors of law under Grounds 3 and 4.

(i) Submissions of the Parties and Participants

356. As it concerns factual errors, Mustafa first alleges that, contrary to the Trial Panel's findings, it was a reasonable inference that the Murder Victim died solely as a result of the gunshot wound(s).Footnote ⁹⁵⁸ To this end, he submits that the Trial Panel erred in finding that mistreatment at the ZDC prior to 19 April 1999 was a substantial cause of the Murder Victim's death.Footnote ⁹⁵⁹ In support, Mustafa argues that the Trial Panel did not “unequivocally” establish the fact that the Murder Victim was unable to move at the time when other detainees were released.Footnote ⁹⁶⁰

357. Second, Mustafa alleges that, contrary to the Trial Panel's findings, there is a reasonable likelihood that the Murder Victim died “after the period of the [I]ndictment”.Footnote ⁹⁶¹

358. Third, Mustafa alleges that the Trial Panel erred in that there was no evidence that the Murder Victim: (i) died from mistreatment by BIA members;Footnote ⁹⁶² (ii) died from the denial of medical aid by BIA members;Footnote ⁹⁶³ (iii) was not evacuated;Footnote ⁹⁶⁴ or (iv) was shot with bullets.Footnote ⁹⁶⁵

359. Fourth, Mustafa alleges that the Trial Panel erred in that there was no or insufficient evidence to support the Trial Panel's finding that the Murder Victim died as a result of his acts or omissions.Footnote ⁹⁶⁶ He advances two arguments to this end. Mustafa first asserts that the Trial Panel wrongly concluded that, in his capacity as commander in chief of the BIA at the detention complex in Zllash/Zlaš, he was responsible for the decision not to release and the decision not to evacuate the Murder Victim.Footnote ⁹⁶⁷ In support of this argument, he submits that the decision not to release the Murder Victim was made by Mr Mehmetaj “a.k.a. Bimi” and that there was no longer a superior-subordinate relationship between Mustafa and “Bimi”.Footnote ⁹⁶⁸ Instead, Mustafa contends that Mr Isa Kastrati was deputy commander at the time.Footnote ⁹⁶⁹ Additionally, Mustafa submits that there is no evidence that he made a decision that the Murder Victim should not be evacuated.Footnote ⁹⁷⁰ Second, Mustafa argues that the Trial Panel erred in concluding that the alleged gunshot could be attributed to him or his subordinates when there was no evidence to support such a finding.Footnote ⁹⁷¹

360. The SPO responds that Mustafa provides no support for his argument that it was a reasonable inference that the Murder Victim died solely as a result of the gunshot wound(s), beyond his general assertion that the Trial Panel did not establish in an “‘unequivocal way’” the finding that the Murder Victim was unable to move.Footnote ⁹⁷²

361. The SPO further responds that Mustafa's argument specifically alleging that the Murder Victim's time of death could have been after the Indictment period is factually unfounded and runs contrary to the evidence on which the Trial Panel relied.Footnote ⁹⁷³

362. Concerning Mustafa's argument that certain Trial Panel findings are unsupported by any evidence, the SPO responds that this submission is based on a mistaken assumption that a conviction cannot be supported by circumstantial evidence.Footnote ⁹⁷⁴ The SPO adds that the Trial Panel clearly stated that it inferred certain findings and that Mustafa merely disagrees with these findings without articulating any error.Footnote ⁹⁷⁵ Regarding Mustafa's specific assertion that there was no evidence that the Murder Victim was not evacuated from the ZDC, the SPO responds that the Trial Panel clearly stated that it inferred this finding from circumstantial evidence, including: (i) the testimony of W01679, W03593 and W03594; (ii) evidence of Mustafa's command over the ZDC; and (iii) his admitted role in the evacuation of the wounded.Footnote ⁹⁷⁶ As to Mustafa's further assertion that there is no evidence supporting the finding that the Murder Victim was shot by bullets, the SPO responds that, as is evident from Mustafa's own reference to the Trial Judgment, this finding is based on the evidence of several witnesses who exhumed the Murder Victim's body within months of his death and who directly observed the holes in the body.Footnote ⁹⁷⁷

363. Concerning Mustafa's argument that there was no or insufficient evidence that the Murder Victim died as a result of his acts or omissions, the SPO responds that the Trial Panel clearly and exhaustively explained the solid evidentiary foundation of its findings regarding Mustafa's responsibility for the Murder Victim's death, and that an alleged error regarding the formal position of one of the KLA soldiers does not invalidate them.Footnote ⁹⁷⁸ To this end, the SPO submits that, in April 1999, Mr Mehmetaj continued to be a member of the BIA, and hence Mustafa's subordinate, even while remotely performing functions for the Llap Operational Zone command.Footnote ⁹⁷⁹ Moreover, the SPO responds that the Trial Panel's finding regarding Mustafa's responsibility for the decision not to release or evacuate the Murder Victim was based on “‘the evidence as a whole’”, including, inter alia, Mustafa's role as overall commander of the BIA at the ZDC, and his responsibility for the evacuation of the wounded from Zllash/Zlaš.Footnote ⁹⁸⁰

364. As to Mustafa's argument that there is no evidence that the gunshot could be attributed to him, the SPO responds that the Trial Panel considered the possibility both that BIA members fired bullets at the Murder Victim before leaving the ZDC and that the bullet wounds emanated from Serb forces.Footnote ⁹⁸¹ The SPO submits that, based on well-grounded factual findings, the Trial Panel ultimately concluded that, even in the latter scenario, the acts and omissions of Mustafa and other BIA members substantially contributed to the Murder Victim's death by placing him in a situation in which he was unable to escape the Serb military offensive.Footnote ⁹⁸² According to the SPO, the Appeals Panel should only substitute its own view for that of the Trial Panel if the latter's conclusion is wholly erroneous or if no reasonable trier of fact could have reached it.Footnote ⁹⁸³ Moreover, the SPO responds that any such enquiry should be conducted within the context of two facts firmly established by the Trial Panel, namely that: (i) Mustafa intended to kill the Murder Victim; and (ii) but for Mustafa's (and his subordinates') acts and omissions, the Murder Victim would have survived.Footnote ⁹⁸⁴

365. Victims' Counsel responds that the Trial Panel assessed the totality of the available evidence to substantiate its findings on the Murder Victim's injuries.Footnote ⁹⁸⁵ Victims' Counsel adds that Mustafa misrepresents the purpose of appellate proceedings by claiming that the totality of the evidence was incorrectly assessed.Footnote ⁹⁸⁶

366. Mustafa replies that the SPO's submissions contain presumptions rather than assertions based on evidence and that these are the same presumptions made by the Trial Panel.Footnote ⁹⁸⁷

(ii) Assessment of the Court of Appeals Panel

367. With respect to Mustafa's allegations of factual errors,Footnote ⁹⁸⁸ the Appeals Panel recalls the Trial Panel's finding that the severe mistreatment inflicted on the Murder Victim by the BIA members who detained him, causing serious bodily harm, as well as the denial of medical aid by these BIA members, were substantial causes of the Murder Victim's death.Footnote ⁹⁸⁹ In reaching this finding, the Trial Panel “consider[ed] it relevant”Footnote ⁹⁹⁰ that, when the Murder Victim was last seen by his co-detainees, having endured severe mistreatment on a daily basis for almost three weeks, he was in a near-to-death condition and was unable to walk or stand.Footnote ⁹⁹¹

368. The Appeals Panel understands Mustafa's submission that the Trial Panel should have “unequivocally” established that the Murder Victim was unable to move, to mean that this should have been found beyond reasonable doubt.Footnote ⁹⁹² The Appeals Panel considers that the beyond reasonable doubt standard applies to those facts which are indispensable for entering a conviction, namely those constituting the elements of the crime(s) charged, including the causal nexus, and the alleged modes of liability.Footnote ⁹⁹³ Mustafa has not demonstrated either that the Trial Panel did not reach its finding that the Murder Victim was unable to walk or stand beyond reasonable doubt, or that there were any deficiencies in the evidence on which the Trial Panel relied.Footnote ⁹⁹⁴ Moreover, Mustafa does not demonstrate that a finding that the Murder Victim was unable to walk or stand is indispensable for his conviction. That is, he has not demonstrated that, without the finding that the Murder Victim was unable to walk or stand, on the basis of the remaining evidence,Footnote ⁹⁹⁵ no reasonable trial panel could have reached the Trial Panel's conclusion that the Murder Victim's mistreatment at the ZDC prior to 19 April 1999 was a substantial cause of the Murder Victim's death, and ultimately, that Mustafa's conduct satisfied the actus reus of murder. The Appeals Panel therefore dismisses this argument.

369. The Panel notes that Mustafa points to one single piece of evidence in support of his argument that the Murder Victim's death could have occurred at “any date after the indictment period”, which he defines as after 11 June 1999,Footnote ⁹⁹⁶ namely a statement by W04648 collected within the framework of an [REDACTED] investigation.Footnote ⁹⁹⁷ Mustafa submits that the witness's statement indicates that the burial location was “‘fresh’”, “‘[REDACTED]’”.Footnote ⁹⁹⁸ In view of the evidence on which the Trial Panel relied to establish an approximate time for the Murder Victim's death,Footnote ⁹⁹⁹ including evidence that the body was already decomposing when it was exhumed,Footnote ¹⁰⁰⁰ the Panel finds that Mustafa fails to demonstrate that no reasonable trial panel could have come to the same conclusion. The Appeals Panel therefore dismisses Mustafa's arguments concerning the time of death.

370. Concerning Mustafa's argument that there was no evidence that the Murder Victim died from mistreatment by BIA members or from the denial of medical aid by BIA members,Footnote ¹⁰⁰¹ the Appeals Chamber notes that Mustafa ignores the detailed evidentiary references in the Trial Judgment supporting these conclusions.Footnote ¹⁰⁰² The same is true of Mustafa's argument that there was no evidence supporting the conclusion that the Murder Victim was not evacuated,Footnote ¹⁰⁰³ or that the Murder Victim was shot with bullets.Footnote ¹⁰⁰⁴ The Panel therefore dismisses these arguments.

371. With respect to Mustafa's argument that there was no or insufficient evidence supporting the Trial Panel's finding that the Murder Victim died as a result of Mustafa's acts or omissions, the Appeals Panel understands Mustafa to contest the Trial Panel's findings that: (i) “the decision not to release the Murder Victim could only have been made by the Accused, in his capacity as overall commander of the BIA at the ZDC”;Footnote ¹⁰⁰⁵ and (ii) “the Murder Victim was not evacuated from Zllash/Zlaš, a decision which must have been taken also by the Accused as he was in charge of the evacuation from Zllash/Zlaš of those wounded”.Footnote ¹⁰⁰⁶

372. Regarding the Trial Panel's finding as to release, the Appeals Panel notes that this conclusion was based on the evidence taken as a whole, and in view of Mustafa's position as overall commander of the BIA at the ZDC.Footnote ¹⁰⁰⁷ Specifically, the Trial Panel observed that the evidence, including that of the Accused, indicated that Mustafa: (i) was the overall and only BIA commander throughout the BIA's existence, including in April 1999;Footnote ¹⁰⁰⁸ and (ii) had the power to issue orders to his subordinates, including in relation to monitoring the movement of Serb forces and delivering medical supplies.Footnote ¹⁰⁰⁹ Moreover, the Trial Panel observed that Mustafa stated that he received information about violations committed by BIA soldiers and had the power to discipline them.Footnote ¹⁰¹⁰ Regarding Mustafa's position, the Appeals Panel notes that it has previously dismissed Mustafa's argument that the Trial Panel erred in concluding that the BIA controlled the ZDC, as well as his submission that he never himself stated that he or the BIA had control of the ZDC.Footnote ¹⁰¹¹

373. As additional confirmation that the decision not to release the Murder Victim could only have been made by Mustafa, the Trial Panel underlined that the evidence showed that “the release of the other detainees was executed by the Accused's BIA subordinates, including his deputy, Mr Mehmetaj (aka Bimi)”.Footnote ¹⁰¹² Mustafa asserts that the finding as to release is erroneous because Mr Mehmetaj was no longer Mustafa's subordinate at the time the decision was made.Footnote ¹⁰¹³ In this regard, the Appeals Panel notes that the Trial Panel found that some ZDC detainees were suddenly released on or around 19 April 1999,Footnote ¹⁰¹⁴ and that, in this context, the Trial Panel referred to Mr Mehmetaj as Mustafa's deputy.Footnote ¹⁰¹⁵ At the same time, the Appeals Panel observes that the Trial Panel was aware that, in April 1999, when some of the ZDC detainees were released, Mr Mehmetaj was no longer Mustafa's deputy.Footnote ¹⁰¹⁶ The Appeals Panel further observes that Mr Mehmetaj's status as no longer being Mustafa's deputy does not preclude that he nonetheless remained Mustafa's subordinate. Mustafa does not point to any evidence indicating that Mr Mehmetaj was no longer a subordinate of Mustafa. Moreover, the Appeals Panel notes that Mr Mehmetaj indicated that, even when he was appointed to a new position as the person in charge of morale and politics at the level of the Llap Operational Zone in February 1999,Footnote ¹⁰¹⁷ “[he] was doing two tasks simultaneously. One with BIA and one for the staff”.Footnote ¹⁰¹⁸ The Appeals Panel therefore finds that Mustafa fails to demonstrate that no reasonable trial panel could have reached the same conclusion as to release and dismisses this argument.

374. Regarding the Trial Panel's finding as to evacuation, the Appeals Panel disagrees with Mustafa's contention that there is no evidence to support this finding. The Appeals Panel again notes the Trial Panel's finding that Mustafa was the overall and only BIA commander throughout the BIA's existence, including in April 1999.Footnote ¹⁰¹⁹ The Trial Panel further found that the ZDC was evacuated due to the Serbian offensive,Footnote ¹⁰²⁰ and that Mustafa stated more than once that, on 20 April 1999, he personally went back to Zllash/Zlaš in order to evacuate some wounded persons.Footnote ¹⁰²¹ However, the Appeals Panel also notes that in reaching its finding as to evacuation, the Trial Panel did not cross-reference these earlier findings or the related evidence.Footnote ¹⁰²² Nevertheless, despite this shortcoming, and reading the Trial Judgment as a whole, the Appeals Panel does not consider that the Trial Panel failed to comply with its obligation to provide a reasoned opinion with respect to the finding as to evacuation. The Panel therefore dismisses Mustafa's argument.

375. Turning to Mustafa's argument that the Trial Panel erred in concluding that the alleged gunshot wounds found on the Murder Victim's body could be attributed to Mustafa or his subordinates,Footnote ¹⁰²³ the Appeals Panel notes that Mustafa does not identify the precise finding that he is challenging. Such a deficiency warrants summary dismissal of this submission.Footnote ¹⁰²⁴ Regardless, the Appeals Panel notes that Mustafa's conviction for the war crime of murder was not based on such a finding. On the contrary, the Trial Panel found that there was reasonable doubt as to whom the bullet holes found on the Murder Victim's body could be attributed.Footnote ¹⁰²⁵ The Panel therefore dismisses this argument.

376. In light of the above, the Appeals Panel finds that Mustafa fails to demonstrate that the Trial Panel erred in fact in finding the Mustafa's conduct satisfied the actus reus of murder. Accordingly, the Appeals Panel dismisses all of Mustafa's factual arguments under Grounds 3 and 4.