HLC files criminal complaint against Božidar Delić and 10 members of the Yugoslav Army and Serbian Ministry of Interior for committing war crimes

After careful consideration of available evidence about the murder of several dozens of Kosovo Albanians (42 victims have been identified so far) on March 25, 1999 in Trnje/Ternje village, Suva Reka municipality, the Humanitarian Law Center (HLC) has cause to believe that Božidar Delić, a retired major-general and another 10 persons, mostly members of the 549th motorized brigade of the Yugoslav Army (YA) under his command and a number of members of the Ministry of Internal Affairs of the Republic of Serbia (MUP Serbia) acted in accordance with a preconceived plan and agreement and committed these murders thus becoming criminally responsible for committing a war crime against the civilian population from Article 142, paragraph 1 of the Criminal Code of the Federal Republic of Yugoslavia (KZ SRJ), in connection with Article 22 of the KZ SRJ as co-perpetrators, while some of them are charged as instigators according to Article 23 of the KZ SRJ and accomplices according to Article 24, paragraph 2 of the KZ SRJ.

The Office of the War Crimes Prosecutor had opportunity to hear the testimony of Bekim Gashi, an eyewitness from the Trnje/Ternje village, whose mother and four sisters were killed by Serbian soldiers and police on March 23, 1999. Due to the fact that the Office of the War Crimes Prosecutor has failed to react, HLC filed a criminal complaint against Božidar Delić and 10 other persons on May 8, 2008, fulfilling its legal obligation to report on perpetrators of the most serious criminal act which in accordance with Article 253 of the Criminal Procedure Code requires automatic official prosecution. HLC expects that Serbia will soon create an atmosphere in which state authorities tasked with (and paid for) detection and criminal prosecution of perpetrators of criminal acts will be free of fear to file criminal complaints when it comes to such serious crimes.

Facts about the case
In the course of the armed conflict in Kosovo, from March 25, 1999 until March 30, 1999, members of the 549th motorized brigade of the YA and members of MUP Serbia killed several dozens of Kosovo Albanians in the village of Trnje/Ternje, Suva Reka municipality. The following victims have been found and identified so far: Emir Gashi (4), Votim Gashi (8), Natyra Gashi (8), Fisnik Gashi (10), Altian (Lulzim) Bytyqi (11), Sedat Gashi (13), Blerta Gashi (15), Arben Gashi (16), Lumturije Gashi (17), Behare Krasniqi (24) nine months pregnant, Ajmone Gashi (33), Bahrije Gashi (61), Habibe Gashi (31), Haki Gashi (72), Hyra Gashi (57), Luleta Gashi (33), Musli Gashi (72), Selvete Gashi (31), Shefkinaze Gashi (72), Shemsije Gashi (41), Shyqeri Gashi (50), Shaban (Nuhi) Gashi (38), Alltane Krasniqi (57), Mehmet Limani (55), Ali Voci (61), Musli Voci (67), Rahime Voci (52), Hamzi (Nuhi) Gashi (35), Refki Rexhaj (49), and the following persons whose age has not yet been determined: Hilmi Gashi, a disabled person; Mirsad Llapatnica, Qazim Llapatnica, Mehmet Gashi, Jeton Balaj, and Muhamet Balaj, all of them (35) from the Trnje/Ternje village, Suva Reka Municipality; Gjyzide Bytyqi (59), Shqipe (Dakaj) Bytyi (27), Ramadan (Isuf) Krasniqi (72), and Refije Krasniqi (49), all of them (4) from the village of Studeničane/ Studençan, Suva Reka/Suhareke municipality; Besnik Muhaxheri and Kasum Muhaxheri, both (2) from the village of Lešane/Leshan, Suva Reka/Suhareke municipality, and Nuki Rexhepi, from the village of Randubrava/Randobravë, Suva Reka/Suhareke municipality, all three (3) of them of unknown age at the time of writing.

Božidar Delić, as commander of the 549th Motorized Brigade of the YA ordered the commander of the Logistics Battalion, deputy commander of the Logistics Battalion (commander of the Technical Troop of the Logistics Battalion), and another three commanders of the Logistics Battalion and other units from the 459th Motorized Brigade to pick about 100 members of that battalion on March 25, 1999 and to perform a joint operation with a group of several dozens of MUP Serbia policemen and other MUP members. They were instructed to shell, destroy, burn, and demolish houses and other objects in the village, to kill residents of the village in front of their family members and neighbours, to beat them, and ultimately drive the Albanian population away from the village by repeated humiliating and brutal forms of physical and psychological torture. They accepted the order and conducted overnight preparation of the members of the Logistics Battalion chosen to execute the order set before them.

After 20 minutes of ferocious anti-aircraft artillery activity accompanied by the use of all available weapons of the Logistics Battalion, in the early morning hours of March 25, 1999, when horrified villagers started running out of their homes in search of shelter, commander of the Logistics Battalion ordered commanders of units subordinated to him to split in three groups, form a skirmish line, and “start cleaning up the village”. In accordance with the previously issued order it meant killing villagers and destroying their houses and other property.

The majority of villagers were hiding in basements or attics of their houses from where they could watch their family members and relatives being killed and brutally treated. They were paralyzed by fear and they were afraid to leave their hiding places even after the soldiers and policemen started torching the houses in which they were hiding. Some of them (Haki Misin Gashi and Mehmet Limani) tried to escape the fire but were killed by the accused.

In order to hide and destroy evidence of the crimes that they had committed, and also in order to prevent the detection and identification of perpetrators by the villagers, the accused drove away all surviving villagers and other Albanians who came to Trnje/Ternje after having been driven from their homes in neighbouring villages. After the Albanians were gone, they transported the majority of the 42 killed villagers, mostly women, children, the elderly and the disabled, and buried them in secret mass graves in the Dragaš area near the Albanian border. Commander Pavle Gavrilović and sergeants Kozlina and Nedeljković supervised the collection of bodies, their being loaded onto trucks, transportation, and their burial in secret mass graves, while several dozens of soldiers from the Logistics Battalion of the 549th Motorized Brigade were also engaged in this operation. Some of them are protected witnesses K-32 and K-41.

Only three victims killed by Serbian security forces in the village of Trnje/Ternje were buried at that location. They are Shaban (Nuhi) Gash, Hamzi (Nuhi) Gashi, and Refki (Qemajl ) Rexhaj from Trnje/Ternje. The bodies of Shemsija (Hajdari) Gashi, Votim (Murat) Gashi, and Mehmet Limani from the village of Studeničane/Studençan, Suva Reka municipality, were found in burned houses. Their remains were identified and buried.

One of the secret mass graves was found in August 1999 in the village of Brezna, Dragaš/Dragash municipality, and seven bodies were exhumed and identified: five from the village of Trnje/Ternje: Bahrije (Krasniqi) Gashi, Ajmone (Nuhi) Gashi, Besarta (Shaban) Gashi, and Rrahime (Eqrem) Voci and two, Behare (Shkelzen) Bytyqi, who was pregnant, and Refije (Behxhet ) Krasniqi, from the village of Studeničane/Studençan, Suva Reka municipality.

Out of a total of 42 Kosovo Albanians killed in the period between March 25, 1999 and March 30, 1999, in the village of Trnje/Ternje, 19 bodies are still missing.

HLC believes that Božidar Delić and the other 10 persons were well informed about their obligation to respect and apply the rules of international law of war. It is quite clear that they knew that each unit commander and each member of the armed forces was individually responsible for the application and respect of these rules, and that they were obliged to initiate proceedings resulting in legal sanctions against persons found in violation of these rules as stipulated in point 3 of Order to Apply the Rules of the International Law of War, adopted by the SFRJ Presidency, published in the “Official Gazette of the SFRJ Army”, No. 7/1988, from April 28, 1988.

Also, they knew they would be held personally responsible if they committed or ordered actions violating the rules of the international law of war, and that the lack of understanding of the stipulations of the international law of war did not grant them immunity from responsibility if they violated its provisions, as defined in point 20, paragraph 1 of the Instructions for the Application of the Rules of the International Law of War in SFRJ Armed Forces (Instructions), proposed by the SFRJ National Defence Secretary and published in the “Official Gazette of the SFRJ Army”, No. 10/1988, from June 10, 1988.

In accordance with point 21, paragraph 1 of Instructions, each officer and non-commissioned officer whose names appear in the criminal complaint filed by the HLC, are criminally responsible for actions of those subordinated to them (command responsibility) if they knew or if it was reasonable to expect that they knew that units or individuals subordinated to them were about to commit such violations and if they failed to take measures to prevent such violations at the time it was still possible to do so. Each military commander aware of the fact that groups or individuals under his command committed violations of the rules of the international law of war who fails to initiate disciplinary or criminal proceedings or neglects to report perpetrators to military commanders competent to initiate such proceedings will be held personally responsible.