All members of Jashari family, excluding Adem and Hamëz Jashari, are entitled to the status of civilians pertinent to international humanitarian law, therefore, they should be treated as victims of the war and be served justice. Their murder constitutes war crime and crime against humanity under international law.
Sebahate J. Shala
The Fourth Geneva Convention defined protected persons as those “who at a given moment” find themselves in the hands of a “party to conflict or an occupying power” and who should—at all times—be “treated humanely” and protected, especially, against “all acts of violence or threats thereof and against insults and public curiosity.” In situations relating to a non-international armed conflict, as the Convention provides, the parties to conflict should protect and treat humanely all “persons taking no active part in hostilities,” as well as respect—at all circumstances—five principles, as embodied in the Additional Protocols I and II, including the principle of distinction between combatants and civilians, of indiscriminate attacks, of precautions in attack, of limiting the use of force and means of combat, and the principle of proportionality of attack.
Civilians, as described in the Additional Protocol I, and as the International Criminal Tribunal for the Former Yugoslavia(ICTY) ruled in Blaškić case in 2000, are “persons who are not members of the armed forces,” or “(are) no longer, members of the armed forces,” thus, they enjoy international protection from threats of violence or direct military attacks in an armed conflict. “Intentionally directing attacks against civilian population” or against individuals not taking active part in hostilities, as International Criminal Court (ICC) stipulates, constitutes a “war crime in international armed conflicts.”
However, civilians in both international and non-international armed conflicts, as the Protocol I (Art. 51.3) encapsulates, lose their protection when, and as long “they take a direct part in hostilities,” a provision honored by the United Kingdom upon the ratification of Convention on Certain Conventional Weapons, as well as the ICTY in Blaškić case. Whilst in some practice, a civilian loses protection against attack when directly participates in hostilities, yet, as the International Committee of the Red Cross (ICRC) argues, such a civilian doesn’t thereby become a combatant—eligible for prisoner-of-war status—and upon capture, may be subjected to the municipal criminal law for the mere participation in conflict.
This article discusses the legal status of Jashari family from Prekaz i Ulët/Donje Prekaze, and by applying the international humanitarian law in the context of Kosovo conflict, argues that all members of Jashari family, excluding Adem and Hamëz Jashari, are entitled to the status of civilians concordant to the Fourth Geneva Convention, correspondingly, they should be treated as victims of the war and be served justice. Additionally, the article, referring to the ICC Statute, concludes that the murder of Jashari family constitutes war crime and crime against humanity under international law.
The Jashari Family: Civilians, Internationally Protected
On March 5, 1998, the Serbia police forces launched a military attack against the compound of Adem and Hamëz Jashari, killing—after three days of fighting—54 members of their extended family, including women, children and elderly. All members of Jashari family, excluding Adem and Hamëz Jashari, were civilians, a protected category under international law and international humanitarian law. For, they do not fall in any of six categories of combatants as described in the Third Geneva Convention, respectively they didn’t belong to “inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously, take up arms to resist the invading forces,” and, though, hadn’t had time to organize themselves into regular armed units, “they carry arms openly and respect the laws and customs of war”; nor did they represent people who lost their protection after having “directly participated in hostilities,” based on Article 51.3 of the Protocol I.
The Jasharis belonged to people who fell in the hands of a party to conflict or an occupying power, they were people of an occupied territory, Kosovo, illegally integrated into the Federal Republic of Yugoslavia (FRY), Serbia and Montenegro, following the disintegration of Socialist Federal Republic of Yugoslavia (SFRY) in 1992. They, except for Adem and Hamëz Jashari, weren’t members of armed forces, thus the Kosovo Liberation Army (KLA), nor did they organize themselves, spontaneously, into a regular armed unit, or directly participated in hostilities. If any member indirectly involved in hostilities, they did so to defend themselves, their family, their property, and ultimately, their homeland. As Besarta Jashari, the only survivor of Jashari family, revealed, once the attack started, all women, children and elderly were crammed into one room in the basement—to be protected from shelling. Occasionally, some members like Adile, Adem Jashari’s wife, joined fighting by helping with the ammunition, or the youngsters, Kushtrim, Blerim and Igball, who filled the machine guns or fought back along with Adem and Hamza (Hamzaj and Hoti, 2003).
Further, except for Adem and Hamëz Jashari and their uncle Osman Geci, the elders Ali, Faik, Sinan, Shaban and Sherif Jashari, as well as the youngsters Besim, Blerim and Fitim, although figuring as members of Kosovo Liberation Army, cannot legally be treated as combatants. For, the first category was over sixties, the second under the age of eighteen; based on the former FRY law, all men aged 18 to 55 were eligible to be drafted in case of war or imminent threat of war. Whereas the average age varies, it is only those who are actually drafted, according to the ICRC, that account for combatants. Using the FRY law, Ali, Faik, Sinan, Shaban and Sherif Jashari, and Besim, Blerim and Fitim Jashari, did not meet the age requirement to be drafted in the event of war, or imminent threat of war, consequently, they cannot be considered as combatants, belonging to Kosovo Liberation Army whose membership was voluntary.
That is to say, all members of Jashari family, except for Adem and Hamëz Jashari and Osman Geci, are eligible for the status of civilians accordant to the Fourth Geneva Convention, therefore, they should be treated as victims of the war and be served justice.
Definitions: Mass Murder, Crime Against Humanity, War Crimes
In the public discourse, academic and political, the slaughter of Jashari family is mainly referred to as a massacre same as the 186 massacres committed during the conflict in Kosovo in 1998-1999, a notion that shouldn’t be used—for two reasons. One, there is no legal definition of massacre as there is for genocide, for example; massacre and genocide, as Dwyer and Ryan suggest, are often used interchangeably, especially in genocide research, with few scholars differentiating between massacre, mass killing and genocide. Two, massacre doesn’t constitute a separate category of crime like genocide or crime against humanity, neither is it a sub-category of crime against humanity as defined by the ICC. The ICC and ICTY do not use massacre in their proceedings against war criminals; instead they rely on the category of crime against humanity.
To determine the crime against the Jashari family, thus, I will first eliminate the term massacre, and then look onto the definitions of mass murder, crime against humanity of murder and of extermination, and war crimes. Mass murder is defined as an intentional killing of a massive number of persons, belonging to any kind of groups (ethnical, political, religious) as long as they are civilians and their deaths were caused intentionally. Mass murder involves the killing of at least three people in a single event, within the same spatial area, and within a brief period of time.
Crime against humanity, as described in the ICC Statute, incorporates any of the following acts—when committed as part of widespread or systematic attack directed against civilian population with the knowledge of attack—namely murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; rape; persecution based on political, racial or ethnic grounds; and enforced disappearances. Crime against humanity of murder involves the killing of one or more persons, and the conduct is part of a widespread or systematic attack directed against a civilian population (Art. 7.1.a.). Crime against humanity of extermination refers to the killing of “one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population,” an act that takes place as part of “a mass killing of members of a civilian population.” (Art. 7.1.b) “Attack directed against any civilian population,” according to ICC, involves the multiple commission of acts as above-mentioned against any civilian population in furtherance of a State or organizational policy to commit such attack.
War crimes, in particular, when committed as part of a plan or policy, or as part of a large-scale commission of such crimes, mean grave breaches of the Geneva Conventions, including willful killing, torture or inhumane treatment; other serious violations of laws and customs of war applicable to non-international armed conflict, including intentionally directing attacks against civilian population not taking direct part in hostilities, intentionally causing extensive destruction and appropriation of property—not justified by military necessity and carried out unlawfully and wantonly; and serious violations of Article 3, common to all Geneva Conventions, namely murder, cruel treatment and torture (The ICC, Art. 8).
The Murder of Jashari Family: War Crime and Crime Against Humanity
The crime against Jashari family falls in two of the above-mentioned categories, namely crime against humanity of murder and war crime, meeting the threshold attached to these crimes: the number, the legal status of population and its ethnic/religious affiliation, the intent, and the act of killing—sponsored and directed by the state. The numeric aspect: for a murder to qualify for mass murder, based on the definition of Peck and Jenkot, at least three or four murders must be committed, at approximately the same time, within the same spatial area, and within a brief period of time. And, the act of killing, as Valentino, Huth, and Balch-Lindsay suggest, must be intentional and directed against any kind of groups or civilian population (ethnical, political, religious) as long as their deaths were caused intentionally. The number, time, space and the intent are determinant characteristics of mass murder.
Does the onslaught of Jashari family meet characteristics to be qualified as mass murder? Yes. The total number of deaths caused as a result of attack was 57. All people killed, except for Adem and Hamëz Jashari and Osman Geci, were civilians. They were killed within the same location, the Jashari compound and neighborhood, in the village of Prekaz i Ulët/Donje Prekaze, and within a brief period of time—through March 5 and 7, 1998—and the act of killing was intentional as part of the FRY and Serbia state policy as well as Milosevic’s widespread and systematic campaign against Kosovo Albanians launched in early 1998.
The intent. The FRY and Serbia military operation against Jasharis was intentional, it followed two previous attacks directed against the family: the first in December 1990; the second—on January 22, 1998. The Jashari family was a deliberated target of Serbia’s regime due to their political beliefs and activities, as well as their ethnic and religious origins: Adem Jashari organized and participated in widespread demonstrations against Milosevic’s terror and violent campaign against Albanians incepted in 1990, following the suspension of Kosovo autonomy in 1989; and along with fourteen members of the KLA, was convicted in absentia for “terrorist acts” in a trial that, according to Human Rights Watch, “clearly failed to conform to international standards.” Having been trained in the Republic of Albania in early 1990s, Adem Jashari, with a group, returned to Kosovo and created the Kosovo Liberation Army in 1993. Following the January 1998 attack, the Jashari family, particularly Adem and Hamëz Jashari, were under the surveillance of Serbia police.
Additionally, the attack against Jasharis was premeditated and well-orchestrated—directed and ordered by Serbia Government or with its complicity. The operation, as Amnesty International reported, was executed by Serbia Special Police, trained for special operations like hijacking, consisting of Special Anti-Terrorism Unit, the Special Operations Unit, and the Special Police Unit, and was supported by armored personnel carriers (APCs), using artillery shelling from the nearby ammunition factory. The police forces, several hundred in number, according to this organization, or over 5,000 based on the local witnesses, were heavily armed with vehicle-mounted weapons, including heavy machine guns and cannons, rocket-propelled grenade launchers, assault rifles, as well as sniper rifles. Apparently, the attack was disproportional to the threat in question—and in grave violation of the Geneva Conventions and their Protocols, specifically it violated the principle of distinction between combatants and civilians, of the proportionality of attack, of indiscriminate attacks, of precautions in attack, and the principle of limiting the use of force and means of combat.
Further, the intent was to kill the whole family! The police, as the Humanitarian Law Center in Prishtina argues, were ordered to kill indiscriminately, anyone, be it a child, women, or elderly, who attempted to get out of or into the village. Human Rights Watch reported for extrajudicial executions and unlawful killings resulting from the use of excessive and indiscriminate force against civilians, the detainees and the surrendered. The Serb military operation, based on Amnesty International evidence, was in a “more prepared and determined manner,” and the intent “was to eliminate the suspects and their families”—not to apprehend the armed suspects in order to protect lives of civilians guaranteed under the national and international law. And, while the head of the Yugoslav armed forces, the Serb general Nebojsha Pavkovic, called the attack “successful,” a normal policing action against a well-known criminal, adding that “The other details I don’t remember,” the onslaught of Jashari family, using the Amnesty International’s definition of political killings, was “unlawful and deliberate”—ordered by the Serb government or with its complicity, due to “their real or imputed political beliefs or activities” and “religion or ethnic origin.”
Of course, Adem Jashari could have evacuated women, children and elderly while organizing the defense, as some Kosovo women from urban area suggest, calling him crazy for sacrificing his entire family, for, as a woman said, “nobody has the right to get his children and wife killed” regardless of circumstances. The fact of the matter is that, initially, the Serbia police forces, whilst shooting uninterruptedly with automatic machine guns, called on Jasharis to surrender, but Shaban, Adem and Hamëz Jashari organized the defense, in which participated men from Jashari neighborhood, Sherif, Ali, Faik and Sinan Jashari. The Jasharis were called to surrender, but they declined. They were offered to leave Kosovo, but they refused. Instead, the family decided to stay home, and if necessary, as Hamëz Jashari said, “die to protect their home and homeland.”
“We don’t have anywhere else to go, we will stay here and die in the land of our ancients who fought over the centuries. We will never leave Kosovo. They can come whenever they want, we will be waiting here, and will respond with whatever means we have. Even if Europe opens the door for us, we will never leave our country.” (Hamëz Jashari, interview following the second attack on January 22, 1998).
Moreover, the attack against Jasharis, according to Di Lellio and Schwandner-Sievers, was neither the only mass murdernor the worst during the war; it wasn’t a single event neither and their deaths and destruction of their property wasn’t the end of story either. The attack followed the mass killing in Likoshan and Çirez/Likošane and Cirez, taking place through February 28 and March 1, 1998, and resulting in 28 ethnic Albanians slaughtered and executed from Serbia militaries and paramilitaries. In its immediate aftermath, the Serb offensive campaign spread and intensified, resulting in mass killings in Rezalle/Rezala (April, 1998), Lybeniq/ Ljubenić (May, 1998), Poklek/Poklek (May, 1998), Duboc/Dubovac (September, 1998), Abri e Eperme/Gornje Obrinje (September, 1998), Gollubovc/Golubovac (September, 1998), totaling at 186 mass killings committed in Kosovo throughout the war.
Most importantly, the murder of Jashari family was part of the FRY and Serbia’s State plan and policy as well as part of the Milosevic’s widespread and systematic campaign against ethnic Albanians employed in the early 1998. As the ICTY’s indictment against Milosevic et al. read, Slobodan Milosevic, acting individually or in concert with his subordinates, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, and Vlajko Stojiljkovic, planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a well-planned and coordinated campaign of unlawful deportation and forcible expulsion of hundreds of thousands of Kosovo Albanians, including widespread killings, persecutions on political, racial or religious grounds, destruction of civilian property, constituting war crimes and crimes against humanity according to Article 7.1 of the Statute of the ICTY. The purpose of the joint criminal enterprise“was, inter alia, the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo” to modify the ethnic balance in Kosovo so to ensure continued control by the FRY and Serbian authorities over the province; and this policy was achieved through a widespread or systematic campaign of terror or violence against the Kosovo Albanian population starting from October 1998 until 20 June 1999. An estimated 13,535 people—predominantly ethnic Albanians were killed, about 862,979 others were forcibly expelled from their homes, 6,024 were reported as missing, and supposedly, over 20,000 women were sexually abused.
Woefully, Milosevic died without ever being convicted for his crimes committed in Kosovo and Bosnia and Hercegovina. However, Sainovic, Ojdanic, Pavkovic, Lazarevic, and Lukic, were found guilty for committing crimes against humanityin Kosovo, including deportation, a crime against humanity; forcible transfer as “other inhumane acts,” a crime against humanity; murder, a crime against humanity and a violation of the laws or customs of war; and persecution, a crime against humanity (Milutinovic et al.).
With that being said, Serbia police forces—ordered or in complicit with the Government—killed 54 members of Jashari family, belonging to Albanians as the largest ethnic group in Kosovo, with the intent to “destroy a part of the population”; the conduct took place as part of “a mass killing of members of a civilian population” and was committed as “part of Milosevic’s widespread and systematic campaign” against Albanians, an occupied people. Occurring in a non-international armed conflict, and involving “the commission of multiple acts,” i.e., murder, extermination, destruction of civil property, deportation or forcible transfer of population, and enforced disappearances, the attack against the Jasharis, applying the ICC definition, was in furtherance of Serbia’s state plan or policy committed with the knowledge of these crimes, thereby constitutes crime against humanity, according to Article 7.
The murder of Jashari family constitutes a war crime, too, committed as part of a large-scale commission of such crimes—meaning the breach of the Geneva Conventions, in that it involved willful killing, extensive destruction and appropriation of property of Jashari family—not justified by military necessity, and was carried out unlawfully and wantonly; and other serious violations applicable in armed conflicts not of an international character, including intentionally directing attacks against civilian population or against individuals not taking direct part in hostilities, violence to life and person, murder of all kinds; as well as intentionally causing damage or destruction of Jasharis’ property, as prescribed in Article 8 of the ICC Statute.
To conclude, members of Jashari family, excluding Adem and Hamëz Jashari and Osman Geci, belonging to an occupied people—killed in a non-international armed conflict, enjoy the status of civilians pursuant to the Fourth Geneva Convention. Accordingly, they should be treated as victims of war, and be served justice, whilst their murder constitutes war crime and crime against humanity under international law. Noting that the murder of Adem Jashari’s family had never been investigated by international justice mechanisms in charge of war crimes in Kosovo, UNMIK and EULEX, nor did the case appear in the ICTY’s indictment against Milosevic et al. and Milutinovic et al., let alone the Serbia Office of the War Crimes Prosecutor. In March 2019, however, the Kosovo’s Special Prosecution Office opened a preliminary investigation over the murder of Adem Jashari and his family, after having received competences of war crimes from EULEX, and following a verification indicating that the case had never been investigated.
(The author is a Researcher, currently a Research Fellow with World Mediation Organization in Berlin. She received an MA in International Affairs from the New School, New York, with focus on war and peace studies, peacebuilding, statebuilding, and development, as well as international law and international humanitarian law).
War and Peace 