The Legal Status of Adem and Hamëz Jashari Under International Humanitarian Law: Combatants, Their Murder Ineligible for Investigation (I)

Adem and Hamëz Jashari, belonging to an “oppressed people” and struggling against the “alien occupation” in exercise of their “right of self-determination” are entitled to “combatant status.” As members of Kosovo Liberation Army, they represented “dissident armed forces or other organized armed groups” in a non-international conflict, or affiliated with a national liberation movement—whose war of national liberation amounts for “international conflict” under international humanitarian law.

24 maj 2021 10:15

The status of combatant in non-international armed conflict has been subject to controversies due to the legitimacy of non-state armed groups and their compliance to law and customs of war. While the Additional Protocols I and II (1977) broadened the definition of combatant to members of “dissident armed forces and other organized armed groups” in an armed conflict not of international character, recognizing national liberation wars as international conflicts and freedom fighters as combatants, the combatant status is applicable to international armed conflict only.

This article discusses the status of Adem and Hamëz Jashari as members of Kosovo Liberation Army (KLA) in the context of international humanitarian law, and by challenging the decision of Special Prosecution of the Republic of Kosovo to investigate the murder of Adem Jashari and his extended family from Prekaz i Ulët/Donje Prekaze, argues that Adem and Hamëz Jashari are eligible for combatant status, therefore, their murder should be excluded from investigation.

All other members of Jashari family, including women, children and elderly, irrespective of their participation in hostilities, should be treated as civilians under the Fourth Geneva Convention (1949), thereby victims of the war, and be served justice. It depends from the court, as the highest authority of interpreting the law, however, to determine the legal status of Adem and Hamëz Jashari and members of Jashari Family concordant to international humanitarian law.

Definition of Combatant: The Geneva Conventions and Their Protocols

Adem Jashari was one of the founders and commanders of Kosovo Liberation Army, declared a legendary commander in October 1998. After the war, the Kosovo Assembly pronounced all members of Jashari family as fallen combatants. The Kosovo Memory Book 1998-2000 (2011), commissioned by Humanitarian Law Center (HLC) and Humanitarian Law Center Kosovo (HLCK), lists Shaban, Hamëz and Adem Jashari, including the youngsters, Besim, Blerim and Fitim Jashari, as members of the KLA in a list that doesn’t distinguish between combatants and civilians, leaving to the court to establish a definition of their legal status and acts that led to their deaths.

The Third Geneva Convention (1949) codifies the status of combatant, equaling to that of prisoner-of-war, and belonging to one of the six categories as following: members of armed forces of a state party to conflict; members of other militias and other volunteer corps, including those of organized resistance movements party to conflict, if they satisfy the Hague Regulations’ criteria (1899-1907); participants of regular armed forces aligned to a government or an authority; persons accompanying the armed forces without actually being members thereof; and inhabitants of a non-occupied territory who spontaneously take up arms to resist the invading forces. The Hague Regulations provide that the “laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps,” consisting of combatants and non-combatants, but only if they meet four criteria: they are commanded by a person responsible for his subordinates; have a fixed distinctive emblem; carry arms openly; and conduct their operations pursuant to laws and customs of war.

The Additional Protocol I extended the definition, recognizing as combatants people fighting against colonial domination, alien occupation and racist regimes in the exercise of their right of self-determination, whilst the Additional Protocol II, developing and supplementing Article 3, common to Geneva Conventions, described as combatants as well as members of “dissident armed forces or other organized armed groups”—in an armed conflict not of an international nature. The practice of non-international armed conflicts, as International Committee of the Red Cross (ICRC) explains, does not further define the notions of dissident armed forces and the situation of members of armed opposition groups, indicating that such persons are not provided protection as civilians if they take a direct part in hostilities.

A combatant is therefore a member of armed forces, with the right to participate directly in hostilities on behalf of the State, and, if fallen in the hands of the adverse forces, he enjoys the privileges and immunities by being treated as prisoner-of-war. Article 43 of the Protocol I defines as armed forces “all organized armed forces” operating under the command of a party to conflict, even if that party represented by a government or an authority is not recognized by an adverse party; consequently, its members should be compliant with rules of international law relating to armed conflict, and also, be accorded international protection as prisoners-of-war.

In theory, the combatant status is confined to members of the State armed forces and applies to international armed conflicts. For, Article 3, common to Geneva Conventions, pertaining to “armed conflict not of an international character,” as Higgins suggests, doesn’t clearly define the scope and characteristics of non-international armed conflict, creating confusion regarding the status of members of non-state armed groups under international humanitarian law. In practice, however, the combatant term is used as well as to describe fighters or persons taking a direct part in hostilities in an internal conflict—a matter which is determined by national law. Even the UN General Assembly speaks of “combatants in all armed conflicts” in a resolution relating to respect for human rights in armed conflict adopted in 1970. Most recently, the combatant notion was used in the Cairo Declaration and Cairo Plan of Action for both types of conflicts.

Yet, such a description, according to the ICRC, implies a generic meaning, suggesting that these persons aren’t eligible for protection against attacks as granted to civilians neither they enjoy the right to combatant or prisoner-of-war applicable to international armed conflicts. The uncertainty surrounding the scope and characteristics of non-international armed conflict, as such the combatant status, leaves open the possibility for various interpretations.    

Kosovo, Non-International and International Armed Conflict: Adem and Hamëz Jashari—Combatants

To understand the status of Adem and Hamëz Jashari, one must look onto the nature of conflict in Kosovo and the status of Kosovo Liberation Army as a national resistance movement. Internationally, Kosovo—through 1990-early 1998—was viewed as an “internal problem within Belgrade purview,” accordingly, the conflict was treated as “internal disturbance.” For, legally, Kosovo was part of the Federal Republic of Yugoslavia (FRY), Serbia and Montenegro, illegally integrated after the dissolution of Socialist Federal Republic of Yugoslavia (SFRY) in 1992. The Independent International Commission on Kosovo (IICK) characterizes the conflict in Kosovo as both internal, between the FRY and Serbian forces and the Kosovo Liberation Army, and occurring in the territory of Kosovo through February 1998—March 1999, and international, involving NATO and the FRY/Serbia, after the Alliance’s commencement of air bombardment against the FRY on March 24, 1999.

Thus, the conflict in Kosovo met the criteria of a non-international armed conflict, even though the federal authorities never declared a state of war, possibly, as Obradovic suggests, in fear that such an “admission” might have legitimized the KLA political status on the international arena. In other words, the Common Article 3, relating to non-international armed conflict, applied and the parties to conflict were compelled to comply with its provisions. Consequently, Kosovo/the KLA, based on Article 2, common to Geneva Conventions, constituted a party to conflict, in both international and non-international armed conflicts, meaning that the principle of equality of belligerents, according to the author, applied: the FRY was bound to international humanitarian law as successor of the SFRY (a high contracting party to the Geneva Conventions and their Protocols), a rule applicable to the KLA members, too, as Yugoslav citizens/nationals, Serbia citizens respectively, although they didn’t have the legal capacity to sign the Geneva Conventions.

Again, while the combatant status is applicable to international armed conflict, there are two provisions of international humanitarian law that could be of use in situations concerning non-international armed conflict and national liberation movement. One is the Common Article 2, which “applies to all cases of declared war, or of any other armed conflict which may arise between two or more of the High Contracting parties, even if the state of war is not recognized by one of them.” And the second is the Common Article 3, pertaining to “armed conflict not of an international character, which occurs within the territory of a contracting nation.” First, in Kosovo existed a state of war—even without being declared by the FRY and Serbia authorities; second, Kosovo, as legally part of the FRY, a contracting nation to the Geneva Conventions and their Protocols, constituted a party to conflict even without being recognized by the FRY and Serbia; and thirdly, the armed conflict occurred in the territory of a contracting nation, the FRY, respectively Kosovo as part of the federation.

The members of Kosovo Liberation Army, referring to the Protocol’s I definition of combatant, belonged to “forces or other organized armed groups” fighting against the “alien occupation,” namely Serbia, in the exercise of their “right of self-determination” as enshrined in the United Nations’ Charter and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States. The Protocol I, too, recognizes the status of “non-state armed groups” in non-international armed conflict, providing that they “have the status of a party to the conflict, which compels them to comply with the provisions of international humanitarian law applicable to non-international armed conflicts.” Based on the ICRC commentary, “conflicts” described in Article 3, as Mofidi and Eckert explain, imply those of armed forces on either side, and in many features, resemble to an “international war” but occur within the confines of a single country.

Hence, referring to the ICRC interpretation of “international war” as a semblance of conflict occurring within the “confines of a single country”; considering the status of Kosovo as part of the FRY, a contracting nation to the Geneva Conventions and their Protocols; using the applicability of the principle of equality of belligerent parties, as well as the Protocol’s I recognition of “non-state armed groups” as party to conflict, Kosovo/the KLA met the conditions of the party to conflict, thereby, the Kosovo Liberation Army’s members account for combatants pertinent to the law and customs of war. Accordingly, Adem and Hamëz Jashari, murdered by Serbia police forces on early March 1998—the time when the conflict in Kosovo amounted for internal—are entitled to combatant status.

Given that the nature of non-international conflicts is not clearly defined, the disagreement surrounding the legality of those participating in such hostilities will persist. The Common Article 3, as Higgins argues, while is daring, it is paradoxical, simultaneously. First, whilst it provides coverage to non-international armed conflict, it falls far short in the application of the whole corpus of international humanitarian law to such a conflict. Second, whereas the article seeks to provide protection to those caught up in non-international conflict regardless of the rebels’ cause, this protection doesn’t equal to those protected in an international conflict. Additionally, there is uncertainty regarding the application of this provision, which doesn’t provide for a competent authority to decide if a particular conflict constitutes a “Common Article 3 conflict.” Most importantly, Article 3, according to this author, doesn’t offer special provisions for guerrilla warfare, which means that the established government may attempt to suppress a rebellion and still hold the rebels accountable under the municipal criminal law, even punish freedom fighters, detained as prisoners, and put them to death after the trial.

In case of Kosovo, the FRY government, according to Human Rights Watch, wasn’t obliged to grant members of the KLA, if captured, the prisoner of war status. For the KLA forces, based on national law, weren’t privileged combatants, consequently, they could be tried and punished by the Yugoslav courts for treason, sedition, and the commission of other crimes, a rule applicable to government army combatants, too.

National Liberation Movement: Legal and Legitimate

The national liberation movements received international legitimacy in the Diplomatic Conference of 1974-1977, convened to revise the Geneva Conventions. The Conference recognized wars of national liberation as international conflicts, while freedom fighters, waging a guerrilla-style warfare, as combatants—enjoying the prisoners-of-war immunities and privileges if captured by enemy forces in conflict.

The amended Article 1.4 of the Additional Protocol I, deriving from this conference, acknowledged as armed conflict the people’s struggle against oppressed regimes, i.e., colonial domination, alien occupation, and racist regimes in the exercise of their right of self-determination. Referring to Common Article 2 of the Geneva Conventions, the Protocol I applies to “all cases of declared war or of any other armed conflict” as well as to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Yet, though these articles bring national liberation struggles to the realm of international wars, paragraph 1 of Common Article 2, as Graham suggests, applies only to conflicts “which arise between two or more of the High Contracting Parties,” whilst the national liberation movements are not signatories of these conventions.

Notwithstanding, there are additional provisions that can be of use for national liberation movement except the above-mentioned, such as Articles 44 and 94 of the Protocol I, and the Common Article 3 of the Geneva Conventions. Article 44 on combatants and prisoners of war, as Higgins holds, is broad enough to include freedom or resistance fighters, while Article 94 on accession, reading as “This Protocol shall be open for accession by any Party to the Conventions which has not signed it,” offers a possibility for national liberation movement to accede to the Protocol. In fact, Article 44.3 seeks, according to Mofidi and Eckert, to extend the legal recognition to certain types of guerrilla activity by modifying the requirements for combatants (distinctive emblems and carrying arms openly) to “clearly distinguish themselves from civilians,” recognizing, at the same time, that “the nature of hostilities” will in some cases effectively preclude such a distinction.

Furthermore, the vagueness of Common Article 3 does allow for broader interpretation and the possibility of wars of national liberation falling within its scope. First, as Higgins points, by including the provision regarding to non-international conflict, there is a presumption that one of the parties is not a State; and secondly, this provision could apply to such a conflict with the threshold for Common Article 3 not even being as high as that for recognition of belligerency. In order for this article to be invoked, a group of guerrillas, according to Suter, should prove that they represent a threat to the survival of the government by the use of high-level and sustained force so a civil disturbance can take the character of a non-international conflict.

Moreover, the Geneva Conventions leave open the possibility for national liberation movement to accede or accept to be bound by conventions using two provisions: the first—the Common Articles 60/59/139/155 on accession to the conventions, which allow the application of the conventions to wars of national liberation, reading as: “From the date of its coming in force, it shall be open to any Power in whose name the present Convention has not yet been signed, to accede to this Convention.” The second provision, Article 2.3, common to all conventions, states: “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.” The term Power/Powers, Higgins explains, can be taken to encompass national liberation movements so they could accede to, or accept to be bound by conventions.

Using the meaning of Geneva Conventions, a liberation movement can be qualified as a Power by exercising control over a certain territory administered by the parent State like in a colony, a mandate or a trust territory, an action that could serve to internationalize the conflict to the level that the scope of the Geneva Conventions would be applied. To come about these terms, the liberation movement should meet two objectives: garner the support of the civilian population and receive large international recognition.

Did Kosovo Liberation Army win the popular support? Yes. Did it gain international legitimacy? Absolutely. In the Rambouillet and Paris international conferences (1999)—mediated by the Contact Group for Kosovo—the KLA, through its political director Hashim Thaçi heading the Kosovo delegation, was internationally recognized as a party to negotiations and an indispensable force in resolution of Kosovo conflict—without whom no peace agreement could be signed. Debuting as guerrilla warfare and hit-and-run attacks against Serb government facilities in Kosovo, the Kosovo Liberation Army accounts for one of the most successful insurgencies of the post-cold war period. First—by operating in a relatively short period of widespread armed conflict; second—by garnering support from the civilian population within the territory it operated; third—by opposing regimes characterized as foreign occupiers; and finally—by succeeding to win international legitimacy. The KLA success, as Mulaj and Perrit argue, is attributable to its symbiosis between national and international legitimacy: nationally—by challenging the peaceful movement of Ibrahim Rugova and Democratic League of Kosovo (LDK), and internationally—by resisting Serbia persistent oppression against Kosovo Albanians.

The Kosovo Liberation Army was a continuation of the Albanians’ struggle for liberation and independence from Serbia—recognized as an established oppressive regime. Its mission, according to Mulaj, “should be understood in the context of persistent oppression of the Kosovo Albanians by Serbian governments.” The emergence of KLA was influenced by two factors: the fruitless, peaceful movement of Rugova and LDK on the one hand, and the failure of the Dayton Accords (1995) to resolve the Kosovo status along with that of Bosnia and Hercegovina, on the other. The organization resorted to violence—as the last option—in response to Slobodan Milosevic’s violent campaign and terror against ethnic Albanians launched in early 1990, and re-actualized throughout the decade. It was the mass murder in Likoshan and Çirez/Likošane and Cirez through February 28-March 1, 1998 and the slaughter of Adem Jashari and his extended family through March 5-7, 1998, however, that marked a turning point. War was inevitable.

Kosovo Liberation Army: Party to the Conflict, Its Members—Combatants

The guerrilla movements/insurgencies have historically been subject to controversies due to their legitimacy and compliance to law and customs of war. Contrary to legal combatants, the guerrilla warriors are regarded as illegitimate or unlawful, often labelled as unprivileged belligerents, enemy combatants, terrorists, insurgents, even criminals. Consequently, they are ineligible for international legal protections and benefits of combatants and prisoners-of-war. Defined as illegal combatants and unprivileged belligerency, the unlawful enemy combatants, based on the United States’ description, are non-state actors using military force for personal gains—without due authorization—and in violation of the established legal norms and the governing warfare, specifically the Hague Regulations.

The Kosovo Liberation Army, known for its guerrilla methods of warfare as well as insurgency and counterinsurgency, challenges these assumptions. The KLA, as Human Rights Watch holds, “was an organized military force for purposes of international humanitarian law.” The existing evidence shows that the insurgency fulfilled all criteria of the Hague Regulations: it possessed a relatively well-structured organization—the hierarchy and the organs of power—and operated under a loose command and control; had distinctive signs—emblems and uniforms; carried arms openly; and conducted combat operations in accordance with the law and customs of war. As Jakup Krasniqi, formerly the KLA spokesperson, stated: “The KLA is a liberation army and a regular military formation[...]. Our actions are broader and have character more of the regular armies.” (Koha Ditore, July 11, 1998)

Second, Kosovo Liberation Army was legal and legitimate! Belonging to the Fourth Generation Warfare—symbolizing the integration of political and military aspects of warfare—the KLA resembled the twentieth-century nationalist movements, waging a war of national liberation against an established oppressive government in the fulfillment of the right to self-determination as encapsulated in the United Nations’ Charter and the Protocol I. Subscribing to the Hague Regulations, the KLA members weren’t unlawful nor terrorists as labelled by Serbia regime. As a matter of fact, KLA—unlike other insurgencies—according to Perrit, used relatively little terrorist attacks on civilian targets, and won relatively few battles against the opposing military forces due to its success on international political arena. Their members represented peoples’ war; they were freedom fighters. As one of the KLA communiques, released on December 1997 and directed to the international community, read: “KLA was born as a necessity of time and its sole goal is the liberation of our territories,” adding that “our struggle is a just struggle of liberation.”

The KLA overarching goal was liberation and independence of Kosovo from Serbia, a foreign occupation. The organization’s strategy and tactics were familiar to those adopted by Marshall Tito during national liberation war, and promoted as well as from previous regimes through systems of general national defense and civil defense. Its nationalist ideology was typical for the twentieth century national liberation movements aimed at attaining an independent state, such as the case of the Liberation Tigers of Tamil Elam (LTTE) in Sri Lanka or the Anti-Apartheid Movement (AAM) in South Africa. And, while there are legal issues concerning the conflict between national liberation movement and an established government, the history reminds us that war of national liberation existed as early as eighteenth century—the American settlers fighting against their British rulers, as well as nineteenth century—the Latin American countries fighting against the Spanish and Portugal rule.

True, there are—and will always be—suspicious that individuals within the KLA were involved in crimes in violation of the law and customs of war, as some international organizations reported, and the Hague Tribunal concluded in its judgements against Limaj et al. and Haradinaj et al. However, that doesn’t suggest that the KLA, as an organization, was infiltrated in criminal activity or “joint criminal enterprise” in violation of international law. The Kosovo Liberation Army, as Jakup Krasniqi responded to the allegations of the Specialist Chambers, wasn’t a “joint criminal enterprise,” it was a “joint liberation enterprise.”   

To conclude, Adem and Hamëz Jashari, belonging to an oppressed people and struggling against the alien occupation in exercise of their right of self-determination, are eligible for combatant status. As members of Kosovo Liberation Army, they represented dissident armed forces or other organized armed groups in a non-international conflict, or affiliated with a national liberation movement—whose war of national liberation is recognized as international conflict under international humanitarian law. And, with Kosovo being part of the FRY, a high contracting nation to the Geneva Conventions and their Protocols, the KLA members as Yugoslavia/Serbia nationals were bound to the law and customs of war, meaning that the KLA—a “non-state armed group”—party to the conflict under the Protocol I definition, constituted a party to conflict even without being recognized by Serbia. Lastly, the conflict in Kosovo, meeting the conditions of a non-international armed conflict, enabled Adem and Hamëz Jashari to attain the combatant status. Therefore, their murder should be excluded from investigation.

24 maj 2021

Sebahate Shala