Telling your truth: the stories behind a war crimes trial

Canadian lawyer Eliott Behar shares an excerpt from his new book, Tell It To The World, on the 1999 war in Kosovo and its aftermath.

By: /
5 February, 2015
By: Eliott Behar
Former Canadian prosecutor and UN war crimes prosecutor

When we speak about international war crimes trials — in the media, in universities, at law schools — the discussions so often unfold along broad, general lines. We talk about whether or not someone should be charged. We lecture and teach about state sovereignty versus international human rights. We discuss the rules that should govern the international courts and tribunals, or debate whether they should even exist. The media dispatches on these trials tend to follow a standard pattern: reporters show up for the arrest of the accused, maybe for the first day of trial, and then they go away while the trial actually unfolds. They return at the end — one year, two years, five years later — when the verdict is pronounced. If there’s a conviction, the assumption is that justice has been done. If there’s an acquittal, the system failed.

What we seem invariably to miss — what the public, the media, and the academics so rarely look at — is what actually happens in the individual moments of these trials. How does the evidence look up close, and how does it fit together? How do the people involved — the victims, the perpetrators, and the broader societies around them — perceive the events? What are the actual human experiences?

Tell It To The World is an up-close examination of an international war crimes trial. It tells the story of the ethnic cleansing of Kosovo in 1999, and of a disturbing secret campaign that the Serbian leadership organized to hide the murders they were committing. The story is told through the witnesses, both victims and perpetrators, who travelled to The Hague to testify. Along the way, the book grapples with some important broader questions, like the troubling relationship between our notions of justice and the acts of violence we commit. These discussions are based in real events, and real human stories, because international criminal law is always about both events and ideas, intertwined.

The passage that follows discusses events that took place in the village of Ćuška. The two men who travelled to The Hague to testify about what happened arrived on what was, coincidentally, the 10-year anniversary of the Ćuška massacre.

*  *  *


I had spent the past several days sifting through hundreds of pages of materials about the massacre in Ćuška. I would have spent weeks, if we had them, but the pace of the trial wouldn’t allow it; different witnesses from across Kosovo were following one after the other. We didn’t yet have a translation of Mr. Kelmendi’s statement into his native Albanian. Without it, he would need to sit and listen to the interpreter translate each line of the statement and read it aloud to him. It is standard practice — at the Tribunal, and in most Western courtrooms — to ensure that witnesses have the chance to reread their previous statements so they can refresh their memories before testifying. Across different languages it can be an exhausting process.

Mr. Kelmendi and his fellow villager and friend Hazir Berisha would be our only two witnesses to address what had become known as the Ćuška massacre — the mass execution of forty-one Kosovo Albanian civilians by Serb forces on May 14, 1999. As a Canadian prosecutor, I was trained in a system that would routinely call upwards of a dozen witnesses, often many more, to prove a single murder, allocating days to scrutinize everything from tire-track evidence to the chain of continuity of a significant piece of evidence. In my new role, however, I’d come to realize that we would need to prove our case with a significantly condensed list of witnesses. Our indictment was forty-eight pages long and read like a book, alleging criminal responsibility for massacres across Kosovo and the systematic deportation of close to half the total population. It would be virtually impossible to prosecute a case of this scope and complexity in Canada, where it can take months to prosecute a single murder.

*  *  *

When I met Hazir Berisha in The Hague he was sitting silently in a room with one of my fellow prosecutors. Tall and thin, Berisha seemed to radiate a certain gentle calm — a perception that would remain throughout the time we spent together. I shook his hand as I entered and he smiled warmly, if somewhat tentatively. Without an interpreter it was impossible to say anything further, so the three of us sat and waited in silence, trying to convey with smiles and subtle body language what for the time being had to remain unsaid. The imposed silence seemed to emphasize our differences, though the mutual recognition of the absurdity of the situation and our shared desire to communicate seemed also to bring us together. I reread his statement while we waited.

The eventual appearance of an interpreter finally allowed us to exchange proper greetings. Mr. Berisha listened carefully and patiently as we explained who we were, when we expected he would testify, and what to expect.

“I just want to explain what happened,” he said. “I just want to tell you what I saw.”

Hazir Berisha was drinking coffee with some of his fellow villagers when the gunshots first rang out. They came from the upper part of the village. He ventured out and saw a large group of police and military men approaching, firing their weapons. He went to tell his neighbour first. When he returned home, his mother begged him to flee. As an able-bodied man, he was likely to be executed as a potential member of the KLA.

Mr. Berisha fled from his house, heading towards the centre of the village. He could see the forces setting things on fire and discharging their weapons into the air. As he neared the town centre, he met fellow villagers from the Lushi and Kelmendi families. They soon found themselves surrounded on all sides. The villagers now numbered about 200-250 people in all: men, women, and children. They were ordered to come out to the main road in the centre of town, near the cemetery.

Where is NATO now? several of the armed men yelled. Where is America?

The Serb forces were a motley group of men, unshaven and wearing mismatched fatigues. Two of the men ordered the villagers to divide into two groups, with the women and children on one side of the road and the men on the other. The groups reluctantly assembled, shuffling into place, terrified.

“Where is NATO now?” several of the armed men yelled. “Where is America?”

The villagers were ordered to throw down everything in their pockets. They tossed their money, cigarettes, and identity documents to the ground. The forces selected two children from the group to gather up the items, one to collect the money and another to gather the documents. As they spoke, the men made a show of firing their weapons into the air or at the feet of the villagers.

When the two children had finished gathering everything, one of the armed men grabbed a child by the hair, turned to the women, and threatened to cut the child’s throat unless they threw everything they had to the ground. The women threw down their jewellery and everything else.

One of the armed men asked another how many male villagers they had gathered. The answer came back as more than forty.

Dobro,” he said. Good.

*  *  *

Mr. Berisha could hear the gunshots from the first house as he waited amongst the other men gathered by the cemetery — first, loud bursts of automatic fire; then, single shots with space between them. The men standing around him went rigid. The armed men returned to their group, thick smoke and flames rising behind them. One of them drew his finger across his neck.

The armed men spoke amongst themselves. They took the watches off of the captive men’s hands, making two piles — one for expensive watches, another for cheap. The richest person in the village was a man named Quash Lushi. The armed men told Lushi to bring them money, saying that if he did so they would spare his son. Lushi went to get the money, then returned and presented it to them. One of the men took the money and then led Lushi to an outhouse. He forced him inside and then the men opened fire, killing him instantly.

Srecko Popović, an apparent leader of the group, ordered the remaining captives to be divided into two. He directed Mr. Berisha’s group towards the cemetery. He pointed the remaining men in the other direction.

There were twelve captives in Berisha’s group, led by five armed soldiers and policemen. They were taken to the house of Sadik Gashi, then told to stop. They waited. One of the armed escorts announced, “Not here, there will be a stench,” and urged them forward. Berisha thought they would be burned alive.

The captives were led to Sahik Gashi’s house, the armed men firing their weapons in the air and at the ground as they walked. “Where is NATO now?” they taunted. “Where is Tony Blair?”

Berisha stood shoulder to shoulder with the other men as they were directed inside the house, forced into a small room containing two sofas, and ordered to sit down. Berisha was sitting at the corner. He knew the men sitting next to him — Arian Lushi on his left and Jusuf Shala to his right — Kosovo Albanians who had recently arrived in Ćuška from a neighbouring village. Four armed men stood at the entry to the room.

Looking straight on, Berisha could see the gunfire exploding from the barrels.

One man opened fire on Berisha’s side of the room while another aimed towards the other side of the sofa. Looking straight on, Berisha could see the gunfire exploding from the barrels. Bullets tore through the gathered villagers and they collapsed downwards, almost in unison. Then the shooting stopped, the room suddenly silent. Berisha had not been hit. The pause didn’t last long; moments later one of the men on the opposite side of the room opened fire again. This time bullets pierced Berisha’s left leg and his right knee. When the firing stopped again, he found that he was still alive. The silence following the shooting was filled by the cries of his fellow villagers, several of whom were also still alive but riddled with bullets. The armed men moved through the bodies of the fallen Albanians to finish the job. They started on the left side. As they reached each man, Berisha could hear them firing a single bullet. They got as far as one or two men from Berisha and then stopped.

*  *  *

Hazir Berisha cut a different figure from Mr. Kelmendi in the courtroom. He was quieter, more cautious, restrained. He told his story in short, clear sentences, though like Kelmendi he came directly to the point. Mr. Berisha did not need to be asked why the men had stopped shooting, or why he survived. It was something that had clearly weighed on him over the years, the sort of event about which very much could be said, or very little.

“I don’t know the reason why they stopped,” he said simply on the witness stand. “Maybe they ran out of bullets.”

With their firing squad execution over, the armed men had gone back outside. Berisha had survived. He described the situation he found himself in:

I tried to open my eyes a little bit and have a look around in the room where I was. And on my left I saw them piled on top of each other, and I saw blankets on the upper part of the room to my left. I touched Arian Lushi. He was dead. I tried to move him. He wasn’t moving. Jusuf Shala who was to my right was also dead. I was thinking of getting up. They were covered with sponge. I was thinking of getting up when I saw them piled like that, but in split of a second I decided to look through the window. The window was behind me, and instinctively I turned my head and saw five of them talking among each other. One of them broke away from that group and walked into the corridor of the house. He had kind of a bottle or something in his canister, a longish shape, and threw it in.

I started to catch fire very fast. The fire caught my face, and at that time I was — I didn’t know where I was, whether on the ground or floating. For a moment I couldn’t see anything. I thought I was buried deep in the ground. I was trying to stand on my foot. I couldn’t, but I guess God helped me. I came next to the door. To tell you the truth, I tried to stand up not to survive that execution but to be killed by a bullet and not be burnt alive.

I started to catch fire very fast. The fire caught my face, and at that time I was — I didn’t know where I was, whether on the ground or floating. For a moment I couldn’t see anything. I thought I was buried deep in the ground. I was trying to stand on my foot. I couldn’t, but I guess God helped me. I came next to the door. To tell you the truth, I tried to stand up not to survive that execution but to be killed by a bullet and not be burnt alive.

Berisha had dragged himself to the door, where he could breathe again and where he could see. The men were gone now, though he didn’t know where. Shot in both legs, Berisha leaned on his left leg and managed to move himself into the other room. He looked back and saw that the room where he had been, the room with the bodies of his fallen friends and neighbours, was now engulfed in flames.

Standing at the window, he couldn’t see any of the armed men outside. He didn’t have much choice and there wasn’t much time. He pushed the window open, took his broken right leg in his hands, and used his left leg to push himself up through the window and outside. He landed in a heap and crawled to the corner of the house, where he lay on his back and listened to the events continuing in the village. He fastened his right leg with his belt, then tried to stem the flow of blood from his left leg.

He waited and he listened.

To hear more on Eliott Behar’s experience investigating and prosecuting war crimes, listen to his recent interview on CBC’s The Current. For more on his new book, visit Dundurn Press.<

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