Report . Committee on Legal Affairs and Human Rights
[provisional version] AS/Jur (2010) 46 12 December 2010 Ajdoc46 2010 Committee on Legal Affairs and Human Rights Inhuman treatment of people and illicit trafficking in human organs in Kosovo* 1 Report Rapporteur: Mr Dick Marty, Switzerland, Alliance of Liberals and Democrats for Europe A. Draft resolution 1. The Parliamentary Assembly was extremely concerned to learn of the revelations of the former Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY), who alleged that serious crimes had been committed during the conflict in Kosovo, including trafficking in human organs, crimes which had gone unpunished hitherto and had not been the subject of any serious investigation. 2. In addition, according to the former Prosecutor, these acts had been committed by members of the "Kosovo Liberation Army" (KLA) militia against Serbian nationals who had remained in Kosovo at the end of the armed conflict and been taken prisoner. 3. According to the information gathered by the Assembly and to the criminal investigations now under way, numerous concrete and convergent indications confirm that some Serbians and some Albanian Kosovars were held prisoner in secret places of detention under KLA control in northern Albania and were subjected to inhuman and degrading treatment, before ultimately disappearing. 4. Numerous indications seem to confirm that, during the period immediately after the end of the armed conflict, before international forces had really been able to take control of the region and re-establish a semblance of law and order, organs were removed from some prisoners at a clinic in Albanian territory, near Fushë-Krujë, to be taken abroad for transplantation. 5. This criminal activity, which developed with the benefit of the chaos prevailing in the region, at the initiative of certain KLA militia leaders linked to organised crime, has continued, albeit in other forms, until today, as demonstrated by an investigation being carried out by the European Union Rule of Law Mission in Kosovo (EULEX) relating to the Medicus clinic in Pristina. 6. Although some concrete evidence of such trafficking already existed at the beginning of the decade, the international authorities in charge of the region did not consider it necessary to conduct a detailed examination of these circumstances, or did so incompletely and superficially. * All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo. 1 Draft resolution adopted unanimously by the Committee in Paris on 16 December 2010. AS/Jur (2010) 46 2 7. Particularly during the first years of their presence in Kosovo, the international organisations responsible for security and the rule of law (KFOR and UNMIK) had to cope with major structural problems and serious shortages of staff with the skills to take on the tasks they were entrusted with, all this being aggravated by rapid and constant staff rotation. 8. The ICTY, which had started to conduct an initial examination on the spot to establish the existence of traces of possible organ trafficking, dropped the investigation. The elements of proof taken in Rripe, in Albania, have been destroyed and cannot therefore be used for more detailed analyses. No subsequent investigation has been carried out into a case nevertheless considered sufficiently serious by the former ICTY Prosecutor for her to see the need to bring it to public attention through her book. 9. During the decisive phase of the armed conflict, NATO took action in the form of air strikes, while land operations were conducted by the KLA, de facto allies of the international forces. Following the departure of the Serbian authorities, the international bodies responsible for security in Kosovo very much relied on the political forces in power in Kosovo, most of them former KLA leaders. 10. The international organisations in place in Kosovo favoured a pragmatic political approach, taking the view that they needed to promote short-term stability at any price, thereby sacrificing some important principles of justice. For a long time little was done to follow-up evidence implicating KLA members in crimes against the Serbian population and against certain Albanian Kosovars. Immediately after the conflict ended, in effect, when the KLA had virtually exclusive control on the ground, many scores were settled between different factions and against those considered, without any kind of trial, to be traitors because they were suspected of having collaborated with the Serbian authorities previously in place. 11. EULEX, which took over certain functions in the justice sector previously fulfilled by UN structures (UNMIK) at the end of 2008, inherited a difficult and sensitive situation, particularly in the sphere of combating serious crime: incomplete records, lost documents, uncollected witness testimony. Consequently, a large number of crimes may well continue to go unpunished. Little or no detailed investigation has been carried out into organised crime and its connections with representatives of political institutions, or in respect of war crimes committed against Serbians and Albanian Kosovars regarded as collaborators or as rivals of the dominant factions. This last-named subject is still truly taboo in Kosovo today, although everybody talks about it in private, very cautiously. EULEX seems very recently to have made some progress in this field, and it is very much to be hoped that political considerations will not impede this commitment. 12. The team of international prosecutors and investigators within EULEX which is responsible for investigating allegations of inhuman treatment, including those relating to possible organ trafficking, has made progress, particularly in respect of proving the existence of secret KLA places of detention in northern Albania where inhuman treatment and even murders are said to have been committed. The investigation does not, however, benefit from the desirable co-operation from the Albanian authorities. 13. The appalling crimes committed by Serbian forces, which stirred up very strong feelings worldwide, gave rise to a mood reflected as well in the attitude of certain international agencies, according to which it was invariably one side that were regarded as the perpetrators of crimes and the other side as the victims, thus necessarily innocent. The reality is less clear-cut and more complex. 14. The Parliamentary Assembly strongly reaffirms the need for an absolutely uncompromising fight against impunity for the perpetrators of serious human rights violations, and wishes to point out that the fact that these were committed in the context of a violent conflict could never justify a decision to refrain from prosecuting anyone who has committed such acts (see Resolution 1675 (2009)). 15. There cannot and must not be one justice for the winners and another for the losers. Whenever a conflict has occurred, all criminals must be prosecuted and held responsible for their illegal acts, whichever side they belonged to and irrespective of the political role they took on. 16. The question which, from the humanitarian viewpoint, remains the most acute and sensitive is that of missing persons. Of more than 6,000 disappearances on which the International Committee of the Red Cross (ICRC) has opened files, approximately 1,400 individuals have been found alive and 2,500 corpses have been found and identified. For the most part, these were Albanian Kosovar victims found in mass graves in regions under Serbian control and in Kosovo. 17. Co-operation is still clearly insufficient between international agencies on the one hand and the Kosovar and Albanian authorities on the other on finding out the fate of the missing persons. Whereas3 AS/Jur (2010) 46 Serbia ultimately co-operated, it has proved far more complicated to carry out excavations on the territory of Kosovo, and has been impossible, at least so far, on Albanian territory. Co-operation by the Kosovar authorities is particularly lacking in respect of the search for the almost 500 persons who officially disappeared after the end of the conflict. 18. The working group on missing persons, chaired by the ICRC and the EULEX Office on Missing Persons, needs the full and wholehearted support of the international community in order for the reluctance on both sides to be overcome. Knowing the truth and enabling victims' families to mourn at last is a vital precondition for reconciliation between the communities and a peaceful future in this region of the Balkans. 19. The Assembly therefore invites: 19.1 the member states of the European Union and the other contributing states: 19.1.1 to allocate to EULEX the resources that it needs, in terms of logistics and highly skilled staff, to deal with the extraordinarily complex and important role entrusted to it; 19.1.2 to set EULEX a clear objective and give it political support at the highest level to combat organised crime uncompromisingly, and to ensure that justice is done, without any considerations of political expediency; 19.1.3 to commit all the resources needed to set up effective witness protection programmes; 19.2 EULEX: 19.2.1 to persevere with its investigative work, without taking any account of the offices held by possible suspects or of the origin of the victims, doing everything to cast light on the criminal disappearances, the indications of organ trafficking, corruption and the collusion so often complained of between organised criminal groups and political circles; 19.2.2 to take every measure necessary to ensure effective protection for witnesses and to gain their trust; 19.3 the ICTY to co-operate fully with EULEX, particularly by making available to it the information and elements of proof in its possession likely to help EULEX to prosecute those responsible for crimes within its jurisdiction; 19.4 the Serbian authorities: 19.4.1 to make every effort to capture the persons still wanted by the ICTY for war crimes, particularly General Ratko Mladic and Goran Hadzic, whose impunity continues to constitute a serious obstacle to the process of reconciliation and is often referred to by the authorities of other countries to justify their lack of enthusiasm about taking judicial action themselves; 19.4.2 to co-operate closely with EULEX, particularly by passing to it all information which may help to clear up crimes committed during and after the conflict in Kosovo; 19.4.3 to take the necessary measures to prevent leaks to the press of information about investigations concerning Kosovo, leaks which are prejudicial to co-operation with other authorities and to the credibility of the investigative work; 19.5 the Albanian authorities and the Kosovo administration : 19.5.1 to co-operate unreservedly with EULEX and the Serbian authorities in the framework of procedures intended to find out the truth about crimes committed in Kosovo, irrespective of the known or assumed origin of the suspects and the victims; 19.5.2 in particular, to take action on the requests for judicial assistance made by EULEX concerning criminal acts alleged to have occurred in a KLA camp in northern Albania; 19.5.3 to start a serious and independent investigation in order to find out the whole truth about the allegations, sometimes concrete and specific, of the existence of secret detention centres where inhuman treatment was purportedly inflicted on prisoners from Kosovo, of Serbian or Albanian origin, during and immediately after the conflict; the investigation must also be extended to a verification of the equally specific AS/Jur (2010) 46 4 allegations about organ trafficking said to have taken place during the same period, some of it on Albanian territory; 19.6 all the Council of Europe member and observer states concerned: 19.6.1 to respond without undue delay to the requests for judicial co-operation addressed to them by EULEX and by the Serbian authorities in the framework of their current investigations concerning war crimes and organ trafficking; the delayed response to these requests is incomprehensible and intolerable in view of the importance and urgency of international co-operation to deal with such serious and dangerous crime problems; 19.6.2 to co-operate with EULEX in its efforts to protect witnesses, especially when the persons concerned can no longer continue to live in the region and must therefore adopt a new identity and find a new country of residence; 20. The Assembly, aware that trafficking of human organs is now an extremely serious problem worldwide, manifestly contravening the most basic standards in terms of human rights and dignity, welcomes and concurs with the conclusions of the joint study published in 2009 by the Council of Europe and the United Nations Organisation. It agrees in particular with the conclusion that it is necessary to draft an international legal instrument, which lays down definitions of human organ, tissue and cell trafficking and lays out the action that shall be taken in order to prevent such trafficking and to protect its victims, as well as criminal law measures to prosecute the perpetrators. 5 AS/Jur (2010) 46 B. Explanatory memorandum by Mr Dick Marty Contents 1. Introductory remarks – an overview 2. Introductory commentary on sources 3. Detailed findings of our inquiry 3.1 The overall picture 3.2 KLA factionalism and the nexus with organised crime 3.3 Detention facilities and the inhuman treatment of captives 3.3.1. KLA detentions in wartime 3.3.1.1. First subset of captives: the “prisoners of war” 3.3.1.1.1. Case study on the nature of the facilities: Cahan 3.3.1.1.2. Case study on the nature of the facilities: Kukës 3.3.2. Post-conflict detentions carried out by KLA members and affiliates 3.3.2.1. Second subset of captives: the “disappeared” 3.3.2.1.1. Case study on the nature of the facilities: Rripe 3.3.2.1.2. Observations on the conditions of detention and transport 3.3.2.2. Third subset of captives: the “victims of organised crime” Case study on the nature of the facilities: Fushë-Krujë 4. Medicus clinic 5. Reflections on the “glass ceiling of accountability” in Kosovo 6. Some concluding remarks AS/Jur (2010) 46 6 1. Introductory remarks – an overview 1. In April 2008 Madam Carla Del Ponte, the former Chief Prosecutor before the International Criminal Tribunal for the former Yugoslavia (ICTY), published a set of memoirs, co-authored with Chuck Sudetic, on her experiences within the tribunal. The book initially came out in Italian (“La caccia – Io e i criminali di guerra”), then in translation, notably in French (“La traque, les criminels de guerre et moi”). In the book, almost ten years after the end of the war in Kosovo, there appeared revelations of trafficking in human organs taken from Serb prisoners, reportedly carried out by leading commanders of the Kosovo Liberation Army (KLA). These claims were surprising in several respects and have provoked a host of strong reactions. They were surprising, in the first place, because they emanated from someone who exercised the highest official responsibilities, at the very heart of the judicial system tasked with prosecuting the crimes committed in the course of the conflicts that ravaged the former Yugoslavia. Furthermore, and above all, they were surprising because they revealed an apparent absence of official follow-up in respect of allegations that were nevertheless deemed serious enough to warrant inclusion in the memoirs of the former Prosecutor could hardly have ignored the grave and far-reaching nature of the allegations she had decided to make public. 2. Having before it a motion for a Resolution (doc.11574), which demanded a thorough investigation into the acts mentioned by Madam Del Ponte and their consequences, in order to ascertain their veracity, deliver justice to the victims and apprehend the culprits of the crimes, the Committee on Legal Affairs and Human Rights appointed me as Rapporteur and accordingly instructed me to propose a preliminary draft resolution and to draw up a report. 3. The extraordinary challenges of this assignment were immediately clear. The acts alleged – by a former prosecutor of international standing, let us remember – purportedly took place a decade ago and were not properly investigated by any of the national and international authorities with jurisdiction over the territories concerned. All the indications are that efforts to establish the facts of the Kosovo conflict and punish the attendant war crimes had primarily been concentrated in one direction, based on an implicit presumption that one side were the victims and the other side the perpetrators. As we shall see, the reality seems to have been more complex. The structure of Kosovar Albanian society, still very much clanorientated, and the absence of a true civil society have made it extremely difficult to set up contacts with local sources. This is compounded by fear, often to the point of genuine terror, which we have observed in some of our informants immediately upon broaching the subject of our inquiry. Even certain representatives of international institutions did not conceal their reluctance to grapple with these facts: “The past is the past”, we were told; “we must now look to the future”. The Albanian authorities intimated that their territory had not been affected by the conflict and that they had no reason to open an inquiry. The Serbian authorities did react, albeit rather belatedly, but so far without having achieved any significant results. For its part the ICTY carried out an exploratory mission to the site of the notorious “Yellow House”, though proceeding in a fairly superficial way and with a standard of professionalism that prompts some bewilderment. In addition, the ICTY’s mandate was restricted to a clearly defined timeframe and territory: the international tribunal was enjoined to try those suspected of crimes committed only up to June 1999, marking the end of the Kosovo conflict, and its jurisdiction does not extend to Albania, except in instances where Albania expressly authorises investigations to take place on its territory. 4. The acts with which we are presently concerned are alleged to have occurred for the most part from the summer of 1999 onwards, against a background of great confusion throughout the region. The Serbian security forces had abandoned Kosovo, and the troops of KFOR (NATO’s international Kosovo Stabilisation Force) were making a rather slow start in establishing themselves; while tens of thousands of Kosovar Albanian refugees were originally trying to reach Albania and then to return home, with ethnic Serbs in turn seeking refuge in the territories controlled by the Serbian Army. It was chaos: there was no functioning administration on the part of the Kosovars, and KFOR took quite some time to gain control of the situation, evidently not possessing the know-how needed to cope with such extreme situations. The NATO intervention had essentially taken the form of an aerial campaign, with bombing in Kosovo and in Serbia – operations thought by some to have infringed international law, as they were not authorised by the UN Security Council – while on the ground NATO’s de facto ally was the KLA. Thus, during the critical period that is the focus of our inquiry, the KLA had effective control over an expansive territorial area, encompassing Kosovo as well as some of the border regions in the north of Albania. KLA control should not be understood as a structured exercise of power, and it was certainly far from assuming the contours of a state. It was in the course of this critical period that numerous crimes were committed both against Serbs who had stayed in the region and against Kosovar Albanians suspected of having been “traitors” or “collaborators”, or who fell victim to internal rivalries within the KLA. These crimes have largely gone unpunished and it is only years later that a rather diffident start has been made in dealing with them.7 AS/Jur (2010) 46 5. During this chaotic phase, the border between Kosovo and Albania effectively ceased to exist. There was no form of control in effect, and it would hardly have been possible to enforce rules anyway, considering the heavy flow of refugees towards Albania and their return in similar numbers after the end of the hostilities. During a field mission on behalf of the Swiss Parliament in 1999, I was able to witness for myself the scale of this phenomenon; I noted above all the singular solidarity shown by the Albanian population and authorities in receiving the Kosovar refugees. It was in this context that KLA militia factions moved freely on either side of the border, which, as pointed out, had by then become little more than a token dividing line. So it is clear that the KLA held effective control in the region during that critical period, both in Kosovo and in the northern part of Albania near the border. The international forces co-operated with the KLA as the local authority in military operations and the restoration of order. It was as a result of this situation that certain crimes committed by members of the KLA, including some top KLA leaders, were effectively concealed and have remained unpunished. 6. The crimes committed by the Serb forces have been documented, denounced and, to the extent possible, tried in courts of law. The frightful nature of these crimes hardly needs to be further illustrated. These crimes stemmed from a wicked policy ordered by Milosevic over a lengthy period, including at times when he was simultaneously being accorded full diplomatic honours in the capitals of many democratic states. These crimes claimed tens of thousands of victims and disrupted a whole region of our continent. In the Kosovo conflict, the ethnic Albanian population suffered horrendous violence as the result of an insane ethnic cleansing policy on the part of the dictator then in power in Belgrade. None of these historical events could be cast in doubt today. However, what emerged in parallel was a climate and a tendency according to which led to all these events and acts were viewed through a lens that depicted everything as rather too clear-cut: on one side the Serbs, who were seen as the evil oppressors, and on the other side the Kosovar Albanians, who were seen as the innocent victims. In the horror and perpetration of crimes there can be no principle of compensation. The basic essence of justice demands that everyone be treated in the same way. Moreover, the duty to find the truth and administer justice must be discharged in order for genuine peace to be restored, and for the different communities to be reconciled and begin living and working together. 7. Yet in the case of Kosovo, the prevailing logic appears to have been rather short-sighted: restore a semblance of order as quickly as possible, while avoiding anything that might be liable to destabilise a region still in a state of very fragile equilibrium. The result has been a form of justice that can only be defined as selective, with impunity attaching to many of the crimes that appear, based on credible indications, to have been directly or indirectly the work of top KLA leaders. The Western countries that engaged themselves in Kosovo had refrained from a direct intervention on the ground, preferring recourse to air strikes, and had thus taken on the KLA as their indispensable ally for ground operations. The international actors chose to turn a blind eye to the war crimes of the KLA, placing a premium instead on achieving some degree of shortterm stability. In effect the new Kosovo has been built on the existing structures of the Kosovar Albanian homeland movement. It follows that the successive international administrations put in place, as well as the US Government, which is generally regarded as playing an important role in the affairs of the new Kosovo 2 , have had to maintain good relations with their de facto allies on the ground, as the latter have become the new masters of the local political scene. This situation, as we emphasised above, has ultimately foiled the prospect of our getting to the bottom of the crimes committed, at least in cases where there is every indication that they were the misdeeds of persons in positions of power or close to those in power. An added problem is that the resources of the international administration under UNMIK were insufficient, both in quantity and in quality, for the task of prosecuting the crimes committed in an effective and impartial manner. The posting of most international staff to UNMIK on limited-term contracts, and the resultant perpetual rotation, caused a major hindrance to the administration of justice. International officials told us that it had been impossible to maintain confidentiality of their sources – an element considered essential to the success of a criminal investigation – in particular because of their reliance on local interpreters who would often pass on information to the persons being investigated. As a result, EULEX has had to bring in interpreters from other countries in order securely to conduct its most sensitive inquiries. The same sources told us that the approach of the international community could be aptly encapsulated in the notion of “stability and peace at any cost”. Obviously such an approach implied not falling out with the local actors in power. 8. The EULEX mission, operational since the end of 2008, thus inherited an extremely difficult situation. Numerous files on war crimes, notably those in which KLA combatants were listed as suspects, were turned over by UNMIK in a deplorable condition (mislaid evidence and witness statements, long time lapses in following up on incomplete investigative steps), to the extent that EULEX officials stated their fears in quite 2 The United States of America has an Embassy endowed with impressive resources and a military base, Camp Bondsteel, of a scale and significance that clearly transcends regional considerations. AS/Jur (2010) 46 8 explicit terms during our fact-finding visits that many files would simply have to be abandoned 3 Some of our . contacts representing Kosovo’s nascent civil society did not hold back in criticising EULEX itself: it had been widely expected that EULEX would at last go after the “untouchables”, whose more than murky past was common knowledge. Yet these expectations were in vain: there had been many announcements and promises, but the tangible results remained to be seen. The case of Nazim Bllaca, the “whistle-blower” who admitted publicly to having carried out murders upon the orders of some of today’s high-ranking politicians, is emblematic. Four days elapsed before the man was arrested and placed under protection. The way in which EULEX deals with his case will be an important test of how far it is prepared to go in pursuing its mission to promote justice. 9. One must nevertheless commend the remarkable dedication of many EULEX staff – at time of writing some 1,600 international executives and 1,100 local employees – and their determination to confront the extraordinary challenge handed to them. Their efforts are beginning to yield tangible results, notably with regard to the cases of the detention camp at Kukës and the Medicus Clinic in Pristina. Yet it is imperative that EULEX is given more explicit and more resolute support from the highest levels of European politics. There can be no lingering ambiguity as to the need to pursue all those suspected of crimes, even in cases where the suspects hold important institutional and political positions. Similarly, EULEX must urgently be given access to the complete sets of records compiled by international agencies that previously operated in Kosovo, including KFOR files that have since been returned to the troop-contributing countries 4 , and files compiled by the ICTY 5 According to the key practitioners working on the ground, there ought to be a . common, unified database comprising the archives of all the international actors, readily accessible to EULEX investigators. One is left to wonder what might possibly be the reasons put forward for failing to fulfil such a basic demand. 10. The Kosovo Police (KP), multiethnic in its make-up, is professionally trained, well-equipped and apparently effective in fighting petty crime or less serious forms of criminality. With over 7,200 uniformed officers and more than 1,100 support staff, the KP comprises representatives of 13 ethnic groups, including 10% of ethnic Serbs. According to recent surveys, the KP is second only to KFOR among all the institutions in Kosovo in the high levels of public trust it enjoys. Senior international officials have also confirmed that the police are “decent”, whereas the judges are “problematic” – in the sense of being subject to intimidation, under political influence, or corrupt. Assessments of the police nevertheless varied among the observers whom we met. The KP still has to prove itself and to win the full confidence of its international partners, including its counterparts in the EULEX mission. We sensed lingering doubts among internationals as to whether or not all the leaders of the police force share the necessary political resolve to go after all forms of crime in the most robust fashion possible; especially where the police are called upon to combat organised crime, and / or crimes in which highly placed political figures are implicated; and notably in ensuring truly effective protection of witnesses, a very sensitive and vital tool in the prosecution of the most notorious and dangerous criminals. 11. Corruption and organised crime constitute a major problem in the region, as several international studies have shown. The problem is aggravated by the fact that criminality, corruption and politics are so closely intertwined. The massive presence of international staff does not appear to have made things any better, and indeed has given rise to some rather perverse anomalies; for example, a driver or a cleaner working for an international organisation or a foreign Embassy invariably earns appreciably more than a police officer or a judge, which is bound to upset the scales of societal values. 12. The most pressing priority from a humanitarian perspective is to account for the fate of missing persons in relation to the Kosovo conflict. The number of disappearances is extremely high when one considers the modest size of Kosovo’s population. Out of a total of 6,005 cases of missing persons opened by the International Committee of the Red Cross (ICRC), some 1,400 persons have been found alive and it has been possible to discover and identify 2,500 bodies. Most of the deceased victims were identified as Kosovar Albanians, half of whom were exhumed from mass graves discovered on Serbian territory and the other half in Kosovo. In addition there are 1,869 missing persons who remain unaccounted for, about two- 3 The “UNMIK legacy” was described to us in the form of a vivid image that scarcely requires further comment, as “300,000 pages in disarray”. 4 We learned that certain KFOR contributors (for example the United Kingdom) took all their records away with them; and that these records were subsequently made accessible to EULEX investigators only on the basis of reasoned case-by-case applications, a complex procedure which considerably slows down the work of justice. 5 At the time of our visit in January 2010, EULEX investigators were not always able to access to the ICTY’s files, but the ICTY Prosecutor is more recently reported to have assured EULEX that access would be granted imminently. 9 AS/Jur (2010) 46 thirds of whom are Kosovar Albanians. 470 missing persons disappeared after the arrival of KFOR troops on 12 June 1999, 95 of whom were Kosovar Albanians and 375 non-Albanians, mainly Serbs 6 . 13. In assessing these disappearances, it is apt to note that many Kosovar Albanian families who lost a relative after 12 June 1999 reportedly declared an earlier date of disappearance, before this “cut-off date”, out of fear that their loved ones might be deemed to have been “traitors” to the cause, punished by the KLA. It is significant that Kosovo’s law on compensation for the families of “martyrs” expressly excludes persons who died after the arrival of KFOR. As to the law on compensation for the families of missing persons, which is still under discussion, the stated position of the Kosovo authorities is that the law should cover only those disappearances that occurred after 1 January 1999 and before 12 June 1999. This position serves to demonstrate just how sensitive the matter of the missing Kosovar Albanians remains to the present day. According to several of our informants, the matter is still considered utterly taboo and continues to form a serious impediment to the discovery of the truth. The hunt for “traitors” has often overshadowed the bloody feuding between internal factions of the KLA, and served to cover up the crimes committed by KLA members and affiliates. 14. The current Office for Missing Persons and Forensics 7 has cited great difficulties in working with the often poor-quality documentation handed down by its predecessors 8 ; it also apparently has trouble motivating and retaining its staff, who are said to be underpaid considering the qualifications required. Efforts to determine the fate of missing persons have also suffered from a clear deficit in co-operation between the various international agencies and the Kosovo authorities, not to mention with the competent authorities of Albania. While Serbia did co-operate, albeit not without initial misgivings, in efforts to excavate suspected mass graves in its territory, such investigative steps have proved far more complicated in the territory of Kosovo 9 , and up to now have been impossible on the territory of Albania 10 The co-operation of . the Kosovo authorities has been especially lacking in relation to the 470 cases of disappearances that officially occurred after the end of the conflict 11 The lack of co-operation by the authorities of Kosovo and . Albania in determining the fate of the missing Serbs, and even Kosovar Albanians thought to have fallen victim to crimes committed by members of the KLA, raises grave doubts about the current level of political will to establish the whole truth concerning these events. 15. The Working Group on Missing Persons chaired by the ICRC, in conjunction with the OMPF, needs the wholehearted support of the international community to overcome the reluctance that exists on all sides. Such support should be offered not least in the interests of the missing persons’ surviving relatives, whose anguish continues to form a significant obstacle to reconciliation. 16. We have already recalled the manner in which the allegations of organ trafficking were made public, assumed international dimensions, and prompt PACE to call for the preparation of this report. There was extensive discussion around the so-called “Yellow House”, located in Rripe, near Burrel, in central Albania – to the point where this house appeared to have monopolised the public’s attention. However, upon reflection, the house was merely one element among many in a far larger and more complex episode. It is true that the whole story seems to have begun with the revelations about the “Yellow House”. In February 2004, an exploratory visit to the site was organised jointly by the ICTY and UNMIK, with the participation of a journalist. This visit cannot in fact be regarded as a proper forensic examination according to all the technical rules. Participants in the visit whom we interviewed explicitly condemned a certain lack of professionalism, particularly regarding the taking of samples and the recording of scientific observations. Nonetheless, the demeanour of some members of the K. family, who inhabit the house, raised a number of 6 The figures quoted here were provided by the Office of Missing Persons and Forensics (OMPF), with regard to cases still unresolved at the beginning of 2010. The ICRC speaks of about 1000 missing persons after KFOR’s arrival, most of them Serbs but also Albanian Kosovars regarded as “traitors”. 7 The Office for Missing Persons and Forensics (OMPF) is currently co-headed by a EULEX official and a Kosovar official; this body was created, we were told, “to clean up the mess left behind by UNMIK and the ICTY”. 8 This difficulty was said to be most acute with regard to cases that arose during the period of “chaos” from June to late October 1999. KFOR soldiers were evidently unqualified to carry out police work and their crime scene reports were said to be mostly unusable. 9 An example with which we were confronted during our fact-finding visit to Pristina concerned excavations in a mineshaft where some thirty bodies of deceased Serbs were said to be buried. The local construction companies employed to do the work were threatened by members of the local community, which caused considerable delay in carrying out the explorations. According to what we have been told, the prevailing attitude among the Kosovar population is to regard as a “traitor” anyone who provides information regarding mass graves containing Serb victims. 10 EULEX investigators informed us that the level of co-operation from the Albanian authorities was “nil”. The reply, after several months, to a request for international legal assistance (concerning the camp at Kukës) was that the requested investigations were “delayed by a natural disaster”. Other international officials also confirmed the “strong resistance” of the Kosovar authorities to cooperating in efforts to solve cases of missing Serbs or alleged Kosovar Albanian “traitors”. The consistent refrain of the Albanian authorities towards Albania never allowed exhumations in its territory. “There was no war here, so there are no graves to look for”. 11 There is said to exist some degree of reluctance even within the OMPF concerning the disappearances that occurred after 12 June 1999. AS/Jur (2010) 46 10 questions, notably about the differing and contradictory explanations they offered, one after the other, as to the presence of bloodstains (detected by use of Luminol) in the vicinity of a table in the main room. The family patriarch stated originally that farm animals had been slaughtered and cut up there. Another explanation given was that one of the women in the household had given birth to one of her children in the same place. 17. Neither the ICTY nor UNMIK, nor indeed the Albanian Public Prosecutor’s Office, followed up this visit by conducting any more thorough inquiries. The Albanian investigator who took part in this site visit moreover hastened to assert publicly that no leads of any kind had been found. The physical samples collected at the scene were subsequently destroyed by the ICTY, after being photographed, as the current Chief Prosecutor of the ICTY confirmed to me in a letter 12 We must permit ourselves to express . astonishment that such a step was taken. 18. Nor did the team of the Special Prosecutor for War Crimes in Belgrade come up with very concrete results in this matter, notwithstanding their considerable efforts. The media whirlwind that surrounded the inquiry certainly did nothing to enhance its effectiveness. We thank the special prosecutor for his cooperation and readiness to assist. 19. The teams of international prosecutors and investigators in the EULEX mission charged with investigating the allegations of inhuman treatment, including those relating to possible instances of organ trafficking, have made some progress, notably towards proving the existence of secret KLA detention facilities in northern Albania, where murders are also alleged to have been committed. However, EULEX’s inquiries have so far been hampered by a lack of co-operation on the part of the Albanian authorities, who have failed to respond to the specific, detailed requests for judicial assistance submitted to them. At the time of writing, EULEX has still not had access to the complete set of records compiled by the ICTY in this area of investigation. 20. A further investigation, also carried out by EULEX, into the case of the Medicus Clinic in Pristina, has been made similarly difficult by the delays on the part of the authorities of several Council of Europe member and observer countries in responding to EULEX requests for international legal assistance 13 Considering the . gravity of the acts alleged – trafficking in human organs, no less – such delays are incomprehensible and unconscionable. It should be recalled that the initial investigation had led to several arrests of suspects in November 2008. Arrest warrants have since been issued in respect of other suspects currently at large 14 . This investigation serves as further proof of the existence in the region of criminal structures and networks, in which medical practitioners are also implicated, operating in the region as part of an international traffic in human organs, notwithstanding the presence of international forces. We believe that there are sufficiently serious and substantial indications to demonstrate that that this form of trafficking long pre-dates the Medicus case, and that certain KLA leaders and affiliates have been implicated in it previously. Certainly the indications are too strong to countenance any failure, at long last, to conduct a serious, independent and thorough inquiry. 21. We have learned at first hand how difficult it is to reconstruct events in Kosovo during the troubled and chaotic period of 1999-2000. With the exception of a few EULEX investigators, there has been and remains a lack of resolve to ascertain the truth of what happened during that period, and assign responsibilities accordingly. The raft of evidence that exists against certain top KLA leaders appears largely to account for this reluctance. There were witnesses to the events who were eliminated, and others too terrified by the mere fact of being questioned on these events. Such witnesses have no confidence whatsoever in the protective measures that they might be granted. We ourselves had to take meticulous precautions in respect of certain interlocutors to assure them of the strictest anonymity. We nevertheless found them trustworthy and were able to establish that their statements were confirmed by objectively verifiable facts. Our aim was not, however, to conduct a criminal investigation. But we can claim to have gathered compelling enough evidence to demand forcefully that the international bodies and the states concerned finally take every step to ensure that the truth is ascertained and the culprits clearly identified and called to account for their acts. The signs of collusion between the criminal class and high political and institutional office bearers are too numerous and too serious to be ignored. It is a fundamental right of Kosovo’s citizens to know the truth, the 12 Serge Brammertz, ICTY Chief Prosecutor, in a letter to me dated 17 December 2009. In an interview I had with Madam Carla Del Ponte in 2009, the former Chief Prosecutor assured me that the materials in question should be stored in the ICTY’s archives and that their destruction was simply inconceivable. 13 Such requests were made in March 2009 to the following countries: Belarus, Canada, Israel, Germany, Moldova, Poland, Russian Federation, and Turkey. At the time of writing, only Canada was said to have provided a satisfactory response. 14 See the EULEX press release of 15 October 2010: http://www.eulex-kosovo.eu/en/pressreleases/0098.php; and the report by Nebi Qena (AP), 12 November 2010: http://news.yahoo.com/s/ap/20101112/ap_on_re_eu/eu_kosovo_organ_trafficking/print11 AS/Jur (2010) 46 whole truth, and also an indispensable condition for reconciliation between the communities and the country’s prosperous future. 22. Before going into further detail regarding our investigations, I should like to express my appreciation to all those who helped me in carrying out this difficult and delicate assignment. First and foremost I thank the Committee Secretariat, assisted by an outside expert, as well as the authorities of the states we visited, and the able, courageous investigative journalists who shared certain information with us. I also owe special gratitude to the persons who have trusted in our professionalism, not least in our earnest duty to protect their identities so as not to place them in any danger. 2. Introductory commentary on sources 23. In the course of our inquiry, we have obtained testimonial and documentary accounts from several dozen primary sources, notably including: combatants and affiliates of various armed factions that participated in the hostilities in Kosovo; direct victims of violent crimes committed in Kosovo and the surrounding territories; family members of missing or deceased persons; current and former representatives of international justice institutions with jurisdiction over the events in Kosovo [primarily the United Nations Mission in Kosovo (UNMIK), the European Union Rule of Law Mission (EULEX), and the International Criminal Tribunal for the Former Yugoslavia (ICTY)]; representatives of national justice systems, including prosecutors with jurisdiction over events related to Kosovo [Office of the War Crimes Prosecutor in Belgrade; Office of the General Prosecutor in Tirana; prosecutors, police officers and state security officials in Pristina and in three surrounding states]; humanitarian agencies [including the International Committee of the Red Cross (ICRC) and the International Commission on Missing Persons (ICMP)]; and various members of civil society and human rights monitoring bodies who have investigated and reported on events related to Kosovo in the material period [including the Humanitarian Law Centre]. 24. Naturally we have tried wherever possible to take these testimonies directly ourselves, either through on-the-record meetings or through confidential interviews, in the course of visiting Pristina, Tirana, Belgrade and other parts of the Balkan region. However, for a variety of reasons – including their “disappearance”, for security reasons, their relocation overseas, and the constraints of our official programme of meetings while on mission in the region – some of the sources who provided these testimonies have not been available to meet with us in person. 25. Moreover, we have faced the same obstacles to obtaining truthful testimony about the alleged crimes of Kosovar Albanians as have other investigative bodies throughout the past decade. The entrenched sense of loyalty to one’s clansmen, and the concept of honour that was perhaps best captured in expert reporting to the ICTY in its deliberations in the case of Limaj et al., 15 rendered most ethnic Albanian witnesses unreachable for us. Having seen two prominent prosecutions undertaken by the ICTY leading to the deaths of so many witnesses, and ultimately a failure to deliver justice 16 , a Parliamentary Assembly Rapporteur with only paltry resources in comparison was hardly likely to overturn the odds of such witnesses speaking to us directly. 26. Numerous persons who have worked for many years in Kosovo, and who have become among the most respected commentators on justice in the region, counseled us that organized criminal networks of Albanians (“the Albanian mafia”) in Albania itself, in neighbouring territories including Kosovo and ‘the former Yugoslav Republic of Macedonia’, and in the Diaspora, were probably more difficult to penetrate than the Cosa Nostra; even low-level operatives would rather take a jail term of decades, or a conviction for contempt, than turn in their clansmen. 27. Thus, out of necessity and only where appropriate, we have relied on audio and video recordings of interviews with key sources conducted by others. In such instances we have undertaken every possible step to establish the identity, authenticity and credibility of the sources for ourselves; we have compared their testimonies with information from separate, independent sources of which they could have had no knowledge; and we have gained first-hand insights from the interviewers into the circumstances and conditions in which the interviews were conducted. 15 See Expert Report quoted in the Limaj judgement. 16 Carla del Ponte herself said of the Limaj trial that “the impunity that feeds upon fear was allowed to prevail”: see del Ponte and Sudetic, The Hunt, Chapter 11: Confronting Kosovo, at page 26. AS/Jur (2010) 46 12 28. The interviewers who conducted these interviews include representatives of law enforcement authorities in several different countries, academic researchers, and investigative journalists of recognised repute and credibility. We have always insisted on corroboration of testimony. 3. Detailed findings of our inquiry 3.1 The overall picture 29. The overall picture that emerges from our inquiry differs dramatically in several respects from the conventional portrayal of the Kosovo conflict. Indeed, while there was certainly an intensely fought battle for the destiny of the territory of Kosovo, there were very few instances in which opposing armed factions confronted one another on any kind of military frontlines. 30. The abhorrent abuses of the Serb military and police structures in trying to subjugate and ultimately to expel the ethnic Albanian population of Kosovo are well known and documented. 31. The evidence we have uncovered is perhaps most significant in that it often contradicts the muchtouted image of the Kosovo Liberation Army, or KLA, as a guerrilla army that fought valiantly to defend the right of its people to inhabit the territory of Kosovo. 32. While there were undoubtedly numerous brave soldiers who were willing to go to the warfront, in the face of considerable adversity, and if necessary die for the cause of an independent Kosovar Albanian motherland, these fighters were not necessarily in the majority. 33. From the testimony we have managed to amass, the policy and strategy of some KLA leaders were much more complex than a simple agenda to overpower their Serb oppressors. 34. On the one hand, the KLA leadership coveted recognition and support from foreign partners including, notably, the United States Government. Towards this end the KLA’s internationally well-connected “spokesmen” had to fulfil certain promises to their partners and sponsors, and / or adhere to particular terms of engagement that were the de facto conditions of their receiving support from overseas. 35. On the other hand, though, a number of the senior commanders of the KLA have reportedly not failed to profit from the war, including by securing material and personal benefits for themselves. They wanted to secure access to resources for themselves and their family / clan members, notably through positions of power in political office, or in lucrative industries such as petroleum, construction and real estate. They wanted to avenge what they perceived as historical injustices perpetrated against the Albanian population in the former Yugoslavia. And many of them were seemingly bent on profiteering to the maximum of their potential while they had operational control of certain lawless territories (e.g. in parts of southern and western Kosovo), and leverage – especially in terms of financial resources – with which to negotiate footholds for themselves in other territories (e.g. in Albania). 36. The reality is that the most significant operational activities undertaken by members of the KLA – prior to, during, and in the immediate aftermath of the conflict – took place on the territory of Albania, where the Serb security forces were never deployed. 3.2 KLA factionalism and the nexus with organised crime 37. For more than two years after its initial emergence in 1996, the KLA was regarded as a marginal, loosely organised insurgency, whose attacks on the Yugoslav state were held by Western observers to amount to acts of “terrorism”. 38. Our sources close to the KLA, along with the testimonies of captured KLA members gathered by Serb police, confirm that the main locations at which KLA recruits congregated and trained were in northern Albania. 39. It is well established that weapons and ammunition were smuggled into parts of Kosovo, often on horseback, through clandestine, mountainous routes from northern Albania. Serb police attributed these events to criminal raids on the part of bandits who wanted to carry out terrorist acts against Serbian security 13 AS/Jur (2010) 46 forces. The Albanian Kosovars and Albanian citizens who were involved in the smuggling operations presented them as heroic acts of resistance in the face of Serb oppression. 40. The domestic strengthening of the KLA, in terms of its fighting capability as well as its credibility among the Kosovo Albanian population, seemed to play out, especially in the course of 1998, along the same trajectory as the escalating brutality of the Serb military and police clampdown. 41. Yet only in the second half of 1998, through explicit endorsements from Western powers, founded on strong lobbying from the United States, did the KLA secure its pre-eminence in international perception as the vanguard of the Kosovar Albanian liberation struggle. 42. This perceived pre-eminence was the KLA’s most valuable, indispensable asset. It spurred the wealthiest donors in the Albanian Diaspora to channel significant funds to the KLA. It bestowed individual KLA representatives with an enhanced authority to speak and act on behalf of the Kosovar Albanians as a whole. And it cast the KLA’s leading personalities as the most likely powerbrokers in the Kosovo that would emerge from the war. 43. Indeed, the perception of KLA pre-eminence – largely created by the Americans – was a self-fulfilling prophecy, the bedrock upon which the KLA achieved actual ascendancy over other Kosovar Albanian constituencies with designs on power, such as Ibrahim Rugova’s Democratic League of Kosovo (LDK) and Bujar Bukoshi’s “Government-in-exile”. 44. According to our insider sources, the KLA fought just as hard, and devoted arguably more of its resources and political capital, to maintain its advantage over its ethnic Albanian rival factions as it did to carry out co-ordinated military actions against the Serbs. 45. At the same time it should be restated, for emphasis, that the KLA was not a single, unitary combatant faction in the manner of a conventional Army. There was no formally appointed overall leader, or “commander-in-chief”, whose authority was universally recognised by the other commanders and whose orders were met with compliance among all the rank and file. 46. Rather, as the struggle over Kosovo’s future governance evolved, and a full-blown conflict approached, the KLA was divided by a deep-rooted internal factionalism. 47. Important sources of division included divergent political ambitions, as well as disparate notions of the acceptable parameters of violent resistance, on the part of the KLA’s most prominent personalities and leadership contenders. 48. Thus there emerged in 1998 and 1999, and particularly in the wake of the death of the KLA’s celebrated peasant commander Adem Jashari 17 , several different KLA “splinter groups”. 49. Each of these splinter groups was led by one of the KLA’s self-proclaimed founder members. Each group comprised a loyal core of recruits and supporters, often drawn from among a few closely affiliated clans or families, and / or concentrated in an identifiable geographical territory of Kosovo. Each group identified their own leader as the brightest hope to lead the KLA’s fight against the Serbs, and by extension, to achieve self-determination for the Kosovar Albanian people, whilst co-operating with the other KLA commanders on the basis of expediency. 50. Evidently it is the composition and leadership of these KLA “splinter groups”, along with the pre-existing popularity of the LDK, which carried over beyond the liberation struggle and have essentially shaped the post-conflict political landscape of Kosovo 18 . 51. Incumbency of the highest executive offices in Kosovo has been shared among former leading KLA commanders for the last decade, and most political campaigns have been contested on the basis of the 17 The KLA had grown domestically throughout most of the 1990s by rallying the support of volunteer fighters – men of all ages in their respective villages – to coalesce around leaders like Adem Jashari and form small armed units, or “brigades” across the territory of Kosovo. Many of the recruits to this “homeland KLA”, effectively a peasant army, undertook guerrilla warfare training at camps in northern Albania, and smuggled arms into Kosovo with which to undertake acts of violent resistance. Our inquiry received more than a dozen testimonies of ethnic Albanian males who had taken part in this campaign of “resistance”. With the killing of Jashari and scores of his family members and associates in a clampdown by Serb security forces in1998, this initial incarnation of the KLA was effectively ended, and has gravitated into folklore as a romantic notion of Kosovar liberation, with Jashari as its martyr. 18 The main rival political parties in recent election cycles have included the Democratic Party of Kosovo (Partia Demokratike e Kosovës, or PDK), and the Alliance for the Future of Kosovo (Aleanca për Ardhmërinë e Kosovës, or AAK), both of which are led by commanders of former KLA “splinter groups” and count large number of former KLA operatives among their members. AS/Jur (2010) 46 14 candidates’ respective contributions to the liberation struggle, as well as the extent to which they are seen as being able to promote the interests of the Kosovar Albanian people on an ongoing basis against known and unknown adversaries. 52. The various KLA “splinter groups” I refer to have been found to have developed and maintained their own intelligence structures, among other forms of self-preservation. Through whatever means available to them, and clearly on the fringes of the legal and regulatory systems, the keenest purveyors of this de facto form of continued KLA warfare have conducted surveillance of, and often sought to sabotage, the activities of their opponents and those who might jeopardise their political or business interests. 19 53. Furthermore we found 20 that the structures of KLA units had been shaped, to a significant degree, according to the hierarchies, allegiances and codes of honour that prevail among the ethnic Albanian clans, or extended families, and which form a de facto set of laws, known as the Kanun, in the regions of Kosovo from which their commanders originated. 54. Based on analytical information we received from several international monitoring missions, corroborated by our own sources in European law enforcement agencies and among former KLA fighters, we found that the main KLA units and their respective zones of operational command corresponded in an almost perfect mirror image to the structures that controlled the various forms of organised crime in the territories in which the KLA was active. 55. Put simply, establishing which circle of KLA commanders and affiliates was in charge of a particular region where the KLA operated in Kosovo, and indeed in certain parts of the Republic of Albania, was the key to understanding who was running the bulk of the particular trafficking or smuggling activity that flourished there. 56. Most pertinent to our research, we found that a small but inestimably powerful group of KLA personalities apparently wrested control of most of the illicit criminal enterprises in which Kosovar Albanians were involved in the Republic of Albania, beginning at the latest in 1998. 57. This group of prominent KLA personalities styled itself as the “Drenica Group”, evoking connections with the Drenica Valley in Kosovo 21 , a traditional heartland of ethnic Albanian resistance to Serb oppression under Milosevic, and the birthplace of the KLA. 58. We found that the “Drenica Group” had as its chief – or, to use the terminology of organised crime networks, its “boss” – the renowned political operator and perhaps most internationally recognised personality of the KLA, Hashim Thaqi 22 . 59. Thaqi can be seen to have spearheaded the KLA’s rise to pre-eminence in the lead-up to the Rambouillet negotiations, both on the ground in Kosovo, and overseas. He also did much to foment the bitter internal factionalism that characterised the KLA throughout 1998 and 1999. 60. On the one hand, Thaqi undoubtedly owed his personal elevation to having secured political and diplomatic endorsement 23 from the United States and other Western powers, as the preferred domestic partner in their foreign policy project in Kosovo. This form of political support bestowed upon Thaqi, not least in his own mind, a sense of being “untouchable” and an unparalleled viability as Kosovo’s post-war leader-inwaiting. 61. On the other hand, according to well-substantiated intelligence reports that we have examined thoroughly and corroborated through interviews in the course of our inquiry, Thaqi’s “Drenica Group” built a formidable power base in the organised criminal enterprises that were flourishing in Kosovo and Albania at the time. 19 We have noted the remarkable confessions of a man named Nazim Bllaca, who came forward last year and testified as to the use of these intelligence structures in targeted killings and different forms of racketeering; Bllaca’s depiction of this secret underworld is one we recognise from our own research. 20 In this regard our findings correspond with those of international representatives of military and intelligence monitoring missions – from NATO’s Kosovo Stabilisation Force (KFOR), to the Organisation for Security and Cooperation in Europe (OSCE), to the United States Central Intelligence Agency (CIA) – in reports published at various points over the last fifteen years. 21 In Kosovo itself, the area of influence of the Drenica Group and its affiliates went on to extend far beyond that particular locale, however: they exercised firm control over criminal cartels active in municipalities including, but not limited to, Istok, Srbica, Skenderaj, Klina, Prizren and Pristina. 22 See Le Monde 11 December 2010. 23 Thaqi was, for example, named as head delegate of the Kosovar Albanians to the Rambouillet Summit. 15 AS/Jur (2010) 46 62. In this regard, Thaqi reportedly operated with support and complicity not only from Albania’s formal governance structures, including the Socialist Government in power at the time, but also from Albania’s secret services, and from the formidable Albanian mafia. 63. Many KLA commanders remained on Albanian territory, some even operating out of the Albanian capital Tirana, throughout the ensuing hostilities and beyond. 64. During the period of the NATO aerial bombardment, which lasted several weeks, perhaps the principal shift in the balance of power in Kosovo occurred as a result of the influx of foreigners into the region, in both overt and implicit support of the KLA cause. Unable to gain access
[provisional version] AS/Jur (2010) 46 12 December 2010 Ajdoc46 2010 Committee on Legal Affairs and Human Rights Inhuman treatment of people and illicit trafficking in human organs in Kosovo* 1 Report Rapporteur: Mr Dick Marty, Switzerland, Alliance of Liberals and Democrats for Europe A. Draft resolution 1. The Parliamentary Assembly was extremely concerned to learn of the revelations of the former Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY), who alleged that serious crimes had been committed during the conflict in Kosovo, including trafficking in human organs, crimes which had gone unpunished hitherto and had not been the subject of any serious investigation. 2. In addition, according to the former Prosecutor, these acts had been committed by members of the "Kosovo Liberation Army" (KLA) militia against Serbian nationals who had remained in Kosovo at the end of the armed conflict and been taken prisoner. 3. According to the information gathered by the Assembly and to the criminal investigations now under way, numerous concrete and convergent indications confirm that some Serbians and some Albanian Kosovars were held prisoner in secret places of detention under KLA control in northern Albania and were subjected to inhuman and degrading treatment, before ultimately disappearing. 4. Numerous indications seem to confirm that, during the period immediately after the end of the armed conflict, before international forces had really been able to take control of the region and re-establish a semblance of law and order, organs were removed from some prisoners at a clinic in Albanian territory, near Fushë-Krujë, to be taken abroad for transplantation. 5. This criminal activity, which developed with the benefit of the chaos prevailing in the region, at the initiative of certain KLA militia leaders linked to organised crime, has continued, albeit in other forms, until today, as demonstrated by an investigation being carried out by the European Union Rule of Law Mission in Kosovo (EULEX) relating to the Medicus clinic in Pristina. 6. Although some concrete evidence of such trafficking already existed at the beginning of the decade, the international authorities in charge of the region did not consider it necessary to conduct a detailed examination of these circumstances, or did so incompletely and superficially. * All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo. 1 Draft resolution adopted unanimously by the Committee in Paris on 16 December 2010. AS/Jur (2010) 46 2 7. Particularly during the first years of their presence in Kosovo, the international organisations responsible for security and the rule of law (KFOR and UNMIK) had to cope with major structural problems and serious shortages of staff with the skills to take on the tasks they were entrusted with, all this being aggravated by rapid and constant staff rotation. 8. The ICTY, which had started to conduct an initial examination on the spot to establish the existence of traces of possible organ trafficking, dropped the investigation. The elements of proof taken in Rripe, in Albania, have been destroyed and cannot therefore be used for more detailed analyses. No subsequent investigation has been carried out into a case nevertheless considered sufficiently serious by the former ICTY Prosecutor for her to see the need to bring it to public attention through her book. 9. During the decisive phase of the armed conflict, NATO took action in the form of air strikes, while land operations were conducted by the KLA, de facto allies of the international forces. Following the departure of the Serbian authorities, the international bodies responsible for security in Kosovo very much relied on the political forces in power in Kosovo, most of them former KLA leaders. 10. The international organisations in place in Kosovo favoured a pragmatic political approach, taking the view that they needed to promote short-term stability at any price, thereby sacrificing some important principles of justice. For a long time little was done to follow-up evidence implicating KLA members in crimes against the Serbian population and against certain Albanian Kosovars. Immediately after the conflict ended, in effect, when the KLA had virtually exclusive control on the ground, many scores were settled between different factions and against those considered, without any kind of trial, to be traitors because they were suspected of having collaborated with the Serbian authorities previously in place. 11. EULEX, which took over certain functions in the justice sector previously fulfilled by UN structures (UNMIK) at the end of 2008, inherited a difficult and sensitive situation, particularly in the sphere of combating serious crime: incomplete records, lost documents, uncollected witness testimony. Consequently, a large number of crimes may well continue to go unpunished. Little or no detailed investigation has been carried out into organised crime and its connections with representatives of political institutions, or in respect of war crimes committed against Serbians and Albanian Kosovars regarded as collaborators or as rivals of the dominant factions. This last-named subject is still truly taboo in Kosovo today, although everybody talks about it in private, very cautiously. EULEX seems very recently to have made some progress in this field, and it is very much to be hoped that political considerations will not impede this commitment. 12. The team of international prosecutors and investigators within EULEX which is responsible for investigating allegations of inhuman treatment, including those relating to possible organ trafficking, has made progress, particularly in respect of proving the existence of secret KLA places of detention in northern Albania where inhuman treatment and even murders are said to have been committed. The investigation does not, however, benefit from the desirable co-operation from the Albanian authorities. 13. The appalling crimes committed by Serbian forces, which stirred up very strong feelings worldwide, gave rise to a mood reflected as well in the attitude of certain international agencies, according to which it was invariably one side that were regarded as the perpetrators of crimes and the other side as the victims, thus necessarily innocent. The reality is less clear-cut and more complex. 14. The Parliamentary Assembly strongly reaffirms the need for an absolutely uncompromising fight against impunity for the perpetrators of serious human rights violations, and wishes to point out that the fact that these were committed in the context of a violent conflict could never justify a decision to refrain from prosecuting anyone who has committed such acts (see Resolution 1675 (2009)). 15. There cannot and must not be one justice for the winners and another for the losers. Whenever a conflict has occurred, all criminals must be prosecuted and held responsible for their illegal acts, whichever side they belonged to and irrespective of the political role they took on. 16. The question which, from the humanitarian viewpoint, remains the most acute and sensitive is that of missing persons. Of more than 6,000 disappearances on which the International Committee of the Red Cross (ICRC) has opened files, approximately 1,400 individuals have been found alive and 2,500 corpses have been found and identified. For the most part, these were Albanian Kosovar victims found in mass graves in regions under Serbian control and in Kosovo. 17. Co-operation is still clearly insufficient between international agencies on the one hand and the Kosovar and Albanian authorities on the other on finding out the fate of the missing persons. Whereas3 AS/Jur (2010) 46 Serbia ultimately co-operated, it has proved far more complicated to carry out excavations on the territory of Kosovo, and has been impossible, at least so far, on Albanian territory. Co-operation by the Kosovar authorities is particularly lacking in respect of the search for the almost 500 persons who officially disappeared after the end of the conflict. 18. The working group on missing persons, chaired by the ICRC and the EULEX Office on Missing Persons, needs the full and wholehearted support of the international community in order for the reluctance on both sides to be overcome. Knowing the truth and enabling victims' families to mourn at last is a vital precondition for reconciliation between the communities and a peaceful future in this region of the Balkans. 19. The Assembly therefore invites: 19.1 the member states of the European Union and the other contributing states: 19.1.1 to allocate to EULEX the resources that it needs, in terms of logistics and highly skilled staff, to deal with the extraordinarily complex and important role entrusted to it; 19.1.2 to set EULEX a clear objective and give it political support at the highest level to combat organised crime uncompromisingly, and to ensure that justice is done, without any considerations of political expediency; 19.1.3 to commit all the resources needed to set up effective witness protection programmes; 19.2 EULEX: 19.2.1 to persevere with its investigative work, without taking any account of the offices held by possible suspects or of the origin of the victims, doing everything to cast light on the criminal disappearances, the indications of organ trafficking, corruption and the collusion so often complained of between organised criminal groups and political circles; 19.2.2 to take every measure necessary to ensure effective protection for witnesses and to gain their trust; 19.3 the ICTY to co-operate fully with EULEX, particularly by making available to it the information and elements of proof in its possession likely to help EULEX to prosecute those responsible for crimes within its jurisdiction; 19.4 the Serbian authorities: 19.4.1 to make every effort to capture the persons still wanted by the ICTY for war crimes, particularly General Ratko Mladic and Goran Hadzic, whose impunity continues to constitute a serious obstacle to the process of reconciliation and is often referred to by the authorities of other countries to justify their lack of enthusiasm about taking judicial action themselves; 19.4.2 to co-operate closely with EULEX, particularly by passing to it all information which may help to clear up crimes committed during and after the conflict in Kosovo; 19.4.3 to take the necessary measures to prevent leaks to the press of information about investigations concerning Kosovo, leaks which are prejudicial to co-operation with other authorities and to the credibility of the investigative work; 19.5 the Albanian authorities and the Kosovo administration : 19.5.1 to co-operate unreservedly with EULEX and the Serbian authorities in the framework of procedures intended to find out the truth about crimes committed in Kosovo, irrespective of the known or assumed origin of the suspects and the victims; 19.5.2 in particular, to take action on the requests for judicial assistance made by EULEX concerning criminal acts alleged to have occurred in a KLA camp in northern Albania; 19.5.3 to start a serious and independent investigation in order to find out the whole truth about the allegations, sometimes concrete and specific, of the existence of secret detention centres where inhuman treatment was purportedly inflicted on prisoners from Kosovo, of Serbian or Albanian origin, during and immediately after the conflict; the investigation must also be extended to a verification of the equally specific AS/Jur (2010) 46 4 allegations about organ trafficking said to have taken place during the same period, some of it on Albanian territory; 19.6 all the Council of Europe member and observer states concerned: 19.6.1 to respond without undue delay to the requests for judicial co-operation addressed to them by EULEX and by the Serbian authorities in the framework of their current investigations concerning war crimes and organ trafficking; the delayed response to these requests is incomprehensible and intolerable in view of the importance and urgency of international co-operation to deal with such serious and dangerous crime problems; 19.6.2 to co-operate with EULEX in its efforts to protect witnesses, especially when the persons concerned can no longer continue to live in the region and must therefore adopt a new identity and find a new country of residence; 20. The Assembly, aware that trafficking of human organs is now an extremely serious problem worldwide, manifestly contravening the most basic standards in terms of human rights and dignity, welcomes and concurs with the conclusions of the joint study published in 2009 by the Council of Europe and the United Nations Organisation. It agrees in particular with the conclusion that it is necessary to draft an international legal instrument, which lays down definitions of human organ, tissue and cell trafficking and lays out the action that shall be taken in order to prevent such trafficking and to protect its victims, as well as criminal law measures to prosecute the perpetrators. 5 AS/Jur (2010) 46 B. Explanatory memorandum by Mr Dick Marty Contents 1. Introductory remarks – an overview 2. Introductory commentary on sources 3. Detailed findings of our inquiry 3.1 The overall picture 3.2 KLA factionalism and the nexus with organised crime 3.3 Detention facilities and the inhuman treatment of captives 3.3.1. KLA detentions in wartime 3.3.1.1. First subset of captives: the “prisoners of war” 3.3.1.1.1. Case study on the nature of the facilities: Cahan 3.3.1.1.2. Case study on the nature of the facilities: Kukës 3.3.2. Post-conflict detentions carried out by KLA members and affiliates 3.3.2.1. Second subset of captives: the “disappeared” 3.3.2.1.1. Case study on the nature of the facilities: Rripe 3.3.2.1.2. Observations on the conditions of detention and transport 3.3.2.2. Third subset of captives: the “victims of organised crime” Case study on the nature of the facilities: Fushë-Krujë 4. Medicus clinic 5. Reflections on the “glass ceiling of accountability” in Kosovo 6. Some concluding remarks AS/Jur (2010) 46 6 1. Introductory remarks – an overview 1. In April 2008 Madam Carla Del Ponte, the former Chief Prosecutor before the International Criminal Tribunal for the former Yugoslavia (ICTY), published a set of memoirs, co-authored with Chuck Sudetic, on her experiences within the tribunal. The book initially came out in Italian (“La caccia – Io e i criminali di guerra”), then in translation, notably in French (“La traque, les criminels de guerre et moi”). In the book, almost ten years after the end of the war in Kosovo, there appeared revelations of trafficking in human organs taken from Serb prisoners, reportedly carried out by leading commanders of the Kosovo Liberation Army (KLA). These claims were surprising in several respects and have provoked a host of strong reactions. They were surprising, in the first place, because they emanated from someone who exercised the highest official responsibilities, at the very heart of the judicial system tasked with prosecuting the crimes committed in the course of the conflicts that ravaged the former Yugoslavia. Furthermore, and above all, they were surprising because they revealed an apparent absence of official follow-up in respect of allegations that were nevertheless deemed serious enough to warrant inclusion in the memoirs of the former Prosecutor could hardly have ignored the grave and far-reaching nature of the allegations she had decided to make public. 2. Having before it a motion for a Resolution (doc.11574), which demanded a thorough investigation into the acts mentioned by Madam Del Ponte and their consequences, in order to ascertain their veracity, deliver justice to the victims and apprehend the culprits of the crimes, the Committee on Legal Affairs and Human Rights appointed me as Rapporteur and accordingly instructed me to propose a preliminary draft resolution and to draw up a report. 3. The extraordinary challenges of this assignment were immediately clear. The acts alleged – by a former prosecutor of international standing, let us remember – purportedly took place a decade ago and were not properly investigated by any of the national and international authorities with jurisdiction over the territories concerned. All the indications are that efforts to establish the facts of the Kosovo conflict and punish the attendant war crimes had primarily been concentrated in one direction, based on an implicit presumption that one side were the victims and the other side the perpetrators. As we shall see, the reality seems to have been more complex. The structure of Kosovar Albanian society, still very much clanorientated, and the absence of a true civil society have made it extremely difficult to set up contacts with local sources. This is compounded by fear, often to the point of genuine terror, which we have observed in some of our informants immediately upon broaching the subject of our inquiry. Even certain representatives of international institutions did not conceal their reluctance to grapple with these facts: “The past is the past”, we were told; “we must now look to the future”. The Albanian authorities intimated that their territory had not been affected by the conflict and that they had no reason to open an inquiry. The Serbian authorities did react, albeit rather belatedly, but so far without having achieved any significant results. For its part the ICTY carried out an exploratory mission to the site of the notorious “Yellow House”, though proceeding in a fairly superficial way and with a standard of professionalism that prompts some bewilderment. In addition, the ICTY’s mandate was restricted to a clearly defined timeframe and territory: the international tribunal was enjoined to try those suspected of crimes committed only up to June 1999, marking the end of the Kosovo conflict, and its jurisdiction does not extend to Albania, except in instances where Albania expressly authorises investigations to take place on its territory. 4. The acts with which we are presently concerned are alleged to have occurred for the most part from the summer of 1999 onwards, against a background of great confusion throughout the region. The Serbian security forces had abandoned Kosovo, and the troops of KFOR (NATO’s international Kosovo Stabilisation Force) were making a rather slow start in establishing themselves; while tens of thousands of Kosovar Albanian refugees were originally trying to reach Albania and then to return home, with ethnic Serbs in turn seeking refuge in the territories controlled by the Serbian Army. It was chaos: there was no functioning administration on the part of the Kosovars, and KFOR took quite some time to gain control of the situation, evidently not possessing the know-how needed to cope with such extreme situations. The NATO intervention had essentially taken the form of an aerial campaign, with bombing in Kosovo and in Serbia – operations thought by some to have infringed international law, as they were not authorised by the UN Security Council – while on the ground NATO’s de facto ally was the KLA. Thus, during the critical period that is the focus of our inquiry, the KLA had effective control over an expansive territorial area, encompassing Kosovo as well as some of the border regions in the north of Albania. KLA control should not be understood as a structured exercise of power, and it was certainly far from assuming the contours of a state. It was in the course of this critical period that numerous crimes were committed both against Serbs who had stayed in the region and against Kosovar Albanians suspected of having been “traitors” or “collaborators”, or who fell victim to internal rivalries within the KLA. These crimes have largely gone unpunished and it is only years later that a rather diffident start has been made in dealing with them.7 AS/Jur (2010) 46 5. During this chaotic phase, the border between Kosovo and Albania effectively ceased to exist. There was no form of control in effect, and it would hardly have been possible to enforce rules anyway, considering the heavy flow of refugees towards Albania and their return in similar numbers after the end of the hostilities. During a field mission on behalf of the Swiss Parliament in 1999, I was able to witness for myself the scale of this phenomenon; I noted above all the singular solidarity shown by the Albanian population and authorities in receiving the Kosovar refugees. It was in this context that KLA militia factions moved freely on either side of the border, which, as pointed out, had by then become little more than a token dividing line. So it is clear that the KLA held effective control in the region during that critical period, both in Kosovo and in the northern part of Albania near the border. The international forces co-operated with the KLA as the local authority in military operations and the restoration of order. It was as a result of this situation that certain crimes committed by members of the KLA, including some top KLA leaders, were effectively concealed and have remained unpunished. 6. The crimes committed by the Serb forces have been documented, denounced and, to the extent possible, tried in courts of law. The frightful nature of these crimes hardly needs to be further illustrated. These crimes stemmed from a wicked policy ordered by Milosevic over a lengthy period, including at times when he was simultaneously being accorded full diplomatic honours in the capitals of many democratic states. These crimes claimed tens of thousands of victims and disrupted a whole region of our continent. In the Kosovo conflict, the ethnic Albanian population suffered horrendous violence as the result of an insane ethnic cleansing policy on the part of the dictator then in power in Belgrade. None of these historical events could be cast in doubt today. However, what emerged in parallel was a climate and a tendency according to which led to all these events and acts were viewed through a lens that depicted everything as rather too clear-cut: on one side the Serbs, who were seen as the evil oppressors, and on the other side the Kosovar Albanians, who were seen as the innocent victims. In the horror and perpetration of crimes there can be no principle of compensation. The basic essence of justice demands that everyone be treated in the same way. Moreover, the duty to find the truth and administer justice must be discharged in order for genuine peace to be restored, and for the different communities to be reconciled and begin living and working together. 7. Yet in the case of Kosovo, the prevailing logic appears to have been rather short-sighted: restore a semblance of order as quickly as possible, while avoiding anything that might be liable to destabilise a region still in a state of very fragile equilibrium. The result has been a form of justice that can only be defined as selective, with impunity attaching to many of the crimes that appear, based on credible indications, to have been directly or indirectly the work of top KLA leaders. The Western countries that engaged themselves in Kosovo had refrained from a direct intervention on the ground, preferring recourse to air strikes, and had thus taken on the KLA as their indispensable ally for ground operations. The international actors chose to turn a blind eye to the war crimes of the KLA, placing a premium instead on achieving some degree of shortterm stability. In effect the new Kosovo has been built on the existing structures of the Kosovar Albanian homeland movement. It follows that the successive international administrations put in place, as well as the US Government, which is generally regarded as playing an important role in the affairs of the new Kosovo 2 , have had to maintain good relations with their de facto allies on the ground, as the latter have become the new masters of the local political scene. This situation, as we emphasised above, has ultimately foiled the prospect of our getting to the bottom of the crimes committed, at least in cases where there is every indication that they were the misdeeds of persons in positions of power or close to those in power. An added problem is that the resources of the international administration under UNMIK were insufficient, both in quantity and in quality, for the task of prosecuting the crimes committed in an effective and impartial manner. The posting of most international staff to UNMIK on limited-term contracts, and the resultant perpetual rotation, caused a major hindrance to the administration of justice. International officials told us that it had been impossible to maintain confidentiality of their sources – an element considered essential to the success of a criminal investigation – in particular because of their reliance on local interpreters who would often pass on information to the persons being investigated. As a result, EULEX has had to bring in interpreters from other countries in order securely to conduct its most sensitive inquiries. The same sources told us that the approach of the international community could be aptly encapsulated in the notion of “stability and peace at any cost”. Obviously such an approach implied not falling out with the local actors in power. 8. The EULEX mission, operational since the end of 2008, thus inherited an extremely difficult situation. Numerous files on war crimes, notably those in which KLA combatants were listed as suspects, were turned over by UNMIK in a deplorable condition (mislaid evidence and witness statements, long time lapses in following up on incomplete investigative steps), to the extent that EULEX officials stated their fears in quite 2 The United States of America has an Embassy endowed with impressive resources and a military base, Camp Bondsteel, of a scale and significance that clearly transcends regional considerations. AS/Jur (2010) 46 8 explicit terms during our fact-finding visits that many files would simply have to be abandoned 3 Some of our . contacts representing Kosovo’s nascent civil society did not hold back in criticising EULEX itself: it had been widely expected that EULEX would at last go after the “untouchables”, whose more than murky past was common knowledge. Yet these expectations were in vain: there had been many announcements and promises, but the tangible results remained to be seen. The case of Nazim Bllaca, the “whistle-blower” who admitted publicly to having carried out murders upon the orders of some of today’s high-ranking politicians, is emblematic. Four days elapsed before the man was arrested and placed under protection. The way in which EULEX deals with his case will be an important test of how far it is prepared to go in pursuing its mission to promote justice. 9. One must nevertheless commend the remarkable dedication of many EULEX staff – at time of writing some 1,600 international executives and 1,100 local employees – and their determination to confront the extraordinary challenge handed to them. Their efforts are beginning to yield tangible results, notably with regard to the cases of the detention camp at Kukës and the Medicus Clinic in Pristina. Yet it is imperative that EULEX is given more explicit and more resolute support from the highest levels of European politics. There can be no lingering ambiguity as to the need to pursue all those suspected of crimes, even in cases where the suspects hold important institutional and political positions. Similarly, EULEX must urgently be given access to the complete sets of records compiled by international agencies that previously operated in Kosovo, including KFOR files that have since been returned to the troop-contributing countries 4 , and files compiled by the ICTY 5 According to the key practitioners working on the ground, there ought to be a . common, unified database comprising the archives of all the international actors, readily accessible to EULEX investigators. One is left to wonder what might possibly be the reasons put forward for failing to fulfil such a basic demand. 10. The Kosovo Police (KP), multiethnic in its make-up, is professionally trained, well-equipped and apparently effective in fighting petty crime or less serious forms of criminality. With over 7,200 uniformed officers and more than 1,100 support staff, the KP comprises representatives of 13 ethnic groups, including 10% of ethnic Serbs. According to recent surveys, the KP is second only to KFOR among all the institutions in Kosovo in the high levels of public trust it enjoys. Senior international officials have also confirmed that the police are “decent”, whereas the judges are “problematic” – in the sense of being subject to intimidation, under political influence, or corrupt. Assessments of the police nevertheless varied among the observers whom we met. The KP still has to prove itself and to win the full confidence of its international partners, including its counterparts in the EULEX mission. We sensed lingering doubts among internationals as to whether or not all the leaders of the police force share the necessary political resolve to go after all forms of crime in the most robust fashion possible; especially where the police are called upon to combat organised crime, and / or crimes in which highly placed political figures are implicated; and notably in ensuring truly effective protection of witnesses, a very sensitive and vital tool in the prosecution of the most notorious and dangerous criminals. 11. Corruption and organised crime constitute a major problem in the region, as several international studies have shown. The problem is aggravated by the fact that criminality, corruption and politics are so closely intertwined. The massive presence of international staff does not appear to have made things any better, and indeed has given rise to some rather perverse anomalies; for example, a driver or a cleaner working for an international organisation or a foreign Embassy invariably earns appreciably more than a police officer or a judge, which is bound to upset the scales of societal values. 12. The most pressing priority from a humanitarian perspective is to account for the fate of missing persons in relation to the Kosovo conflict. The number of disappearances is extremely high when one considers the modest size of Kosovo’s population. Out of a total of 6,005 cases of missing persons opened by the International Committee of the Red Cross (ICRC), some 1,400 persons have been found alive and it has been possible to discover and identify 2,500 bodies. Most of the deceased victims were identified as Kosovar Albanians, half of whom were exhumed from mass graves discovered on Serbian territory and the other half in Kosovo. In addition there are 1,869 missing persons who remain unaccounted for, about two- 3 The “UNMIK legacy” was described to us in the form of a vivid image that scarcely requires further comment, as “300,000 pages in disarray”. 4 We learned that certain KFOR contributors (for example the United Kingdom) took all their records away with them; and that these records were subsequently made accessible to EULEX investigators only on the basis of reasoned case-by-case applications, a complex procedure which considerably slows down the work of justice. 5 At the time of our visit in January 2010, EULEX investigators were not always able to access to the ICTY’s files, but the ICTY Prosecutor is more recently reported to have assured EULEX that access would be granted imminently. 9 AS/Jur (2010) 46 thirds of whom are Kosovar Albanians. 470 missing persons disappeared after the arrival of KFOR troops on 12 June 1999, 95 of whom were Kosovar Albanians and 375 non-Albanians, mainly Serbs 6 . 13. In assessing these disappearances, it is apt to note that many Kosovar Albanian families who lost a relative after 12 June 1999 reportedly declared an earlier date of disappearance, before this “cut-off date”, out of fear that their loved ones might be deemed to have been “traitors” to the cause, punished by the KLA. It is significant that Kosovo’s law on compensation for the families of “martyrs” expressly excludes persons who died after the arrival of KFOR. As to the law on compensation for the families of missing persons, which is still under discussion, the stated position of the Kosovo authorities is that the law should cover only those disappearances that occurred after 1 January 1999 and before 12 June 1999. This position serves to demonstrate just how sensitive the matter of the missing Kosovar Albanians remains to the present day. According to several of our informants, the matter is still considered utterly taboo and continues to form a serious impediment to the discovery of the truth. The hunt for “traitors” has often overshadowed the bloody feuding between internal factions of the KLA, and served to cover up the crimes committed by KLA members and affiliates. 14. The current Office for Missing Persons and Forensics 7 has cited great difficulties in working with the often poor-quality documentation handed down by its predecessors 8 ; it also apparently has trouble motivating and retaining its staff, who are said to be underpaid considering the qualifications required. Efforts to determine the fate of missing persons have also suffered from a clear deficit in co-operation between the various international agencies and the Kosovo authorities, not to mention with the competent authorities of Albania. While Serbia did co-operate, albeit not without initial misgivings, in efforts to excavate suspected mass graves in its territory, such investigative steps have proved far more complicated in the territory of Kosovo 9 , and up to now have been impossible on the territory of Albania 10 The co-operation of . the Kosovo authorities has been especially lacking in relation to the 470 cases of disappearances that officially occurred after the end of the conflict 11 The lack of co-operation by the authorities of Kosovo and . Albania in determining the fate of the missing Serbs, and even Kosovar Albanians thought to have fallen victim to crimes committed by members of the KLA, raises grave doubts about the current level of political will to establish the whole truth concerning these events. 15. The Working Group on Missing Persons chaired by the ICRC, in conjunction with the OMPF, needs the wholehearted support of the international community to overcome the reluctance that exists on all sides. Such support should be offered not least in the interests of the missing persons’ surviving relatives, whose anguish continues to form a significant obstacle to reconciliation. 16. We have already recalled the manner in which the allegations of organ trafficking were made public, assumed international dimensions, and prompt PACE to call for the preparation of this report. There was extensive discussion around the so-called “Yellow House”, located in Rripe, near Burrel, in central Albania – to the point where this house appeared to have monopolised the public’s attention. However, upon reflection, the house was merely one element among many in a far larger and more complex episode. It is true that the whole story seems to have begun with the revelations about the “Yellow House”. In February 2004, an exploratory visit to the site was organised jointly by the ICTY and UNMIK, with the participation of a journalist. This visit cannot in fact be regarded as a proper forensic examination according to all the technical rules. Participants in the visit whom we interviewed explicitly condemned a certain lack of professionalism, particularly regarding the taking of samples and the recording of scientific observations. Nonetheless, the demeanour of some members of the K. family, who inhabit the house, raised a number of 6 The figures quoted here were provided by the Office of Missing Persons and Forensics (OMPF), with regard to cases still unresolved at the beginning of 2010. The ICRC speaks of about 1000 missing persons after KFOR’s arrival, most of them Serbs but also Albanian Kosovars regarded as “traitors”. 7 The Office for Missing Persons and Forensics (OMPF) is currently co-headed by a EULEX official and a Kosovar official; this body was created, we were told, “to clean up the mess left behind by UNMIK and the ICTY”. 8 This difficulty was said to be most acute with regard to cases that arose during the period of “chaos” from June to late October 1999. KFOR soldiers were evidently unqualified to carry out police work and their crime scene reports were said to be mostly unusable. 9 An example with which we were confronted during our fact-finding visit to Pristina concerned excavations in a mineshaft where some thirty bodies of deceased Serbs were said to be buried. The local construction companies employed to do the work were threatened by members of the local community, which caused considerable delay in carrying out the explorations. According to what we have been told, the prevailing attitude among the Kosovar population is to regard as a “traitor” anyone who provides information regarding mass graves containing Serb victims. 10 EULEX investigators informed us that the level of co-operation from the Albanian authorities was “nil”. The reply, after several months, to a request for international legal assistance (concerning the camp at Kukës) was that the requested investigations were “delayed by a natural disaster”. Other international officials also confirmed the “strong resistance” of the Kosovar authorities to cooperating in efforts to solve cases of missing Serbs or alleged Kosovar Albanian “traitors”. The consistent refrain of the Albanian authorities towards Albania never allowed exhumations in its territory. “There was no war here, so there are no graves to look for”. 11 There is said to exist some degree of reluctance even within the OMPF concerning the disappearances that occurred after 12 June 1999. AS/Jur (2010) 46 10 questions, notably about the differing and contradictory explanations they offered, one after the other, as to the presence of bloodstains (detected by use of Luminol) in the vicinity of a table in the main room. The family patriarch stated originally that farm animals had been slaughtered and cut up there. Another explanation given was that one of the women in the household had given birth to one of her children in the same place. 17. Neither the ICTY nor UNMIK, nor indeed the Albanian Public Prosecutor’s Office, followed up this visit by conducting any more thorough inquiries. The Albanian investigator who took part in this site visit moreover hastened to assert publicly that no leads of any kind had been found. The physical samples collected at the scene were subsequently destroyed by the ICTY, after being photographed, as the current Chief Prosecutor of the ICTY confirmed to me in a letter 12 We must permit ourselves to express . astonishment that such a step was taken. 18. Nor did the team of the Special Prosecutor for War Crimes in Belgrade come up with very concrete results in this matter, notwithstanding their considerable efforts. The media whirlwind that surrounded the inquiry certainly did nothing to enhance its effectiveness. We thank the special prosecutor for his cooperation and readiness to assist. 19. The teams of international prosecutors and investigators in the EULEX mission charged with investigating the allegations of inhuman treatment, including those relating to possible instances of organ trafficking, have made some progress, notably towards proving the existence of secret KLA detention facilities in northern Albania, where murders are also alleged to have been committed. However, EULEX’s inquiries have so far been hampered by a lack of co-operation on the part of the Albanian authorities, who have failed to respond to the specific, detailed requests for judicial assistance submitted to them. At the time of writing, EULEX has still not had access to the complete set of records compiled by the ICTY in this area of investigation. 20. A further investigation, also carried out by EULEX, into the case of the Medicus Clinic in Pristina, has been made similarly difficult by the delays on the part of the authorities of several Council of Europe member and observer countries in responding to EULEX requests for international legal assistance 13 Considering the . gravity of the acts alleged – trafficking in human organs, no less – such delays are incomprehensible and unconscionable. It should be recalled that the initial investigation had led to several arrests of suspects in November 2008. Arrest warrants have since been issued in respect of other suspects currently at large 14 . This investigation serves as further proof of the existence in the region of criminal structures and networks, in which medical practitioners are also implicated, operating in the region as part of an international traffic in human organs, notwithstanding the presence of international forces. We believe that there are sufficiently serious and substantial indications to demonstrate that that this form of trafficking long pre-dates the Medicus case, and that certain KLA leaders and affiliates have been implicated in it previously. Certainly the indications are too strong to countenance any failure, at long last, to conduct a serious, independent and thorough inquiry. 21. We have learned at first hand how difficult it is to reconstruct events in Kosovo during the troubled and chaotic period of 1999-2000. With the exception of a few EULEX investigators, there has been and remains a lack of resolve to ascertain the truth of what happened during that period, and assign responsibilities accordingly. The raft of evidence that exists against certain top KLA leaders appears largely to account for this reluctance. There were witnesses to the events who were eliminated, and others too terrified by the mere fact of being questioned on these events. Such witnesses have no confidence whatsoever in the protective measures that they might be granted. We ourselves had to take meticulous precautions in respect of certain interlocutors to assure them of the strictest anonymity. We nevertheless found them trustworthy and were able to establish that their statements were confirmed by objectively verifiable facts. Our aim was not, however, to conduct a criminal investigation. But we can claim to have gathered compelling enough evidence to demand forcefully that the international bodies and the states concerned finally take every step to ensure that the truth is ascertained and the culprits clearly identified and called to account for their acts. The signs of collusion between the criminal class and high political and institutional office bearers are too numerous and too serious to be ignored. It is a fundamental right of Kosovo’s citizens to know the truth, the 12 Serge Brammertz, ICTY Chief Prosecutor, in a letter to me dated 17 December 2009. In an interview I had with Madam Carla Del Ponte in 2009, the former Chief Prosecutor assured me that the materials in question should be stored in the ICTY’s archives and that their destruction was simply inconceivable. 13 Such requests were made in March 2009 to the following countries: Belarus, Canada, Israel, Germany, Moldova, Poland, Russian Federation, and Turkey. At the time of writing, only Canada was said to have provided a satisfactory response. 14 See the EULEX press release of 15 October 2010: http://www.eulex-kosovo.eu/en/pressreleases/0098.php; and the report by Nebi Qena (AP), 12 November 2010: http://news.yahoo.com/s/ap/20101112/ap_on_re_eu/eu_kosovo_organ_trafficking/print11 AS/Jur (2010) 46 whole truth, and also an indispensable condition for reconciliation between the communities and the country’s prosperous future. 22. Before going into further detail regarding our investigations, I should like to express my appreciation to all those who helped me in carrying out this difficult and delicate assignment. First and foremost I thank the Committee Secretariat, assisted by an outside expert, as well as the authorities of the states we visited, and the able, courageous investigative journalists who shared certain information with us. I also owe special gratitude to the persons who have trusted in our professionalism, not least in our earnest duty to protect their identities so as not to place them in any danger. 2. Introductory commentary on sources 23. In the course of our inquiry, we have obtained testimonial and documentary accounts from several dozen primary sources, notably including: combatants and affiliates of various armed factions that participated in the hostilities in Kosovo; direct victims of violent crimes committed in Kosovo and the surrounding territories; family members of missing or deceased persons; current and former representatives of international justice institutions with jurisdiction over the events in Kosovo [primarily the United Nations Mission in Kosovo (UNMIK), the European Union Rule of Law Mission (EULEX), and the International Criminal Tribunal for the Former Yugoslavia (ICTY)]; representatives of national justice systems, including prosecutors with jurisdiction over events related to Kosovo [Office of the War Crimes Prosecutor in Belgrade; Office of the General Prosecutor in Tirana; prosecutors, police officers and state security officials in Pristina and in three surrounding states]; humanitarian agencies [including the International Committee of the Red Cross (ICRC) and the International Commission on Missing Persons (ICMP)]; and various members of civil society and human rights monitoring bodies who have investigated and reported on events related to Kosovo in the material period [including the Humanitarian Law Centre]. 24. Naturally we have tried wherever possible to take these testimonies directly ourselves, either through on-the-record meetings or through confidential interviews, in the course of visiting Pristina, Tirana, Belgrade and other parts of the Balkan region. However, for a variety of reasons – including their “disappearance”, for security reasons, their relocation overseas, and the constraints of our official programme of meetings while on mission in the region – some of the sources who provided these testimonies have not been available to meet with us in person. 25. Moreover, we have faced the same obstacles to obtaining truthful testimony about the alleged crimes of Kosovar Albanians as have other investigative bodies throughout the past decade. The entrenched sense of loyalty to one’s clansmen, and the concept of honour that was perhaps best captured in expert reporting to the ICTY in its deliberations in the case of Limaj et al., 15 rendered most ethnic Albanian witnesses unreachable for us. Having seen two prominent prosecutions undertaken by the ICTY leading to the deaths of so many witnesses, and ultimately a failure to deliver justice 16 , a Parliamentary Assembly Rapporteur with only paltry resources in comparison was hardly likely to overturn the odds of such witnesses speaking to us directly. 26. Numerous persons who have worked for many years in Kosovo, and who have become among the most respected commentators on justice in the region, counseled us that organized criminal networks of Albanians (“the Albanian mafia”) in Albania itself, in neighbouring territories including Kosovo and ‘the former Yugoslav Republic of Macedonia’, and in the Diaspora, were probably more difficult to penetrate than the Cosa Nostra; even low-level operatives would rather take a jail term of decades, or a conviction for contempt, than turn in their clansmen. 27. Thus, out of necessity and only where appropriate, we have relied on audio and video recordings of interviews with key sources conducted by others. In such instances we have undertaken every possible step to establish the identity, authenticity and credibility of the sources for ourselves; we have compared their testimonies with information from separate, independent sources of which they could have had no knowledge; and we have gained first-hand insights from the interviewers into the circumstances and conditions in which the interviews were conducted. 15 See Expert Report quoted in the Limaj judgement. 16 Carla del Ponte herself said of the Limaj trial that “the impunity that feeds upon fear was allowed to prevail”: see del Ponte and Sudetic, The Hunt, Chapter 11: Confronting Kosovo, at page 26. AS/Jur (2010) 46 12 28. The interviewers who conducted these interviews include representatives of law enforcement authorities in several different countries, academic researchers, and investigative journalists of recognised repute and credibility. We have always insisted on corroboration of testimony. 3. Detailed findings of our inquiry 3.1 The overall picture 29. The overall picture that emerges from our inquiry differs dramatically in several respects from the conventional portrayal of the Kosovo conflict. Indeed, while there was certainly an intensely fought battle for the destiny of the territory of Kosovo, there were very few instances in which opposing armed factions confronted one another on any kind of military frontlines. 30. The abhorrent abuses of the Serb military and police structures in trying to subjugate and ultimately to expel the ethnic Albanian population of Kosovo are well known and documented. 31. The evidence we have uncovered is perhaps most significant in that it often contradicts the muchtouted image of the Kosovo Liberation Army, or KLA, as a guerrilla army that fought valiantly to defend the right of its people to inhabit the territory of Kosovo. 32. While there were undoubtedly numerous brave soldiers who were willing to go to the warfront, in the face of considerable adversity, and if necessary die for the cause of an independent Kosovar Albanian motherland, these fighters were not necessarily in the majority. 33. From the testimony we have managed to amass, the policy and strategy of some KLA leaders were much more complex than a simple agenda to overpower their Serb oppressors. 34. On the one hand, the KLA leadership coveted recognition and support from foreign partners including, notably, the United States Government. Towards this end the KLA’s internationally well-connected “spokesmen” had to fulfil certain promises to their partners and sponsors, and / or adhere to particular terms of engagement that were the de facto conditions of their receiving support from overseas. 35. On the other hand, though, a number of the senior commanders of the KLA have reportedly not failed to profit from the war, including by securing material and personal benefits for themselves. They wanted to secure access to resources for themselves and their family / clan members, notably through positions of power in political office, or in lucrative industries such as petroleum, construction and real estate. They wanted to avenge what they perceived as historical injustices perpetrated against the Albanian population in the former Yugoslavia. And many of them were seemingly bent on profiteering to the maximum of their potential while they had operational control of certain lawless territories (e.g. in parts of southern and western Kosovo), and leverage – especially in terms of financial resources – with which to negotiate footholds for themselves in other territories (e.g. in Albania). 36. The reality is that the most significant operational activities undertaken by members of the KLA – prior to, during, and in the immediate aftermath of the conflict – took place on the territory of Albania, where the Serb security forces were never deployed. 3.2 KLA factionalism and the nexus with organised crime 37. For more than two years after its initial emergence in 1996, the KLA was regarded as a marginal, loosely organised insurgency, whose attacks on the Yugoslav state were held by Western observers to amount to acts of “terrorism”. 38. Our sources close to the KLA, along with the testimonies of captured KLA members gathered by Serb police, confirm that the main locations at which KLA recruits congregated and trained were in northern Albania. 39. It is well established that weapons and ammunition were smuggled into parts of Kosovo, often on horseback, through clandestine, mountainous routes from northern Albania. Serb police attributed these events to criminal raids on the part of bandits who wanted to carry out terrorist acts against Serbian security 13 AS/Jur (2010) 46 forces. The Albanian Kosovars and Albanian citizens who were involved in the smuggling operations presented them as heroic acts of resistance in the face of Serb oppression. 40. The domestic strengthening of the KLA, in terms of its fighting capability as well as its credibility among the Kosovo Albanian population, seemed to play out, especially in the course of 1998, along the same trajectory as the escalating brutality of the Serb military and police clampdown. 41. Yet only in the second half of 1998, through explicit endorsements from Western powers, founded on strong lobbying from the United States, did the KLA secure its pre-eminence in international perception as the vanguard of the Kosovar Albanian liberation struggle. 42. This perceived pre-eminence was the KLA’s most valuable, indispensable asset. It spurred the wealthiest donors in the Albanian Diaspora to channel significant funds to the KLA. It bestowed individual KLA representatives with an enhanced authority to speak and act on behalf of the Kosovar Albanians as a whole. And it cast the KLA’s leading personalities as the most likely powerbrokers in the Kosovo that would emerge from the war. 43. Indeed, the perception of KLA pre-eminence – largely created by the Americans – was a self-fulfilling prophecy, the bedrock upon which the KLA achieved actual ascendancy over other Kosovar Albanian constituencies with designs on power, such as Ibrahim Rugova’s Democratic League of Kosovo (LDK) and Bujar Bukoshi’s “Government-in-exile”. 44. According to our insider sources, the KLA fought just as hard, and devoted arguably more of its resources and political capital, to maintain its advantage over its ethnic Albanian rival factions as it did to carry out co-ordinated military actions against the Serbs. 45. At the same time it should be restated, for emphasis, that the KLA was not a single, unitary combatant faction in the manner of a conventional Army. There was no formally appointed overall leader, or “commander-in-chief”, whose authority was universally recognised by the other commanders and whose orders were met with compliance among all the rank and file. 46. Rather, as the struggle over Kosovo’s future governance evolved, and a full-blown conflict approached, the KLA was divided by a deep-rooted internal factionalism. 47. Important sources of division included divergent political ambitions, as well as disparate notions of the acceptable parameters of violent resistance, on the part of the KLA’s most prominent personalities and leadership contenders. 48. Thus there emerged in 1998 and 1999, and particularly in the wake of the death of the KLA’s celebrated peasant commander Adem Jashari 17 , several different KLA “splinter groups”. 49. Each of these splinter groups was led by one of the KLA’s self-proclaimed founder members. Each group comprised a loyal core of recruits and supporters, often drawn from among a few closely affiliated clans or families, and / or concentrated in an identifiable geographical territory of Kosovo. Each group identified their own leader as the brightest hope to lead the KLA’s fight against the Serbs, and by extension, to achieve self-determination for the Kosovar Albanian people, whilst co-operating with the other KLA commanders on the basis of expediency. 50. Evidently it is the composition and leadership of these KLA “splinter groups”, along with the pre-existing popularity of the LDK, which carried over beyond the liberation struggle and have essentially shaped the post-conflict political landscape of Kosovo 18 . 51. Incumbency of the highest executive offices in Kosovo has been shared among former leading KLA commanders for the last decade, and most political campaigns have been contested on the basis of the 17 The KLA had grown domestically throughout most of the 1990s by rallying the support of volunteer fighters – men of all ages in their respective villages – to coalesce around leaders like Adem Jashari and form small armed units, or “brigades” across the territory of Kosovo. Many of the recruits to this “homeland KLA”, effectively a peasant army, undertook guerrilla warfare training at camps in northern Albania, and smuggled arms into Kosovo with which to undertake acts of violent resistance. Our inquiry received more than a dozen testimonies of ethnic Albanian males who had taken part in this campaign of “resistance”. With the killing of Jashari and scores of his family members and associates in a clampdown by Serb security forces in1998, this initial incarnation of the KLA was effectively ended, and has gravitated into folklore as a romantic notion of Kosovar liberation, with Jashari as its martyr. 18 The main rival political parties in recent election cycles have included the Democratic Party of Kosovo (Partia Demokratike e Kosovës, or PDK), and the Alliance for the Future of Kosovo (Aleanca për Ardhmërinë e Kosovës, or AAK), both of which are led by commanders of former KLA “splinter groups” and count large number of former KLA operatives among their members. AS/Jur (2010) 46 14 candidates’ respective contributions to the liberation struggle, as well as the extent to which they are seen as being able to promote the interests of the Kosovar Albanian people on an ongoing basis against known and unknown adversaries. 52. The various KLA “splinter groups” I refer to have been found to have developed and maintained their own intelligence structures, among other forms of self-preservation. Through whatever means available to them, and clearly on the fringes of the legal and regulatory systems, the keenest purveyors of this de facto form of continued KLA warfare have conducted surveillance of, and often sought to sabotage, the activities of their opponents and those who might jeopardise their political or business interests. 19 53. Furthermore we found 20 that the structures of KLA units had been shaped, to a significant degree, according to the hierarchies, allegiances and codes of honour that prevail among the ethnic Albanian clans, or extended families, and which form a de facto set of laws, known as the Kanun, in the regions of Kosovo from which their commanders originated. 54. Based on analytical information we received from several international monitoring missions, corroborated by our own sources in European law enforcement agencies and among former KLA fighters, we found that the main KLA units and their respective zones of operational command corresponded in an almost perfect mirror image to the structures that controlled the various forms of organised crime in the territories in which the KLA was active. 55. Put simply, establishing which circle of KLA commanders and affiliates was in charge of a particular region where the KLA operated in Kosovo, and indeed in certain parts of the Republic of Albania, was the key to understanding who was running the bulk of the particular trafficking or smuggling activity that flourished there. 56. Most pertinent to our research, we found that a small but inestimably powerful group of KLA personalities apparently wrested control of most of the illicit criminal enterprises in which Kosovar Albanians were involved in the Republic of Albania, beginning at the latest in 1998. 57. This group of prominent KLA personalities styled itself as the “Drenica Group”, evoking connections with the Drenica Valley in Kosovo 21 , a traditional heartland of ethnic Albanian resistance to Serb oppression under Milosevic, and the birthplace of the KLA. 58. We found that the “Drenica Group” had as its chief – or, to use the terminology of organised crime networks, its “boss” – the renowned political operator and perhaps most internationally recognised personality of the KLA, Hashim Thaqi 22 . 59. Thaqi can be seen to have spearheaded the KLA’s rise to pre-eminence in the lead-up to the Rambouillet negotiations, both on the ground in Kosovo, and overseas. He also did much to foment the bitter internal factionalism that characterised the KLA throughout 1998 and 1999. 60. On the one hand, Thaqi undoubtedly owed his personal elevation to having secured political and diplomatic endorsement 23 from the United States and other Western powers, as the preferred domestic partner in their foreign policy project in Kosovo. This form of political support bestowed upon Thaqi, not least in his own mind, a sense of being “untouchable” and an unparalleled viability as Kosovo’s post-war leader-inwaiting. 61. On the other hand, according to well-substantiated intelligence reports that we have examined thoroughly and corroborated through interviews in the course of our inquiry, Thaqi’s “Drenica Group” built a formidable power base in the organised criminal enterprises that were flourishing in Kosovo and Albania at the time. 19 We have noted the remarkable confessions of a man named Nazim Bllaca, who came forward last year and testified as to the use of these intelligence structures in targeted killings and different forms of racketeering; Bllaca’s depiction of this secret underworld is one we recognise from our own research. 20 In this regard our findings correspond with those of international representatives of military and intelligence monitoring missions – from NATO’s Kosovo Stabilisation Force (KFOR), to the Organisation for Security and Cooperation in Europe (OSCE), to the United States Central Intelligence Agency (CIA) – in reports published at various points over the last fifteen years. 21 In Kosovo itself, the area of influence of the Drenica Group and its affiliates went on to extend far beyond that particular locale, however: they exercised firm control over criminal cartels active in municipalities including, but not limited to, Istok, Srbica, Skenderaj, Klina, Prizren and Pristina. 22 See Le Monde 11 December 2010. 23 Thaqi was, for example, named as head delegate of the Kosovar Albanians to the Rambouillet Summit. 15 AS/Jur (2010) 46 62. In this regard, Thaqi reportedly operated with support and complicity not only from Albania’s formal governance structures, including the Socialist Government in power at the time, but also from Albania’s secret services, and from the formidable Albanian mafia. 63. Many KLA commanders remained on Albanian territory, some even operating out of the Albanian capital Tirana, throughout the ensuing hostilities and beyond. 64. During the period of the NATO aerial bombardment, which lasted several weeks, perhaps the principal shift in the balance of power in Kosovo occurred as a result of the influx of foreigners into the region, in both overt and implicit support of the KLA cause. Unable to gain access
Inga kommentarer:
Skicka en kommentar