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Council of Europe Report - AS/JUR (2010) 46
By The Committee on Legal Affairs and Human Rights
12 December 2010

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Template:Kosovo

Inhuman treatment of people and illicit trafficking in human organs in Kosovo

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 diguerra”), 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 clan-orientated, 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.
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 short term 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 ^[1], 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 quiteexplicit terms during our fact-finding visits that many files would simply have to be abandoned ^[2]. 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 ^[3], and files compiled by the ICTY5. 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.

Introduction continues to item 22

References

1. ^ 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
2. ^ 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”.
3. ^ 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.