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Resolution 1782 (2011) Final version
Investigation of allegations of inhuman treatment of people and illicit trafficking in human organs in Kosovo
1. The Parliamentary Assembly was
extremely concerned to learn of the revelations by the former Prosecutor
of 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. These
crimes had hitherto gone unpunished and had not been the subject
of any serious investigation.
2. In addition, according to the former Prosecutor, these acts
were 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 on behalf of the Assembly
and to the criminal investigations now under way, numerous concrete
and convergent indications confirm that some Serbians and some Kosovo
Albanians 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 were really 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 on Albanian territory, near Fushë-Krujë, and taken abroad
for transplantation.
5. This criminal activity, which developed through taking advantage
of the chaos prevailing in the region and at the initiative of certain
KLA militia leaders linked to organised crime, may be continuing
today, albeit in other forms, 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 last 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.
7. Particularly during the first years of their presence in Kosovo,
the international organisations responsible for security and the
rule of law (Kosovo Force (Kfor) and the United Nations Interim
Administration Mission in Kosovo (UNMIK)) had to cope with major
structural problems and serious shortages of staff with the skills
to take on the tasks with which they were entrusted. All of this
was aggravated by rapid and constant staff rotation.
8. The ICTY, which had started to conduct an initial on-site
examination to establish the existence of traces of possible organ
trafficking, dropped the investigation. The elements of proof taken
in Rripe, Albania, have been destroyed and therefore cannot be used
for more detailed analyses. No subsequent investigation has been
carried out into a case nevertheless considered sufficiently serious
by the former Prosecutor of the ICTY for her to see the need to
bring it to public attention through her book.
9. During the decisive phase of the armed conflict, the North
Atlantic Treaty Organization (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
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 and thereby sacrificing
some important principles of justice. For a long time little was
done to follow up on evidence implicating KLA members in crimes
against the Serbian population and against certain Kosovo Albanians. Immediately
after the conflict ended, when the KLA had virtually exclusive control
on the ground, many scores were settled, without any kind of trial,
between different factions and against those considered to be traitors because
they were suspected of having collaborated with the Serbian authorities
previously in power.
11. At the end of 2008, EULEX, which took over certain functions
in the justice sector that were previously fulfilled by United Nations
structures (UNMIK) at the end of 2008, inherited a difficult and
sensitive situation, particularly when combating serious crime,
including incomplete records, lost documents and 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 Kosovo Albanians who were regarded as collaborators
or were members of rival factions. The latter is still a truly taboo
subject in Kosovo today, although everybody talks about it very
cautiously in private. 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 that 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, have the desired co-operation of
the Albanian authorities.
13. The appalling crimes committed by Serbian forces during the
conflict, which stirred up very strong feelings worldwide, gave
rise to a public mood that was reflected in the attitude of certain
international agencies and was based on the assumption that invariably
on one side there were the perpetrators of crimes and on the other
side were the victims, who were necessarily innocent. Reality is
less clear-cut and more complex.
14. The 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) on the state
of human rights in Europe: the need to eradicate impunity).
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 their political
role.
16. The question which, from the humanitarian viewpoint, remains
the most acute and sensitive is that of missing persons. Of the
more than 6 000 disappearances on which the International Committee
of the Red Cross has opened files, approximately 1 400 individuals
have been found alive and 2 500 bodies have been found and identified.
For the most part, these were Kosovo Albanian victims found in mass
graves in regions under Serbian control and in Kosovo.
17. Co-operation between international agencies and the Kosovo
and Albanian authorities to discover the fate of missing persons
is still clearly insufficient. Whereas Serbia ultimately co-operated,
it has proved far more complicated to carry out excavations on the
territory of Kosovo, and impossible, at least so far, on Albanian territory.
Co-operation by the Kosovo 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 International
Committee of the Red Cross and the EULEX Office on Missing Persons
and Forensics, 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 are vital
preconditions 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 to:
19.1.1. clarify
the competences of EULEX and/or any other international judicial
bodies mandated to conduct follow-up investigations, such that their
territorial and temporal jurisdiction is recognised as encompassing
all criminal acts linked to the conflict in Kosovo;
19.1.2. 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;
19.1.3. set a clear objective for EULEX 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;
19.1.4. commit all the resources needed to set up effective witness
protection programmes;
19.2. EULEX to:
19.2.1. 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 it can to cast light on the criminal disappearances,
the indications of organ trafficking, corruption and the often condemned
collusion between organised criminal groups and political circles;
19.2.2. take every measure necessary to ensure effective protection
for witnesses and gain their trust;
19.3. the ICTY to co-operate fully with EULEX, particularly
by making available the information and elements of proof that are
in its possession and are likely to help EULEX to prosecute those
responsible for crimes within its jurisdiction;
19.4. the Serbian authorities to:
19.4.1. make every effort to capture the persons still wanted
by the ICTY for war crimes, particularly General Ratko Mladic and
Goran Hadzic, whose impunity still constitutes 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. co-operate closely with EULEX, particularly by passing
on any information which may help to clear up crimes committed during
and after the conflict in Kosovo;
19.4.3. take the necessary measures to prevent leaks to the press
of information about investigations concerning Kosovo, which are
prejudicial to co-operation with other authorities and to the credibility
of investigative work;
19.5. the Albanian authorities to:
19.5.1. co-operate unreservedly with EULEX and the Serbian authorities
in the framework of procedures intended to find out the truth about
crimes linked to the conflict in Kosovo, irrespective of the known
or assumed origin of the suspects and the victims;
19.5.2. in particular, 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. 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 allegations about organ trafficking said to have
taken place during the same period, some of it on Albanian territory;
19.6. the Kosovo administration to co-operate unreservedly with
EULEX and/or any other international judicial body mandated to conduct
follow-up investigations and in the framework of any other procedures
intended to find out the truth about crimes linked to the conflict
in Kosovo, irrespective of the known or assumed origin of the suspects
and the victims;
19.7. all the Council of Europe member and observer states concerned
to:
19.7.1. 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;
19.7.2. 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 2009 joint study by the
Council of Europe and the United Nations, “Trafficking in organs, tissues
and cells and trafficking in human beings for the purpose of the
removal of organs”. 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 stipulates the action to be taken in order to prevent such trafficking and
to protect its victims, as well as criminal law measures to prosecute
the perpetrators.