Dick Marty's Council of Europe report is serious and credible. It alleges organ trafficking and other crimes and corruption at the heart of the Kosovo Liberation Army and implicates the Kosovo Prime Minister Hashim Thaçi. Justice now demands a proper judicial enquiry. Denis MacShane disagrees here
The Balkans’ chiaroscuro effect is impressive. On the one hand, there are clear signals that dialogue and reconciliation have become a strategic priority. First came the declaration of the Serbian parliament adopted on 30 March 2010 condemning the “war crime” that took place in Srebrenica; second, the visit of the President of the Republic of Serbia, Boris Tadić, to Srebenica (Bosnia) on 11 July 2010 and to Vukovar (Croatia) on 4 November 2010; and third, the visit to Banja Luka of the Bosniak member of the Presidency of Bosnia and Herzegovina, Bakir Iztebegović. Despite some open bilateral issues, this positive trend has opened a new perspective for a region that has globally changed for the better. Nobody forgets, but forgiveness is possible.
On the other hand, there are some preoccupying signals. Despite remarkable rates of economic growth until 2009, GDP growth is still lagging behind 1989 levels in Serbia, Bosnia and Herzegovina and possibly in Montenegro; labour markets have not shown significant improvement, greenfield investments are scarce, Foreign Direct Investment is limited, and, finally, the globally poor business environment is having a negative impact on job creation. Substantial economic growth is necessary to underpin the reform process required for EU accession. Whereas the prospect of EU membership could act as a short-term incentive, the lack of this perspective is affecting the pace of reforms and the reforms themselves.
More worrying is the persistence of a political elite combining berlusconian and sarkozyan styles, made up of a judiciary subject to improper influence from government, private and partisan interests, and toleration of omnipresent corruption.
Recently, the media spotlight has focused on the former Croatian Prime Minister Ivo Sanader: the Parliament lifted his immunity from prosecution and he was arrested on a motorway in Austria. The warrant mentions that Sanader is suspected of conspiring to commit crime and abuse of office. Another illustration comes from Montenegro — which was accepted on 17 December 2010 as new candidate EU member — where the Mićunović-Vojvodić family controls most of the cultural sector: the father, Branislav, is Minister of Culture and independent director of the Kotor Art Festival; the mother, Radmila, is dean of the Academy of Dramatic Arts and heads the Montenegro Advertising and Production Agency (MAPA); the son, Veljko, is stage director and opens the new season at the Montenegrin National Theater. This is of course only the tip of the iceberg.
Corruption is not only a problem for countries knocking at the door of the EU. Kosovo is a long way from accession, but corruption plagues the entire political system. In July 2010 Ilir Tolaj — the former permanent secretary at the Ministry of Health — was arrested in the context of a criminal investigation into tax evasion. During 2010 six other government ministers were also under investigation for corruption. This applies to the Kosovo Minister of Transport, Fatmir Limaj — a Kosovo Liberation Army hero considered to be Hasim Thaçi’s right hand man — charged in 2003 by ICTY with war crimes against Serbs and Albanians for illegal imprisonment, inhuman acts and murders, and acquitted in November 2005. Officials raided his home and office on 28 April 2010, but the data from all computers had already been deleted… An IT administrator from the ministry was arrested on a charge of obstruction of justice. It appears that companies associated with Limaj made huge profits from Kosovo’s road-building programme in the past two years. Notably two large contracts were awarded to a close friend, Habib Morina, and another one, worth 11 million euro, to his relative Colonel Haxhi Shala. Some 80 million euros were diverted and witnesses have repeatedly been threatened. Similar investigations targeting Kosovo Customs Headquarters and the Ministry of Economy and Finance took place in mid December 2010. Investigations are ongoing.
There was a 28% increase in documented corrupt practices in 2009. These selected episodes from 2010 give an idea of the magnitude of corruption in Kosovo — this includes abuse of official duty, issuance of unlawful judicial decisions, embezzlement, falsification of official documents, and accepting bribes. No wonder that the Corruption Perceptions Index 2010 released in October by Transparency International — which includes Kosovo (scoring 2.8) for the first time — mentions that Kosovo “leads” the Balkan region as having the most corrupt public institutions, slightly trailing Kazakhstan and Moldova both at 2.9. According to Transparency International’s Global Corruption Barometer 2010: 73 % of the respondents in Kosovo believe that since 2007 the level of corruption has increased, while only 8 % think that corruption has decreased. It is thus high time for Kosovo and those members of the international community significantly involved in the country to go beyond mere commitments and enforce consistent and effective anti-corruption practices. Strengthened cooperation among the Kosovo Anti-Corruption Agency, the Kosovo police and the European Union Rule of Law Mission (EULEX) could come to demonstrate that government corruption is under attack and could be defeated.
Kosovo’s new state is not only threatened by corrupt practices in both public and private sectors; the legacy of violations of the Geneva Conventions, of laws and customs of war, war crimes, crimes against humanity and genocide need to be faced up to as well. These issues must be properly addressed by the national and international courts. In July 2010 the OSCE produced a report — Kosovo’s War Crimes Trial: An Assessment Ten Years On (1999-2009) — insisting on the many difficulties the judicial system faces in Kosovo, on the necessity of establishing a Kosovo War and Ethnic Crimes Court (KWECC), and concluding “there has been a systemic failure to adjudicate war crimes cases”.
The report highlights that “from the beginning, prioritising war crimes cases has been frequently the focus of public discourse, but it has been a priority in name only” — this may be illustrated by the fact that none of the 40 international judges currently working for EULEX is dedicated exclusively to hearing war crimes cases, and out of twenty only two prosecutors work full time on war crimes. War crimes should now be treated as a priority; the report recommends among various concrete measures allocating sufficient resources and support for witness protection.
On 29 September 1999, Carla Del Ponte — the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) — stated that the prosecutor “will investigate crimes committed during the armed conflict in Kosovo and she will vigorously prosecute those responsible before the Trial Chambers at The Hague”, emphasizing that the Office of the Prosecutor (OTP) “may investigate and prosecute other individuals, on a case-by-case basis, who may have committed particularly serious crimes during the course of the armed conflict”. At the end of 2009, several individuals have been tried, or are still on trial at the ICTY: Milošević, Milutinović, Šainović, Ojdanić, Pavković, Lazarević, Lukić (Milutinović et alia); Limaj, Musliu, Bala (Limaj et alia); Haradinaj, Balaj, Brahimaj (Haradinaj et alia). As is well known, the case against Milošević was discontinued due to his death during the trial.
We may here briefly focus on the case of Ramush Haradinaj — a former commander of the Kosovo Liberation Army (UCK) and Kosovo’s Prime Minister — first acquitted by the ICTY of all charges on 3 April 2008 because of lack of evidence. The trial was notably marred by witness intimidation. Haradinaj was arrested again on 21 July 2010 for a partial re-trial. Haradinaj was charged with 17 counts of crimes against humanity (including persecution, inhumane acts, deportation, murders and rape) and 19 counts of violation of the laws or customs of war. The case against Haradinaj, currently ongoing, illustrates how difficult it is — specifically in Kosovo — to find witnesses willing to testify for the ICTY.
Dick Marty’s documented report, adopted on 16 December 2010 by the Council of Europe’s Legal Affairs Committee and to be debated at the Council of Europe’s parliamentary assembly (PACE) on 25 January 2011, confronts us with Kosovo’s darkest side. This report, calling for “investigations into evidence of disappearances, organ trafficking, corruption and collusion between organised criminal groups and political circles in Kosovo”, has been drawn up in the wake of the revelations that appeared in the memoirs of Carla Del Ponte, the former Prosecutor of the ICTY (Madame Prosecutor. Confrontations with Humanity’s Worst Criminals and the Culture of Impunity New York: Other Press, 2009).
This book — co-authored with Chuck Sudetic — describes Carle Del Ponte’s struggle against the culture of impunity and reveals her true mettle as a prosecutor at the ICTY between 1999 and 2007. Madame Prosecutor points out the unavoidable flaws of the UN tribunals and, of course, strongly denounces those who have opposed the arrest of indicted war criminals, as well as access to key documents and sensitive archives. She also reveals that the ICTY received poor if, any support, in the field for its investigative activities in Kosovo, and highlights the counterproductive effects of the tight timetable imposed on the tribunal, another obstacle that undoubtedly undermined the efforts to achieve accountability for war crimes.
Based on a few highly selective extracts from the book, the international press — in early 2008 — focused on the allegations of organ trafficking in Kosovo and Albania. It turns out that press reports, firstly, described this admittedly sensitive episode inaccurately and, secondly, discussed it apart from the internal logic of the chapter concerned, which focuses on the difficulties of conducting investigations and obtaining witness testimony by highlighting the intimidation of witnesses and the general atmosphere of intimidation in post-war Kosovo. Indeed, the relevant chapter starts with “Violence, fear, and poverty silence witnesses” (p. 272).
Despite warnings from Swiss officials that Del Ponte should avoid discussing certain Albanian-related issues in her memoir, the author describes the allegations that she began to look into — and which she uses also as a case study of the investigation’s complications — as follows: her office received information about how, during the summer months of 1999, Kosovo Albanians had trucked one hundred to three hundred abducted persons across the border from Kosovo into northern Albania. These captives were initially locked inside warehouses and other facilities, including locations in the towns of Kukës and Tropoje (p. 277).
By that time there were barely any functioning institutions in Kosovo; also, no Kosovo Albanian politician was willing to bear witness in court against Kosovo Liberation Army (KLA) suspects, and, on top of everything else, neither the UN Mission in Kosovo (UNMIK) nor the NATO-led Kosovo Force (KFOR) officials were terribly motivated to do so, as they “feared for their lives and the lives of members of their missions” (p. 279). Thus, once again, the Americans avoided cooperation with the investigations, and UNMIK gave scant assistance, preventing the ICTY from properly scrutinizing alleged crimes by Kosovo Albanians.
In this chapter, Del Ponte quotes an ICTY memo: considering the “extremely serious nature of these cases”, the memo recommends that “they should definitely be investigated as properly as possible by professional and experienced investigators” (p. 278). As the alleged crimes were most probably committed after the NATO air campaign in the spring of 1999, they are not covered by the ICTY mandate, whose temporal jurisdiction ended with the end of the armed conflict in June 1999. Thus, Del Ponte proceeded very carefully here: she considered the jurisdictional obstacles and mentions the fact that the investigators’ findings were circumspect:
So, in the end, the attorneys and investigators on the KLA cases decided that there was insufficient evidence to proceed. Without the sources or a way to identify and find them, without bodies, and without other evidence linking high-level accused to these acts, all avenues of investigation were barred (p. 285).
However, since the Italian publication of the prosecutor’s memoirs (in Spring 2008), Human Rights Watch has obtained independent information and documentation that provides credible corroboration of much of Del Ponte’s allegations of abductions and cross-border trafficking from Kosovo to Albania after the 1998–99 Kosovo war. More specifically, Human Rights Watch, firstly, viewed the information that the ICTY obtained from journalists and considered it well researched and credible; secondly, it spoke separately with two people who were present during the visit of the ICTY and UNMIK to northern Albania, and both corroborated Del Ponte’s information; and, thirdly, it obtained a copy of the report compiled by UNMIK in February 2004, which also corroborates Del Ponte’s claims. Referring to the same report, Oliver Stojković, of the Forensic Medicine Institute comments:
It might be the case that the investigator’s conclusion that not enough proof was found in the house to merit further investigation was accurate, but, at the same time, it would also be true to say that not everything was done to ascertain this beyond reasonable doubt.
Dick Marty’s report states that the most serious crimes were committed in the period after the withdrawal of the Serbian armed forces from Kosovo in late 1999, before the arrival of international forces, with the killing of some 300 to 400 Serbs and Albanians who were viewed as collaborators.
The investigation into evidence of disappearances, organ trafficking, corruption and collusion between organised criminal groups and political circles in Kosovo concludes that there are “numerous concrete and convergent indications” confirming that Serbian and Albanian Kosovars were held prisoner in secret places of detention under Kosovo Liberation Army (KLA) control in northern Albania and that they were subjected to inhuman and degrading treatment (including trafficking of human organs), before ultimately disappearing.
The fact that the outgoing Kosovo PM Hasim Thaçi, and his close confident and political adviser Shaip Muja — a UCK chief of logistics in Tirana and a doctor — are alleged to have an important role in criminal operations is a devastating blow not only to Kosovo’s credibility; it also raises the question of the authority and reliability of the international community. The case is indeed embarrassing particularly for the German government that has for years been sitting on detailed information about this without taking action.
Most probably the case has some connections with the “Medicus” case (the facts here refer to the period 2006-2008) which is currently before the District Court of Pristina. Five people — one of whom previously worked at a senior level in the Ministry of Health — are charged with offenses of trafficking in human organs, organised crime and abusing official authority, two of them with unlawful exercise of medical activities. The defendants include Doctor Yusf Sonmez, alleged to be one of the world’s leading organ traffickers, together with well-known doctors from Kosovo and a high-ranking official in the Kosovo Ministry of Health.
We can no longer look the other way. Dick Marty’s report, which is neither a judicial investigation nor “politically inspired”, is a careful inquiry into the case which should now be taken over by the International Criminal Court (ICC) or by a special independent court. What is needed is an impartial and thorough investigation. For the sake of the welfare of Kosovo and Albania, the state of impunity must be stopped. For the international community it is high time to end the cat-and-mouse game it is playing with Kosovo’s leadership.
The international community has lost a great deal of credibility already: while preaching for the need to come to terms with the past in the Balkans, it helps to hide the truth and accommodates corrupt political systems. It is time to opt for justice, to set a new trend and help Kosovo to become a truly democratic state.