Based on the Report presented by Dick Marty to the Committee on Legal Affairs and Human Rights on 7 January 2011, the Council of Europe Parliamentary Assembly adopted on 25 January the Resolution on the Investigation of Inhuman Treatment of People and Illicit Trafficking of Human Organs in Kosovo
We are presenting this resolution in its entirety.2
1. The Parliamentary Assembly was extremely concerned to learn of the revelations by the former Chief 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, crimes which had hitherto gone unpunished and had not been the subject of any serious investigation.
2. In addition, according to the former Chief 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 on behalf of 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 on 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, may have 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.
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 United Nations 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 of the Albanian authorities.
13. The appalling crimes committed by Serbian forces, which stirred up very strong feelings worldwide, gave rise to a mood also reflected in the attitude of certain international agencies, based on the assumption that it was invariably one side which were the perpetrators of crimes and the other side the victims, thus necessarily innocent. The 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)).
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 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 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 between international agencies on the one hand and the Kosovar and Albanian authorities on the other to find out the fate of the 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 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 International Committee of the Red Cross 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 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 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;
19.1.4. 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 collusion so often complained of 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 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 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, leaks which are prejudicial to co-operation with other authorities and to the credibility of the 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 joint study published in 2009 by the Council of Europe and the United Nations. 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.
 All reference to Kosovo in this text, whether to the territory, institutions or population, shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo
2 Resolution 1782 (2011),