Dean B. PinelesStoweBIRNApr
A report by Swiss senator Dick Marty about war crimes allegedly committed by Kosovo Liberation Army fighters led to the establishment of a Hague-based tribunal, but not all of his activities in Kosovo achieved such decisive results.
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Dick Marty, the author of an infamous report in 2010 entitled ‘Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo’, has been back in the headlines this month.
Issuance of the ‘Marty report’ has proven to be one of the most significant events in Kosovo history over the last dozen years. And while his name may be less familiar now than it was back then – at least until very recently – the legacy of Dick Marty, love him or loathe him, looms large in Kosovo’s political and legal affairs.
Allegations were recently published that Marty was the subject of a foiled assassination plot by the Serbian intelligence services in December 2020, and since then has been living under armed guard by Swiss police and rarely leaves his house, and then only when wearing a bulletproof vest. Unsurprisingly, the Serbian authorities have vigorously denied the allegations.
This strange situation will require further investigation, but in the meantime, Marty’s significant influence on the course of recent history in Kosovo is worth revisiting in detail, so let’s take a look back at his report and see why it became so significant.
The report was issued after a team of investigators, headed by Marty himself, had completed a two-year investigation from 2008-10 on behalf of the Parliamentary Assembly of the Council of Europe, where Marty served as a senator from Switzerland. The investigation targeted previous allegations made by Carla Del Ponte, former chief prosecutor at the International Criminal Tribunal for the Former Yugoslavia, ICTY, which she published in her memoir, Madame Prosecutor in 2008.
Del Ponte’s claims of heinous crimes committed by members of the Kosovo Liberation Army, including rampant human organ trafficking, sent shock waves throughout the world, although the allegations were vehemently denied in Kosovo.
The Marty report substantiated many of Del Ponte’s claims, and specifically accused certain high-ranking members of the Kosovo Liberation Army, by name, of committing horrific crimes such as murder, abductions, torture, forced disappearances, involvement in organised crime and, yes, organ-trafficking – although to a much lesser degree than claimed by Del Ponte – during and shortly after the war with Serbian forces which was fought in 1998-99.
The accused included several notable and politically prominent KLA fighters, all wartime members of the notorious Drenica group, including Hashim Thaci, the alleged ring leader and prime minister at the time (and later president), and Kadri Veseli, the former head of the intelligence service and one of the founders of the KLA, who later became speaker of parliament. The alleged victims included Serbs, members of ethnic minority groups and political enemies of these KLA members.
The allegations in the report, particularly those of organ trafficking, as well as the naming of names, gained worldwide attention and condemnation, although vigorously denied by the accused and by society at large in Kosovo – after all, these men were view as liberators and heroes, not criminals.
Marty did not produce the evidence he claimed to have obtained during the investigation, and many in Kosovo believed there was no evidence. But here is the important point – his report was then adopted in its entirety and verbatim by a resolution of the Council of Europe, CoE, in January 2011.
The resolution itself, all of three-and-a-half pages in length, mentioned organ trafficking no fewer than eight times, and it urged, in no uncertain terms, that all relevant stakeholders, such as the EU’s rule-of-law mission in Kosovo, EULEX, plus the ICTY and the authorities of Kosovo, Albania and Serbia, do whatever is necessary to ensure that the perpetrators are held to account and that justice is done.
Prosecuting the ‘big fish’
An election poster in Pristina in December 2010 showing Kosovo’s then Prime Minister Hashim Thaci. Photo: EPA/VALDRIN XHEMAJ.
EULEX took notice and later in 2011 authorised a full-blown criminal investigation into the allegations in the Marty report under the auspices of the EU’s Special Investigative Task Force, SIFT, headed by Clint Williamson, the former US ambassador-at-large for war crimes. (For reasons that are unclear, Marty’s original investigation was not criminal in nature, and therefore no indictments could be filed, creating a lengthy delay.)
The task force’s mandate makes clear the significance of the Marty report as adopted by the Council of Europe resolution, saying that it has been established “to investigate and, if warranted, prosecute individuals for crimes alleged in the CoE report.
“In addition to the much-publicised allegations of organ harvesting, the SITF will examine possible unlawful detention, deportation, inhumane acts, torture and killings, as well as any other crimes, related to the allegations contained in the report,” the mandate adds.
Nearly three years later, Williamson issued a report of the task force’s findings and stated that the task force was then in a position to file an indictment against certain senior officials of the KLA, although not identified by name, for the types of crimes described in the Marty report.
Regarding organ trafficking, Williamson claimed that a small number of individuals were killed for the purpose of extracting and selling their organs, and that “this conclusion is consistent with what was stated in the Marty Report, namely that a ‘handful’ of individuals were subjected to this crime”.
Williamson went on to say that “in order to prosecute such offences, however, it requires a level of evidence that we have not yet secured”.
He recommended the creation of a special court in which to file the indictment rather than EULEX’s existing judicial apparatus in Kosovo itself. Kosovo’s international benefactors agreed, seeing it as better to prosecute ‘big fish’ like Thaci, Veseli and other prominent KLA figures who were never prosecuted by EULEX, in a neutral out-of-Kosovo location, free from political interference and safer for witnesses, and staffed entirely by internationals.
But for this to happen, Kosovo had to agree, and did so only under relentless international pressure in mid-2015. First, a constitutional amendment had to be passed authorising the court, then a law establishing the court, both of which referred specifically to the CoE report as its justification.
The court would become known as the Kosovo Specialist Chambers and Specialist Prosecutor’s Office, and its targets would be Kosovo Albanians, not Serbians who devastated Kosovo during the war, thereby creating distrust and resentment within Kosovo society from the beginning.
After it took another two years to set up the court, it opened for business in The Hague in July 2017.
The website of the Specialist Prosecutor’s Office clearly states its genesis: “The Specialist Prosecutor’s Office (SPO) is an internationalised and relocated prosecution in The Hague created to investigate and, if warranted, prosecute individuals for crimes alleged in the January 2011 Parliamentary Assembly of the Council of Europe (PACE) Report Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo [the Marty report].”
Following further and seemingly endless investigation by the Specialist Prosecutor’s Office, indictments were finally filed in 2020, charging Thaci, Kosovo’s president at the time who immediately resigned, Veseli, who for several years untill 2019 had been speaker of parliament, and other prominent KLA figures with crimes against humanity and war crimes, including many of the crimes initially alleged in the Marty report.
Of particular note is the fact that none of the indictments makes the slightest reference to organ trafficking.
Dick Marty, more than anyone else, paved the way for the so-called Special Court. . His report, as adopted by the Council of Europe, elucidated the crimes in question and identified the alleged perpetrators by name. The report then provided the basis for the task force investigation which confirmed his allegations, and for the enactment of a constitutional amendment and a law establishing the special court. And the Specialist Prosecutor’s Office website makes it clear that its reason for existing is to pursue the allegations in the Marty report, which has resulted in the indictment of historically important figures in Kosovo like Thaci, Veseli and others.
All of which leaves Dick Marty with a significant legacy indeed. Predictably, however, the Special Court has very little perceived legitimacy among Kosovo Albanians: It was imposed on Kosovo by Kosovo’s international benefactors; it is located far away, in The Hague; there are no Kosovo Albanians among the judges or staff and mandate of the court focuses exclusively on KLA veterans.
But there’s more to Dick Marty’s legacy than the Special Court.
The Marty report and the subsequent Council of Europe resolution also played an important role in the high-profile Medicus organtrafficking case which became one of the most significant and long-running cases in Kosovo’s legal history.
The CoE resolution stated in paragraph 5 that “this criminal activity [organ trafficking]… has continued… until today, as demonstrated by an investigation being carried out by… EULEX relating to the Medicus clinic in Pristina”.
This point is elaborated upon in paragraph 168 of the report adopted by the CoE, which says that the organ trafficking identified in the report is closely related to the Medicus case.
“However, out of respect for the ongoing investigations and judicial proceedings being led by EULEX… we feel obligated at this moment to refrain from publishing our findings in this regard. Suffice to say, we encourage all countries whose nationals appear in the indictment regarding Medicus to do their utmost to halt this shameful activity and assist in bringing its orchestrators and co-conspirators to justice,” it says.
The Medicus trial began in October 2011 and continued, off and on, for 19 months until April 23, 2013, gaining international attention along the way. The seven defendants were charged with organised crime, organ trafficking and various other offences.
I was a member of the three-judge panel that heard and decided the case. We took the testimony of nearly 75 witnesses and reviewed thousands of pages of documents.
During the course of the trial, we considered it vitally important to take the testimony of Dick Marty since he claimed to have relevant evidence as noted above. We then made a formal request through diplomatic channels to the Council of Europe for his attendance at the trial, and we assumed, of course, that he and the CoE would readily agree.
To our shock and amazement, Marty and the CoE claimed that he was unavailable on the grounds that he had immunity from testifying. In our view, this claim was utter nonsense under the CoE’s own rules, which provide an exception in important cases, but we were never able to secure his attendance at trial or learn the real reason for his refusal.
Our verdict found the two primary defendants – Lutfi Dervishi, a doctor who was the owner of the Medicus clinic, and his son Arban Dervishi, the manager of the clinic – guilty of organised crime and organ-trafficking. Three other defendants, all medical doctors, were found guilty of lesser offences, and two defendants, government officials, were acquitted. This was the first case in the world where medical doctors had been convicted for such offenses as opposed to middle-men or facilators.
But, in the absence of Marty’s cooperation, we were never able to establish the important link between wartime organ trafficking and the Medicus case, if in fact one existed.
This is how we addressed Marty’s refusal to testify in our written judgment:
“When given the opportunity to assist in the truth seeking function in a real life, ongoing trial alleging such trafficking, Mr. Marty and the Council of Europe quickly retreated behind the cloak of immunity,” we said.
Our verdict was upheld in two subsequent appeals, then annulled in a third appeal on highly specious grounds and remanded for a retrial. The retrial was the conducted before a different judicial panel, which issued its verdict of guilty in May 2018. An appeal followed, and stunningly the verdict was once again annulled, and another retrial ordered. The retrial is still continuing, with no final verdict in sight yet.
So even if Marty’s legacy can be viewed favourably because of the establishment of the Special Court, I believe that it can only appear tarnished because of his refusal to testify at the Medicus trial.
Judge Dean B. Pineles is a graduate of Brown University, Boston University Law School and the Kennedy School of Government at Harvard University. He served as an international judge with EULEX from 2011-13. In addition to Kosovo, he has extensive rule-of-law experience in other countries, and is writing a book about his experiences, ‘A Judicial Odyssey, From Vermont to Russia, Kazakhstan and Georgia, then on to War Crimes and Organ Trafficking in Kosovo’, which will be published in early July by Rootstock Publishers in Montpelier, Vermont.
The opinions expressed are those of the author only and do not necessarily reflect the views of BIRN.