Local Impact of ‘UN Accountability’ Under International Law: The Rise and Fall of UNMIK's Human Rights Advisory Panel

Abstract

The internationalized exercise of public power in Kosovo's peculiar legal order is characterized by the interplay between local and international legal norms, traditional concepts of immunity and the lack of a coherent legal framework. Within this setting the overall accountability framework that usually applies to UN missions proves insufficient. This article reflects on the Human Rights Advisory Panel – a sui generis body established with the aim to improve the accountability record of the UN mission in Kosovo – as well as on the strained relationship between this oversight body and the UN mission, which culminated in the ultimate demise of the panel. The article argues that the accountability of missions engaged in international territorial administration cannot be guaranteed through ad hoc mechanisms. Rather, accountability should be regulated in advance, through ‘fit-for-purpose’ mechanisms and by institutions independent of the administering missions.

ACKNOWLEDGEMENTS

The author thanks Jeroen Temperman and Nathanael T. Ali for their insightful comments. To a large extent, this article builds on selected observations from the author's published doctoral thesis, Accountability of International Territorial Administrations: A Public Law Approach, The Hague: Eleven International, 2011.

Notes

For more on UNMIK and other international territorial administrations, see Bernhard Knoll, The Legal Status of Territories Subject to Administration by International Organizations, New York: Cambridge University Press, 2008; Ralph Wilde, International Territorial Administration. How Trusteeship and the Civilizing Mission Never Went Away, Oxford: Oxford University Press, 2008; Carsten Stahn, The Law and Practice of International Territorial Administration, Cambridge: Cambridge University Press, 2008.

UN Security Council Res.1244 (1999), para.19. See also Report by the UN Secretary-General, UN Doc. S/2008/692, 24 Nov. 2008.

Boris Kondoch, ‘Human Rights Law and UN Peace Operations in Post-conflict Situations’, in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law, Oxford: Oxford University Press, 2009, pp.24–5. For more on the various categories of peacekeeping, see Steven Ratner, The New UN Peacekeeping; Building Peace in Lands of Conflict after the Cold War, New York: St Martin's Press, 1996.

UNMIK Reg.1999/1, 25 July 1999, as amended, Art.1.1.

Brahimi Report, para.II.H. The report further criticizes the UN's urge to classify UNMIK as a peacekeeping operation.

UNMIK Reg. 2001/9, 15 May 2001, as amended. This article by and large reflects on the period when UNMIK was fully operational, namely from 10 June 1999 to 9 December 2008, the deployment date of EULEX.

For a broader assessment, see Aleksandar Momirov, Accountability of International Territorial Administrations: A Public Law Approach, The Hague: Eleven International Publishing, 2011; Didier Pacquée and Steven Dewulf, ‘International Territorial Administrations and the Rule of Law: The Case of Kosovo’, Essex Human Rights Review, Vol.4, No.1, 2007, pp.1–14; Rebecca Everly, ‘Reviewing Governmental Acts of the United Nations in Kosovo’, German Law Journal, Vol. 8, No.1, 2007, pp.21–38; Bernhard Knoll and Robert-Jan Uhl, ‘Too Little, Too Late: The Human Rights Advisory Panel in Kosovo’, European Human Rights Law Review, Vol.5, 2007, pp.534–49.

UNMIK Reg.1999/1, 25 July 1999, as amended; Nathaniel Berman, ‘Intervention in a “Divided World”: Axes of Legitimacy’, European Journal of International Law, Vol.17, No.4, 2006, pp.743–69.

For suggestions to establish a ‘common United Nations justice package’, a predetermined set of transitional legal rules, see UN, Report to the UN Secretary-General, ‘Report of the Panel on United Nations Peace Operations’, UN Doc. A/55/305-S/2000/809, 21 Aug. 2000, paras.79–82.

UNMIK Reg. 1999/1, 25 July 1999, as amended.

Council of Europe, European Commission for Democracy through Law, ‘Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms’, 8–9 Oct. 2004, para. 57 (Venice Commission Kosovo Report).

ICJ, ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’, Advisory Opinion, 22 July 2010, para.93, where the Court held that UNMIK regulations have an international legal character. See a contrario Judge Yusuf's separate opinion.

Sovereignty can be approached in roughly two ways. The material approach to sovereignty argues the inseparability of title and actual exercise of power and control. A ‘basket of properties’, sovereignty must be able to express itself. See Dominik Zaum, The Sovereignty Paradox. The Norms and Politics of International Statebuilding, Oxford: Oxford University Press, 2007, p.28. Conversely, a formal approach to sovereignty separates title from actual power (i.e. sovereignty is not to be equated with the exercise of sovereign-like powers). This division of the two elements parallels to a great extent the relationship between the concepts of ownership and possession, where ownership is separated from the actual use or possession of the subject to which the owner remains entitled. Malcom N. Shaw, International Law, New York: Cambridge University Press, 2008, p.490.

UN Security Council Res.1244 (n.2 above), para.11(b), further specified by UNMIK Reg.1999/1, 25 July 1999, as amended, Art.1.1.

Ibid., preamble. See also para.6 of Annex 2 to the Resolution, according to which ‘an agreed number of Yugoslav and Serbian personnel will be permitted to return [to Kosovo] to [maintain] a presence at key border crossings’. This provision was never effectuated. Various interpretations of these provisions were reflected in the submissions filed by numerous states during the Kosovo proceedings before the ICJ.

ICJ, ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’, Advisory Opinion, 22 July 2010, para.98, emphasis added.

Convention on Privileges and Immunities of the United Nations, 13 Feb. 1946, Art.II, Section 2 (General Convention), emphasis added.

Ibid., preamble.

Ibid., Art.II, Section 2.

ICJ, ‘Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights’, Advisory Opinion, 29 April 1999, paras.50–61.

With regard to the military components of UN missions, see e.g. Report of the Sixth Committee, ‘Criminal Accountability of United Nations Officials and Experts on Mission’, 64th Session, UN Doc., A/64/446, 12 Nov. 2009; Report of the Secretary-General, ‘Implementation of the Recommendations of the Special Committee on Peacekeeping Operations’, 54th Session, UN Doc., A/54/670, 6 Jan. 2000. See in general Ralph Wilde, ‘Are Human Rights Norms Part of the Jus Post Bellum, and Should They Be?’, p.163, and Matteo Tondini, ‘Putting an End to Human Rights Violations by Proxy: Accountability of International Organizations and Member States in the Framework of Jus Post Bellum’, p.187, in Jann K. Kleffner and Carsten Stahn (eds), Jus Post Bellum, The Hague: TMC Asser Press, 2008.

General Convention, Art.VIII, para.29.

Although ECtHR case law recognizes that the right to an effective remedy can be restricted by immunity, this restriction needs to pursue a legitimate aim and has to be proportionate. See ECtHR, Al-Adsani v. the United Kingdom, Application No. 35763/97, 21 Nov. 2001, paras.52–67.

For example, Germany, Federal Constitutional Court, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 37 BVerfGE 271, 29 May 1974 (Solange I); Reapplication of Wünsche Handelsgesellschaft, 73 BVerfGE 339, 22 Oct. 1986 (Solange II); and Brunner et al. v. The European Union Treaty, 89 BVerfGE 155, 12 Oct. 1993 (Solange III). Courts at the international level have also adopted similar approaches; see ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Application No. 45036/98, 30 June 2005 (Bosphorus) and European Court of Justice, Joined Cases C-402 and 415/05P, Kadi and Al Barakaat International Found. v. Council and Commission, 2008 ECR I-6351 (Kadi I).

UNMIK Reg. 2000/47, 18 Aug. 2000, as amended.

Ombudsperson Institution in Kosovo, Special Report No. 1, 26 April 2001, para.23.

Accountability should be understood in light of the three-pronged definition provided by the International Law Association (ILA); ILA, ‘Accountability of International Organizations’, Final Report, Berlin, 2004, p.5.

Security Council Res.1244 (n.2 above), para.20.

The Conduct and Discipline Unit (CDU) was established within the Department of Peacekeeping Operations.

OIOS Investigations Manual, March 2009, para.2.1.

For example, in the 2004 UK landmark case Bici v. Ministry of Defence, a court found the Ministry of Defence was liable for negligence and trespass after British military personnel in Kosovo shot and killed two men and injured two other persons. The claims were made by Mohamet and Skender Bici, one of whom suffered physical injury, while the other suffered psychiatric illness as a consequence of the events. It was the first time that claims for compensation had been made with regard to British peacekeepers. The Ministry of Defence argued, among other things, combat immunity. The court dismissed the defence and awarded damages to the claimants; see UK, Court of Appeal – Queen's Bench Division, Bici & Anor v. Ministry of Defence, [2004] EWHC 786 (QB), 7 April 2004. In another watershed decision, an appeals court in The Hague found that The Netherlands can be held accountable for the acts of Dutchbat soldiers acting under the UN flag in and around Srebrenica in 1995; see The Netherlands, The Hague Court of Appeal, LJN: BR0133, 200.020.174/01, 5 July 2011. See also UN General Assembly, ‘Report of the Office of Internal Oversight Services on the Investigation into the Fraudulent Diversion of $4.3 Million by a Senior Staff Member of the Reconstruction Pillar of the United Nations Interim Administration Mission in Kosovo (UNMIK)’, UN Doc., A/58/592, 13 Nov. 2003.

UN General Assembly, ‘Report of the Group of Legal Experts on Ensuring the Accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committed in Peacekeeping Operations’, UN Doc., A/60/980, 16 Aug. 2006, para.44.

Venice Commission Kosovo Report, p.15; see also Amnesty International, ‘Kosovo (Serbia): The UN in Kosovo – a Legacy of Impunity’, EUR 70/015/2006, Nov. 2006.

Human Rights Watch, ‘Better Late than Never – Enhancing the Accountability of International Institutions in Kosovo’, Briefing Paper No. 2, 14 June 2007, p.19, n.47.

UN, Report of the Secretary-General, ‘Model Status-of-Forces Agreement for Peace-Keeping Operations’, UN Doc., A/45/594, 9 Oct. 1990, Art.51.

UNMIK Reg.2000/47, 18 Aug. 2000, Section 7.

Venice Commission Kosovo Report, pp.13–14.

Human Rights Watch (see n.34 above), p.18.

The KTA was established by UNMIK Reg.2002/12, 13 June 2002, as amended. The KTA was responsible for the privatization process in Kosovo until May 2008, when the Assembly of Kosovo adopted Law No.03/L-067, ‘On the Privatization Agency of Kosovo’, replacing the KTA with the PAK.

UNMIK Reg.2001/18, 25 Aug. 2001, Section 1.

OIK Special Report 3, 29 June 2001; Amnesty International Briefing to the Human Rights Committee during the 87th Session in July 2006, AI Index: Eur 70/007/2006, pp.37–9.

Human Rights Committee, 87th Session, ‘Consideration of Reports Submitted by States Parties Under Art. 40 of the Covenant, Concluding observation of the Human Rights Committee, Kosovo (Serbia)’, UN Doc., CCPR/C/UNK/CO/1, 14 Aug. 2006, para.17.

UNMIK Reg.2001/18, 25 Aug. 2001, Sections 6–7.

The DRC only dealt with one particular case in which three suspects were detained for their alleged connection to the February 2001 bombing of a Serbian bus. In its sole decision, the DRC held that the detentions were justified and prolonged them for a maximum of 90 days. UN News, ‘Kosovo's Detention Review Commission Supports Detention of Bus Bombing Suspects’, 21 Sept. 2001.

UNMIK Reg.2000/38, 30 June 2000, replaced by UNMIK Reg.2006/6, 16 Feb. 2006, as amended.

Ibid., Art.3.1.

Ibid., Arts.4.1, 4.4.

Ibid., Art.1.1.

See statistical data listed in the OIK annual reports covering the period between 2000 and mid-2009, which indicate that approximately 1,396 complaints were received against UNMIK, complaint numbers dropping to zero after 2007 due to the new OIK mandate.

For example, OIK, ‘Fourth Annual Report 2003–2004’, 12 July 2004, pp.16–17. See also former ombudsperson Marek Nowicki's statement in a speech to the Council of Europe Parliamentary Assembly on 25 January 2005 and his remarks in a Meeting of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe on the Human Rights Situation in Kosovo, Paris, 16 Mar. 2004.

UNMIK Reg.2006/6, 16 Feb. 2006. Under transitional provisions, the OIK continued to exercise its jurisdiction over UNMIK until mid-2009, when the Kosovo Assembly – in a fifth attempt – elected the new ombudsperson. See also Christopher Waters, ‘“Kosovanizing” the Ombudsperson: Implications for Kosovo Peacekeeping’, International Peacekeeping, Vol.15, No.5, 2008, pp.648–62.

In short, UNMIK agreed to submit reports to several UN-level bodies at the suggestion of delegates from Serbia; see Human Rights Committee, 81st Session, ‘Consideration of Reports Submitted by States Parties under Art. 40 of the Covenant, Concluding Observations of the Human Rights Committee, Serbia and Montenegro’, UN Doc., CCPR/CO/81/SEMO, 12 Aug. 2004, para.3. At the regional level, UNMIK entered into agreements with the Council of Europe with respect to the 1995 Framework Convention for the Protection of National Minorities and the 1987 European Convention for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment. Agreements to this effect were signed in Priština, 23 Aug. 2004.

UNMIK Reg. 2006/12, 23 Mar. 2006, as amended. The Council of Europe labelled HRAP a ‘first complaints mechanism of its kind’; see Council of Europe, ‘Report of the Council of Europe Commissioner for Human Rights’, Special Mission to Kosovo(1)', CommDH(2009)23, 2 July 2009, p.13.

UNMIK Administrative Direction 2009/1, 17 Oct. 2009, p.5.

See Council of Europe, Advisory Committee on the Framework Convention for the Protection of National Minorities, ‘Second Opinion on Kosovo(1)’, ACFC/OP/II(2009)004, 5 Nov. 2009, pp.10–11.

UNMIK Reg.2006/12, 23 Mar. 2006, Art.1.2.

Human Rights Committee, 87th Session, ‘Consideration of Reports Submitted by States Parties under Art. 40 of the Covenant, Concluding observation of the Human Rights Committee, Kosovo (Serbia)’, UN Doc., CCPR/C/UNK/CO/1, 14 Aug. 2006, para.10.

HRAP, Olga Lajović v. UNMIK, Case No. 09/08, 16 July 2008, Decision on admissibility.

ECtHR, Behrami and Behrami v. France, Saramati v. France, Germany and Norway, Apps.71412/01,78166/01, Grand Chamber, Decision, 31 May 2007; and HRAP, Agim Behrami v. UNMIK, Case No.24/08, 17 Oct. 2008, Decision on admissibility.

Organization for Security and Cooperation in Europe (OSCE) Mission in Kosovo, Monitoring Department/Rule of Law Division, Legal System Monitoring Section, ‘Privatization in Kosovo: Judicial Review of Kosovo Trust Agency Matters by the Special Chamber of the Supreme Court of Kosovo’, 21 May 2008, p.23.

For more on HRAP's procedures, see HRAP, ‘Rules of Procedure’, 5 Feb. 2008, as amended 11 Sept. 2009, 21 Nov. 2009, 12 Feb. 2010. See also HRAP, Annual Report 2008, pp.8–10.

Ibid.

The wording of the pertinent sections is confusing. Though the regulation determines that the SRSG ‘shall’ cooperate with the HRAP, it continues by saying that ‘requests for the appearance of UNMIK personnel or for the submission of United Nations documents shall be submitted to the Special Representative of the Secretary-General. In deciding whether to comply with such requests, the Special Representative of the Secretary-General shall take into account the interests of justice, the promotion of human rights and the interests of UNMIK and the United Nations as a whole.’ UNMIK Reg.2006/12, 23 Mar. 2006, sections 15, 17 as amended.

Ibid., Art.17.3, as amended.

For a more elaborate statistical overview, see HRAP Annual Reports of 2008 and 2009 (at: www.unmikonline.org/human_rights/index.htm).

For example, HRAP, Brahim Sahiti v. UNMIK, Case No.03/08, 10 Apr. 2008, Decision on admissibility; and HRAP, Dejan Jovanović v. UNMIK, Case No. 39/08, 17 Oct. 2008, Decision on admissibility.

HRAP, Nexhmedin Spahiu v. UNMIK, Case No.02/08, 20 Mar. 2009, opinion.

HRAP, Brahim Sahiti v. UNMIK, Case No.03/08, 10 Apr. 2008, Decision on admissibility. See also HRAP, Dejan Jovanović v. UNMIK, Case No.39/08, 17 Oct. 2008, Decision on admissibility.

UNMIK Administrative Direction 2009/1, 17 Oct. 2009.

Ibid. See HRAP, ‘Annual Report 2009’, for the panel's dismay with regard to the Administrative Direction.

UNMIK Administrative Direction 2009/1, 17 Oct. 2009, Section 1, Art.1.1

Ibid., Art.1.3. Quite to the contrary, the OSCE had previously argued in favour of adversarial procedures with respect to other review mechanisms in Kosovo; see OSCE Mission in Kosovo, Department of Human Rights and Rule of law, ‘Observations and Recommendations of the OSCE Legal System Monitoring Section: Report No. 6, Extension of Custody Time Limits and the Right of Detainees: The Unlawfulness of Regulation 1999/26’, 29 Apr. 2000, p.4.

In line with Art.13 of the ECHR, these mechanisms needed to be available and effective; see HRAP, Shaip Canhasi v. UNMIK, Case No.04/08, 12 Nov. 2008, Opinion.

UNMIK Administrative Direction 2009/1, 17 Oct. 2009, section 2.

Ibid., section 5.

Society for Threatened Peoples, Kosovo Medical Emergency Group, ‘Dossier of Evidence Supporting the Call to Take Decisive Action to Implement Immediately an Emergency Evacuation and the Highest Level of Medical Treatment for All Roma, Ashkali and Kosovan-Egyptian Families in the Displaced Persons Camps of North Kosovo’, 26 Mar. 2009, p.8 (at: www.gfbv.de/uploads/download/download/Dossier%20of%20Evidence.pdf).

Ibid., p.10.

Human Rights Watch, ‘Kosovo: Poisoned by Lead, A Health and Human Rights Crisis in Mitrovica's Roma Camps’, Report 23 June 2009, pp.41–2. Human Rights Watch reported in December 2010 that the remaining camps were being shut down by the European Commission and the US Agency for International Development; Human Rights Watch, ‘Lead-Contaminated Roma Camps in Kosovo Shut Down’, News Release, 9 Dec. 2010. However, as of February 2011, the International Committee of the Red Cross (ICRC) in Koovo was unable to confirm the complete closure of the camps. Information for 2011 was provided by the ICRC in northern Mitrovica on 22 Feb. 2011.

Council of Europe, ‘Kosovo: Commissioner Hammarberg Calls for Stop of Forced Returns and Immediate Evacuation of Roma from Lead-Contaminated Camps’ (at: www.coe.int/t/commissioner/News/2010/100215Kosovo_en.asp).

The plaintiffs claimed violations under various human rights documents, such as the ECHR and the main UN human rights treaties.

HRAP, N.M. et al. v. UNMIK, Case No.26/08, 5 June 2009, Decision on admissibility.

On behalf of the IDPs, the European Roma Rights Centre had filed a compensation claim on 10 February 2006.

HRAP, N.M. et al. v. UNMIK, Case No.26/08, 31 Mar. 2010, Second Decision on admissibility, para.26.

Ibid., paras.43–51.

Before the reports were made public and a decision on waiver of immunity – necessary for other legal proceedings to take place – could be taken, members of the Romanian unit had been withdrawn by their government. Despite UNMIK's request to extend the stay of the implicated officers, all 75 Romanian officers left the mission on 21 March 2007.

According to an UNMIK press release, 10 Feb. 2010, a compensation offer was made by the UN at the end of 2009.

HRAP, Balaj et al. v. UNMIK, Case No.04/07, 6 June 2008, Decision on admissibility.

In HRAP, Shaip Canhasi v. UNMIK, Case No.04/08, 12 Nov. 2008, Opinion, the HRAP held that parties are generally stopped from presenting admissibility arguments at a later stage of the proceedings. Amnesty International refers to UNMIK's late presentation of the admissibility objections as one of UNMIK's methods to derail the process; see Amnesty International, ‘Hearing into Deaths in Kosovo Could Find UN Accountable’, press release, 23 Mar. 2009.

HRAP, Balaj et al. v. UNMIK, Case No.04/07, 31 Mar. 2010, Second Decision on admissibility. This decision also contains an elaborate overview of the procedural history of the proceedings.

HRAP, Kadri Balaj et al. II v. UNMIK, Case No.320/09, 12 Feb. 2010, Decision on admissibility, emphasis added.