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III. Current Accountability Arrangements in Kosovo

Ombudsperson Institution

The Ombudsperson Institution currently has a mandate to “provide accessible and timely mechanisms for the review of actions constituting an abuse of authority by the Kosovo Institutions and provide recommendations for redress.”¹⁹ From its establishment in 2000 until February 2006, the mandate of the Ombudsperson included human rights violations arising from the acts of international institutions in Kosovo, including UNMIK, the international police, and KFOR.²⁰ During the period when the institution had an international mandate, it also had an international ombudsperson, Polish human rights lawyer Marek Antoni Nowicki. The current acting ombudsperson is a Kosovo Albanian former deputy to Nowicki, Hilmi Jashari, a former NGO activist.

During the “international” phase of the existence of the Ombudsperson’s Institution, satellite offices were established throughout Kosovo in order to reach out to remote communities and minority communities living in “enclaves.” Moreover, “open days,” during which the ombudsperson travelled to various regions of Kosovo, resulted in a wide variety of cases (varied both in terms of institutions in question and the issues themselves) being brought to the Ombudsperson’s attention.²¹ Complaints related to property rights and conditions of displacement were among the most common. The institution was praised by the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities as “the most accessible option for alleged victims of discrimination,” and “an essential and trusted institution for persons belonging to minority communities.”²²

According to the Ombudsperson’s annual reports, the international community’s level of cooperation with the institution varied “depending on different factors, including the political character of the particular issue involved.”²³ Procedural complaints, such as those about excessive length of time taken to make decisions or the failure to respond to requests, tended to be addressed in due time, while complaints that touched upon political decisions that UNMIK had made tended to be more difficult to pursue. For example, UNMIK restrictions on property sales in the so-called special zones (in which property sales had to be approved by UNMIK, in order to ensure that they were not made under intimidation or duress²⁴) proved highly controversial both for the Kosovo Serb sellers and the Kosovo Albanian potential buyers alike. The Ombudsperson received multiple complaints from buyers and sellers about the impact on their property rights, and also raised questions about the sustainability of such regulations in the long term. On this topic, the Ombudsperson found that official UNMIK responses to complaints were late or were never received by the institution.

While there was widespread agreement that the institution should eventually become a local rather than a mixed local-international institution, there was strong criticism by NGOs, including Human Rights Watch, of the decision to remove the mandate of the Ombudsperson to investigate human rights abuses committed by international institutions.²⁵

UNMIK’s Regulation 2006/6 clearly states that the Ombudsperson can only deal with cases in which human rights violations occur as a result of actions of Kosovo institutions.²⁶ While the regulation leaves some room for following up on existing cases involving UNMIK, based on the “bilateral agreement with the Special Representative of the Secretary-General,” the Ombudsperson Institution lost its capacity to intervene in cases involving KFOR.

After the departure of the international ombudsperson in December 2006, the Kosovo Assembly (Kosovo’s elected parliament) failed to nominate a national one, eventually agreeing on Hilmi Jashari to take over as acting ombudsperson. Jashari has brought energy to the post, but his effectiveness is hampered by the temporary nature of his position. There has also been confusion about whether the institution is covered by the old or new regulation (since it is arguable that the new regulation will apply only once the Assembly appoints a permanent new ombudsperson).²⁷

The acting ombudsperson sought to intervene following the February 2007 deaths of two protestors at the hands of UNMIK police, notwithstanding the lack of a clear mandate for him to do so. He publicly raised concerns about the proportionality of force used, and official responses to the incident, and attempted to open an investigation.²⁸ But the limited cooperation the Ombudsperson has received from UNMIK on the case underscores the limitations of the institution’s new mandate.

In summary, the decision by UNMIK to strip the Ombudsperson Institution of its mandate to investigate alleged human rights violations arising from the actions of international institutions has deprived Kosovo’s inhabitants of one of their principal mechanisms for redress against UNMIK and KFOR.

Human Rights Advisory Panel

The Human Rights Advisory Panel is to be established by virtue of UNMIK Regulation 2006/12 and is mandated to examine individual and group complaints on human rights violations resulting from the actions of UNMIK.²⁹  In accordance with the regulation, members of the panel are nominated by the president of the European Court of Human Rights and appointed by the head of UNMIK.  The three nominees are Marek Antoni Nowicki, the previous international ombudsperson, Belgian professor Paul Lemmens, and French judge Michele Picard. The three individuals received their appointment letters from the head of UNMIK on January 12, 2007, specifying the duration of their assignment as one year.³⁰

The panel was initially supposed to begin its work in the second half of 2006, in order to complement the work of the Ombudsperson Institution. However, at this writing, and despite the nominations, the panel is still not operational.³¹ The main reasons currently cited for the failure to constitute the Advisory Panel are the short timeframe left for UNMIK’s operations, and logistical difficulties (including budget shortages, support staff deployment, and lack of office space.)³²

The panel does not have a mandate to examine cases involving KFOR.  Moreover the panel’s mandate specifies that its temporal jurisdiction encompasses cases in which the alleged violation took place on or after April 23, 2005, thereby excluding any matters relating to the March 2004 riots and their aftermath.³³ The panel’s authority is limited: its recommendations are not binding on UNMIK and it cannot compel UNMIK to hand over documents or require UNMIK staff to cooperate with its investigations.³⁴  Since the panel is created by UNMIK regulation, its members are appointed by UNMIK, and its procedures subject to amendment by UNMIK, it is hard to see how the panel can be considered independent.³⁵

It is notable that when the Venice Commission proposed an advisory panel in 2004 to examine possible human rights violations by UNMIK, it saw such a panel as a complement to, rather than a substitute for, the Ombudsperson’s oversight of UNMIK.³⁶  The UN Human Rights Committee’s 2006 review of UNMIK’s compliance with the ICCPR, “expresse[d] concern that the Human Rights Advisory Panel established under UNMIK Regulation 2006/12 to receive and examine complaints against UNMIK lacks the necessary independence and authority.”³⁷

The regulation mandating the panel does not specify what kind of support staff or field presence it will have. But it appears that the staff will be limited to a small Pristina-based secretariat of legal and administrative staff, in contrast to the field offices and larger staff of the Ombudsperson Institution.³⁸ Moreover, it appears unlikely that the panel members will be based permanently in Kosovo.

In sum, while the panel is intended to fill the gap created after the removal of the Ombudsperson’s mandate to examine abuses by international institutions, it appears unlikely it will be able to play the role previously held by the international Ombudsperson, given its mandate, dependence on UNMIK, limited staff and budget, and lack of field presence. Even if the Human Rights Advisory Panel is eventually constituted, its limited mandate and resources and lack of independence mean that, at best, it can be considered a “band-aid” structure.

Human Rights Oversight Committee

UNMIK established the Human Rights Oversight Committee (HROC) in 2002 to make recommendations to the Special Representative of the Secretary-General regarding human rights issues, including the compatibility of regulations with international human rights laws, and high-profile individual cases, and to address criticisms directed towards UNMIK by other organizations. The members of the committee included the principal deputy SRSG, the heads of the OSCE and EU missions, the UNMIK legal adviser, the UNMIK director of the Office of Returns and Communities, the head of office of the UN High Commissioner for Human Rights, the chief of the UNMIK Office of Gender Affairs, the head of the OSCE Department of Human Rights and Rule of Law, and the deputy commander of KFOR.

Because the committee met behind closed doors and its reports were not made public, it is unclear whether it ever exercised the role of an internal review body.³⁹ The Venice Commission in 2004 deemed the committee unsuitable to act as an independent review body, suggesting that instead it could be a useful mechanism for mainstreaming human rights into all UNMIK and KFOR policies. Even though the HROC still formally exists, it has not met since 2004.⁴⁰

UNMIK Claims Commission

The UNMIK Claims Commission was supposed to be established in 2000 on the basis of an UNMIK regulation to address “third party claims for property loss or damage and for personal injury, illness or death arising from or directly attributed to KFOR, UNMIK or their respective personnel and which do not arise from ‘operational necessity’ of either international presence.”⁴¹ The commission was intended to enable individuals who incurred damages or were harmed due to UNMIK’s actions to claim compensation.

It is difficult to determine whether the commission has ever been properly established and whether it has ever exercised such a function. There is no public information as to its activities.⁴² In its 2004 report, the Council of Europe Venice Commission pointed to the UNMIK Claims Commission’s lack of transparency, saying that this made it impossible to determine what cases had been referred to the Claims Commission in the past, and the outcomes of those cases.⁴³ Few people interviewed by Human Rights Watch even knew that the body existed, including the majority of the UNMIK staff Human Rights Watch spoke to.

From what Human Rights Watch has been able to learn, it appears that the Claims Commission now deals only with liabilities incurred through formalized contacts with the UNMIK administration, effectively narrowing its scope to contract disputes involving UNMIK.⁴⁴

The Claims Commission could have been a positive example of a working accountability mechanism, giving members of the public in Kosovo an avenue for pursuing civil claims against UNMIK. It appears instead to have become a little-known vehicle for resolving disputes with UNMIK contractors.

UNMIK Police Accountability Mechanisms

UNMIK police has a far wider mandate than other UN police missions deployed in peace operations.⁴⁵ It has served as a temporary law enforcement unit, rather than simply monitoring the activities of the local police. Its other main function has been to establish a local Kosovo Police Service (KPS) to assume responsibility for policing tasks. While the KPS has assumed increasing responsibility for policing in Kosovo, the Kosovo police commissioner remains an international post, and the KPS Commander continues to report to him. The Kosovo Police Inspectorate (KPI) is an independent institution established to investigate allegations of misconduct of the KPS. It has no authority in relation to UNMIK police.

Despite acting as Kosovo’s police force, UNMIK police lacks the accountability mechanisms that one would expect if international standards and best practice in policing and human rights were implemented. UNMIK police currently relies on its internal disciplinary procedures and investigations when complaints against it are made, and results are not made public. Written and verbal complaints from members of the public are forwarded to the UNMIK police internal affairs department, which is in charge of investigating them.⁴⁶ Where behavior is deemed to be a case of disciplinary misconduct, punishments range from verbal or written warnings to dismissal with exclusion from serving in future UN missions. In cases of criminal conduct, UNMIK police officers can be prosecuted in Kosovo courts, provided that their immunity is waived by the UN secretary-general (or national government in the case of those deployed as part of national contingents).⁴⁷

Investigations in Kosovo into disciplinary or criminal complaints involving UNMIK police can be frustrated if the officers who are either the subject of those investigations or witnesses in the cases are sent home by their governments. The withdrawal from Kosovo of the Romanian police officers implicated in the February 2007 deaths of protestors (discussed below) provides an illustration. UNMIK has no jurisdiction enabling it to compel the return to Kosovo of officers in those circumstances or to ensure that the cases are dealt with properly in the home country.

These mechanisms have been criticized as insufficient, especially in the context of investigations into the failure to protect minority communities during the March 2004 riots and in relation to deaths that occurred allegedly as a result of police actions in the riots,⁴⁸ and also in relation to the isolated allegations of ill-treatment in detention centres and prisons.⁴⁹

The limitations of UNMIK police accountability mechanisms are highlighted by the deaths of the two protesters in February 2007. At a press conference in March upon taking up his post, Acting Police Commissioner Trygve Kalleberg promised to conduct a full and proper investigation into the February protest and to inform the public about its outcome.⁵⁰ But the absence of effective accountability mechanisms necessitated reliance on ad hoc solutions.A special investigative team was established consisting of senior UNMIK prosecutors and police officers unconnected with the policing decisions made during the protest.  The Kosovo Police Inspectorate was given a formal oversight role in the process (the first time a Kosovo police body had been given such a role vis-a-vis international police officials).⁵¹ Separate interim reports by the KPI and an international prosecutor were subsequently issued. In addition, the Ombudsperson took steps to open an investigation into the events (see above), a decision implicitly accepted by UNMIK.

The case illustrates a key impediment to accountability for UNMIK police, namely that effective investigations depend on the cooperation of national contingents. The Romanian police contingent accused of firing the fatal rubber bullets initially complied with UNMIK’s request to remain in Kosovo, delaying their departure by a month.⁵² But they left Kosovo and returned to Romania in March 2007, while the investigation was still ongoing, despite a promise from the Romanian government to “fully cooperate” with the investigation.⁵³ UNMIK protested,⁵⁴ but was powerless to reverse the decision. The departure of the Romanian police officers provoked some angry reactions in the local media.⁵⁵  Subsequent reports suggest that the Romanian government is not cooperating in the ongoing investigation, shielding its servicemen from responsibility.⁵⁶

The KPI published its interim report on March 1, 2007. Despite previous expectations to the contrary, the interim report’s contents indicate that the inspectorate’s inquiry is unlikely to shed light on possible misconduct by UNMIK police or the KPS.⁵⁷ The interim report does not assess the UNMIK internal investigation into alleged misconduct by UNMIK police and the KPS. Instead it provides a reconstruction of what occurred on February 10, and the operational responses of the two police forces, apparently with a view to analyzing the procedures followed so that they could be improved for future operations.

At this writing, the internal investigation undertaken by the UNMIK prosecutor Robert Dean was ongoing. On April 17 Dean discussed his interim report on the investigation at a press conference in Pristina.⁵⁸ According to Dean, the interim report indicates that Romanian police officers were responsible for the two deaths and two woundings under investigation. It finds that “there is a reasonable suspicion that three of the shootings constitute crimes under Kosovo law,” and concludes that “at this point the shootings in question appear to be unwarranted and unjustified” and the two deaths and the wounding of one of the protestors “appear to be unnecessary and avoidable.” But the interim report failed to conclude which of the Romanian officers was likely to have fired the shots, and absent a finding that the entire contingent acted unlawfully, is unable to establish criminal responsibility.  It also failed to examine the responsibility of UNMIK police commanders who directed the February 10 operation.

KFOR Accountability Mechanisms

KFOR’s presence in Kosovo, mandated by the UN Security Council’s resolution 1244, was tasked with establishing a secure environment and ensuring public safety. It operates independently of the UN-led civilian mission.⁵⁹ The KFOR structures rest under the commander of KFOR (COMKFOR) and report directly to the NATO Headquarters in Brussels. Nevertheless, KFOR consists of sections of the armed forces of participating states, and as such, constitutes a sum of national contingents.

KFOR national contingents are bound by the international human rights obligations to which their governments are party (although not every action of a national contingent may engage the responsibility of its government).⁶⁰ In each case the enforcement of standards of discipline and conduct, and compliance with those obligations, rests with national contingents. Even though contributing states are obliged to investigate allegations involving their troops, any action generally takes places only once the soldier or soldiers in question have returned to their home country.⁶¹ The lack of a mechanism to ensure that affected persons in Kosovo are informed of the proceedings means that many do not know the outcome of these processes.

KFOR’s principle internal oversight mechanisms are national military police units, which investigate and follow up on cases of alleged misconduct on the basis of the national procedures of particular contingents.⁶² The decision to act on allegations of violations against members of the public rests with the relevant national contingent. KFOR soldiers accused of alleged criminal conduct are investigated and, where appropriate, prosecuted in their home countries.⁶³ In the infamous case of a US KFOR soldier raping and killing an 11-year-old local girl in 2000, the perpetrator was tried in the US and sentenced to life imprisonment.⁶⁴ In the case of less serious offenses, such as causing vehicle damage while drunk driving, the perpetrators tend to be punished by losing rank, being sent home, or both.⁶⁵

The OSCE has published a Human Rights Remedies Catalogue (see below) that outlines the limited remedies in cases involving KFOR⁶⁶ With regard to claims for compensation, the procedure is handled by troop-contributing nations according to their own standard operating procedures. The insufficiency of accountability mechanisms KFOR offers has been pointed out by the Council of Europe’s Venice Commission, which drew attention to an inconsistent response to individual complaints, with effective remedies for complainants dependent on which national contingent they happen to be dealing with.⁶⁷

Lack of transparency compounds the problem. Human Rights Watch had difficulty obtaining information from KFOR in Kosovo and NATO Headquarters about KFOR standard operating procedures in relation to individual complaints, despite multiple requests over a period of several months.⁶⁸

OSCE Monitoring

The OSCE Mission in Kosovo has played an important role in monitoring human rights. Its mandate, as expressed in the UN Security Council’s resolution 1244 and an OSCE Permanent Council decision,⁶⁹ has given the organization possibilities of non-executive “soft interventions” with local and central levels of Kosovo’s government. Over the years it acquired the strongest field presence of all civilian international organizations, deploying human rights experts in ministries and municipalities since 2004, followed by five-person municipal teams to advise police and monitor trials and prisons.

Even though the OSCE’s mandate⁷⁰ limits its activities and interventions to Kosovo institutions, some of its reporting has covered the actions of international institutions, including UNMIK (of which it is formally part), UNMIK police and KFOR. In particular, the Legal System Monitoring Section (LSMS) in the Human Rights and Rule of Law department  issued a series of reports on the criminal justice system pointing to key structural and performance weaknesses of UNMIK and KFOR, and issued recommendations to those bodies (albeit with mixed success in terms of their implementation).⁷¹

In May 2003 the OSCE mission published a “Remedies Catalogue” listing mechanisms available in Kosovo for redress of human rights violations relating to exercise of policing powers, failures in due process, discrimination, property, and for victims of crime.⁷² The catalogue explains what remedies and compensation are available for those who claim that their human rights have been violated as a result of the actions of UNMIK, KFOR, and UNMIK police, including extrajudicial detention by KFOR, SRSG executive detention orders, and service code of conduct violations.  While many of the potential human rights violations analyzed in the catalogue relate to the actions of UNMIK police and KFOR, there are often no legal remedies available, especially in cases involving military personnel (see above).

The most recent publication by the mission, “Report on the Administrative Justice System in Kosovo,” contains a critique of the lack of judicial review for UNMIK and KFOR’s administrative decisions.⁷³ The OSCE has recommended that UNMIK immediately constitute the Human Rights Advisory Panel, in order to fill the currently existing accountability vacuum.

Despite its commendable monitoring efforts, however, the mission’s ambiguous status—as both a part of UNMIK and a regional organization separate from it—has impeded its willingness and ability to publicly criticize its international partners, and diminished its capacity vigorously to press them to implement its human rights-related recommendations. Other UNMIK institutions have not always treated the OSCE’s suggestions and recommendations with the attention they deserved. Moreover, there are concerns that the OSCE’s increasing focus on capacity building has decreased emphasis on the importance of monitoring as a core activity.⁷⁴

Council of Europe Monitoring in Places of Detention

The monitoring of detention facilities is both a safeguard against abuse and a mechanism of accountability. In Kosovo, in addition to regular police and prison custody, UNMIK and KFOR are endowed with powers that enable the head of UNMIK and the KFOR commander to make extraordinary detention orders without reference to a court.⁷⁵ These powers were used in the initial few years of the mission, although their exercise has since declined.  

The OSCE and some local NGOs (primarily the Council for the Defence of Human Rights and Freedoms) entered into informal agreements with UNMIK from the beginning of the mission in 1999 to carry out ad hoc monitoring of detention facilities managed by the Kosovo provisional government. At present the OSCE monitors detention facilities sporadically, while the Council for the Defence of Human Rights and Freedoms has had intermittent access to detention facilities since 2003.⁷⁶ Access by other NGOs has been inconsistently granted.⁷⁷

The International Committee of the Red Cross (ICRC) has monitored detention centres in Kosovo since 1999, including those maintained by KFOR. The ICRC’s methodology does not allow it to release any information publicly. Instead it engages directly with relevant institutions to intervene on behalf of individuals visited.⁷⁸

The Council of Europe pressed UNMIK and KFOR to grant its Committee for the Prevention of Torture (CPT) access to their detention facilities. The negotiations were lengthy; reaching agreement on access to NATO facilities proved particularly difficult. In January 2006 Council of Europe Secretary General Terry Davis called for immediate access to all KFOR facilities, stating that “if there are skeletons in the KFOR cupboard, the eve of the talks on the future status of Kosovo provides a last-minute opportunity to get them out.”⁷⁹ The reluctance of NATO to grant the CPT access to its detention facilities in Kosovo, including the one located in the US military base Camp Bondsteel, may have been linked in part to a separate Council of Europe investigation into alleged secret detention of dozens of terrorism suspects at the base.⁸⁰

While the Council of Europe reached agreement with UNMIK on CPT access in 2004,⁸¹  the implementation of that agreement did not take place until July 2006, when NATO finally granted access for the CPT to all NATO-run detention facilities.⁸² It is Council of Europe’s standard practice to proceed with CPT inspections only after it is granted access to all detention facilities in the place of the visit.⁸³ The CPT most recently visited detention facilities in Kosovo in April 2007. Whether CPT findings on UNMIK and NATO detention facilities will be made public depends on the consent of UNMIK and NATO, respectively.⁸⁴ Without such consent, the public impact of CPT monitoring will be limited, notwithstanding its importance as a safeguard against abuse in detention.