The upcoming international change of guard that will follow the resolution of Kosovos status provides a unique opportunity to establish mechanisms to ensure that international institutions in the new Kosovo are properly held to account. Special Envoy Martti Ahtisaaris 58-page Comprehensive Proposal for the Kosovo Status Settlement contains several elements that could help lay the foundation for an effective system of international accountability in Kosovo.
There is a consensus among officials in the key international institutions interviewed by Human Rights Watch that the future oversight mechanisms should draw on existing structures wherever possible, and that because of a relatively short expected lifespan of the International Civilian Representative and European Security and Defence Policy missions, any proposed mechanism should be simple and straightforward.85
The Ahtisaari proposal provides the framework for the future oversight of the International Civilian Representative and his or her office in a general clause, which states that [t]he International Civilian Presence (ICR) shall have the authority to establish a mechanism to allow the review of the use of his/her powers and those of the European Union Special Representative (EUSR) without prejudice to the privileges and immunities enjoyed by the ICR and EUSR under the Settlement.86 This clause has been added in light of the Venice Commissions recommendation to constitute an appropriate oversight mechanism over UNMIK.87
The clause is vague, leaving the choice of the appropriate oversight mechanism to the discretion of the International Civilian Representative (presumably in consultation with a new International Steering Group envisaged by the proposal). But it provides a clear opportunity to bridge the accountability gap by establishing both internal and external oversight mechanisms. The new mechanism should take on the internal oversight functions that should currently be performed (but are notsee above) by the Human Rights Oversight Committee and UNMIK Claims Committee.
Nevertheless, as of the end of May 2007 no specific arrangements for any such review mechanisms have been made. According to the head of the EU planning team for the ICR, movement on the issue awaits a UN Security Council resolution and a green light to deploy staff on the ground, although the planning team is aware of the importance of the issue and the earlier recommendations made by the Council of Europe.88
Ahtisaaris final status proposal provides for the creation of a Constitutional Court endowed with the right to assess the constitutionality of any law or decision referred to it. 89 Among the constitutional principles reflected in the proposal is a requirement that the constitution will allow individuals whose rights have been violated by a public authority to introduce a claim in the Constitutional Court, following the exhaustion of other remedies.90
The court is to be composed of six national and three international judges. National judges will be nominated by the president of Kosovo on the proposal of the Kosovo Assembly, and international appointments will be made by the president of the European Court of Human Rights, in consultation with the International Civilian Representative.91 The latter nomination process underscores the human rights role for the court.
There is a strong argument for extending the jurisdiction of the Constitutional Court to include human rights claims involving international institutions. Such jurisdiction would be a civil jurisdiction, not a criminal one, applicable in relation to an action by an institution or office (or its agents) exercising a public function, and would not involve personal liability of individuals. If the court were granted such jurisdiction, it could become an important mechanism for oversight over international structures, and help uphold respect for human rights in Kosovo. The Constitutional Court will have to establish its rules of procedures and methods of working, including any process of initial screening for admissibility of cases or claims.
The idea of judicial review for alleged human rights violations by international institutions in Kosovo is not new. In October 2004 the Venice Commission recommended the creation of a Human Rights Court for Kosovo that would review the actions of international institutions.92 The recommendation was modelled on the now-defunct Human Rights Chamber in Bosnia and Herzegovina.93 The Venice Commission proposed a mixed national and international panel with jurisdiction to consider complaints related to violations of the European Convention of Human Rights. The Venice Commission report noted,
Extending the human rights jurisdiction of the court to cover the actions of the ICR, EU police and justice mission, and the International Military Presence would require special arrangements, including agreeing to give the court the power to annul decisions and to award compensation. But, crucially, it would not require the creation of a new or temporary body, and it would enhance both the legitimacy of the court and the international institutions that submitted to its jurisdiction.
The Constitutional Court would play a particularly useful role in oversight of police powers and the administration of justicewhere the role of international structures is going to be particularly strongby providing an independent check on the exercise of those powers.
The International Civilian Representative, in consultation with the International Steering Group, could agree to submit the office of the ICR to the jurisdiction of the court. In the case of the European Security and Defence Policy operation, a decision by the Council of the European Union could provide consent for all EU member states contributing police officers to the operation. Extending the courts jurisdiction to the IMP would probably require the bilateral consent of each troop-contributing country. Cases could be referred to the court directly by individuals who claim to be victims, or indirectly by the Human Rights Advisory Panel or its successor, or the Ombudspersons Institution.
The Ahtisaari proposal says little about the future role of the Ombudsperson. The only reference is a clause stating that [t]he current powers and role of the Ombudsperson shall remain in place.95 Even though the current status of the Ombudspersons Institution is temporary, the language in the proposal suggests that the institution will be a national organization without a mandate to investigate international bodies. In the assessment of Human Rights Watch, that would be a wasted opportunity. It is preferable to restore the authority of what was Kosovos most effective mechanism of accountability over international institutions.
Restoring the mandate of the Ombudsperson Institution over international institutions is supported by the current Kosovo government, and by the acting ombudsperson.96 Subjecting international institutions to the jurisdiction of the Ombudspersons Institution would not only send a positive signal to Kosovos government and population, but it would enhance the legitimacy of those international institutions that it would oversee, and be a practical example of how to increase respect for human rights.
Constituting the Human Rights Advisory Panel should be a priority for UNMIK during the transition phase, not least to ensure that those with claims against UNMIK have some form of remedy. But the Panels lack of independence, narrow mandate, and limited presence make it far from ideal as an effective mechanism for international accountability. By contrast, the Ombudsperson Institutiona body that enjoys public confidence, a multi-ethnic character, a good track record, and a robust field presenceis far better suited to performing non-judicial independent external oversight.
Restoring the mandate of the Ombudsperson Institution requires positive international action. The key international institutions in Kosovo could voluntarily submit to its jurisdiction: the International Civilian Representative (in consultation with the Steering Group); the Council of the European Union for the ESDP operation; and individual troop contributing countries (with assistance from the NATO Headquarters).
If the future national authorities in Kosovo are serious in their support for the restoration of the mandate, they should demonstrate it by making it a priority in their agenda when they are established. The current Kosovo Assembly should also move to end the uncertainty about the institution by appointing a permanent Ombudsperson and ensuring that his or her recommendations are fully implemented by the relevant Kosovo institutions.
Effective accountability is particularly important to the success of the EU police and justice mission, given the expectations about its size and mandate, and the accountability concerns surrounding UNMIK police. Current plans envisage the deployment of 1,000 police officers and around 40 judges and prosecutors, operating within the first ever ESDP mission to be endowed with executive powers.97 The Ahtisaari status recommendation is silent on accountability mechanisms for the police and justice mission.
The missions civilian and police employees (other than national staff) are likely to enjoy the same diplomatic immunities as their UN predecessors. EU officials told Human Rights Watch that EU Member States would be reluctant to second their police officers to the mission in the absence of such immunity.98
According to EU officials involved, planning for the mission involves demarcating stricter than ever personal and professional codes of conduct, as well as rules of engagement for EU police.99 The mission will have an internal inspection unit to conduct enquiries into allegations of both professional and personal misconduct by its staff, while the head of mission (the EU Special Representative/ICR) will have a mandate to look into minor misdemeanors.100
An internal inspection unit and a limited mandate for the head of mission to look into minor incidents are insufficient to create the necessary framework of accountability for the EU police and justice mission. As noted above, external oversight is critically important, and the Ombudsperson Institution and the Constitutional Court are best placed to provide it. Oversight of internal investigations would also be helpful. An obvious solution would be to formally invite the Kosovo Police Inspectorate to oversee all investigations. To minimize the risk that the rotation and removal of officers undermines accountability, it would be useful to create a tracking mechanism within the EU police and justice mission to keep complainants in Kosovo informed about investigations in police officers countries after they are sent home, and facilitate ongoing cooperation with investigations in Kosovo.
There is every indication that the shortcomings in KFORs accountability mechanisms are likely to be replicated in the new International Military Presence in Kosovo. The status proposal maintains for the military presence the privileges and immunities for KFOR contained in UNMIK Regulation 2000/47.101 That would imply the preservation of broad immunities for both civilian and military personnel serving in Kosovo and the continuation of a claims commission, in cases involving property loss, damage, personal injury, illness, or death (although, as noted above, the existing UNMIK Claims Commission apparently has in practice dealt only with contract disputes).102
Discussions with KFOR officers in Kosovo and diplomats in NATO Headquarters in Brussels familiar with planning for the IMP indicate that it is highly unlikely it will differ significantly from KFOR.103 The language in the status proposal also suggests that it is unlikely any major changes will occur in the ways in which the future NATO-led force responds to individual complaints.
That does not mean, however, that the status quo is desirable. The future military presence in Kosovo will play a major role in reinforcing the status settlement. It will take over KFORs role as the guarantor of Kosovos security, notwithstanding the proposal to establish a small national defence force from the current Kosovo Protection Corps.
In this context, it is crucial that the IMP has properly functioning mechanisms of accountability. Encouraging troop-contributing countries to accept the jurisdiction of the Constitutional Court and the Ombudsperson would be particularly useful, both in practical and symbolic terms. Renewing the agreement with the Council of Europe for access by the Committee for the Prevention of Torture to any detention facilities operated by the IMP is another important step.
The IMP also needs to develop more effective internal accountability mechanisms. In this context, the two main points to address are the harmonization of oversight procedures of the IMPs national contingents, as well as ensuring institutional memory, continuity, and follow up on cases referred to national contingents and dealt with in the home country. This would require a certain level of centralization of the case management in the IMP headquarters in Pristina, and in practical terms putting in place agreements between IMP command and troop-contributing nations.
Finally, the IMP also needs to be more transparent and accessible to the public than its predecessor in cases of complaints about the conduct of its forces.
In future the OSCE Mission in Kosovo is likely to be a free-standing and independent institution, distinct from the international civilian presence. The status proposal requests that the OSCE maintains its presence in Kosovo, to support the democratic development of Kosovo and the work of the International Civilian Representative (ICR) and his/her Office and refers to consultation with the OSCE, but makes no reference to a formal relationship.104
As noted above, the present structure of the OSCE mission within UNMIK has hindered its role as a neutral outside voice. But the new independent role for the OSCE in Kosovo creates an opportunity for the mission to take up a more robust and assertive role in monitoring (leveraging its significant field presence and large staff) and advising international and national actors on the ground on human rights issues, as OSCE missions have done elsewhere in the region.105
Once status is determined, the OSCE Mission in Kosovo will need a new mandate from the OSCE Permanent Council. And, if Kosovo acquires some form of independence, there will also be a need for the Kosovo authorities to agree on the continuation of the OSCE mission on its soil.106 There appears to be little scope for the OSCE to acquire any formal role in overseeing the performance of the ICR, ESDP, or IMP, because even if the institutions were to invite such a role, the indications are that there is little will within the OSCE to assume such responsibility.107
But that leaves plenty of room for an informal oversight role for the OSCE, particularly in the areas of policing and justice. The OSCE has to date been engaged in monitoring trials involving international judges and prosecutors and is going to preserve this function in the future.108 It could also enter into formal agreements to have a complementary role to the ICRC in monitoring detention facilities in police stations, prisons, and other places of detention. It is currently performing this task only on an ad hoc basis. To make the most of its new independence, the OSCE must be willing to be publicly critical when necessary.
Council of Europe: Continued Monitoring of Detention
Having finally negotiated the access it has long requested, the Council of Europes Committee for the Prevention of Torture now plays an important role in monitoring places of detention in Kosovo. It should continue this role, which will depend on consent from the ICR, EU police and justice mission, IMP, and future Kosovo authorities to monitor all detention centers. In order to maximise its effectiveness, the parties who give it authority to monitor should agree to the prompt publication of the reports of the CPTs visits.
85 Human Rights Watch telephone interview with the EU International Civilian Office (ICO) Planning Team, March 2, 2007, and in-person interview with the European Unions Planning Team (EUPT), Pristina, February 3, 2007.
86 UNOSEK, Comprehensive Proposal for the Kosovo Status Settlement, Annex. IX, art. 2.6.
87 Email communication from UNOSEK official to Human Rights Watch, February 27, 2007. Council of Europe, Venice Commission, Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, Part VI, The Human Rights Situation in Kosovo: Proposals as to Possible Institutional Solutions.
88 Human Rights Watch phone interview with Thorbjorn Sohlstrom, head of EU International Civilian Office (ICO) Planning Team, March 2, 2007.
89 UNOSEK Proposal, Annex I, art. 6.1.
90 Ibid., Annex I, art. 2.4.
92 Council of Europe, Venice Commission, Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms.
93 The mandate of the Human Rights Chamber expired in 2003. Human rights cases are now decided by the Constitutional Court in Bosnia.
94 Council of Europe, Venice Commission, Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, para. 111.
95 UNOSEK Proposal, Annex IX, art. 6.7.
96 Human Rights Watch telephone interviews with Hilmi Jashari, February 20, 2007. Human Rights Watch telephone interview with Ulpiana Lama, government spokesperson, February 23, 2007.
97 Human Rights Watch interview with national experts and civil servants from the EU Rule of Law Planning Team, Council Secretariat, Brussels, February 15, 2007.
101 UNOSEK Proposal, Annex XI, art. 2.3.
102 UNMIK Regulation No. 2000/47 On the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo, Section 7: Third Party Liability.
103 This message was conveyed to Human Rights Watch by a number of KFOR officials interviewed in Kosovo, including KFOR Chief of Staff Gen. Albert Bryant, interviewed by Human Rights Watch in Pristina on February 29, and at a series of Human Rights Watch meetings with diplomats at NATO delegations in Brussels between February 12 and 16, 2007.
104 UNOSEK Proposal, Annex IX, art. 3.2.
105 The OSCE Mission to Croatia is a notable example.
106 Human Rights Watch telephone interview with a senior OSCE official based in one of the regions, March 5, 2007.
108 Human Rights Watch telephone interview with a Pristina-based OSCE Mission in Kosovo senior official, March 12, 2007.