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AI INDEX: EUR 70/009/2004     1 April 2004


Serbia and Montenegro (Kosovo)
The legacy of past human rights abuses

2.1.1 COMKFOR Detention Directive 42

Furthermore, Amnesty International is concerned that COMKFOR Detention Directive 42 (9 October 2001) allows COMKFOR and section level KFOR commanders of MNBs to authorize detentions which are outside of the rule of law and violate international human rights which, under UN SC 1244/99, KFOR is charged to protect and promote. Specifically COMKFOR Directive 42 allows COMKFOR to authorize detentions for long periods without judicial authorization or any recourse to judicial review. Section 2 (e) of this directive states: "I [COMKFOR] will continue to use the authority to detain but only in cases where it is absolutely necessary. It must be noted that this authority to detain is a military decision, not a judicial one." [Emphasis added]

The directive in Section 5 (b) also allows MNB commanders to detain people for up to 72 hours on their own authority even without recourse to COMKFOR approval which is needed for detention after this initial 72-hour period.

This raises a number of concerns, especially as the Organization for Security and Cooperation In Europe (OSCE) reported in 2002, on the basis of information received from KFOR, that an average of 10 persons per month were held under the authority of MNB Commanders' authority.(20) In May 2003 the OSCE reported that although there had been a "general decrease in the number of persons held by KFOR held in US KFOR's Bondsteel camp [where KFOR detainees are held]", KFOR detentions continued. The OSCE re-iterated its concerns that such detentions were illegal.(21)

Detention by COMKFOR can initially be for up to 30 days but can be extended by COMKFOR. As highlighted above, under point 2 (e), COMKFOR's authority to detain is military not judicial. In fact Directive 42 gives COMKFOR powers to, if he so wishes, arbitrarily detain people without any recourse. There is no mention of judicial oversight or the possibility of detainees challenging the legality of their detention. On the contrary, point 5 (c) (8) states: "Once COMKFOR has detained a person, no one may release that person during the ordered detention period without the written approval of COMKFOR." COMKFOR is assisted by a Detention Review Panel whose members are designated by COMKFOR and which is chaired by KFOR LEGAD [the KFOR legal advisory body]. This panel reviews all detention requests and makes recommendations to COMKFOR (point 5 (c) (3)). KFOR LEGAD also carries out its own recommendations independent of the panel recommendation (point 5 (c) (4)). But these are recommendations. Authority rests with COMKFOR who operates outside judicial scrutiny. Point 7 (k) in the section dealing with 'Rules for detention and treatment of detainees' states: "Detainees may submit petitions regarding their detention." However, these petitions can only be submitted to COMKFOR - the very person who authorized detention - not to an independent judicial body.

Amnesty International also notes the concerns expressed by the UN Special Representative of the Commission on Human Rights, Jose Cutileiro, that arrests and detentions by KFOR, under COMKFOR Detention Directive 42, "may be incompatible with basic human rights principles"; the Special Representative has also questioned the need for KFOR detention practices on the basis that the grounds on which KFOR may arrest under Directive 42 are "adequately covered by existing legislation".(22)

Similar concerns were expressed by the OSCE which recommended that "KFOR cease detentions forthwith and officially renounce its authority in this area".(23) as well as by the Commissioner for Human Rights of the Council of Europe, Alvaro Gil-Robles.(24)

Despite these authoritative pronouncements by international human rights experts, on 26 November 2003 then-NATO Secretary General, Lord Robertson, replied to Amnesty International's memorandum of October 2003. In his reply he stated that he was:

      "content that we are maintaining an acceptable balance between a Force Commander's necessary powers to detain and the essential rights of those detained.
      On the specific issue of the legality of detention operations carried out by KFOR, I have nothing to add further to my previous correspondence... The relevant procedures remain in place for the exercise of KFOR's powers with regard to detention, including through Directive 42, which places the correct emphasis upon the need for correct treatment, whilst ensuring that detentions are lawful and fully respectful of international law."
Amnesty International believes that persons detained solely under Directive 42 are victims of arbitrary detention in clear contravention of Article 5 of the ECHR and Article 9 of the ICCPR in that they have not been deprived of their liberty in accordance with procedures prescribed by applicable law, including their right to judicial scrutiny of their detention, and their right to habeas corpus . The non-derogable nature of the right to habeas corpus, even in times of emergency, has been affirmed by the (UN) Human Rights Committee.(25) Judgments by the European Court of Human Rights make it clear that there must be judicial supervision of detention and respect for the rights of detainees even during emergency situations and armed conflicts.(26)

Amnesty International is:

  • calling for KFOR to respect international human rights standards and stop detaining people arbitrarily;
  • calling on KFOR to immediately turn over to the domestic authorities all those they arrest who are not connected to the NATO-led military mission;
  • calling for COMKFOR Detention Directive 42 to be immediately revoked;
  • calling on KFOR to ensure reparations including paying appropriate compensation to victims of human rights violations committed by KFOR members;
  • calling on NATO to grant jurisdiction to the Kosovo Ombudsperson's Office to extend its mandate to cover KFOR activities;
  • calling for UNMIK Regulation 2000/47 'On the Status, Privileges and Immunities for KFOR and UNMIK and their Personnel in Kosovo' to be amended so that the "exclusive jurisdiction of the respective sending States" be ended in cases of alleged human rights violations by KFOR personnel, and that the decision to waive immunity in such a case be taken by the UN rather than by the commanders of the respective national element;
  • calling on NATO to publicly commit itself to abide by the highest standards of international human rights law, and to ensure a common interpretation and application of such standards;
  • calling on NATO to establish a centralized transparent procedure whereby allegations of human rights violations by KFOR troops are thoroughly and impartially investigated, to bring alleged perpetrators to justice in accordance with international standards, and to make adequate reparation if the allegations are substantiated;
  • recommending to the UN that it consider establishing an international independent oversight mechanism - such as an international Ombudsperson - with full authority to investigate or ensure that effective investigations are conducted into allegations that actions by members of UN authorized international operations fall short of international human rights or humanitarian law standards; to monitor the actions taken by troop contributing countries to bring perpetrators to justice or subject them to appropriate disciplinary procedures; and to report and make recommendations to the UN Secretary-General if such actions are deemed insufficient .


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