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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. Arbitrary arrest and unlawful detention

Amnesty International is seriously concerned at incidents of arbitrary arrest and unlawful detention in Kosovo by Kosovo Force (KFOR) personnel from the international military force in Kosovo in blatant contravention of domestic and international laws and standards. The organization is further concerned at allegations of ill-treatment of detainees by KFOR personnel, as well as the denial of their rights while in detention. Amnesty Internationals concerns are amplified by the fact that the UN Mission in Kosovo (UNMIK), which administers Kosovo under UN Security Council Resolution 1244/99, is charged with the protection and promotion of human rights and the rule of law in the province.

The organization raised its concerns about arbitrary arrest and detention by KFOR following a wave of violence in Mitrovica/ë, in February 2000 (see Amnesty International, Federal Republic of Yugoslavia (Kosovo): Setting the standard? UNMIK and KFOR's response to the violence in Mitrovica , AI Index: EUR 70/13/00, March 2000). On 6 June 2002 the organization sent an 18-page memorandum to KFOR detailing its concerns and urging a full and impartial investigation into the unlawful arrest and alleged ill-treatment by KFOR personnel of three men arrested in December 2001. In July 2002 three more men were unlawfully arrested by KFOR and held in detention for between 43 and 51 days without being brought before a judicial body to authorize their detention.

On 10 October 2003 Amnesty International sent another 18-page memorandum to the North Atlantic Treaty Organization (NATO), individual governments of NATO, and the UN Department of Peace Keeping Operations (DPKO) detailing its concerns at instances in which international peacekeeping forces led by NATO in Kosovo (and in Bosnia-Herzegovina) had failed to adhere to international human rights law and standards when detaining suspects. The memorandum specifically addressed the lack of legal basis for KFOR detentions and in this context the continued existence of COMKFOR (KFOR commander) Detention Directive 42 (see below).

In the memorandum,(16) Amnesty International noted that KFOR troops are not subject to control by civilian bodies in situ , even though in Kosovo KFOR is the sole official armed force - i.e. it is the army - and the UN Interim Mission in Kosovo (UNMIK) is the (temporary) government. Indeed the civilian executive authority, UNMIK, does not appear to have either legal jurisdiction or mandate to conduct investigations into KFOR activities. UN Security Council Resolution 1244/99 of 10 June 1999 under which Kosovo is - until resolution of its final status - placed under UN control is ambiguous as to the question of the power relationship between the international civilian presence (UNMIK) and the international security presence (KFOR), and calls on the two to "coordinate closely". Instead, civilian democratic control over KFOR is exerted by the respective governments of troop-contributing countries who have responsibility for, and only for , their respective national contingents. This means that civilian democratic control over KFOR and SFOR troops is divided up between a number of national governments who only have control over their own troops. An additional factor is that these troops are operating outside of their respective national territories, and thus distanced from their democratic overseers. This removal from the area of operation (i.e. Kosovo), combined with the multiplication and fragmentation of civilian democratic control over KFOR, has, in Amnesty International's experience, led to a lack of accountability for human rights violations. An additional factor is the absence of a centralized body initiating prompt, thorough and impartial investigations into all allegations of human rights violations by KFOR troops, and ensuring that appropriate remedial measures are taken. The lack of accountability is further compounded by the fact that institutions such as the Ombudspersons' Office in Kosovo - specifically set up to defend the rights of citizen - does not have any remit over actions by KFOR members.

NATO is not itself a party to international human rights treaties: state officials must ensure their participating forces' compliance with international law. NATO does not have a mechanism either to enforce compliance of a common set of standards, or to ensure a common interpretation of such standards. These remain the responsibility of each state member, and results in inconsistencies in the application of rules. Amnesty International is calling on NATO to publicly commit itself to abide by the highest standards of international human rights law, and to ensure a common interpretation of such standards.

The structural weakness, combined with the general immunity from prosecution (unless explicitly waived), which is enjoyed by all members of the international community(17), has contributed to the lack of accountability for human rights violations committed by KFOR troops. Under UNMIK Regulation 2000/47 the UN Secretary-General has "the right and the duty to waive immunity [from prosecution] of any UNMIK personnel in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of UNMIK",(18) this is not the case for KFOR personnel. Section 6.2 of the same regulation states: "Requests to waive jurisdiction over KFOR personnel shall be referred to the respective commander of the national element of such personnel for consideration." Thus, not even the UN Secretary-General has a mandate to waive immunity for KFOR personnel even though they are operating under the aegis of the UN in what is effectively a UN state.

Furthermore, Section 2.4 of the regulation regarding the 'Status of KFOR and its Personnel' states:

      "KFOR personnel other than [locally recruited KFOR personnel]... shall be immune from jurisdiction before courts in Kosovo in respect of any administrative, civil or criminal act committed by them in the territory of Kosovo. Such personnel shall be subject to the exclusive [emphasis added] jurisdiction of their respective sending States; and immune from any form of arrest or detention other than by persons acting on behalf of their respective sending States."
This seeks to prevent courts of any state (other than the relevant contributing state) from exercising jurisdiction, and thereby preventing courts in Kosovo, foreign courts (other than those of the relevant contributing state), and courts exercising universal jurisdiction, such as the International Criminal Tribunal for the former Yugoslavia (the Tribunal) and the International Criminal Court (ICC), from exercising jurisdiction. However, Amnesty International believes that in cases of genocide, crimes against humanity and war crimes, courts exercising universal jurisdiction such as the Tribunal and the ICC do have primacy.(19) However, the ICC or the Tribunal are not likely to exercise jurisdiction over crimes and other human rights violations allegedly committed by KFOR troops. Thus, in a case in which, for example, there is sufficient admissible evidence to prosecute but the national courts of the relevant contributing state are not able to take the case up, there will be no court able to exercise jurisdiction.

To Amnesty International's knowledge the only case where an alleged human rights violation either by KFOR or SFOR troops in the course of their duty has been brought before a national judiciary of a respective sending state has been in the United Kingdom (UK). On 7 April 2004 the UK High Court ruled in civil proceedings that the UK government should pay compensation to Mohamet and Skender Bici for damages caused when in 1999 UK KFOR troops opened fire on the car in which they were travelling in an incident in which two other passengers in the car, Fahri Bici and Avni Dudi, were killed. An investigation by the UK Royal Military Police into the incident had cleared the three soldiers responsible for opening fire.

However, the presiding judge ruled that the soldiers had deliberately and unjustifiably caused the injuries. The judge reportedly reached the "clear conclusion" on the evidence, including that of witnesses and "extremely powerful" forensic findings, that the soldiers were not being threatened with being shot when they opened fire, and there were no reasonable grounds for them to believe that they were. He reportedly stated that: "The British army can justifiably be proud of the operation it carried out in Kosovo. But soldiers are human; from time to time the mistakes are inevitable. In this case the fall from the army's usual high standards led to tragic consequences for the victims and their families... The Queen's uniform is not a licence to commit wrongdoing ... The army should be held accountable for such shortcomings." (See UK daily The Guardian, 8 April 2004.) Amnesty International believes that the court ruling indicates a failure by the UK military authorities to adequately investigate the incident in question, and illustrates the defects in the NATO system of investigating allegations of human rights abuses committed by its troops.


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