AI INDEX: EUR 70/009/2004 1 April 2004
Serbia and Montenegro (Kosovo)
The legacy of past human rights abuses
(1) UNMIK Regulation 2001/19 'On a Constitutional Framework for Provisional Self-Government in Kosovo', promulgated by the Special Representative of the (UN) Secretary-General (SRSG) for Kosovo on 15 May 2001 initiated the first steps towards handing governmental power to local inhabitants. It allowed for the formation of the Kosovo Assembly, the Provisional Institution of Self-Government (PISG), which met for the first time on 4 March 2002. However, under Article 8.1 of the regulation, most executive governmental powers remained reserved exclusively for the SRSG. These included: the protection of minority communities; the power to dissolve the Assembly and call new elections; setting the budget; control over monetary policy; control and authority over border customs; appointing and removing judges; deciding on assignment of international judges and prosecutors; exercising powers and responsibilities of an international nature in the legal field; authority over law enforcement institutions and the correctional service; control and authority over the Kosovo Protection Corps (manned in the main by demilitarized ex-members of the Kosovo Liberation Army); concluding and overseeing agreements with states and international organizations in all matters within the scope of UNSCR 1244 (1999). In addition, the regulation gave the SRSG power of decision in consultation with or cooperation with the PISG over a number of other governmental functions including: external relations; control over cross-border/boundary transit of goods (including animals); authority to administer public, state and socially-owned property; and administrative control and authority over railways, frequency management and civil aviation functions.
(2) See Serbia and Montenegro: Amnesty International's concerns and Serbia and Montenegro's commitments to the Council of Europe¸ AI Index: EUR 70/002/2004, 3 March 2004.
(3) Exact date unknown.
(4) The second chapter of the report focuses on impunity for abuses of human rights of minorities in Kosovo, including the continuing impunity for those responsible for the abduction of Serbs, Roma and members of other minority communities.
(5) UNMIK Police Briefing Notes, 20 May 2003.
(6) UNMIK Pillar 1, Police and Justice, Presentation Paper, Fourth Quarter, November 2002. CivPol (or CIVPOL) is the international police force in Kosovo.
(7) In February 2003 UNMIK police reported that they, ".. are now solving more than 80% of murders..", UNMIK Police Briefing Notes, 18 February 2003.
(8) See above witness intimidation.
(9) Although some ethnically motivated crimes, such as the series of attacks on the Serb community that took place during February 2001, may fall into this category, AI believes that they are not representative of the majority of such incidents. See OSCE/UNHCR Eighth Minorities Assessment, pp. 3-4.
(10) UNMIK police spokespersons also asserted that because the police force was up and running ahead of the judicial system, the lack of capacity within the detention and court systems had undermined the development of law and order. In particular, the spokespersons reported that the police would fail to gain the confidence of the public, if sufficient capacity for pre-trial detention was not available, particularly in cases where they had compelling evidence of threats made against the victims of such crimes. Interview, UNMIK police spokespersons, Pristina/Prishtinë, March 2002.
(11) Ex officio Registration No. 8/01/I, concerning the right to life of V.S. and V.N, 29 January 2002; similar observations were made by the Ombudsperson in: Ex officio Registration No. 8/01/II, Concerning the right to life of R.C., 29 January 2002; Ex officio Registration No. 8/01/IV, Concerning the right to life of S.B., 29 January 2002; Ex officio Registration No. 8/01/V, Concerning the right to life of S.A., 29 January 2002.
(12) The three suspects were detained, initially under Executive Orders, until 20 September 2001, when their continued detention was authorized by a Detention Review Commission (DRC) established - in connection with this one case under UNMIK Regulation 2001/18 - for a three-month period to review detentions authorized by the SRSG. The violation of the detention rights of detainees held in administrative detention authorized by the SRSG under Executive Orders, (on the basis of UNMIK Regulation 199/1 and UNSCR 1244/99), was highlighted by Amnesty International, the OSCE and the UN Special Representative of the Commission on Human Rights; Amnesty International also expressed concerns about the DRC to the SRSG.
(13) In a statement to the UK newspaper, The Times, on 14 May 2002, the former head of the UNMIK Regional Crimes Squad alleged that, despite being technically in charge of the investigation, information had been withheld by KFOR, and that attempts to interview the suspects were obstructed both before and after their transfer to the BDF. This was confirmed by AI in conversation with a former CIVPOL officer who wishes to remain anonymous. The Times also reported that a lead investigator was removed from his post for speaking to the press about the case in August, which subsequently became the responsibility of a single detective. Amnesty International has not been able to confirm this.
(14) UNHCR attribute the decline in returns during 2001 to this and other incidents at around the same time, UNHCR/OSCE Ninth Minorities Assessment, May 2002, p.45-6.
(15) Evidence, including NATO intelligence, was provided to the DRC (see above) which, following in camera proceedings held in the absence of detainees and their counsel, authorized the men's continued detention. However, following a review of the case by the Supreme Court - which was not provided with access to the evidence presented to the DRC - on 18 December, the three men were released without charge.
(16) See Amnesty International: The apparent lack of accountability of international peace-keeping forces in Kosovo and Bosnia-Herzegovina, AIU Index: EUR 05/002/2004, April 2004.
(17) Both UNMIK and KFOR personnel are covered by UNMIK Regulation 2000/47 On the status, privileges and immunities of KFOR and UNMIK and their personnel in Kosovo, 18 August 2000 (see below for differences between UNMIK and KFOR personnel). Under Annex 1A, Appendix B (3), of the General Framework Agreement, members of SFOR are covered by the provision of the Convention on the Privileges and Immunities of the U.N. regarding experts on mission. Article VI, Section 22, provides for "(a) immunity from personal arrest or detention and from seizure of personal baggage; (b) and in respect to words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind." Article V, Section 20, states: "The Secretary-General [of the United Nations] shall have the right and the duty to waive the immunity of any official 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 the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity."
(18) UNMIK Regulation 2000/47, On the status, privileges and immunities of KFOR and UNMIK and their personnel in Kosovo section 6.1, 18 August 2000. The Kosovo Ombudsperson opined that this regulation "is incompatible with recognised international standards" in particular Articles 6, 8, 15 and Article 1 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). See Ombudsperson Institution in Kosovo, Special report No. 1 on the incompatibility with recognized international standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000) and on the implementation of the above REGULATION, 26 April 2001.
(19) This is consistent with Article 19 of the Draft Relationship Agreement between the [International Criminal] Court and the United Nations which states: "If the Court seeks to exercise its jurisdiction over a person who is alleged to be criminally responsible for a crime within the jurisdiction of the Court and if, in the circumstances, such person enjoys, according to the relevant rules of international law, any privileges and immunities as are necessary for the independent exercise of his or her work for the United Nations, the United Nations undertakes to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities." www.un.org/law/icc/asp/1stsession/report/english/part_ii_g_e.pdf
(20) OSCE Mission in Kosovo, Kosovo: Review of the Criminal Justice System, September 2001 - February 2002, p. 51, footnote 92.
(21) OSCE Mission in Kosovo, Kosovo: Review of the Criminal Justice System, March 2002 - April 2003, pp. 33-34.
(22) E/CN.4/2002/41, 8 January 2002, pp. 23-4.
(23) OSCE Mission in Kosovo, Kosovo: Review of the Criminal Justice System, March 2002 - April 2003, p 33.
(24) Council of Europe, Office of the Commissioner for Human Rights, Op. Cit., pp 22-23, paras 88-97.
(25) See UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), which stated: "Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party's decision to derogate from the Covenant". CCPR/C/21/Rev.1/Add. 11, para. 16, 31 August 2001.
(26) In the following two cases, the countries involved had derogated from provisions of the ECHR on the basis of states of emergency. These cases examine measures taken regarding detention in light of their necessity and proportionality. Brannigan and McBride v. the UK, Judgment of the European Court of Human Rights, 26 May 1993, in which the Court stated that a period of seven days before bringing a detainee before a court was legitimate in an emergency situation. However, it noted that in Northern Ireland all detainees had the right to habeas corpus and access to a lawyer within 48 hours and to a doctor and family, while in Aksoy v. Turkey, European Court of Human Rights, 18 December 1996, the Court considered 14 days was too long even in a region suffering armed conflict, especially as there was no right of habeas corpus and access to a lawyer, doctor or relative was denied. Similarly in the decision of 29 September 1999 by the Inter-American Commission on Human Rights regarding Coard et al. v. United States, the Commission stated that detention for nine to 12 days without access to an independent review of the legality of their detention was too long for the US army to detain persons, even though the US army was engaged in hostilities for some of that time.
(27) Section 6.1 of UNMIK Regulation 2000/47 provides that the UN Secretary-General may waive the immunity of any UNMIK personnel in any case where, in his opinion, the immunity would impede the course of justice.
(28) Information from James E. Rodehaver, Minority Advisor in UNMIK's Office of Returns and Communities.
(29) UNHCR Kosovo, Update on the Situation of Roma, Ashkaelia, Egyptian, Bosniak and Gorani in Kosovo, January 2003.
(30) The situation regarding education and medical treatment for minority Serbs is complicated by the parallel structures in Serb enclaves and municipalities where Serbs are the majority. These parallel structures are supported by the Serbian state which offers salaries to teachers and medical staff double that offered in Serbia proper. In addition Serbian teaching staff in these structures can receive payment from the relevant Kosovo ministry, although in such cases the Serbian state often reduces the 'double funding' figure: either way Kosovo Serb teachers and medical staff earn considerably more than either their counterparts in Serbia or Kosovo Albanians. This is to compensate them for working in Kosovo and to encourage them to stay in their posts. See OSCE Mission in Kosovo, Department of Human Rights and Law, Parallel Structures in Kosovo, October 2003.
(31) For a detailed description of the trafficking of women and girls for forced prostitution in Kosovo, see Amnesty International, "So does that mean I have rights?": Protecting the human rights of women and girls trafficked for forced prostitution in Kosovo, (AI index EUR 70/010/2004), 6 May 2004.
(32) For the purposes of this report, Amnesty International uses the definition of trafficking in persons set out in Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, (the Palermo Protocol), supplementary to the UN Convention against Transnational Organized Crime. Although Kosovo is not a signatory to the Convention or its protocols, representatives of Kosovo were among government ministers from Stability Pact for South-Eastern Europe (SPSEE) countries who signed an "Anti-Trafficking Declaration" in Palermo on 13 December 2000.
(33) Amnesty International uses as its definition of violence against women Article 1 of the UN Declaration on the Elimination of Violence against Women (UN GA resolution 48/104, 20 December 1993): "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such actions, coercion or arbitrary deprivation of liberty, whether occurring in public or private life".
(34) See for example, E/CN.4/2001/73, p.19, paras. 59 and 60.
(35) UN peacekeepers fuelling trafficking in women, UN expert warns, AFP, 9 April 2001
(36) 18 premises were identified, including in the Gnjilane/Gjilan area, close to US Camp Bondsteel, serving the US military and local clients; in Prizren, where users included German KFOR soldiers and other internationals; in Pec/Pejë, where residents reported Italian KFOR soldiers as clients; and in Northern Mitrovica, Rachel Wareham, No Safe Place, pp. 89, 94-95, UNIFEM 2000.
(37) See also Jane Gronow for UNICEF, Trafficking in Human Beings in South-eastern Europe, 15 August 2000, p.84.
(38) Group launches campaign against forced prostitution in Kosovo, AFP, 24 May 2000.
(39) This list the places off-duty KFOR soldiers are forbidden to frequent.
(40) IOM Kosovo, Counter-Trafficking Unit, Return and Reintegration Project, Situation Report, May 2003.