Better Late Than Never: Enhancing the Accountability of International Institutions in Kosovo

2007 a crucial year for the Kosovo status

2007 is a crucial year for Kosovo. After eight years of UN rule and ambiguity about its legal relationship to Serbia, the province’s status finally appears to be on the road to resolution. That resolution will be accompanied by an international “change of guard” in Kosovo, with a central role for the European Union (EU), as outlined in the status proposal by UN Special Envoy for Kosovo Martti Ahtisaari.

Nowhere is change needed more than in the area of accountability. After eight years of governing Kosovo, the United Nations interim administration in Kosovo (UNMIK) faces what can only be described as a crisis of legitimacy. Some of that crisis reflects frustration among Kosovo’s Albanian majority about the slow progress toward resolving status, and among Serbs and other minorities about UNMIK’s failure to secure their rights. But the lack of accountability among UNMIK and other international institutions in Kosovo has played an important role in undermining public confidence in the actions of those institutions.

Accountability—the extent to which an institution, and the officials within it, are held responsible for their actions—is a key element of good governance, together with transparency in decision making and the rule of law. It is also essential to the enjoyment of human rights.

The peacekeepers force

Complaints against UNMIK and NATO-led peacekeepers (Kosovo Force, KFOR) include that their actions have violated property rights, and allegations of arbitrary detention, sexual and other criminal misconduct, and a range of failures relating to the protection of minorities. While concerns about sexual and criminal misconduct are not uncommon in international peace operations, the breadth of concerns in Kosovo reflects the far-reaching powers of the UN mission in an international protectorate, and heightens the importance of accountability.

The accountability gap in Kosovo was starkly illustrated in February 2007. When a protest in Pristina/Prishtinë on February 10 turned violent, UNMIK police responded with teargas and rubber bullets, resulting in the death of two protesters. UNMIK’s much-criticized handling of the aftermath (including the necessary reliance on ad hoc solutions) highlighted the lack of independent mechanisms for oversight of UNMIK police, and the potential for lasting damage to the reputation and legitimacy of international institutions in the absence of effective accountability.

At first glance there appears to be a wealth of accountability mechanisms in Kosovo. The province has an Ombudsperson Institution, a Human Rights Advisory Panel, and is monitored by the Organization for Security and Co-operation in Europe (OSCE), nongovernmental organizations (NGOs), and the media. There are also a variety of internal systems within UNMIK and KFOR. In reality, however, these mechanisms are either weak, unable to investigate international institutions, or limited in their impact.

The Ombudsperson Institution was stripped of its mandate to investigate UNMIK and KFOR in 2006. The Human Rights Advisory Panel, whose creation was intended to bridge this accountability gap on the civilian side, has yet to be constituted. No external mechanism to investigate KFOR now exists. Monitoring by the OSCE Mission in Kosovo has helped bring problems to light, but its recommendations have often been ignored.

UNMIK’s internal oversight structures, with the notable exception of financial oversight, are either dormant or improperly constituted. The Human Rights Oversight Committee, supposedly comprising senior representatives of UNMIK and KFOR, has not met for several years, while a Claims Committee set up to address individual claims against UNMIK in practice considers only disputes involving UNMIK contractors.

With the Ombudsperson out of the picture, the limited accountability for UNMIK police and KFOR is particularly stark.

The Osce mission

The OSCE mission, the Council of Europe, and the UN Human Rights Committee have all been critical about the limited remedies available to those who allege abuse at the hands of UN police or NATO peacekeepers. UNMIK police and KFOR personnel are covered by immunity agreements that mean that action can only be taken by the sending country, generally after the accused personnel are sent home, making it virtually impossible for a complainant to learn the outcome (if any) of an investigation.

To date, UNMIK and NATO have been largely unresponsive to criticism about the lack of accountability for international institutions in Kosovo. But it is not too late to take action. While UNMIK looks set to be wound up by the end of 2007, there is still scope for positive steps, including operationalizing the Human Rights Advisory Panel.

The Nato mission

The case is even stronger for NATO. It will lead the new International Military Presence that according to the status proposal will replace KFOR as the sole security guarantor for Kosovo. That makes it imperative that NATO works with its member states to begin developing common rules and procedures within KFOR that can be continued in its successor.

The urgent need to develop functional accountability mechanisms applies equally to the EU, the United States, and other governments that will form the future international civilian presence in Kosovo. The civilian elements under the status proposal comprise an International Civilian Representative (ICR) with executive powers to oversee the settlement, and an EU police and justice mission under the auspices of European Security and Defence Policy (ESDP), which will include a large contingent of police officers from EU states, as well as prosecutors and judges.

The status proposal is short on detail about accountability mechanisms. It proposes that the ICR should create a review mechanism to examine the exercise of his or her powers, but does not specify what sort of mechanism. The proposal suggests that the future Constitutional Court, with six national and three international judges, should have the jurisdiction to hear complaints from individuals who claim that their rights guaranteed by the constitution have been violated by public authorities. It indicates that the Ombudsperson Institution’s mandate should remain unchanged, and requests the OSCE to maintain its presence in Kosovo. The proposal is silent on accountability mechanisms for the EU police but proposes maintaining KFOR’s privileges and immunities for the NATO-led military presence.

The role of the Constitutional Court

Creating effective accountability mechanisms for incoming international institutions will require going beyond the Ahtisaari proposal. It also demands straightforward solutions that build as much as possible on existing structures. That is why this briefing paper makes as its key recommendations that the two most important national accountability mechanisms in the future Kosovo—the Constitutional Court and Ombudsperson Institution—are also given responsibility for overseeing international institutions. Specifically, the jurisdiction of the future Constitutional Court should be extended to ensure that allegations about violations of constitutionally protected human rights by international civilian and military institutions can be heard. This would be consistent with an earlier recommendation of the Council of Europe. The Ombudsperson Institution should also have its original mandate restored so that it is has the jurisdiction to investigate complaints involving the ICR, the EU police and justice mission and the NATO-led military presence. These two measures would undoubtedly enhance the legitimacy of international institutions in the eyes of the public, by subjecting them to oversight by independent Kosovo institutions, and would in turn empower those bodies to hold Kosovo’s government to account.

How to improuve the coordination between Eu and UN Missions : coordiantion mechanisms

NATO should work with its member states to develop more effective and consistent internal investigation and coordination mechanisms. The EU police and justice mission should do the same, and invite the Kosovo Police Inspectorate to oversee any internal investigations. And the OSCE and the Council of Europe’s Committee for the Prevention of Torture should continue to perform their monitoring of the justice system and places of detention, respectively. The OSCE’s independent role in the future Kosovo should make it easier for it to assert itself and voice its concerns.

The success of Kosovo’s new international institutions will rest upon their ability to maintain their legitimacy and the confidence of the public even in the face of unpopular decisions. That will depend on those institutions demonstrating transparency, accountability, and respect for the rule of law. Concretely, the office of the International Civilian Representative, the EU police and justice mission, and the NATO-led military presence must ensure that they adhere to the highest human rights standards, that allegations of wrongdoing are promptly and transparently investigated, and that they subject themselves to independent, external judicial and other oversight. Doing so would greatly increase the likelihood of success in Kosovo, and could serve as a blueprint for future peace operations around the world.

Commentary

The upcoming international “change of guard” that will follow the resolution of Kosovo’s 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 Ahtisaari’s 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.

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.” This clause has been added in light of the Venice Commission’s recommendation to constitute an appropriate oversight mechanism over UNMIK.

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 not—see 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.