The Ombudsperson Institution in Kosovo and the Protection of Minorities

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  • 1 The author worked in the Ombudsperson Institution in Kosovo (OIK) between July 2001 and June 2003, through a secondment by the Swedish government to the OSCE (Legal Officer July 2001―May 2002 and Director of Investigations June 2002 ― June 2003). The views expressed in this article are those of the author and not necessarily those of the OIK or the OSCE.

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  • 1 For the purpose of this article the English spelling of the names of geographic places is used to the extent possible (for example 'Kosovo') and otherwise both the Albanian and Serbian names respectively are used (for example 'Fushe Kosove/Kosovo Polje'). 2 The term'minority' is used in this article merely to describe groups of persons who are in a numerical minor- ity situation in a particular location (for example municipality or village), regardless of their status elsewhere in a state or province. See UNHCR/OSCE,'Overview of the Situation of Ethnic Minorities in Kosovo' (3 November 1999) (hereinafter 'OSCE/UNHCR Third Minority Report'), para. 1. This report, as all other reports published by the OSCE Mission in Kosovo, is available at http://www.osce.org/kosovo/documents/ reports.

  • 3 Report of the Secretary-General on UNMIK, UN Doc. S/1999/779 (12 July 1999) (hereinafter 'Secretary- General July 1999 Report'), paras. 8-9. 4 Michael J. Matheson, 'United Nations Governance of Postconflict Societies', 95 AJIL (2001), 76-85, at 78. See also Secretary-General July 1999 Report, paras.11-6. 5 See generally, Human Rights Watch, 'Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo', Human Rights Watch Report No. 10(D), Vol. 11 (August 1999); UNHCR/OSCE, 'Preliminary Assessment of the Situation of Ethnic Minorities in Kosovo' (26 July 1999); UNHCR/OSCE, 'Second Assessment of Ethnic Minorities in Kosovo' (6 September 1999) (hereinafter `UNHCR/OSCE Second Minority Report') and UNHCR/OSCE Third Minority Report. 6 See for example Benjamin Ward, 'The failure to protect minorities in Post-War Kosovo', 1 HM (2000), 37-47, at 44; Tim Judah, Kosovo: War and Revenge (Yale University Press 2000) and Alvaro Gil-Robles, 'Kosovo: The Human Rights Situation and the Fate of Persons Displaced from Their Homes', Report for the Attention of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, CommDH(2002)11 (16 October2002), para. 52. '

  • 7 UNHCR Position Paper on the Continued Protection \eeds of Individuals from Kosovo (April 2002) para. 27. 8 Secretary-General July 1999 Report, para. 5 ('While the first wave of Kosovo Serb departures was prompted by security concerns rather than bv actual threats, a second wave of departures resulted from an increasing number of incidents committed by Kosovo Albanians against Kosovo Serbs.'). 9 UNHCR/OSCE Second Minority Report, para.10. 10 See LTNHCR/OSCE Assessment of the Situation of Ethnic Minorities in Kosovo (Period covering March 2001 through August 2001) (September 2001), para.50. 11 Security Council Resolution 1244 (1999), UN Doc. S/RES/1244, dated 10 June 1999 (hereinafter 'Resolu- tion 1244'). 12 The legal basis for the creation of UNMIK lies in Articles 39 and 41 of the U:\ Charter. Article 39 sets out that the Security Council should determine the existence of a 'threat to the peace, breach of the peace, or act of aggression', while Article 41 gives the Security Council a wide discretion when it comes to determin- ing which measures should be taken to maintain or restore peace ('The Security Council may decide what measures not involving tbe use of armed force are to be employed to give effect to its decisions .... These may include complete or partial interruption of economic relations of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.') (for an interpretation of these, see, for example, Prosecutor v. Tadic, Appeal on Jurisdiction, Case Not. IT-94-AR72 (2 October 1995), paras. 32-8). 13 Secretary-General July 1999 Report, para. 43. 14 UNMIK Press Release, 'PDSRSG Announces New Police &Justice Pillar', UNMIK/PR/583 (21 Mary 2001).

  • 15 At the time of writing the SRSG is the German diplomat Michael Steiner. The former SRSGs were Sergio Viera de Mello (ad interim) (Brazil) June - July 1999, Bernard Kouchner (France) July 1999 - January 2001 and Hans Haekkerup (Denmark), January 2001 - December 2001. 16 LJNMIK Regulation No. 2001/9 on the Constitutional Framework for Provisional Self-Government, LJNMIK/REG/2001/9 (15 May 2001) (hereinafter'Constitutional Framework'), Chapter 8. 17 See for example the Secretary-General July 1999 Report, paras.117-27. 18 UNMIK Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo, LTNMIK/ REG/1999/1 (25 July 1999) (hereinafter 'UNMIK Regulation 1999/1'), Section 1.1. 19 OIK, Special Report No. 3 on The Conformity of Deprivation of Liberty under 'Executive Orders' with Recognised International Standards' (29 June 2001) (hereinafter'OIK Special Report No. 3'); OIK, Regis- tration No. 256/01, Qeli Gashi v. UNMIK, report of 12 September 2001; OIK, Registration No. 257101,jusuf Peliu v. UNMIK, report of 12 September 2001, and OIK, Registration No. 258/01, llvdi Behluli v. UNMIK, report of 12 September 2001. See also, OIK, Special Report No. 4 on Certain Aspects of UNMIK Regula- tion No. 2001/18 on the Establishment of a Detention Review Commission for Extra-judicial Detentions Based on Executive Orders (25 August 2001) (12 September 2001) (hereinafter `OIK Special Report No. 4'). All reports published by the Ombudsperson are available at http://www.ombudspersonkosovo.org. 20 OIK, Registration Not. 122/01, Elife Murseli v. UNMIK, report of 10 December 2001. 21 UNMIK Regulation No. 2000/59 Amending UNMIK Regulation No.1999/24 on the Law Applicable in Kosovo, UNMIK/REG/2000/59 (27 October 2000) Section 1. See OIK, Special Report No. 2 on Certain Aspects of UNMIK Regulation No. 2000/59 Amending UNMIK Regulation No. 1999/24 on the Law Apphcable in Kosovo (27 October 2000) (30 May 2001).

  • 22 All UNMIK Regulations are available at http://www.unmikonline.org/regulations/index.htm. 23 Security Council Resolution 1244, para. 9. See also the Constitutional Framework, Chapter 13. 24 UNMIK and KFOR are to `coordinate closely'with each other but the SRSG has no authority over the mil- itary forces (Security Council Resolution 1244, paras. 6 and 9f). Gil-Robles criticizes this lack of account- ability in his report: 1 find the view that UNMIK is not to be held responsible for the respect of human rights standards by KFOR problematic. Were this the case, then one of the basic principles governing the functioning of any democratic State (or 'entity') respectful of human rights and the rule of law, would not be respected in Kosovo: the principle that the military is not a separate power operating outside the realm of law and that it must fall under the full control of civilian power.' Gil-Robles, 'Kosovo: The Human Rights Situation ...', para. 36. 25 Security Council Resolution 1244, para. 9. 26 UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and their Personnel in Kosovo, UNMIK/REG/2000/47 (18 August 2000) (hereinafter 'UNMIK Regulation 2000/47), Sections 2 and 3. 27 Convention on the Privileges and Immunities of the United Nations (13 February 1946), 1 U.N.T.S. 15. 28 See OIK, Special Report No. 1 on the Compatibility with Recognised International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Per- sonnel in Kosovo (18 August 2000) and on the Implementation of the Above Regulation (26 April 2001). In this report, the Ombudsperson states that 'the main purpose of granting immunity to international organizations is to protect them against the unilateral interference by the individual government of the state in which they are located ... does not apply to the circumstances prevailing in Kosovo, where [IJNMIKJ in fact acts as a surrogate state. It follows that the underlying purpose of a grant of immunity does not apply as there is no need for a government to be protected against itself.' (para. 23).

  • 29 Constitutional Framework, Chapter 8. 30 See, for example, UNHCR/OSCE Tenth Assessment of the Situation of Ethnic Minorities in Kosovo (Period covering May 2002 to December 2002) (March 2003) (hereinafter `UNHCR/OSCE Tenth Minority Report'),12-26. 31 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2003/113 (29 January 2003) (hereinafter'Secretary-General January 2003 Report'), para. 34. 32 'It has been reported [that] there were fewer murders and fewer attacks on Serbs and other non-Alba- nians ... I emphasise that this result is only a consequence of the fact that [they] have been forced to live in enclaves and ghettos, and that they have learned to stay away from the harm.' (Statement by Dr. Covic, Deputy Prime Minister of Serbia, before the UN Security Council, New York, 24 April 2002 p.4, quoted in Gil-Robles, 'Kosovo: The Human Rights Situation ...', para. 48, fn. 24). 33 World Bank,'Kosovo Poverty Assessment' (October 2001) and OIK, Second Annual Report 2001-2002, addressed to Mr. Michael Steiner, Special Representative of the Secretary-General of the United Nations (10 July 2002). See also, Development Researchers' Network, 'WFP/UNHCR Food Assessment in Minor- ity Areas of Kosovo' (December 2001). 34 OIK Second Annual Report ..., and Gil-Robles,'Kosovo: The Human Rights Situation ...', para. 45. See also UNHCR/OSCE Tenth Minority Report, p. 34. 35 UNMIK Regulation No.2000/38 on the Establishment of the OIK (30 June 2000), UNMIK/REG/2000/ 38 (30 June 2000) (hereinafter'UNMIK Regulation 2000/38') Preamble. 36 For some relevant background documents, see Interim Agreement for Peace and Self-Government in Kosovo, Rambouillet, France (23 February 1999), Chapter 6; Secretary-General July 1999 Report, para. 89-90; Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,

  • UN Doc. S/1999/1250 (23 December 1999), para. 83; Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, URN Doc. S/2000/177 (3 March 2000), para. 115 and Report of the Secretary-General on the United \ations Interim Administration Mission in Kosovo, U\ Doc. S/2000/538 (6 June 2000), para. 62. 37 Todav (mary 2003), the staff consists of a few intemationals, Kosovo Albanians, Kosovo Serbs and members of the Turkish and Roma communities. 38 See, for example, UN^ IIK Press Release of 12 July 2000 (UNMIK/PR/289). After June 2003, the Ombud- sperson will be the only international staff member in the OIK. In June 2004, the current international Ombudpserson's mandate expires and a local Ombudsperson will be in charge of the OIK. 39 UNMIK Regulation 2000/38, Sections 6.2 and UNMIK Press Release of 12 July 2000 (U�\IIK/PR/289). In July 2002, mar. Nowicki, was reelected by the SRSG for another two-year term. 40 OSCE Press Release,'Ombudsperson Institution to be inaugurated in Kosovo' (20 November 2000), avail- able at http://www.osce.org/news. 41 Constitutional Framework, Chapter 10. 42 UNMIK Regulation 2000/38, Section 3.1. 43 Constitutional Framework, Chapter 8. 44 In order to deal with cases involving KFOR, the Ombudsperson may however enter into an agreement with the Commander of the Kosovo Forces (LUNMIK Regulation 2000/38, Section 3.4). As of today, no such agreement has been made. 45 UNMIK Regulation 2000/38, Sections 4.1 and 3.2. For actions taken in this regard, see OIK, First Annual Report 2000-2001, addressed to Mr. Hans Haekkerup, Special Representative of the Secretary-General of the United Nations (18 July 2001) (intervention on behalf of Kosovars from qakov6fDjakovica that had been displaced, indicted and convicted in Serbia, for the crime of terrorism) and OIK, Second Annual Report ... (intervention on behalf of individuals living and working outside Kosovo who are experiencing long delays in the processing of applications for UNMIK identification cards and UNMIK travel docu- ments). Relying on the same provision, the Ombudsperson made trips to Serbia (May 2002) and \Iontene- gro (February 2003), in order to visit refugee and IDP-camps where people from Kosovo are living and to help these people raise their problems with the relevant authorities (OIK, Second Annual Report...).

  • 46 UNMIK Regulation 2000/38, Section 2.1. 47 UNMIK Regulation 2000/38, Section 4. 48 UNMIK Regulation 2000/38, Section 4.10. 49 UNMIK Regulation 2000/38, Section 4.7. 50 Ibid. 51 OIK, Application Registration No. 252/01 (3 May 2001). 52 UNMIK Regulation 2000/38, Section 4.11. 53 UNMIK Regulation 2000/38, Sections 4.3, 4.4 and 4.9 and Rules of Procedure for the OIK (hereinafter 'OIK Rules of Procedure'), Rules 2 and 22.3. 54 UNMIK Regulation 2000/38, Sections 3.2 and 4.1 and OIK Rules of Procedure Rule 17. 55 OIK, Second Annual Report.... It is the author's assessment that the mentioned categories of cases are dominant also today. 56 See OIK, Second Annual Report ...,17. It is the author's assessment that the rate of inadmissibility is the same today.

  • 57 OIK, Special Report No. 3; Gasbi v. UNMIK Yeliu v. U1VMIK Bebluli v. UNMIK and 01 Special Report No. 4. 58 Murseli v. I7NMIK. 59 OIK, Ex officio Registration No. 19/01, Regarding the Remaval of Em rush Xhemajli, Gafurr Elsbani and Sabit Gashifrom the List af Candidates for tbe November 2001 Elections, report of 29 October 2001. 60 OIK, Special Report No. 5 on Certain Aspects of UNMIK Regulation No. 2001/17 on the Registration of Contracts for the Sale of Real Property in Specific Geographical Areas of Kosovo (29 October 2001); OIK, Ex officio Registration No. 24/02, Regarding the refiual of UNMIK to register a contract far the sale af a residential pra�erty in Lipjan/Lipijan, report of 22 April 2002 and OIK, Registration No. 654/02, Milomir Mitravic v. I7NMIK, report of 26 March 2003. 61 OIK, Registration No. 412/01, Muharrem Sadiku v. UNMIK, report of 29 April 2002; OIK, Registration No. 564/02,Alush Krasniqi v. UNMIK, report of 31 January 2003; OIK, Registration No. 646/02, Zarife Haxholli v. IINMIK, report of 11 April 2003 and OIK, Registration N o. 477/01, Haki Sahiti v. UNMIK, report of 20 April 2003. 62 OIK, Registration No. 52/01, Hamdi Rasbira v. UNMIK, report of 31 October 2001 and OIK, Registration No. 361/01, Sbefget Maliqi v. L1NMIK, report of 13 March 2002. 63 OIK, Ex ogrtio Registration No. 8/01 (I, II, IV and V ) Concerning the right to life ofVS., v.N., R. C., S.B. and SA., report of 29 January 2002. 64 OIK, Ex agrria Registration No. 02/01 Cancerning the deprivation of liberty ofAPL., report of 17 October 2001. 65 UNMIK Regulation 2000/38, Section 3.1. 66 Constitutional Framework, Chapter 10.3. 67 UNMIK Regulation 2000/38, Section 4.2.

  • 68 OIK, First Annual Report.... 69 Regarding minorities' lack of freedom of movement in Kosovo in general and in Prishtine/Pri"stina, see UNHCR/OSCE Tenth Minority Report. 70 OIK, Second Annual Report.... 71 Ibid. It is the author's assessment that the rate is approximately the same today. 72 Secretary-General January 2003 Report, para. 48. See also UNHCR/OSCE, 'Update on the Situation of Ethnic Minorities in Kosovo' (Period covering February through May 2000) (31 May 2000), para. 53 ('Whatever the causes, minority populations often bore the brunt of electricity shortages.'). 73 See Secretary-General January 2003 Report, paras. 34 and 37.

  • 74 OIK, Application Provisional Registration No. 509/01 (submitted on 23 January 2002); 011\:, Application Provisional Registration Not. 510/01 (submitted on 23 January 2002) and OIK, Application Provsional Registration No. 51viol (submitted on 23 January 2002). 75 OIK, Application Provisional Registration No. 285/01 (submitted on 16 mary 2001). 76 OIK, Second Annual Report ... - 77 Ibid

  • 78 Ibid. See also Gil-Robles,'Kosovo: Zhe Human Rights Situation ...', para. 3. 79 Outi Korhonen, 'International Governance in Post-Conflict Situations' 14 LJIL (2001), 495-529, at 500. 80 For a general definition of the ombudsperson model, see The International Ombudsman Institute, Informa- tion Booklet, available at http://www.law.ualberta.ca/centres/ioi. 81 OIK, First Annual Report ... and OIK, Second Annual Report .... 82 OIK, Second Annual Report .... 83 Ibid. and Gil-Robles, 'Kosovo: The Human Rights Situation ...', paras. 4 and 43. 84 Gil-Robles, 'Kosovo: The Human Rights Situation ...', para.4.

  • 85 Marek Antoni Nowicki, 'Presentation to the Informal Meeting of the Permanent council ot the Urganiza- tion for Security and Co-operation in Europe' (7 (November 2001) (on file with the OIK).

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