Strasbourg, 16 October 2002
Original version English
KOSOVO : THE HUMAN RIGHTS SITUATION
AND THE FATE OF PERSONS DISPLACED FROM THEIR HOMES
MR ALVARO GIL-ROBLES,
COMMISSIONER FOR HUMAN RIGHTS
For the attention of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe
TABLE OF CONTENTS
III. The human rights situation in Kosovo
1. Which human rights ?
2. Who is accountable ?
3. Main human rights issues
a. Immunities of the international presence
b. Security and policing
c. Investigations into crimes committed in the beginning of international mandate
d. Missing persons
e. Functioning of the judiciary
f. Legal certainty
g. Relations between the executive and the judiciary
h. Civilian control over armed forces
i. Arrest and extra-judicial detention by COMKFOR
j. Conditions of detention in UNMIK facilities
k. Internment of mentally handicapped persons
l. Establishing and securing property rights
m. Respect of property rights by the international presences
n. Access to employment and services
o. Monitoring the respect of human rights
p. Places of worship and cemeteries
IV. The fate of persons displaced from their homes in Kosovo
1. Displacements of populations from Kosovo: a short overview
2. The need for realism ;
3. The right to return and the overriding principle of free choice
4. (Measuring) the wish to return
5. The definition of return
6. Conditions for return
7. The question of the final status of Kosovo
8. Living conditions in Serbia, Montenegro and “the Former Yugoslav
Republic of Macedonia”
9. Forced return
V. Main findings and conclusions
1. The human rights standards applicable in Kosovo and accountability for their respect
2. Specific human rights issues
3. The fate of persons displaced from their homes in Kosovos
Appendix I: Glossary
Appendix II: Acknowledgements
Appendix III: Programmes of visits
In Paragraph 16 of Recommendation 1569 (2002) the Parliamentary Assembly of the Council of Europe recommended that I “visit the Federal Republic of Yugoslavia and Kosovo with a fact-finding mission with the aim of examining the human rights and refugees situation in Kosovo on the whole and elaborating appropriate recommendations”. By letter of 5th July 2002, I was requested by the Secretary General of the Parliamentary Assembly “to note in this context that the Assembly [was] scheduled to debate the report on the accession of the FRY to the Council of Europe” during its session from 23 to 27 September 2002.
Having regard to the nature of the recommendation, formulated in the context of the accession of the Federal Republic of Yugoslavia to the Council of Europe, and Articles 3g1 and 8,12 of the Commissioner’s mandate, I informed the Secretary General of the Parliamentary Assembly of my decision to accept the recommendation by letter of 10th July 2002.
Two visits were undertaken to this end - the first, from 23 July to 6 August, to Serbia3 and Kosovo, Montenegro and “the Former Yugoslav Republic of Macedonia”, by Mr. Markus Jaeger, the Deputy Director of my Office, and Mr. John Dalhuisen, my Private Secretary, and a second, to Serbia and Kosovo and Montenegro, from 4 to 11 September, on which I was accompanied by Mr. Christos Giakoumopoulos, the Director of my Office and the above mentioned persons.
These visits included meetings with all the principal authorities and leading agencies concerned. The members of my office and I were able, in addition, to visit both privately accommodated IDPs and IDP centres in Serbia and Montenegro as well as prisons, enclaves, return programs and other relevant sites in Kosovo (see Appendix C). These meetings and visits could not have been arranged without the cooperation of numerous authorities, agencies and individuals (see Appendix B). I would like at the outset, therefore, to express my gratitude for the openness with which I was uniformly greeted and without which it would have been impossible to arrive at even a superficial comprehension of the complex issues and delicate questions arising as a result of the Kosovo conflict.
I would like lastly to express my gratitude to the Swiss and Finnish authorities, whose financial contributions to the functioning of my Office, enabled me to positively respond to the Parliamentary Assembly’s unforeseen request.
This final report for the attention of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe outlines in greater detail the findings first presented to the Committee on Migration, Refugees and Demography of the Parliamentary Assembly immediately prior to the Parliamentary Assembly’s decision on the accession of the Federal Republic of Yugoslavia to the Council of Europe on 24th September 2002.
* * *
1. Large numbers of displaced persons and the need to establish stable governance in a rapidly evolving post-conflict situation inevitably bring with them significant difficulties. It is not my intention in this report to enter into historical justifications or propose solutions or alternatives to problems whose political implications put them outside my mandate to consider. I would, however, like to examine the situation as it is currently to be found and to draw attention to a number of issues, which, from a human rights perspective, seem to me to admit of improvement.
2. In June 1999, NATO secured the withdrawal of the Yugoslav armed forces from the territory of Kosovo. On 10 June, the United Nations Security Council passed Resolution 1244 (UNSCR 1244), which laid down the framework for, and the responsibilities of, the current international interim administration in Kosovo. Supreme executive and administrative authority were and remain, despite subsequent developments, vested in the United Nations Mission in Kosovo (UNMIK), with, at its head, the Special Representative of the Secretary General for Kosovo (the SRSG).
3. Whilst UNSCR 1244 requires UNMIK to protect and promote human rights, and universal human rights standards serve, in virtue of UNMIK Regulation No. 2000/59, as applicable law in Kosovo, it is clear that the very structure of the international administration, as well as certain powers retained by its various branches, substantially deviate from international human rights norms and the accepted principles of the rule of law. In so far as UNMIK both promulgates and enforces new regulations in Kosovo, there is, for instance, no separation of powers as traditionally conceived. Whilst UNMIK enjoys considerable influence over the judiciary, it has, despite being the supreme civil authority in Kosovo, no control over the international armed forces. The SRSG enjoys special executive powers to detain individuals despite judicial orders for their release. NATO forces in Kosovo (KFOR) may detain individuals for indefinitely renewable periods of 30 days without judicial supervision. All international personnel enjoy, furthermore, immunity from prosecution in Kosovo.
4. Whilst such anomalies might have their place in the aftermath of a fraught ethnic conflict, during which the restoration, in an administrative vacuum, of peace and order must remain the first priority, the time has come, I think, three years on, to reconsider their continued necessity. Whilst I am not, myself, after a visit of only four days, sufficiently well placed to judge, I was repeatedly informed by the competent authorities of the improvement in the security situation over the last three years. In the meantime, as UNMIK is itself keen to point out, the establishment of local authorities and the Provisional Institutions of Self-Government (the PISG) has helped to stabilise the political landscape. Progress has also been made regarding local police and judicial structures. It is questionable, therefore, whether, in the light of such progress, all the special powers retained by the international administration can continue to be justified. It ought, in this respect, to be borne in mind that, independently of the decision on the final political status of Kosovo, UNMIK’s long-term ambition is progressively to transfer executive and legislative authority to local institutions. Moreover, UNMIK placed considerable emphasis, in the Constitutional Framework drawn up in May 2001, on the obligations of local institutions to respect international human rights standards. It cannot in the long run, as the situation continues to stabilise, be a salutary example to budding democratic institutions, to continue to be answerable to an ultimate executive authority, which does not itself adhere to these norms.
5. The situation regarding persons displaced from Kosovo remains, three years on, a cause for concern. Whilst UNSCR 1244 places an obligation on the international administration to provide for the safe and secure return of all refugees and persons displaced from their homes in Kosovo, success has to date been achieved only in respect of the approximately 850,000 Albanian Kosovans who fled their homes in early 1999. Of the 230,000 Serbian, Roma and other minority internally displaced persons (IDPs) officially registered in Serbia and Montenegro and the 3300, predominantly Roma, refugees in “the Former Yugoslav Republic of Macedonia”, the vast majority of whom fled after the arrival of KFOR ground troops, only a few thousand have so far returned. Indeed, only this year has the number of returning non-Albanian Kosovans begun to exceed the number of those still leaving.
6. It is clear that the primary principle governing the situation of IDPs ought to be the right of each individual person to choose between remaining at a location of their choice elsewhere within their country or returning to their region of origin. It is equally clear that a host of factors, ranging from the political and historical to the economic, frequently obstruct the free exercise of this choice. Certainly, the situation in Kosovo is far from propitious for the large-scale return of all those who might wish to do so. The security situation for ethnic Serbs, and to a lesser extent, for returning Roma, Egyptian and Ashkalies remains difficult. Indeed, except for returns to established Serbian enclaves, returnees effectively require round the clock KFOR protection and are barely able to travel without escort. Economic opportunities are, moreover, extremely limited, as is the availability for minorities of adequate schooling and access to other social services. Reconstruction aid, following three years of financial assistance to Kosovan Albanians returning to their own destroyed houses, is increasingly scarce for Kosovan minorities now wishing to do the same. The possibility of returning on an individual, spontaneous basis, is likely, therefore, to appeal only to the most desperate. At the same time, organised returns, whereby aid and security arrangements are guaranteed and the local authorities and resident Albanian neighbours consulted in advance, require lengthy preparation (in excess of one year for a program I witnessed), cater for very small numbers and, in any case, currently depend on the availability of donor aid, which, moreover, rarely extends to Roma returnees. Organised returns to locations other than the precise place of previous residence, are, in contravention of the right to freely choose one’s place of residence, actively discouraged.
7. Whilst UNMIK has begun to take a more active interest in return than was, perhaps understandably, evident in its early years, it must at once be more realistic regarding the numbers that are likely to be able to return in the near future and do more, notably financially, to enable it. Excessive optimism regarding the return process, whilst perhaps politically expedient, is both unfair to IDPs themselves and masks the increased efforts that will have to be made, both by UNMIK itself and the Kosovan institutions of self-government, to enable IDPs to return should they wish to do so.
8. Calculating the number of individuals who might wish to return, indeed assessing any one individual’s desire to return, is difficult. It depends, inevitably, on both push factors – the living conditions and prospects in their current place of residence – and pull factors – the situation they expect to find should they return. These factors are, moreover, particularly sensitive to time, which, whilst allowing for the conditions in Kosovo to improve, also tends to encourage integration elsewhere. It should not, in any case, be anticipated that all 230,000 registered IDPs will one day wish to return. The young and, especially, the urban, can be expected to integrate far more rapidly than the old and rural, whose skills are less adaptable and whose attachment to their places of origin is generally higher. Whilst property sales ought not, owing to the possibility of economic duress, to be taken as a definitive indicator of future intentions, it is worth noting that reliable estimates put the proportion of IDPs who have sold their property in Kosovo at about one third.
9. It is, in the meantime, incumbent on the authorities in Belgrade and in Podgorica to do their utmost both to improve the immediate living conditions of IDPs, notably of the Roma, currently residing in Serbia and Montenegro and to facilitate the integration of those IDPs that have given up hope or no longer wish to return to Kosovo. These tasks will, it is true, fall hard on societies already struggling to cope with waves of refugees from previous Balkan conflicts and in which economic activity remains low. The progressive scaling down of international emergency aid will render this obligation harder still to fulfil. Kosovan IDPs are, however, citizens of Yugoslavia and the primary responsibility for their welfare must reside with the Serbian and Montenegrin authorities. Bureaucratic and other obstacles to the full enjoyment of civil, political and economic rights must, therefore, be overcome and proportionate assistance offered.
10. These, and other matters, are elaborated at greater length in this report. I would like, however, briefly to mention a final concern, which seems to me to be of the utmost urgency. I refer to the problem of missing persons. The fates of some 3700 persons, of all ethnicities, remain, some three years after the arrival of the international community, unresolved. That this problem, which remains a desperate and tragic concern for the families affected and continues to undermine both the possibility of reconciliation and the confidence of all communities in the international administration, has not yet been adequately addressed, represents something of black mark on UNMIK’s record. The SRSG’s creation in June of this year of a new Office on Missing Persons and Forensics and the appointment of an experienced and highly capable head, should therefore, be congratulated. It remains the case, however, that this office, is, for its immediate purposes, and on its own estimation, under funded to the tune of some 300,000 euros. The paucity of the sum in relation to the significance of the issue has encouraged me to appeal to all member States of the Council of Europe to rapidly contribute to the resolution of this matter.
11. Until 1989, Kosovo enjoyed a regime of substantial autonomy within Serbia, guaranteed under the 1974 Serbian Constitution. Through amendments in 1989, followed by the adoption of a new Serbian Constitution in September 1990, that regime was altered and Kosovo’s autonomy severely curtailed.
12. 1998 saw an escalation of the armed actions of the local guerrilla, soon unified under the KLA (Kosovo Liberation Army), and of repression by the FRY and Serbian police, military and paramilitary forces in reaction to the KLA’s struggle for independence. The Milosevic regime frequently resorted to violence against civilians and rejected an international peace plan. NATO air strikes against Serbian and FRY targets in Kosovo and in Serbia took place from March to June 1999, resulting in yet increased repression against Albanian Kosovans on the ground. In June 1999, the Yugoslav and Serbian forces withdrew from Kosovo.
13. On 10 June 1999, the UN Security Council adopted UNSCR 1244 under Chapter VII of the UN Charter. It reaffirmed, on the one hand, the commitment of all UN member States to the sovereignty and the territorial integrity of FRY. On the other hand, it foresaw the deployment in Kosovo, under UN auspices, of international presences in order to provide security and an interim administration under which, pending a final settlement, the people of Kosovo could enjoy substantial autonomy within FRY.
14. The interim administration of Kosovo (UNMIK) is headed by the SRSG (presently Mr. Michael Steiner) who holds the supreme legislative and administrative authority in Kosovo. UNMIK consists of four “pillars”: interim civil administration (UN-led), humanitarian affairs (UNHCR-led), reconstruction (EU-led) and institution building (OSCE-led). UNSCR 1244 also provides for an international security presence through a NATO-led force (KFOR) under unified command (COMKFOR).
15. According to UNSCR 1244, UNMIK’s main responsibilities are – in the follwing order5 - to promote the establishment of substantial autonomy and meaningful self-administration in Kosovo; to organize and oversee the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections; to perform basic civilian administrative functions where and as long as required; to facilitate a political process designed to determine Kosovo’s future status; to support the reconstruction of key infrastructure and other economic reconstruction; to support, in coordination with international humanitarian organizations, humanitarian and disaster relief aid; to maintain civil law and order; to protect and promote human rights and to assure the safe and free return of all refugees and displaced persons to their homes in Kosovo.
16. In the FRY, the growing domestic opposition to Mr. Milosevic resulted in the victory of Mr. Kostunica in the federal presidential elections of 24 September 2000. Popular protest and strikes, culminating on 5 October 2000 when demonstrators took over the Federal Parliament, prevented Mr. Milosevic from annulling the results of the elections. On 7 October 2002, Mr. Kostunica was sworn in as the FRY’s new president. On 23 December 2000, free parliamentary elections were held in Serbia, followed by elections in Montenegro in April 2001. New governments, committed to reform, took office.
17. In Kosovo, local elections were held in October 1999. The participation of Serbian Kosovans living outside Kosovo was rendered possible by a registration campaign organised by the OSCE in Serbia proper, Montenegro and “the Former Yugoslav Republic of Macedonia”.
18. In January 20006, the Joint Interim Administrative Structure was established (JIAS), a predecessor to the PISG (see below). The three largest political parties to have emerged from the local elections, as well as Serbian Kosovan representatives sat in the Interim Administrative Council (IAC), a consultative mechanism between UNMIK and Kosovo’s local leaders.
20. Elections for the 120 seats of the provisional parliament of Kosovo were held on 17 November 20018, resulting in Mr. Rugova’s Democratic Alliance of Kosovo (DSK) holding 47 seats, Prime Minister Rexhepi’s and Mr. Thaci’s Democratic Party of Kosovo (DKP) 26 seats, Mr. Haradinaj’s Alliance for the Future of Kosovo (AAK) 8 seats, the Bosnian Vatan party a few seats and the Serbian Povratak (“Return”) party 22 seats9.
23. In conformity with UNSCR 1244 and the Constitutional Framework, UNMIK will gradually transfer its administrative responsibilities to Kosovo’s provisional local institutions and support their consolidation and, in the event of a final settlement of the status of Kosovo, oversee the transfer of authority from the provisional institutions to institutions established under a political settlement.
24. The current SRSG has made the gradual transferral of more responsibilities to the PISG conditional on good performance within the already transferred areas, and has set “benchmarks” for measuring the maturity of Kosovo society11. It would appear that not only the pace of the transferral of responsibilities, but also the answer to the question of the final status of Kosovo, is dependent on such progress. The slogan is “standards before status”.
III. The human rights situation in Kosovo
1. Which human rights ?
25. According to a decision taken by the SRSG in December 1999, the applicable law in Kosovo is the law that was applicable in the province up till 22 March 1989 (the day on which Kosovo lost its autonomous status within the SFRY) unless or until overridden by UNMIK regulations promulgated by him. In case of conflict, universal human rights standards take precedence12.
26. The applicability in Kosovo – by UNMIK, KFOR and the provisional local institutions – of at least those UN Human rights norms that the FRY has undertaken to abide by, should not be in question.
27. These include the two UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (including the acceptance of the jurisdiction of the Committee against Torture to hear inter-State and individual petitions); the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Prevention and the Punishment of the Crime of Genocide; the Convention on the Elimination of All Forms of Discrimination Against Women. It is to be noted, however, that the Constitutional Framework enacted on 15 May 2001 by the previous SRSG, omits mentioning the UN Covenant on Economic and Social Rights and the UN Convention Against Torture, as applicable law in Kosovo. I concur with the previous United Nations High Commissioner for Human Rights, Mrs. Robinson, that these norms “should be part of any legal framework established by a UN administration”13.
29. Article 3.3. states that: “The provisions on rights and freedoms set forth in these instruments shall be directly applicable in Kosovo as part of this Constitutional Framework”. Notwithstanding the fact, therefore, that the international interim administration is not a party to these instruments, this article creates an obligation on it vis-à-vis the citizens of Kosovo to ensure the respect for the rights guaranteed by the above mentioned Council of Europe instruments.
2. Who is accountable ?
30. The legal situation and the administrative features of Kosovo, as set out above, are unique: Kosovo is provisionally administered by the international community, ie the United Nations (UNMIK) and NATO (KFOR).
31. From this, one could conclude that responsibility for the human rights situation in Kosovo lies not in the hands of the FRY or Serbia, but exclusively with the United Nations and NATO as well as, though to a much lesser extent, with the fledgling local institutions (PISG).
32. However, Belgrade still exercises influence in those parts of Kosovo where Serbs are a majority14. There, health staff and teachers receive instructions, pay and supplies from Belgrade. There are five Serbian-run parallel courts in Kosovo, and the District Court for these lower courts is located in Kraljevo, Serbia, where the (parallel) District Court of Mitrovica was relocated in 1999 to hear cases from Kosovo. These parallel courts employ a total of 34 judges, paid by Belgrade, and create an overlapping jurisdiction, which leads to the possibility of double jeopardy and general public confusion. Belgrade has also supported the so-called “Bridge-Watchers”, a sort of militia that physically prevents Albanian Kosovans from entering North Mitrovica15. Belgrade sponsors return projects selected and designed by it, pays for constructions and repairs according to its criteria, etc. The result is that the FRY (or rather Serbia) still remote controls large parts of public activity in certain parts of Kosovo.
33. On various occasions, UNMIK has officially objected to these “parallel structures”, finding such activity to be in violation of UNSCR 1244. Work is under way, especially in the FRY/Serbian-UNMIK High Ranking Working Group (HRWG), to progressively dissolve such parallel structures16. Be this as it may, it is important, for the scope of this report, to recall that, by exercising power and influence in parts of Kosovo, the politicians and authorities in Belgrade retain a share of responsibility for the human rights situation in Kosovo17.
36. Lastly, I find the view that UNMIK is not to be held responsible for the respect of human rights standards by KFOR problematic18. 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 (see below Chapter III, 3, h).
3. Main human rights issues
37. UNMIK Regulation 2000/4719 grants, on the one hand, UNMIK and KFOR immunity from any legal action wheresoever and, on the other hand, grants their personnel immunity from jurisdiction in Kosovo in respect of any civil or criminal act performed or committed by them in their official capacity within the territory of Kosovo.
38. Immunity for UN missions derives from the UN Charter and the Convention on Privileges and Immunities of the UN. The purpose is to ensure the independent and effective exercise of missions free from the improper interference of host authorities.
39. In Kosovo, however, the UN mission is itself the (interim) government, insofar as the main government functions are fulfilled by it and the SRSG retains the supreme executive authority over the PISG. Kosovo’s judiciary has been created and shaped by the international administration and remains under its control and international judges are available. The rationale for the immunities is consequently unclear. Indeed, in respect of Kosovo, the immunity of UNMIK is tantamount to immunity against itself and against authorities created and controlled by it. Likewise, the immunity of its and KFOR’s personnel amounts to internationals being granted immunity against other internationals (or against nationals under their authority).20
40. As the Ombudsperson and OMIK have pointed out, UNMIK’s and KFOR’s immunity from legal process deprives Kosovans of judicial protection and legal remedies against legislative and executive acts by the present executive or administrative authorities which might infringe their rights. In addition, the fact that the judiciary in Kosovo does not have the power to exercise control over the actions of governmental bodies undermines the independence of the judicial system.
41. As a logical corollary to the immunity of the administration, there are no administrative tribunals or specialised courts in Kosovo. With the important exception of the Ombudsperson’s Office, channels of administrative appeal are rare and, in any event, not very visible.
42. With respect to the immunity from jurisdiction in Kosovo that UNMIK and KFOR personnel enjoy, it is to be noted that it can be waived by the SRSG under Section 6 of Regulation 2000/47, as such immunity is considered to be for the benefit of UNMIK and KFOR, and not for the individual. Indeed, it would appear that the SRSG has waived it where appropriate. Therefore, the immunity of international personnel is not necessarily tantamount to impunity. However, as OMIK put it, “[t]he justice system in Kosovo, in terms of both its independence and its authority to enforce the law, has not had a positive experience with regard to the exercise of the immunity privilege, especially when it has related to criminal cases”; OMIK has monitored five cases of criminal investigations against international employees of UNMIK. None of them has lead to the establishment of criminal liability of the officer21.
43. The fundamental right to access to court, an essential element of the rule of law, is seriously curtailed by such immunity. Furthermore, such an exception cannot fail to set a poor example to nascent domestic institutions and undermine the confidence of all Kosovans in the fair and efficient functioning of the interim international administration.
44. Policing in Kosovo is being conducted, for the time being and exceptionally, by the armed forces (KFOR) as well as by civilian police (UNMIK police and the local Kosovan Police Service (KPS)). Policing by armed forces can pose problems in terms of civilian control over the armed forces, an issue addressed in Chapter III, 3, h of this report.
45. The most important challenge for policing in Kosovo is security, especially the security of the ethnic Serb and, to a lesser extent, the ethnic Roma, Egyptian and Ashkalie minority. All observers agree that the situation is still far from satisfactory, although it has much improved. Serb Kosovans by and large can still not enjoy their freedom of movement in Kosovo. They are confined to their KFOR protected enclaves or to the region of North Mitrovica where they are the majority population. Only very few multi-ethnic localities exist. When they leave their enclaves, ethnic Serbs and Roma are felt to need police or KFOR escorts. This puts a terrible constraint on their lives as regards their access to public services (schools, health care, social services, administrations, …) and their private lives (visiting friends, relatives …). The majority of elected Serbian Kosovan representatives use armed escorts all the time.
46. In addition to the threat of inter-ethnic and political violence, there is also the danger coming from criminals, often well armed, as well as the whole range of problems of policing that one encounters in most countries. In particular, serious organised crime, often with international ramifications (weapons smuggling, drug trafficking, trafficking of human beings22, money laundering …), still seems to have Kosovo as one of its strongholds23.
47. Having had to rely exclusively on international staff (UNMIK Police, also called CIVPOL) in the beginning of its mandate, UNMIK has succeeded in rapidly establishing a local, multiethnic police force, the KPS. At the end of 2001, there were some 4500 CIVPOL and roughly the same number of KPS officers. 15 % of the latter come from minorities (8% Serbs, 6% Bosniaks, as well as some Turks and Roma), 18 % are female officers. Serbian officers are mainly located in the Serbian enclaves. KPS is still largely selected, trained and monitored by UNMIK, but is becoming increasingly autonomous. The target number of KPS officers for eventually taking over law enforcement in Kosovo is 8,000 to 10,000 officers.
48. UNMIK cites a 60% clear-up rate for major crimes, as well as the fact that the number of murders fell by half in 2001 as compared with the previous year, though rape, attempted murder and assault rates increased24.
52. “Post-war Kosovo was characterised by a climate of impunity: crimes were not investigated and criminals went unpunished”29. The victims were mostly ethnic Serbs and Roma, as well as Albanian Kosovans suspected of collaboration with the Serbs. We have read and heard numerous reports, including by international personnel, of serious crimes, including murder, arson, assault, that were committed during the first few months of the international presence30, sometimes in front of international personnel. When victims or their families came to report to KFOR, their depositions were frequently heard, but rarely acted upon31. Indeed, only very few successful investigations into such serious crimes committed in retaliation have been reported to date. This has gravely undermined the ethnic minorities’ trust in the protection offered by KFOR and UNMIK, as well as in their impartiality.
55. Missing persons are an urgent issue in Kosovo. The ICRC has documented the names of some 3700 persons that have gone missing in Kosovo, of which approximately 2750 are ethnic Albanian and 850 Serb, with the remainder belonging to other minorities. This painful matter affects all the communities involved and is a concern that they all have a keen interest in seeing resolved36. Indeed, one cannot start building peace in the minds of people who await news of their beloved, as long as they are tortured in their hearts and in their minds by such unbearable uncertainty. To put an end to this situation is of the utmost urgency.
56. There are various issues involved as regards missing persons. One is the right to life of those who went missing (Article 2 of the ECHR). Although many people consider that almost all of those missing out of Kosovo have probably been killed, investigations into cases of “appearances” of alleged survivors must be made rapidly and thoroughly and families be informed of their outcome. Moreover, under Article 8 of the ECHR (and possibly also under Article 337) the families of missing persons have a right to know about that person’s fate. This encompasses their right to an accurate identification of all the bodies found so as to make sure whether or not their relative is among the dead, as well as, if so, information on where the body was found and how the person was killed, etc. The family also has a right to bury the body of the dead relative, if and when recovered. The main action needed to address the above aspects of the problem is forensic work. It includes searches of alleged graves, exhumations, autopsies, the comparison of ante- and post mortem data, DNA tests, information from families, the return of bodies and belongings found to the families, etc.
57. In addition to the right of the families concerned to know the fates of their relatives, and to put an end to long years of anguish, the resolution of the outstanding cases represents an important factor in the reconciliation of the communities involved. For so long as such cases remain unresolved resentments and recriminations will continue to fester on all sides, whilst rumours of secret slave camps and ongoing abuses will continue to circulate38. The issue also impacts heavily on the confidence of all communities in the international administration, with, at present, both Serbs and Albanians suspecting it of bias and discrimination and all sides doubting its commitment to resolve justly the issues it intervened to rectify.
59. The resources, both human and material, available to the Office on Missing Persons and Forensic are, however, manifestly incommensurate with the task of rapidly resolving all these cases. The Office estimated at 300,000 euros the sum required to complete the task it was set by the SRSG and to continue the process of the identification of the remaining corpses. This sum would contribute to the contracting of the necessary technical personnel and the purchase of basic equipment.
60. The paucity of the sum in relation to the importance of the issue has encouraged me to appeal to member States of the Council of Europe to contribute urgently to the resolution of this problem. A document entitled “Missing Persons in Kosovo, Note by the Commissioner for Human Rights”39 was presented to the Committee of Ministers of the Council of Europe on 18th September 2002.
61. Establishing an effective justice system represents one of UNMIK’s biggest challenges. When UNMIK arrived in Kosovo, the previous system, including personnel, court equipment, files and records, had left for or had been removed to Serbia. Most ethnic Albanians, except attorneys, had been prevented from working in the judiciary during the Milosevic era and thus lacked experience and up-to-date knowledge of the law40. Ten years of discrimination and institutionalised prejudice within the courts had “generated disregard and disrespect for the judiciary among society as a whole”. After the collapse of the system a “climate of revenge, general lawlessness, and impunity added to the challenge of establishing a fair and independent judiciary”. Moreover, “the UN had never before had the responsibility for establishing a judicial system from scratch”.41
62. UNMIK has achieved that in Kosovo “there is now a fully functioning court system complete with support staff, materials, and prosecutors and judges”42. OMIK judged in October 2001 that “[t]he current system has been endowed with the necessary mechanisms to ensure an efficient case-flow management whilst, on the one hand, guaranteeing individuals due process and, on the other hand, holding the members of the judiciary accountable for their performance”43.
63. Whilst progress has undeniably been made, shortcomings remain, however, with respect to vulnerability to ethnic and political bias, as well as to intimidation and political influence, slowness and a general shortage of judicial personnel. (Other problems, like interference by UNMIK and confusion about applicable laws are addressed elsewhere in this report: see Chapters III, 2, f and g).
64. UNMIK has made efforts to create a multi-ethnic judiciary. This is not an aim as such. It is a means considered to create the best conditions for having an impartial judiciary in which the communities may place trust. This is important, if one wants to avoid the recourse to private justice. Until recently, interference from Belgrade has hampered UNMIK’s efforts in this field. Appointed ethnic Serbian judges and prosecutors did not take up their posts, because Belgrade appears to have threatened them with the withdrawal of their FRY pension rights if they accepted to work for UNMIK (see also above Chapter III, 2). The problem has been addressed by an agreement concluded between OMIK and Belgrade in July this year that will hopefully bring the number of Serbian judges and prosecutors who actually work from 4 to maybe 40, out of a total of more than 420 posts44. The screening of candidates, as is done for ethnic Albanians, should avoid the recruitment of ethnic Serbian judges with records of politicised convictions against Albanians during the 1990s.
68. Administrative oversight (which must not be used as an occasion to try to influence individual judicial decisions) has to monitor individual performance in terms of quantity and quality, leading to the sanctioning of individual members of the judiciary, whether nationals or internationals, were appropriate and with due respect for the their right to defence. A delicate balance has to be struck between judicial independence and accountability. UNMIK is trying to address this problem through two mechanisms set up in mid-2001. The Judicial Investigation Unit (JIU) holds disciplinary hearings against Kosovan judges and prosecutors further to accusations that may be levied by the police, OMIK, other judges and prosecutors, defence counsel or citizens; it has taken disciplinary action in several cases. The Kosovo Judicial and Prosecutorial Council (KJPC), advises the SRSG on matters related to the appointment of judges, prosecutors and lay-judges and hears complaints that are handed over to it by the JIU. The composition and close relation to the SRSG of these oversight bodies has been criticised by OMIK48, but UNMIK hopes that these mechanisms will respond to all kinds of accusations against judges and prosecutors.
69. In any event, adequate salaries for all personnel, good working conditions, and sufficient protection, are needed to allow for recruiting and retaining qualified personnel in sufficient number. There are, at present, some 80 vacancies for the 420 posts for judges and prosecutors foreseen in the budget.
70. This shortfall, combined with the lack of efficiency and complications caused by translation, has caused an important backlog of cases. This, in turn, results in the prolongation of pre-trial detention (sometimes for more than a year) of many suspects – a serious breach of the fundamental rights of the accused.
71. The law applicable in Kosovo is a complex and rapidly evolving mix of old law of the province of Kosovo prior to 22 March 1989 (see above, Background), UNMIK regulations (some of which have already been amended) and international human rights standards, whether universal or European. Those who have to be aware of the applicable law are not only judges, prosecutors, attorneys and police, but also civil administrators, politicians and the public at large. These persons work in Albanian, English or Serbian. Consequently, an early UNMIK decision provided that all UNMIK regulations should be published in English, Albanian and Serbian.
72. The situation poses three challenges in terms of legal certainty: the availability of texts, their translation, and their explanation. All three tasks have to be performed rapidly and continuously.
73. It seems that there are some shortcomings in the present situation. The office of the SRSG is said to have difficulties in promptly providing translations of new regulations and in distributing or otherwise publishing them. In the absence of a Constitutional Court, there is quite often confusion over the applicable law. As a result, judges and prosecutors (not to speak of others) are not always aware of the applicable law, and a number of them are not familiar with human rights law and its application.
74. Enhanced efforts appear necessary to constantly keep the members of the judicial professions as well as, ultimately, the public at large, informed in a timely and clear fashion of the law applicable in Kosovo, at any given moment of time. Legal certainty requires fast translation and diffusion of all legal texts (including the most significant case-law), as well as clear explanations and the offer of training to the members of the legal professions. It also requires that members of the legal professions in Kosovo make efforts themselves to get acquainted with developments of the law.
75. The SRSG’s possibility at any time to annul or overturn legal acts performed by UNMIK or the PISG, or to set aside court decisions, generates further uncertainty over which legal rule is applicable and will be enforced, and which will not.
76. According to his interpretation of UNSCR 1244 and of the Constitutional Framework he has promulgated, the SRSG has granted himself the power to override valid judicial decisions.
77. The most serious cases are those where the SRSG has decided, by executive order, to maintain individuals in detention, despite formal judicial decisions, whether by Kosovan or international judges, ordering their release49 (the present SRSG, in office since March 2002, has to be credited for never having resorted to extra-judicial detention).
81. Such disregard by the executive for court decisions flouts all accepted principles of the separation of powers and the rule of law. The time has perhaps come, therefore, to reconsider the continuing justification for interferences by the executive into the decisions of the judiciary - a functioning judiciary, albeit still quite far from perfect, now exists in Kosovo and its authority should be respected. Other mechanisms than executive orders might be used in order to avoid and, if necessary, review decisions by prosecutors and judges taken on grounds of partiality or corruption or which gravely jeopardise the efficient administration of justice.
82. It is also worth noting that UNMIK regulates by administrative decisions (taken by all sorts of commissions) various matters that would normally require either legislative action or judicial decision. As there are no administrative courts, and regular courts consider that UNMIK enjoys immunity from legal process, the inhabitants of Kosovo are denied access to judicial remedies against these areas of the administration.
83. UNSCR 1244 contains provisions on the respective competences of the international civil presence (UNMIK) and the international security presence (KFOR). Paragraph 9 contains a list of responsibilities of the international security presence in Kosovo, some of which are entrusted to it “until the international civil presence can take responsibility for this task” (Paragraph 9(d) and (e)). Paragraph 9 (f) provides that the security presence will “[support], as appropriate, and [coordinate] closely with the work of the international civil presence”. These provisions do not express the idea of control by the civilian presence over the security presence. Nor does the list of the responsibilities of the civilian presence (Paragraph 11) include oversight of and responsibility for what the security presence does (or fails to do). Also, Paragraph 6 of UNSCR 1244 is not entirely clear: The UNSC “Requests the Secretary-General to appoint […] a Special Representative to control the implementation of the international civil presence, and further requests the Secretary-General to instruct his Special Representative to coordinate closely with the international security presence to ensure that both presences operate toward the same goals and in a mutually supportive manner”. One does note, however, that the above-mentioned, diplomatically worded provisions are preceded by Paragraph 5 which reads: The UNSC “Decides on the deployment in Kosovo, under UN auspices, of international civil and security presences […]” (emphasis added)52.
85. In spite of the uncertainty of the texts, it is my firm view that, in any event, the provisions on the respective competences of UNMIK and KFOR as contained in UNSCR 1244 (and in the Constitutional Framework) have to be interpreted in conformity with the essential requirement of democracy according to which the military is subject to civilian control.
86. It is obvious, however, that the relationship between KFOR and UNMIK does not fulfil this requirement. The existing good and close co-operation between KFOR and UNMIK does not amount to the required democratic control over the armed forces. If, as the Ombudsperson of Kosovo put it, “UNMIK […] is the surrogate state of Kosovo”53, then UNMIK must also exercise control over the armed forces of that “state” and, as a corollary, accept accountability for their actions.
88. In Kosovo, an individual can be arrested by either KFOR or UNMIK Police/KPS. The situation would appear to be such that KFOR needs to have this possibility, not only with respect to individuals who threaten its own security, but also those who pose a threat to the security and safety of others. One major argument would be that there is still an extraordinary number of weapons, including war weapons, in Kosovo. Thus, resorting to arrests in Kosovo is still often so risky that it needs the help of the military. Indeed, the tasks entrusted to KFOR under UNSCR 1244, seem to have as a logical corollary the power to arrest individuals, at least while in action.
89. The Commander of KFOR (COMKFOR) has, however, interpreted UNSCR 1244 as granting him the power to arrest and detain individuals without any involvement of the judiciary, and no external control55. COMKFOR orders detention in cases where, in his opinion, public safety is threatened. He does not present evidence to a court showing that detention is necessary; detainees do not receive written documentation that establishes the precise legal grounds of their detention56.
92. “Organized ethnic violence, organized violence [at the border with Macedonia], organized crime and corruption, inability of current Kosovo legal system to face these situations: threat to a safe and secure environment in Kosovo” were given to us as the reasons for present detention orders59.
93. It has been underlined to us that the general policy was to release at the earliest possible opportunity, to afford respectful treatment and compliance with all relevant international human rights standards and to grant transparency without compromising operational security. These principles are laid down in Directive 42.
94. As to the practicalities, extra-judicial detention by KFOR is basically a decision to keep in detention persons arrested, instead of setting them free or handing them over to UNMIK. After an initial restraint of a maximum of 18 hours by decision of the KFOR on-site commander, Multi-National Brigade (MNB) Commanders may continue to detain (in an MNB detention facility60) the individual for no more than 72 additional hours (in exceptional cases they can apply for another 72 hours “in order to gather intelligence of evidence on the detainee”). Further detention can only be ordered by COMKFOR himself, for detention periods of up to 30 day, renewable, with no time limits for the total length of detention61.
95. Between June 2001 and June 2002 KFOR has held, on any given day, up to some 140 detainees in the American KFOR facility at Bondsteel, figures having dropped to 20 or less since December 2001. On the day on which my team visited Bondsteel, there were 13 KFOR detainees there.
96. When asked what the average as well as the maximum periods of detention (for KFOR detainees) at Bondsteel were, we were told that no statistics existed on these data. This rather surprising fact stands in contrast with practices in the civilian prisons run by UNMIK.
97. It must be recalled that, pursuant to international human rights standards, deprivation of the right to liberty may only occur for a limited series of reasons and in accordance with a procedure provided for by law. Moreover, persons arrested and detainees have a number of specific fundamental rights (see, for instance Article 5 of the ECHR). Persons detained must be informed in detail of the reasons of their detention (Article 5 par. 2 ECHR) ; they must be able to appeal to a judge challenging the legality of their detention, have their case dealt with speedily by a court and be released if their detention is not lawful (habeas corpus, Article 5 par. 4) ; they must also be compensated if illegally detained (Article 5, par. 5). In addition, persons who may be detained on reasonable suspicion that they have committed an offence (pre-trial detainees) must be brought promptly before a judge and shall be entitled to trial within a reasonable time or to be released pending trial.
98. It is quite obvious that the system of extra-judicial detentions by KFOR as described above does not comply with the above mentioned guarantees: The legal basis for the KFOR power to detain individuals, namely the very general wording in Paragraphs 7 and 9 of UNSCR 1244, manifestly lacks the required precision, whereas norms restricting fundamental freedoms must be specific and precise. Furthermore, it is unclear whether persons arrested in accordance with Directive 42 are reasonably suspected of having committed an offence or whether they are detained for other reasons. In any case, there appears to be no judicial authority whatsoever to control the legality of their arrest and detention and to order their release in the event of the detention’s being unlawful. To sum up, UNSCR 1244, as interpreted by KFOR, allows for a prolonged or even potentially indefinite detention of individuals who are thought to constitute a threat to the "safe and secure environment", without any judicial control as to the legality of their arrest, without any remedy against unlawful detention and with no obligation to bring them to trial if suspected of having committed a criminal offence.
99. It is true that in case of war or other emergency fundamental guarantees can be restricted. Indeed, detentions without judicial control might be envisaged in a war-like emergency situation, where there is no judiciary available.
100. However, after more than three years of international administration, such a situation happily no longer exists in Kosovo. KFOR itself indicates that the security situation is under control, except in very few places of the territory62. UNMIK underlines that important progress has been made under its rule over Kosovo over the past three years, as concerns police and the administration of justice.
102. It might also be added that the continuing practice of extra-judicial arrests and detentions undermines the long-term aim of developing of an effective independent judiciary in Kosovo.
103. Finally, it should be noted that the treatment afforded to detainees held in KFOR facilities should correspond to the highest human rights standards. The KFOR detention facilities I visited in Bondsteel appeared, in this respect, quite satisfactory, although the impressive security machinery could well, in cases of prolonged detention, have considerable impact on the psychological well being of the detainees. I would stress in this respect that the possibility should be given to authorised human rights observers (such as OSCE personnel and some NGOs) to monitor the conditions of detention, as foreseen in COMKFOR Directive 42, Article 7.
104. My team and I have visited two out of the seven detention facilities run by UNMIK in Kosovo. Our visits, which were hosted in an open, cooperative, manner, did not amount to full-fledged inspections64. This is why I will limit myself to making only a few remarks on salient impressions, without claiming to be exhaustive. I wish to add that it seems that, in spite of problems that still remain to be resolved, UNMIK has brought tremendous progress to the Kosovo prison system, as compared with the situation it found when it came.
107. To sum up, the reports of qualified observers show that detention conditions have enormously improved in the (UNMIK-run) prisons in Kosovo. It seems desirable that conditions of detention continue to be improved and fully monitored at all times by the Ombudsperson’s office and the OSCE. There might, where appropriate, be room for greater cooperation with relevant international or national NGO’s and consideration might be given to incorporating the expertise of the European Committee for the Prevention of Torture (CPT) in the improvement of prison conditions. Certainly, special attention should be given to measures emphasising the presumption of innocence of persons in pre-trial detention, as well as to the detention conditions of juveniles and women. Also, one would like to see adequate recreational activities as well as professional training offered to detainees. Solutions might be found in order to detain ethnic Serbs in locations not too far from their families.
108. A recent report by a specialised non-governmental organisation65 has drawn the attention to the conditions of mentally handicapped persons placed in institutions. It appears from the report that the applicable law and regulations regarding decisions on, control over and conditions of the internment of persons who are (supposed to be) mentally handicapped would deserve urgent review. Whilst I do not have first hand experience of this issue, OMIK has confirmed that it is aware of the situation and assured me of its desire to see the situation improved.
109. There is a profound housing problem in Kosovo. Several factors explain the sitation. An estimated 100,000 housing units (almost half of the stock) were destroyed during the conflict, plus many more since then. Partly as a result of such destructions and of the departure of many inhabitants of Kosovo, unlawful occupations, by all kinds of persons ranging from IIDPs (see below) to international personnel unaware of the identity of the real owners, have occurred in large numbers.
110. Indeed, the establisment of property rights over real estate is highly problematic in Kosovo. In 1990, the Serbian authorities restricted the autonomy of Kosovo and adopted so-called “provisional measures”. This led to a general strike by the ethnic Albanians, many of whom were subsequently dismissed from their jobs and lost the appartments that had been allocated to them by their employers. Their appartments were reallocated to Serbian employees and later privatised and bought by these or other Serbs. In addition, in 1991, the Serbian Parliament enacted legislation that restricted the sale of property between ethnic groups. However, sales continued to take place through informal contracts, which were not recorded by a court official, as required by Yugoslav law, and therefore could not be registered in the cadastre records. To complicate things further, documents have been destroyed or removed from Kosovo. As a consequence, there are many contradictory claims pertaining to property in Kosovo. Also, property transactions go on, including sales from Serbs to Albanians, often rapidly and quite informally, without adequate documentation. Which means that future problems are still being created.
111. At the end of 1999, UNMIK set up the Housing and Property Directorate (HPD, run by UN- HABITAT) and a Housing and Property Claims Commission (HPCC) as an interim measure to clarify and restore property rights and resolve long-standing claims66. Both institutions have broadly defined functions67, that are bound to be progressively handed over to local authorities. For the time being they have “exclusive jurisdiction to receive and settle” three specific categories of claims involving residential property disputes in Kosovo68. These are claims by individuals who lost property as a result of discriminatory laws of the Milosevic
112. However, due to the absence of rules of procedure for a long period, the fact that the applicable law on property has still not been officiallly compiled and published and an authoritative interpretation of it been made69, and also due to its blatant lack of resources, the HPD has never fully functioned since its establishment three years ago. A Contingency Plan adopted by HPD’s management in November 2001, in reaction to dwindling resources, even foresaw that the institution would gradually close down programmes and cease all activites by the summer of the current year70. 113. This situation undermines both the respect for the right to the enjoyment of private property, and the international presence’s declared ambitions with respect to return (see below, Chapter IV).
114. The Government of Serbia is of the view that the unresolved property issue is an “enormous problem for all those who left their homes”71. It “insist[s] on repossession of movables and real estate [which] the IDPs left behind. Where this is not possible, adequate compensation must be ensured”72. OMIK underlines that the success of HPD in fulfilling its mandate is essential to the return and reintegration process for Kosovo’s minorities73.
115. These assessments were confirmed by the results of HPD’s claims intake until June 2002. With offices opened also in Serbia proper and Montenegro (and one to come, in “the Former Yugoslav Republic of Macedonia”) HPD has collected some 5,000 additional claims in April and June 2002, bringing the total of claims to some 17,785 – 95 % of which are C Claims concerning loss of property by Serbs and Roma having left Kosovo74.
120. The international presences in Kosovo have inevitably appropriated buildings and land. It is, also, unavoidable that they or their personnel acting in official capacity occasionally cause injury to locals.
121. It seems logical that the use of state or other public property by the international surrogate state and its emanations, does not give rise to payment. The same applies to possible damage done to state property by the surrogate state.77
124. According to information received, practices vary a lot between components. In most cases some rent is paid for buildings and flats, but often not for the land used. I have, however, no indication of the adequacy of sums paid.
125. UNMIK and COMKFOR, as well as some national KFOR components, have set up claims commissions to deal with both claims pertaining to the use of property and injury suffered. Most of these commissions have been established only recently. Little information seems available on the procedures used, the standards applied, the sums awarded by these commissions and the swiftness of payment made.
126. The right of every natural and legal person to the peaceful enjoyment of his/her property being a recognized human right (see Article 1 of Protocol 1 to the ECHR), I can only underline that UNMIK, COMKFOR and all the components of KFOR, as well as all international personnel have an obligation to respect the property rights of all owners of private property in Kosovo, whether these dwell inside or outside Kosovo. In particular, adequate leases should be paid for buildings and land used, just as damage done has to give rise to adequate and swift reparation.
127. Many reports have reached me of alleged discrimination of local79 minorities, especially as regards access to employment, health and other social services, schools, etc. Also, I have witnessed that public utilities are sometimes not supplied or insufficiently supplied to the minority populations, especially to ethnic Roma, Egyptian or Ashkalie.
128. Anti-discrimination legislation is currently being drafted by OMIK. In order to effect to such rights, recruitment procedures could be monitored (and adjusted where necessary), adequate mechanisms for receiving complaints set up, sufficiently frequent and efficient enquiries undertaken and deterrent sanctions be imposed in case of violation. Administrations on all levels could be asked to see to it that all communities benefit of the same public utilities (especially water, electricity, sewage system and roads) and services (especially schools, health and social services, transportation, garbage collection) as the ethnic majority.
129. There have been complaints by both OMIK and the Ombudsperson, that UNMIK regulations entrusting them with the monitoring of UNMIK’s abidance by human rights standards are not always respected by UNMIK. In particular, the Ombudsperson of Kosovo has complained about the refusal to permit him to enter the prison of Dubrava to meet with detainees on hunger strike, while OMIK states that its human rights Officers “are regularly refused to access to court” for monitoring purposes. OMIK’s remark that its Department of Rule of Law/Human Rights “continues to encounter problems with implementing its mandate within UNMIK Pillars”, that “despite these practical challenges, there are a number of encouraging signs”, that “recommendations put forth in OMIK’s reports are now generally welcomed by those who are subjected to constructive criticism” and that “some of these recommendations have, indeed, been implemented” 80 give rise to concern over UNMIK’s general attitude towards criticism over the last three years.
131. It would be desirable that UNMIK (including KFOR) and the PISG make sure that they are always open to constructive criticism, including in sensitive areas, coming both from both mandated and non-mandated observers. Mandates of human rights monitors need to be respected at all times. Issues criticised need to be seriously examined and shortcomings addressed within a reasonable time. In this context, I commend OMIK for the objectivity and clarity of their reports on human rights problems of the UNMIK administration, of which they are a constituent element. I also warmly welcome and place much hope in the setting up, by the SRSG, of the Human Rights Oversight Committee that, inter alia, opens the possibility for OMIK and others to comment on the human rights aspects of draft regulations. I was also glad to see that the Ombudsperson’s latest report was displayed at the entrances of many UNMIK facilities in Pristina, notwithstanding the criticism it contains of UNMIK. It grieved me, though, to read that many of the Ombudsperson’s reports and recommendations to UNMIK have elicited no response whatsoever84.
132. The fury of destruction has not halted before places of worship and cemeteries in Kosovo85. While some mosques are being repaired and quite a number of new ones have been and are being built, mostly with the help of Islamic countries, orthodox churches and cemeteries of ethnic Serbs are either totally destroyed or severely damaged and I have not seen reconstruction work underway. In addition, many of the orthodox churches that could be used, are simply closed in order to protect them. It seems to me highly desirable to set signals by starting reconstruction and repair of orthodox churches and cemeteries and by trying to protect those that have not been destroyed in a manner which allows worshippers to enter them, especially in the very centres of the cities.
IV. The fate of persons displaced from their homes in Kosovo
134. A number of reports have been presented on the problems posed by the persons displaced from Kosovo, on the difficulties they face and the options open to them, as well as on the issue of the return of those of them who still live out of Kosovo. I do not wish to repeat their content, but prefer rather to concentrate on the salient features of the situation. I might add that my Office and I have extensively investigated into the situation ourselves. What follows is based, therefore, not only on existing documents but also very much on direct recent contact with politicians, officials, agencies, as well as numerous IDPs and refugees themselves (see Appendix C).
1. Displacements of populations from Kosovo: a short overview
135. This report relates to the following movements of persons from (i.e. out of and within) Kosovo:
136. Until the arrival of KFOR in mid-June 1999, some 850,000 mostly Albanian Kosovans were pushed out of Kosovo, terrorised by Serb and Yugoslav military, paramilitary and police forces87. Their flight became significant as of 1998, when the intensification of KLA armed activities triggered increased repression by Serbian forces. It turned into a mass exodus during the NATO air campaign from March to June 1999. Between 350 and 400,000 ethnic Albanian Kosovans fled to Albania, some 120,000 to Montenegro and approximately 360,000 to “the Former Yugoslav Republic of Macedonia”. When the Macedonian Government closed down the border to Kosovo, Western European countries (mainly Switzerland, Germany and the Scandinavian countries) and the USA agreed to fly some 90,000 displaced persons out of Skopje88.
137. Virtually all these people returned to Kosovo in the months that followed the arrival of KFOR and the departure of the Serbian forces, except those who had gone to Western Europe and the USA. The latter are now being invited by financial incentives of their host countries to return to Kosovo, or are simply being sent back (see below Chapter IV, 9 of this report). However, an estimated 70-80,000 of them still remain abroad.
138. When the Albanian Kosovans returned, they found that most of their houses and properties had been looted, heavily damaged or completely destroyed89 in their absence, and that some 200,000-280,000 Kosovans, mostly ethnic Serbs and Roma, Egyptian and Ashkalie, had left the country at the same time as the Yugoslav and Serb forces (approximately 170,000 Serbian and Roma Kosovans as well as other members of non-Albanian communities stayed90); several thousand went to “the Former Yugoslav Republic of Macedonia”, some 200,000 to Serbia, and another approximately 30,000 to Montenegro91. In fact, on the roads between Kosovo and Montenegro, the columns of returning Albanians literally crossed those of fleeing Serbs, Roma, Egyptians and Ashkalies apparently without incident. Only very few of the persons displaced in that second wave have since returned to Kosovo.
140. There is also still an important number (22,500 persons according to UNHCR94) of Albanian, Serb or Roma Kosovans, who have found shelter in other places within Kosovo and cannot, as of yet, return to their homes (the so-called “internally internally displaced persons”, or “IIDPs”).
2. The need for realism
143. The issue regarding the fate of persons displaced from their homes in Kosovo is inextricable. It involves, among others, questions of rights, obligations and values but also of human, political, financial and military feasibility. No single solution is capable of satisfying all these imperatives. Any solutions found, indeed, any action taken, will bear elements of hardship and injustice. A realistic attitude is required from all sides, as well as the acceptance of compromise.96
144. I observe that the various actors operate under various constraints and with various interests.
145. There are, first of all, the IDPs themselves. A significant number of them are desperate to return to Kosovo, most of all those who have not been able to secure decent living conditions in Montenegro or Serbia (for the assessment of their numbers, see below Chapter IV, 4 “(Measuring) the wish to return”). They exercise political pressure on their authorities to insist on appropriate conditions for return to be created in Kosovo. On several occasions this year, there have been attempts to organise a mass march to the Kosovan border.
146. The FRY, Serbian and Montenegrin authorities find themselves in a very difficult economic situation, following the wars in the former republics and in Kosovo, and due to the effects of international sanctions. There is high unemployment, not enough sustainable economic activity, little investment etc. The 230,000 IDPs from Kosovo, added to the 377,000 “registered refugees” and the 75,000 “war affected persons”97 who live in Serbia today98, constitute a particular burden for the economy, as these individual have most of the time come with no or very little belongings. Very many of them are in need of assistance. In such a situation it would seem understandable that the FRY, Serbia and Montenegro are interested in the rapid return to Kosovo of as many IDPs as possible99.
147. In addition, there are parts of the population who still do not accept the withdrawal of Serbian power from Kosovo. These people expect that the FRY and Serbian Governments insist upon the rapid return of all or most of those who had to leave the province.
148. The international community at first envisaged the return of all IDPs to Kosovo, as is evident from the wording of UNSCR 1244100. Indeed, having intervened in Kosovo in order to prevent the Serbs from conducting an “ethnic cleansing” of ethnic Albanians, the international community felt and still feels that it must be equally firm with those Albanian Kosovans who,
3. The right to return and the overriding principle of free choice
153. Indeed, the right of IDPs and refugees to return is grounded in international law instruments, such as in Article 13 (2) of the Universal Declaration of Human Rights, Article 12 (2) and (4) of the International Covenant on Civil and Political Rights, and Article 5 (d)(ii) of the International Convention on the Elimination of all Forms of Racial Discrimination, Articles 8 of the ECHR and 1 of Protocol No 1 yto the ECHR (see Eur.Court HR, judgment in the case of Loizidou v. Turkey). Protocol 4 Article 2 of ECHR guarantees the right to liberty of movement and the freedom to choose one’s residence within one’s state territory.
154. With respect to Kosovo, the right of IDPs and refugees to return to a safe and secure environment is explicitly dealt with in Paragraph 11 (k) of UNSCR 1244, which entrusts UNMIK with the responsibility of “assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo”. KFOR is mandated under Paragraph 9(c) with establishing “a secure environment in which refugees and displaced persons can return home in safety”, while UNHCR is designated as the entity responsible for the “supervision” of the
“safe and free return of all refugees and displaced persons” (Annex 2, item 7; see also the Constitutional Framework, Chapter 3, Section 3.4). The Constitutional Framework requires the “competent institutions and organs in Kosovo [to] take all measures necessary to facilitate the safe return of refugees and displaced persons to Kosovo” (Chapter 3, Section 3.4).
155. As the Constitutional Framework sets out, other rights are linked to the individuals’ right to return, such as their “right to recover their property and personal possessions” (Chapter 3, item 3.4). The UNHCR adds: “The right to return is intrinsically linked with the right to equal protection before the law, the right to liberty of movement, the freedom to choose one’s own residence, and the right to property. The realisation of these rights cannot take place without minimum guarantees of returnees’ most basic right to life and physical security”. Also linked to the right to return “is the entitlement of returnees to enjoy civil, political, economic, social and cultural rights on a non-discriminatory basis, such as the right to use one’s own language, the right to work, and the right to housing, education, health care, and social benefits. It’s only when these rights are guaranteed that IDPs and refugees have the possibility of a free and informed choice on whether to return or not”.106
156. Its free exercise requires, on the one hand, adequate information on the conditions that potential returnees can expect to find on their return; hence the importance of go-and-see visits and UNHCR information campaigns. The decision to return must, on the other hand, be made without direct or indirect pressure from the various authorities involved.
157. It is of course possible that the IDPs will exercise their choice to remain in their current locations or settle in other places within FRY. Just as the right to return places an obligation on the administration of Kosovo to create the said conditions for the return of IDPs, so their right to remain requires that the FRY and the governments of Serbia and Montenegro offer IDPs living conditions and prospects commensurate with their rights as Yugoslav citizens.
4. (Measuring) the wish to return
158. A person’s decision to return or not (yet) to return to the place he or she was forced to leave, may change, and this must be taken into account and respected by all the actors involved.
159. Indeed, both push factors (the living conditions and the future prospects in the place were the IDP currently resides) and pull factors (the living conditions and future prospects which the person expects to enjoy on return) as well as the degree of information the individual possesses, influence the choice all the time. Hence the difficulty in assessing the number of IDPs who “want to return”, and the danger of employing any such figures. Figures relating to the number of persons wishing to return can only be valid for the moment at which they are made. Moreover, they may reflect despair over present living conditions rather than the positive wish to return to a place left in fear, or be based on false information on the conditions to be found upon return, etc.
160. However, logistical considerations (like the need to determine the sums of money to be earmarked for return projects) may render some estimation necessary of the number of IDPs from Kosovo who can be expected to wish to return in the coming years.
161. Clearly, not all the IDPs from Kosovo will eventually decide to return. Taking into account the socio-professional composition of the persons displaced out of Kosovo107, their rural or urban origins in Kosovo, the length of time they or their families lived there, their age, the fact that a number of them have sold their property in Kosovo as well as the time already elapsed since their departure, a rough estimate might be: roughly one third of the 230,000 IDPs from Kosovo prefer to integrate fully in Serbia or Montenegro (or have already succeeded to do so), another third is desperate to return (mostly the elderly, rural population who cannot not sell their property in Kosovo, who do not have professions that allow them much flexibility and whose attachment to their land is generally strongest), while the last third remains undecided108.
162. I should like to finish this chapter with a word about the time factor. With respect to the return of IDPs and refugees to Kosovo, time works both ways. On the one hand, as time goes on, the emotional and other links to Kosovo wither, while the links to the new place of residence become tighter, especially for the young. Here, time plays against return. On the other hand, time is needed for the wounds to heal and for reconciliation with individuals of the other communities to become possible. Here, the passage of time improves the possibilities of sustainable return.
5. The definition of return
163. UNMIK has explained the objectives, the principles and the process for the return of persons displaced out of Kosovo109. The main idea is to “[emphasize] the individual in the process”, to promote “a rights-based approach” and, ultimately, to enforce the individual’s “right to sustainable return”. This approach can only be welcomed from a human rights perspective.
165. In both UNSCR 1244 and the Constitutional Framework, the word “return” is almost invariably followed by the word “to their homes”110.
167. It would appear, however, that the line between not favouring return to another place than the very place of origin, and opposing such return, has been somewhat blurred. Thus, the Concept Paper itself underlines that “[the] principles contained herein apply equally to all returns whether spontaneous or assisted”114. The fact that UNMIK indeed clearly opposes return of minority Kosovans to other places in Kosovo than their precise place of origin is documented in a recent letter from SRSG Steiner to the President of the CCK, Mr. Covic, in which the former opposes Serbian aid for return to locations that are less than are a few kilometres away from the precise place of origin: “Regional Working Groups and Municipal Working Groups in Kosovo are the established local coordination mechanisms to ensure that returns take place according to UNMIK’s policy. […] all assistance to returnees must be cleared and authorized by these Working Groups on Returns. […] Clearly, this approach that consists of aiding the returns of IDPs to locations other than their places of origin goes against UNMIK’s policy and responsibilities. It is detrimental to the returns process.”115
168. One can question whether such an attitude is fully in line with a rights-based approach that emphasizes the individual in the process (see quotation above). After all, if a Serbian Kosovan can find funding, from whatever source, enabling him to freely return to a place in Kosovo, why not let that individual seize that opportunity? Indeed, UNMIK appears to ignore the possibility that Kosovans might themselves prefer to return to a different place in Kosovo to the precise one which they were compelled to leave and to which return may not (yet) be possible, because of the situation on the ground.
169. The main reason for UNMIK’s attitude seems to be distrust of Belgrade and the fear of demographic engineering in an attempt to reclaim or partition Kosovo by “colonisation”116. It is not for me to comment on such political considerations.
171. The principle of equality might also be invoked here. Indeed, the sudden immense growth of cities like Pristina shows that Albanian Kosovans have widely used the possibility to settle down elsewhere in Kosovo than were they used to live in or before June 1999. It is somewhat incongruous, therefore, that the return of IDPs from ethnic minorities should be confined to the precise houses which they left in or after 1999. Care must be taken to ensure that UNMIK’s narrow definition of return does not result in the discrimination of minority returnees.
172. Moreover, the insistence on return to the very house/village were someone came from greatly reduces the scope of immediate return. Also, groupings of people allow for economies of scale as regards the (re)construction of houses, the (re)construction and the running costs of infrastructure, public services and public utilities as well as the efforts necessary for maintaining their safety. Groupings are also likely to reduce fear among returnees.117
6. Conditions for return
174. The right of all IDPs and refugees to choose return to Kosovo (see above Chapter IV, 3), puts an obligation on the administration in Kosovo offer returnees a normal, safe life without legal, political, social, economic or other discrimination.
175. This is where the two topics covered by this report – the human rights situation in Kosovo and the fate of persons displaced from their homes in Kosovo – converge. Indeed, the respect of the human rights of ethnic minorities in Kosovo is one of the most important factors that determine the chances of return of minority members who have left Kosovo. In order to assess the situation they can expect to find upon return, potential returnees observe the situation of minority members who have stayed, and of the very few who have returned.
176. UNMIK, UNHCR and KFOR are aware that strong action is necessary, especially in the fields of security, with a view to granting everybody in Kosovo (the possibility to enjoy) freedom of movement, but also as regards the repair or reconstruction of houses and the provision of basic infrastructure, access to public utilities and services, as well as a chance to earn a living.
177. As set out above in this report (see Chapter III, 3, b: “Security and policing”), although the security situation has much improved, lack of safety is still a primary concern in Kosovo, not only, but especially, for members of ethnic minorities. The security situation is still such, in short, as to significantly limit the scope of possible of return in certain areas. Indeed a recent return program witnessed118 involved round the clock KFOR protection for 15 heads of families who told us that they could not even walk the 50 meters from their houses to cultivate their fields. The enjoyment by ethnic minority Kosovans of freedom of movement outside their enclaves or North Mitrovica is still severely restricted. KFOR, which is mandated under UNSCR 1244 to establish a secure environment in which refugees and displaced persons can return home in safety, is, however, reconsidering its approach to minorities’ safety.
180. It is, however, evident that the single largest obstacle for return is the lack of financial means for preparing and sustaining returns, whether individual or to pre-identified organised return locations. Over the last three years, public and private donors have made considerable efforts to repair or rebuild, as a matter of priority, the houses of the returning Albanian Kosovans125. This part of the reconstruction is by and large completed. However, rather little has been done until now for the reconstruction of the properties of ethnic Serbs126 and still less for the houses of the Roma who left127. Donor fatigue is being signalled. But, as the Serbian Government insists: “The funds for reconstruction need to be ensured on the same principles as those applied in the case of [the] Albanian population”128. (See also above, Chaptes III, 3, l (“Establishing and securing property rights”) and III, 3, m (“ Respect of property rights by the international presences”)).
181. In addition to security and reconstruction aid, the preconditions for sustainable return include access to public and social services, mainly education (in each community’s own language whenever possible), health care and medical services, social security and social assistance, garbage collection, etc. Adequate budgetary allowances and work planning will be needed to ensure adequate public utilities (water, electricity, sewage system, roads, etc.) to minority communities, including returnees129.
184. Last but not at all least, there is the essential question of individual attitudes. This is, ultimately, the critical element. Albanians, Serbs, Roma and other minorities will have to live together, side by side, peacefully, in a democratic, multi-ethnic Kosovo, in which human rights and the rule of law prevail. Ethnic Albanians will have to distinguish between criminals and innocent members of the Serbian and Roma communities. Ethnic Serbs will have to accept that there is a new Kosovo in which, with due respect for the safeguards of democracy and the rule of law, and regardless of the ultimate degree of autonomy, ethnic Albanians will hold and use
the vast majority of voting rights. Both communities, and many of the individuals who compose them, are still quite far away from such attitude132, without which sustainable return and integration will remain difficult.
186. UNMIK’s aim was, in May 2002, to “achieve breakthroughs in minority returns during the summer and autumn 2002 to effect a change in climate and to build momentum for more significant numbers of returns during 2003 and 2004”135. The sober assessment for the current year made by our hosts at COMKFOR in August 2002 speaks for itself: “ [A] maximum of 2400 people from various minorities would return if enough funding [were made] available”136.
7. The question of the final status of Kosovo
187. Under Paragraph 11 (c) of UNSCR 1244, one of the responsibilities assigned to UNMIK is “[f]acilitating a politicial process designed to determine Kosovo’s future status, taking into account the Rambouillet accords”. No indication on the final status is given, other than the reference to Rambouillet. However, repeatedly stress is laid on continued sovereignty of the FRY over the province, pending the determination of the final status137.
189. Likewise, the Constitutional Framework of May 2001, gives no indication on what Kosovo’s final status will be. As to the time frame for its determination, the Preamble indicates that such “determination [will be done] through a process at an appropriate future stage”.
190. In April this year, that is almost three years after the beginning of the international administration of Kosovo, the new SRSG formulated his so-called “benchmarks” approach to the question of the final status: A certain number of conditions must be fulfilled in Kosovo, before discussions about the final status will start. The benchmarks approach has been summarized in the slogan “standards before status”: standards of democracy, rule of law and human rights will have to be respected on the territory, by its inhabitants and the PISG, before political negotiations on the final status of the territory will take place139.
192. It is not for the Council of Europe Commissioner for Human Rights to discuss the merits of the various possibilities of final status. However, the fact that there is still uncertainty over that question, does have a bearing on the issues addressed in this report.
193. Firstly, the uncertainty over the final status hampers the readiness of the Serbian and Albanian communities to reconcile and to respect each other’s human rights. Leaving the final status question open keeps everybody’s hopes and frustrations alive: Albanian Kosovans still fear a return of the Serbs in one way or another, while extremist Serbs keep on fueling the hope for return to a position close to the status quo ante. These attitudes are detrimental to the readiness to respect the (human) rights of the other.141
8. Living conditions in Serbia, Montenegro and “the Former Yugoslav Republic of Macedonia”
196. The right of all IDPs to chose to stay or settle down in other parts of the FRY than Kosovo, puts an obligation on the governments of FRY, Serbia and Montenegro to offer these persons full integration without legal, political, social, economic or other discrimination. In order to live up to that obligation, some affirmative action seems still necessary.
197. There are state institutions in Serbia (the Commissariat for Refugees) and in Montenegro (the Commissariat for Displaced Persons) who take care of IDPs (from Kosovo) and refugees (from the former republics of the SFRY). In addition, there is – grouping the Republic of Serbia and the federal (FRY) level, but not the Republic of Montenegro level – the already mentioned Coordination Centre of Federal Republic of Yugoslavia and Republic of Serbia for Kosovo and Metohia. The latter is mostly concerned with the return of IDPs to Kosovo.
198. In Serbia, the Government has formulated and published a National Strategy For Resolving the Problems of Refugees and IDPs (hereafter: National Strategy). The National Strategy addresses the options of both “repatriation” and “local integration”, by identifying difficulties and proposing ways forward. Although, on various occasions, the text underlines that both options are equally open to IDPs, there is a clear tendency to consider local integration to be the likely solution for refugees from the former republics, and return the solution for IDP’s from Kosovo (and Metohija)143.
199. The Implementation Programme that goes with the National Strategy, follows the same line and its title worryingly makes no mention of IDPs144. Indeed, in the substantive parts in which the various programmes for “Ensuring Conditions for Local Integration” are set out, only refugees are mentioned as the beneficiaries, not IDPs. As the IDPs from Kosovo, from what I have seen, live in a comparably difficult situation in Serbia, I strongly hope that IDPs will be able to benefit just like refugees from these programmes145 which are aimed at addressing such vital issues as housing, the gradual closing down of collective centres and employment.
203. The planned gradual closing down of official collective centres, plus court ordered evictions of IDPs from unofficial ones (especially in Montenegro150), will particularly affect the most vulnerable people, like the elderly, single parents, orphans and individuals who need specific health care. Given the great economic difficulties which Serbia and Montenegro face, it seems necessary that donors and international agencies – including the Development Bank of the Council of Europe – assist the governments in providing alternative, durable housing solutions to at least these people.
204. Talks with the mayor of Belgrade, Mrs. Hrustanovic, whose municipality hosts 80,000 IDPs from Kosovo, have convinced me that it would be wise to see to it that not only IDPs (and refugees) benefit from international assistance, but also the most vulnerable individuals of the local population, whose situation is not better. This is essentially a question of the equal treatment of individuals living in comparable conditions.
205. In Montenegro there is no national strategy as of yet, but the Commissioner has explained to us that it is in the making. Representatives of the international community there feel that the absence of a clearly formulated national strategy is a major handicap with respect to donors’ readiness to continue supporting the government with respect to assistance for IDPs and refugees. This is particularly worrying because, as both the Government and the UNHCR recognize, “[l]ocal integration is perceived as the most likely solution for the majority of the diplaced population of Montenegro”151.
207. In Montenegro, the Government, through the Office of the Montenegro Commissioner for Displaced Persons, manages the collective accommodation, maintains an IDP population database and a direct contact point for IDPs, provides medical care in accordance with the Republic’s health insurance policy and provides education to IDPs on a basis of equality with the local population.
208. However, IDPs from Kosovo, who retain certain legal rights as citizens of the FRY, have only limited access to important political rights conferred by the Republic of Montenegro155. Here, the IDPs are the victims of the difficulties between the Serbian and Montenegrin governments, concerning the question of the relations between the two entities. Perceived by the present Government, which is in favour of independence of Montenegro, as being potentially in favour of Montenegro remaining linked to Serbia, IDPs from Kosovo are not offered the possibility to fully integrate in this part of their country (the FRY). The concern would appear to be to prevent them from formally establishing residence in municipalities in Montenegro and applying for Montenegrin citizenship, and the voting rights that go with it. This is certainly regrettable from a human rights point of view.
209. I should like to stress the fact that the living conditions and respect for the human of Roma IDPs are generally lower than other IDPs in Montenegro and Serbia. In this context, my attention was drawn to the fact that Roma in several countries of the former Yugoslavia face significant difficulties in obtaining basic documents, such as birth certificates, personal identity documents, local residence permits, documents related to (in most cases, state-provided) health insurance, marriage certificates, work booklets, death certificates, passports, IDP and refugee registration documents. “Exclusionary obstacles created by a lack of documents can be daunting and in many instances, the lack of one document can lead to a "chain reaction", in which the individual at issue is unable to secure a number of such documents. In the extreme case, a Romani child without a birth certificate may wind up in a situation of complete paralysis with respect to the exercise of basic rights: precluded access to basic health care, effectively hindered freedom of movement (including the right to leave one's own country), denial of the right to vote, exclusion from state housing provided to persons from socially weak groups, as well as the inability to have real access to other rights and services crucial for basic human dignity.”156
210. Documentation problems are not restricted to Roma IDPs. Registration and documentation difficulties have resulted from the transfer of official state documents in the final days of the conflict from Kosovo to a number of locations in Southern Serbia. In order to register somewhere in Serbia, and thereby enjoy the right to vote in local elections and enjoy local social benefits, it is necessary first to deregister from one’s previous place of residence. This is, inevitably, a rather difficult procedure if ones previous residence was in Kosovo and the relevant papers, if they exist at all, are currently to be found somewhere in Southern Serbia. Such bureaucratic obstacles to local integration ought not, however, with the necessary will of the FRY authorities, to be insurmountable.
211. There are currently 3306 persons displaced from Kosovo currently residing in “the Former Yugoslav Republic of Macedonia”, the majority of which are Roma, Egyptian or Ashkalie and the remainder Gorani157. These individuals, who have crossed an international border are potential refugee applicants. Some 1500 of them are currently living in two camps, Katlanovo (438 individuals) and Suto Orizari (1,108). The rest are privately accommodated. My team has visited both these camps. Katlanovo offers good living conditions in a nice setting, but is totally isolated the countryside; as a result it is impossible for the Roma living there to have any occupation that brings in some money. Suto Orizari was built only three years ago, on a former municipal rubbish site, in a very poor locality, mostly inhabited by local Roma. The camp is in a lamentable state, due to the underground waste that resurfaces in the case of rain, improperly executed construction work, and the lack of respect shown by its inhabitants.
213. In the meantime, the Roma IDP community is greatly distracted by the prospect of finding a third country – a possibility they have been encouraged to believe in by the delayed processing of some 300 successful candidates for residence permits in the United States. Indeed, at the time of my team’s visit, demonstrations were frequently being staged outside the UNHCR’s office in Skopje. The Roma community would appear to be encouraged to pursue this avenue by authorities that are reluctant to see them demanding greater rights and competing for the few jobs available. It was revealing, therefore, that Roma representatives from the worse of the two camps insisted that no more money should be spent on renovating their camp, but ought to be spent instead on relocating them.
214. The unlikelihood of securing access to third countries and the foreseen reduction of international emergency aid will ultimately result in the need for alternative solutions to be found for the majority of persons displaced from Kosovo who continue to be unable to return. The establishment of mechanisms for securing permanent refugee status combined with international development aid aimed at Kosovan refugees and their wider host communities would contribute to the resolution of this problem.
9. Forced return
215. My Office does not have precise figures on how many Kosovans are still in Wesern Europe and the USA. As mentioned above, some 70,000 Albanian Kosovans of the approximately 90,000 who where flown out of Skopje in 1999, seem to be still abroad. Some Roma and Albanian Kosovans must have also been able to go abroad by their own channels. As to Serbian and other minority Kosovans, we are not aware of the figures.
216. Presently, there is a tendency in the host states to make Kosovans return to Kosovo or to other places in the FRY. Some countries, like Switzerland for example, offer financial incentives to returnees. Others return forcibly. From January to June this year, Germany has forcibly returned 1,785 individuals, the UK 648, Switzerland 425, Norway 266, Slovenia 247, Belgium 103, etc.; the total of “forced returns to Pristina” registered by UNMIK Border Police for that period of time is 3737 persons158. The Norwegian Refugee Council returnee monitoring team has stated that “79 individual cases of minority returns were recorded of which 11 were reported as having been forcibly repatriated to Kosovo” from January to August 2002159.
219. In considering applications for asylum from persons originating from Kosovo, some asylum countries assess whether an internal relocation alternative is available for them in other parts of the FRY. The UNHCR position on that question is that “[t]he circumstances faced in Serbia and Montenegro by IDPs from Kosovo lead UNHCR to the general conclusion that internal displacement in such conditions does not offer an adequate or reasonable alternative to international protection.”165 UNHCR offers detailed information on present conditions for IDPs from Kosovo in various areas of the FRY and invites refugee status determining authorities to proceed to a “cautious assessment of any internal relocation alternative”166, in the light of such information.
V. Main Findings and Conclusions
1. The human rights standards applicable in Kosovo and accountability for their respect :
1. The international interim administration of Kosovo should be carried out in full respect not only of those norms of universal human rights law and of Council of Europe human rights law which UNSCR 1244 and the Constitutional Framework of May 2001 refer to, but also of those instruments that (will) have been accepted as binding by the FRY. Indeed, it would be hard to justify the international administration of Kosovo according to lower human rights standards than the other parts of the FRY.
2. For the time being, and to the extent that he retains the ultimate authority for the implementation of UNSCR 1244(1999), the SRSG is legally and politically accountable for abidance by human rights standards in Kosovo, including for acts and omissions by the newly installed Provisional Institutions of Self-Government (PISG).
3. This ought also to be the case with respect to KFOR. It is to be noted that in every democracy that is governed by the rule of law and the respect for human rights, the armed forces fall under the control of the civil authorities (this has, for instance, been laid down as one of the conditions for the FRY to join the Council of Europe).
4. However, in so far as they exercise power and influence in Kosovo, the PISG, the FRY and Serbia retain a measure of political responsibility for the situation in Kosovo. National KFOR contingents engage, to the extent that they act autonomously, the direct responsibility of their governments.
5. The international administration and all its members enjoy immunity from jurisdiction in virtue of UNMIK Regulation 2000/47. Whilst the immunity of internationals would appear to be lifted in most cases where a well-founded request is made (and a number of individuals have been prosecuted by their national authorities), the very existence of such an exception is increasingly difficult to justify. Kosovo is administered by an international administration, not by an independent local administration. Its judiciary has been created and shaped by the international administration and remains under its control; international judges are available. Such disregard for the rule of law and the right of access to court must, inevitably, undermine the credibility of international attempts to promote precisely such values. Indeed, it is difficult to expect local Kosovans to place their faith in a judicial system that has been built up by the international community, but in which that community itself has little confidence.
6. The international administration would appear, moreover, with the important exception of the Ombudsperson’s Office, to offer only limited possibilities for appealing against its decisions. There are (as a logical corollary to the general immunity of the international administration) no administrative tribunals in Kosovo. The inhabitants of Kosovo are, as a result, denied the possibility of administrative and judicial appeal against the majority of decisions taken by an administration, which, furthermore, frequently regulates through administrative decisions questions that would, under normal circumstances, require either legislative action or a judicial decision.
7. There is, under such circumstances, an evident need for UNMIK (including KFOR) and the PISG to remain open to constructive criticism, including in sensitive areas, from both mandated and non-mandated observers. The mandates of human rights monitors must, therefore, be respected at all times. The creation by the SRSG of a Human Rights Oversight Committee, which will, inter alia, open the possibility for OSCE and others to comment on the human rights aspects of draft regulations, is consequently to be welcomed.
2. Specific human rights issues
8. The effective enjoyment of several human rights is conditional on an adequate level of security. Such security is still not guaranteed to all inhabitants in Kosovo. It is important that the committed and efficient combating of ethnically or politically motivated crimes and
offences, as well as of other serious and organised crime, especially the trafficking of human beings, be given a clear priority in policing. Special attention must continue to be paid to the protection of vulnerable groups or individuals (victims of trafficking in human beings, witnesses, juveniles and minorities).
9. Even after NATO’s arrival in Kosovo, serious crimes continued to be committed in retaliation against Serbs and Roma, as well as against Albanian Kosovans suspected of collaborating with the former regime. The reports of victims or their families were frequently heard but rarely acted on. This has gravely undermined the ethnic minorities’ trust in the protection offered by KFOR and UNMIK, as well as in their impartiality. It is urgent, therefore, that serious investigations into crimes committed against minorities since the beginning of the international presence in Kosovo in June 1999, including abductions and disappearances, be given a higher priority by the police and the judiciary, than it has to date.
10. The problem of missing persons remains one of the most salient unresolved human rights issues in Kosovo. Three years after the arrival of the international presence the fates of some 3700 persons from all communities remains unknown. In addition to the torment of the families concerned, the failure to address this issue adequately represents a significant obstacle to the reconciliation of all parties and gravely undermines their confidence in the international administration. The creation, in June this year, of a new Office on Missing Persons and Forensics is, therefore, a positive development. It is, however, urgent that this office receives the necessary human and financial resources to fulfil its objectives rapidly.
11. A multi-ethnic judiciary is not an end in itself. It is a means that is thought to create the best conditions for an impartial judiciary in which all citizens place confidence. The imminent engagement of some 40 additional Serbian judges is, consequently, to be welcomed (at present, out of 420 local judges and prosecutors only 16 are Serbian, of which only 4 are actively working). Adequate salaries for all personnel, good working conditions, and sufficient protection, should allow for recruiting and retaining the qualified personnel still lacking.
12. Comprehension of the complex legal regime currently in place in Kosovo is not facilitated by the length of time it frequently takes for important UNMIK regulations to be translated into, and published in, local languages. Enhanced efforts would appear necessary to keep the members of the judicial professions as well as the public at large informed in a timely and clear fashion of the applicable law in Kosovo. The extreme slowness of a judiciary operating under difficult conditions is also a cause for concern.
13. The SRSG has interpreted UNSCR 1244 and the Constitutional Framework he has promulgated, as granting himself the power to override judicial decisions. Thus, the SRSG has decided, by executive order, that individuals should continue to be detained, despite formal judicial decisions authorising their release. The present SRSG is to be credited for never having resorted to detentions by executive order. The Ombudsperson has, however, documented a number of other cases, where the UNMIK administration refused to execute court decisions. Such disrespect for court decisions by the executive is in contradiction with the principle of the rule of law and, ultimately, at odds with the establishment of a fully functioning, independent judiciary. As progress is apparently being made in this area, the time has perhaps come to consider alternative mechanisms to correct decisions by prosecutors and judges taken on grounds of partiality or corruption or which gravely jeopardise the efficient administration of justice.
14. COMKFOR has interpreted UNSCR 1244 as granting him the power to arrest and detain individuals extra-judicially. This practise, for which there is no specific legal basis and which allows for the potentially indefinite detention of individuals with no judicial decision or legal remedy, is hard to reconcile with international human rights standards. It is, moreover, difficult, in the light of UNMIK’s own assertions regarding the progress made in the fields of police and justice over the last three years, to see the continuing justification for this practice.
15. The security situation would appear to remain such, however, as to warrant, in exceptional circumstances, KFOR arrests and detentions. Such powers ought, though, to be clearly conferred by the competent legislative authority in a normative document specifying the conditions under which they may be used and providing for control by an independent judicial body. The actions aimed at guaranteeing a safe and secure environment, as well as the fight against criminality and terrorism, must be carried in conformity with the principles of the rule of law and in full respect of non-derogable human rights.
16. The reports of qualified observers show that detention conditions have enormously improved in the (UNMIK-run) prisons in Kosovo. A visit to Dubrava, by far the biggest prison in Kosovo, revealed the resoluteness with which shortcomings that still existed in the beginning of this year, have since been addressed. Improvements do, however, remain to be made, particularly regarding recreational activities, the availability of professional training and measures that emphasise the presumptive innocence of persons in pre-trial detention, as well as the detention conditions of juveniles and women.
17. There is, for several reasons, considerable uncertainty over property rights in Kosovo; selling real estate to ethnic Albanians was prohibited for a certain period during the 1990’s but continued to take place unofficially; registers and documents were destroyed in the war or were removed from Kosovo; illegal occupancy is rife; rapid transactions are taking place without sufficient documentation, etc. The Housing and Property Directorate (HPD, run by UN HABITAT) and a Housing and Property Claims Commission were set up to clarify or establish property rights. However, the caseload of claims made to HPD and the Commission is enormous and their resources far from proportionate (several decades would, on present rates, be required to complete its current workload). Given the importance of resolving property disputes for both stable economic development and to IDPs and refugees wishing either to return or sell, it would appear imperative that these institutions be granted resources commensurate with their tasks.
18. It is equally important that UNMIK, COMKFOR and all the components of KFOR, as well as all international personnel respect the property rights of all owners of private property in Kosovo. Adequate leases should be paid for privately owned occupied buildings and land. Damage caused must be swiftly and adequately repaired. Whilst COMKFOR has established an operational Claims Commission, national KFOR contingents have been slower to offer accessible complaint mechanisms. The scale and duration of KFOR’s presence would, however, suggest a need for greater sensitivity to civilian claims for compensation and, perhaps, greater uniformity in the procedures established.
19. Attention will increasingly need to be given to ensuring the equal access of all communities to public services and utilities and the employment market. The living conditions in certain Roma settlements visited were, for instance, far from satisfactory and revealed an
evident lack of municipal assistance. A comprehensive anti-discrimination law currently in the pipeline can be expected to counter some of these problems. Be this as it may, if minority communities are to be encouraged to participate in new domestic structures, efforts will have to be made to ensure the latter’s sensitivity to minority needs.
20. Special attention must continue to be given to the protection and preservation of places of worship, including cemeteries, whilst allowing, so far as possible, for their use by worshippers. Consideration will, sooner or later, have to be given to the reconstruction or repair of places that have been destroyed or damaged.
3. The fate of persons displaced from their homes in Kosovo
21. The issue regarding the fate of persons displaced from their homes in Kosovo is inextricable. It involves, among others, questions of rights, obligations and values but also of human, political, financial and military feasibility. No single solution is capable of satisfying all these imperatives.
22. The most important human rights notion in relation with IDPs who have lost their homes in Kosovo and who are now living in other parts of their country (the FRY) is their right to a free choice between settling down elsewhere in the FRY and returning to Kosovo. That choice must be respected at all times by all involved.
23. The 3300, predominantly Roma, Egyptian and Ashkalie Kosovans currently enjoying temporary humanitarian status in the “the former Yugoslav Republic of Macedonia” face different choices. Whilst the majority, who claim to be unable to return, would appear to be pressing hard for their transfer to third countries, the unlikely success of all applicants suggests a need for the Macedonian authorities to hasten the establishing of procedures for obtaining refugee status and the increased rights that go with it.
24. Figures concerning IDPs wanting, and likely to be able, to return to Kosovo should be handled cautiously. Political interest or dogma, or the vested interest of those making the assessment, may tend to the bias of such figures. Difficult assessments regarding the push factors (the living conditions and prospects of IDP were they are now) and pull factors (the quality of life awaiting them should they return) influence people’s wishes and current choices. Realism is called for; whilst by no means all of the 230,000 or so registered IDPs in Serbia and Montenegro can be expected to wish to return, it is, at the same time, clear that the current conditions in Kosovo are unfavourable for large-scale individual return. However, it seems to me that an urgent effort has to be made to have the process of minority return to Kosovo at least get seriously started now.
25. Despite frequent assertions to the contrary, it seems obvious that uncertainty over the final status of Kosovo poses a major problem with respect to return. For so long as the question remains open Kosovans inside and outside Kosovo will be unable to make an informed, clear choice about their personal future. Indeed, the uncertainty keeps hopes and frustrations alive: Albanian Kosovans still fear a return of the Serbs in one way or another, whilst radicalised Serbs continue to fuel hopes for a return to a position close to the status quo ante. These attitudes are detrimental to the readiness to respect the (human) rights of the other. Finally, uncertainty over the final status of Kosovo cannot but have a negative impact on potential investors’ willingness to invest now. This, in turn, is not helpful for the enjoyment of economic and social rights by all inhabitants of Kosovo.
26. The current UNMIK policy is to prioritise the return of minority IDPs to their original residences. Organised return projects will only be sanctioned to this end and financial assistance is likely to be scarce for individuals returning to areas other than their places of origin. Care must be taken, however, to ensure that such a policy does not lead to a de facto restriction of the freedom of movement of minority return candidates and their freedom to choose their residence. Indeed, the sudden immense growth of cities like Pristina shows that Albanian Kosovans have widely taken advantage of the possibility to settle down elsewhere in Kosovo than where they used to live before June 1999. Moreover, return to the very house or village were someone came from, greatly reduces the potential for immediate returns. Consideration must be given, therefore, to accommodating individual or organised minority returns that reflect a free choice to settle in a location other one’s previous place of residence.
27. The right of all IDPs and refugees to choose to return to Kosovo puts an obligation on the Administration to offer returnees a normal, secure life without legal, political, social, economic or other discrimination. Whilst the successful return of minority IDPs will ultimately depend on the readiness of all communities to put aside past differences, resolute action, will, in the meantime be necessary, especially in the fields of security, the (enjoyment of) freedom of movement, the reconstruction of houses and the provision of basic infrastructure. Indeed, at present, the lack of financial means for preparing and sustaining return, would appear to be as much of an obstacle for return as security concerns.
28. The right of all IDPs to choose to stay or settle down in other parts of the FRY than Kosovo, puts an obligation on the governments of FRY, Serbia and Montenegro to offer these persons full integration without legal, political, social, economic or other discrimination. Greater efforts to assist this process would appear necessary. This is especially the case with respect to bureaucratic requirements, which place a major, unnecessary burden, on IDPs living in both Serbia and Montenegro and render their full integration difficult.
29. In view of the problems and difficulties outlined above, it would appear opportune to recall to the authorities of third countries hosting Kosovans who fled the territory of the FRY, that their involuntary return should take place in accordance with the criteria established by the UNHCR.
COMKFOR - Supreme Commander of KFOR
DRC - Detention Review Commission
ECHR - European Convention of Human Rights
FRY - Federal Republic of Yugoslavia
HPCC - Housing and Property Claims Commission
HPD - Housing and Property Directorate
IAC - Interim Administrative Council
ICG - International Crisis Group
ICTY - International Tribunal for the Prosecution of Persons Responsible
IDP - Internally displaced person
IHF - International Helsinki Federation for Human Rights
IOM - International Office of Migration
KFOR - Kosovo Force
KLA - Kosovo Liberation Army
KPC - Kosovo Protection Corps
KPS - Kosovo Police Service
MNB - Multinational Brigade
Montenegro - the Republic of Montenegro
NATO - North Atlantic Treaty Organisation
OCHA - UN Office for the Co-Ordination of Humanitarian Affairs
OMIK - OSCE Mission in Kosovo
PISG - Provisional Institutions of Self-Government
Serbia - the Republic of Serbia, without Kosovo (ie Serbia proper)
SFRY - Socialist Federal Republic of Yugoslavia
SRSG - Special Representative of the Secretary General (of the UN)
UN - United Nations
UNHCHR - United Nations High Commissioner for Human Rights
UNMIK - United Nations Mission in Kosovo
UNSCR - United Nations Security Council Resolution
The organisation of two visits, to so many places, and in so short a space of time, would not have been possible but for the assistance of numerous other actors. I am, first and foremost, greatly indebted to the offices of the Council of Europe in Belgrade, Podgorica, Pristina and Skopje. Their consummate professionalism in organising everything from drivers and interpreters to ministerial and other meetings ensured that the visits passed almost entirely without incident. I was, furthermore, fortunate and glad to be able to benefit from their experience and knowledge of the local situation.
The insight I was able to obtain into the situation of IDPs and refugees was due in large measure to the assistance of the UNHCR and the ICRC, both of which provided considerable logistical support and whose staff were, often at the expense of their weekends, exceedingly generous with both their time and their experience. The UNHCR office in Strasbourg deserves particular thanks for the speed and efficiency with which they addressed our rather demanding requests.
We were, throughout our visits, exceptionally well and openly received by all the authorities concerned. I am grateful, therefore, to all those who opened their doors, and, in the case of KFOR, their gates, to us, including, in respect of the latter, COMKFOR and the American KFOR contingent in Camp Bondsteel, who freely showed us their detention facilities and frankly responded to our questions. The same indeed, must be said of the directors of the UNMIK prisons in Dubrava and Pristina. Indeed, the cooperation of all the authorities, and, in particular, the logistical assistance provided by the Serbian and Montenegrin authorities, is gratefully acknowledged.
I would, lastly, like to thank all those IDPs and refugees, who, despite the tragedy of their situation and the paucity of their means, generously offered us their hospitality and patiently recounted their experiences.
Programmes of visits
Programme of the Visit of
Mr. Markus Jaeger167 and Mr. John Dalhuisen168
23rd July – 6th August 2002
Tuesday 23 July – Friday 26 July : SERBIA.
Meetings with :
Mr. Ljajic, Minister of National and Ethnic Communities
Mrs. Radmila Hrustanovic, Mayor of Belgrade
Mrs. Sandra Raskovic-Ivic, Commissioner for Refugees
Mr. Petar Ladjevic, Advisor of the President of the FRY on Refugee Matters
Mr. Branko Radujko, Prime Minister’s adviser on Refugee Matters
Mr. Peter Stocker, Head of the Delegation of the ICRC for FRY
Mr. Gert Westerveen, Assistant Representative, UNHCR, Belgrade
Representatives of Serbian Family Associations for Missing Persons
Round tables with representatives of :
Site visits :
With the UNHCR -Rakovica (mixed Kosovo IDPs and Croatian/Bosnian Refugees Collective Centre)
With the ICRC - Batocina (Serb IDP Collective Centre)
Saturday 27 July - Monday 29 July : MONTENEGRO
Meetings with :
Mr. Scepanovic, the Commissioner for refugees and displaced persons
Mr. Ranko Krivokapic, Chair of the Parliamentary Committee for Human Rights
Mr. Rob Breen, Head of Sub-Office, UNHCR, and field assistants.
Kosmet, IDP association in Bar
Margo Group, Roma association, Kotor
Round tables with representatives of :
Site visists :
With the UNHCR - Konik (Roma IDP Collective Centre)
- Spuz (Serb IDP Collective Centre)
Tuesday 30 July – Sunday 4 August : KOSOVO
Meetings with :
Mr. Charles Brayshaw, PDSRSG (and Chairman of the HR Oversight Body)
Mr. Neithard Hoefer-Wissing, Deputy Director, Political Affairs, Office of the SRSG
Mr.Christian Lindmeier, Press Officer, Division for Public Information
Mr. Andrew MacGregor, Head of HRD, OSCE
Mr. Jean-Christian Cady, DSRSG, Head of Pillar I, Police and Justice
Mr. William Irvine, Head, Penal Management Section, Department of Justice
Mr. Stefan Feller, UNMIK Police Commissioner
Mr. Nils Bechmann, Deputy Commissioner
Mr. Saber Azam, Acting Director, Office of Returns and Communities
Mr. Nenad Radosavljevic, Senior Adviser, ORC
Ambassador Pascal Fieschi, Head of Mission, OSCE
Mr. Carsten Weber, Director, Human Rights/Rule of Law, OSCE
Mr. Gregory Fabian, Legal Adviser, Human Rights, OSCE
Mr. David Buerspedde, Office of Political Affairs, OSCE
Mr. Ramadan Berat, Romani issues, OSCE
Mr. Zurab Lomashivili, OSCE Head of Mission, OSCE
Mr. Elmars Svekis, Political Officer, OSCE
Ms. Donna Gomien, Deputy Head, Ombudsperson’s Office
Mr. Milod Todorovic, Inter-Ministerial Co-ordinator on Non-Albanian Communities
Ms. Sadete Demaj, Human Rights Adviser to the Prime Minister, Office of Good Governance
Mr. Baki Svirca, Acting Head of the Office of Returns and Communities within the PM’s Office
Mr. Gottfried Koefner, Deputy Head of Mission, UNHCR
Mr. Veton Orana, Associate Protection Officer, UNHCR
Ms. Ariana Zherka-Hoxha, Protection Assistant,UNHCR
Mr. Gregory Lyndon, Head of Kosovo Team, OHCHR,
Ms. Barbara Amstad, Head of Mission, ICRC,
Mr. Paulo Marques, Chief of Staff, IOM,
Mr. David Chillaron-Cortizo, Regional Head of Mitrovica Office, UNMIK Housing and Property Directorate
Mr. Emilio Castaneda, Municipal Administrator of Leposavic
Mr. John Rogers, MA Mitrovica,
Brigadier S. Allen and HQ staff officers, Film City
Colonel Dran, Commander of KFOR Bimeca
Representatives of Serb Family Associations for Missing Persons (ICRC office in Gracanica)
Representatives of Albanian Family Associations for Missing Persons (ICRC office in Gjakova)
Alliance for Rights and Tolerance (grouping of international NGOs for return issues)
Site visits :
With the UNHCR - Sveti Sava School, Kosovo Polje, meeting with Serbian IDPs
- Magura (Lipjan/Lipljan) return site: Discussion with K/Albanian representatives and Ashkalia IDP representatives
- Vranjevac (Prishtine/Pristina) – Ashkalia return site.
- Makres (return site)
- Stara Kolonja (return site)
- Roma neighbourhood in Gjilan/Gnjilane
- K/Albanian villages (Koshutovo, Bistrica, Ceranja) in Leposavic
- Warehouses, Leposavic town (Roma IDP Collective Centre)
- Kodra e Minatoreve/ Mikronaslj (mixed neighbourhood, North Mitrovica)
- Branko Radicevic (Collective Centre for Serb IDPs & Croatian/Bosnian refugees, North Mitrovica)
- Bosniak mahala and Three Towers (North Mitrovica)
UNMIK detention centre, Pristina
KFOR detention centre, Camp Bondsteel
Sunday 4 August - Tuesday 6 August : the FYRoM
Meetings with :
Mr. Heiki Estola, Head of Delegation, International Federation of Red Cross
Ms. Suzana Tuneva-Paunovska, Senior Programme Officer, IFRC
Mr. Owen Masters, Resident Adviser on Local Self-Government, Council of Europe
Mr. Gjorgji Jovanovski, Assistant, Council of Europe Information Office
Mr. William Tall, Field Coordinator, UNHCR
Mr. Francois Stamm, Head of delegation, ICRD
Mr. Ilija Cvetanovski, Secretary General of the Macedonian Red Cross
Mr. Nezdet Mustafa, Mayor of the Municipality of Suto Orizari
Mr. Goran Mitevski, Director of the Bureau for Public Security, Ministry of Interior.
Mr. Boge Cadinovski, adviser of the Minister, Ministry of Labour and Social Policy.
Representatitive of Mr. Orce Bozinovski, Mayor of the Municipality of Petrovec
Roma Refugees Committee, Suto Orizari
Site visits :
With the UNHCR - Suto Orizari (Roma refugee Collective Centre)
Programme of the Visit of
Mr. Alvaro Gil-Robles,
Commissioner for Human Rights of the Council of Europe,
Mr. Christos Giakoumopoulos169, Mr. Markus Jaeger
Wednesday 04 September - Saturday 7 September : KOSOVO
Meetings with :
Mr. Michael Steiner, SRSG
Mr. Ibrahim Rugova, President
Mr. Bajram Rexhepi, Prime Minister
General Valentin, COMKFOR
Ambassador Pascal Fieschi, HoM, OSCE
Mr. Andrew MacGregor, Head of HRD, OSCE
Mr. Gregory Fabian, A/Senior Legal Adviser, OSCE
Mr. Elmars Svekis, Political Officer, OSCE,
Mr. Marek Nowicki,Ombudsperson
Ms. Donna Gomien, Deputy Ombudsperson
Mr. Nike Lumezi, Local Deputy, Ombudsperson Institution
Ms. Peggy Hicks, Director of Office of Returns and Communities, Office of the SRSG
Mr. Nils Bechmann, Deputy Police Commissioner
Mr. Jose-Pablo Braybar, Head of Office for Missing Persons
Mr. Walter Irvine, Chief of Mission, UNHCR
Ms. Anne-Christine Eriksson, Deputy CoM, UNHCR
Mr. Sheremet Ademi, President of Coordination Council of Kosovo Family Associations for missing persons, hostages and war wounded
Sites visited :
With the UNHCR - Bica/Binxhe (Klina/e), K/Serb return village
- 7 Shtatori, K/RE concentration (Peje/Pec)
- Warehouses, Leposavic town (Roma IDP Collective Centre)
- Kodra e Minatoreve/ Mikronaslj (mixed neighbourhood, North Mitrovica)
- Bosniak mahala and Three Towers
UNMIK Detention Centre, Dubrava
KFOR Detention Centre, Camp Bondsteel
Morgue, Office for Missing Persons, near Orahovac
Sunday 8 September - Monday 9 September : MONTENEGRO
Mr. Zeljko Sturanovic, Minister of Justice in Republic of Montenegro
Mr. Ranko Krivokapic, Chair of the Parliamentary Committee for Human Rights
Mr. Scepanovic, Commissioner for Refugees and Displaced Persons
Ms. Charlotte Bjerregaard, Deputy CoM, UNHCR
Mr. Vlado Radulovic, Assistant Liaison Officer, UNHCR
Kosmet, IDP association in Bar
With the UNHCR - Konik (Roma IDP Collective Centre)
Monday 9 September – Wednesday 11 September : SERBIA
Meetings with :
Mr. Vojislav Kostunica, President of the Federal Republic of Yugoslavia
Mr. Nebojsa Covic, President of the Coordination Center for Kosovo Metohia, Deputy Prime Minister of Serbia
Mrs. Radmila Hrustanovic, Mayor of Belgrade
Mrs. Sanda Raskovic–Ivic, Commissioner for Refugees
Round tables :
with representatives of International Organizations
with representatives of Serbian Associations of the Families of the Missing from Kossovo, ICRC office.
Site visits :
With the UNHCR - Jastrebac (Serb IDP Collective Centre)
13 Letter by Mrs. Robinson to Mr. Steiner, dated 14 March 2002, emphasis added.
18 This attitude by UNMIK is reflected, for example, in the view that separate agreements will have to be negotiated with KFOR as regards the implementation of Council of Europe human rights standards in Kosovo, as well as in the fact that UNMIK does not provide any information on the detention of individuals by KFOR.
65 Mental Disability Rights International, Report : Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo.
155 “While IDPs are being accorded social rights and limited benefits in Montenegro, there is no willingness to extend political rights out of concern for the ethnic balance and political stability of Montenegro. Although it is recognised by nearly all the authorities in Montenegro that the majority of IDPs will likely not return to Kosovo, it is still [felt to be] too early to consider local integration.” Briefing Note, UNHCR, 18 July 2002, p. 2.