VII. Human Rights Violations

The initial years of neglect of the lead contamination problem (1999-2004), followed by years of haphazard efforts to bring a solution to the problems of the lead-contaminated Roma camps, have seen a number of serious human rights violations, including violations of the right to life, the prohibition of cruel, inhuman and degrading treatment, the right to health and to a healthy environment, and the right to adequate housing.

United Nations bodies mandated with international human rights oversight, including the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, have expressed concern about the human rights situation for those in the camps, and pressed UNMIK to address the rights affected.

The UN Human Rights Committee has voiced its criticism to UNMIK, pointing to the insufficient nature of the efforts undertaken in terms of providing the IDPs with a sustainable housing solution, and especially the lack of adequate medical treatment. Walter Kälin, the UN secretary-general's special representative on internally displaced persons, stressed during the 2006 discussion of comments submitted by UNMIK to the committee that the "failure to act immediately was tantamount to a violation of the right of the affected children to have their health and physical integrity protected."[181]

Right to Life

The right to life is guaranteed by article 3 of the Universal Declaration of Human Rights,[182] article 6 of the International Covenant on Civil and Political Rights,[183] and article 2 of the European Convention on Human Rights.[184] The UN Human Rights Committee clarified in its General Comment No. 6 that the protection of the right to life implies not only a negative obligation to prevent death, but also a positive obligation to create conditions for life, including reducing infant mortality and increasing life expectancy.[185]

Because no autopsies have ever been carried out on dead persons in the camps, it is not possible to attribute deaths in the camps to lead contamination.[186]In one case of the death of a child (from the Kablare camp), a post mortem examination at a Belgrade hospital revealed that organ damage arising from lead contamination had contributed to the death, combined with an acute case of herpes.[187] But, as noted above in Chapter IV, exposure to lead at very high levels can be fatal.

Both in terms of having been initially placed in proximity to the lead contamination source in Cesmin Lug and Osterode (and previously in Kablare and Zitkovac) and the subsequent failure to remove them from prolonged exposure to a contaminant with potentially fatal consequences, Roma IDPs' experiences in those camps therefore constitute a violation of the right to life. Ongoing responsibility resides with UNMIK and the Kosovo authorities for failing to remove Roma IDPs from an area of lead contamination and to provide them with adequate treatment for lead exposure.

Prohibition on Cruel, Inhuman or Degrading Treatment

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is the key international human rights instrument that aims to prevent torture, obliging the parties to prevent it, as well as other acts of cruel, inhuman or degrading treatment or punishment.[188] Article 7 of the International Covenant on Civil and Political Rights and article 5 of the Universal Declaration of Human Rights also prohibit "cruel, inhuman and degrading treatment." The European Convention of Human Rights contains a virtually identical prohibition in article 3.

The European Court of Human Rights and the UN Committee against Torture have ruled that the destruction of Roma homes (in Turkey and Yugoslavia, respectively) constituted ill-treatment in violation of the European Convention and Convention against Torture.[189] The Committee Against Torture gave particular weight to the fact that the victims were members of the Roma minority. The European Court of Human Rights has also found that article 3 puts a positive duty on state authorities to remove persons from situations where they suffer inhuman or degrading living conditions and the authorities are aware of this.[190]

The combination for displaced Roma in Cesmin Lug and Osterode (and previously in Zitkovac and Kablare) of long-term exposure to a lead-contaminated environment, lack of adequate medical treatment, and poor housing and living conditions, as well as the poor living conditions at Leposavic, amount to cruel, inhuman or degrading treatment contrary to international and European human rights law. The failure of the authorities to take action to ensure the Roma no longer suffer this ill-treatment constitutes a violation of this fundamental right.

Right to Health

The right to health is a universal right guaranteed by the Universal Declaration of Human Rights: article 25 stipulates the universal right to health and well-being, including housing and medical care,[191] and particularly emphasizes the special entitlement of mothers and children to care and assistance.[192] Also, article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) stipulates "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health," obliging all states parties to provide for "the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child," and to create "conditions which would assure to all medical service and medical attention in the event of sickness."[193]

Article 24 of the Convention on the Rights of the Child recognizes the right of the child to the enjoyment of "the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health." This article also obliges states parties to take all appropriate measures to diminish infant and child mortality, ensuring the provision of necessary medical assistance.[194] Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obliges states parties to "ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services when necessary." The UN Guiding Principles on Internal Displacement provide for the right to "essential medical services and sanitation" and "medical care and attention [IDPs] require."[195]

General Comment No. 14 (2000) on the right to the highest attainable standard of health (ICESCR article 12) emphasizes the obligation to "refrain from denying or limiting equal access for all persons, including ... minorities ... to preventive, curative and palliative health services."[196] The ICESCR also guarantees a universal right to the highest attainable standard of health, and requires states parties to take individual or collaborative steps to progressively realize this right.[197]According to General Comment No. 14, such progressive realization entails a "specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization" of the right."[198]

A recent analysis by Wiltenburg Todrys and Amon points out that the right to the highest attainable standard of healthcare provided in international human rights treaties, coupled with the principle of non-discrimination, creates a duty to provide a core minimum of health services, including to internal migrants on a nondiscriminatory basis.[199]

The failure to provide systematic testing and treatment for lead contamination for displaced camp residents, and to relocate the residents to a safe environment, especially for children and pregnant women, constitutes a serious violation of the right to health. There has been no progressive improvement of healthcare during the decade the Roma have been in the camps-as described above the few steps taken to provide health assistance to address lead poisoning were ended by UNMIK in 2007. The failure is exacerbated by the general poor health and poor diet of the camp residents.

There is credible evidence of the poor health of children resident in the camps, linked to high levels of lead in the blood. As noted above, tests commissioned by Roma residents found that almost half of those children tested had dangerously high blood levels. The poor health of children in Cesmin Lug, Osterode, and Leposavic, in the former Kablare and Zitkovac camps, and in the Mahalla is also evidenced by statements collected by the European Roma Rights Center from 36 families in 2005.[200] Parents interviewed described serious health problems among their children, including paralysis, stunted growth, nervousness, frequent vomiting, difficulties with concentration, mental retardation, loss of weight, kidney problems, frequent fainting, and black gums; as noted above, a contributory factor in the death of a child from the Kablare camp was organ damage arising from lead contamination.[201] A local Roma activist who has been providing training to Roma women in the camps since 1999 about sexual health and personal hygiene mentioned to Human Rights Watch frequent cases of premature birth and miscarriage in the camps,[202] although this anecdotal evidence is hard to substantiate given Roma women's customary reluctance to speak openly on such matters.

In terms of access to treatment for general conditions, there is a basic on-site clinic (ambulanta) serving the needs of the Cesmin Lug and Osterode camp residents, and the (north) Mitrovica hospital provides assistance to those who are holders of the Serbian health book and occasionally agrees to receive emergency patients without the health book.[203] But camp residents do not have adequate access to medicine, because the on-site ambulanta does not provide prescription medicine free of charge and most residents cannot afford to purchase it. The hospitals in Mitrovica north or south treat their patients for free, but the visiting patients need to pay for the prescribed medicine themselves, which is also the case in the rest of Kosovo.

A core obligation of the right to health (in General Comment No. 14) is the obligation to monitor health conditions and to establish an affirmative plan to address and mitigate causes of poor health. Yet, despite the earliest report in 2000 outlining the importance of a systematic monitoring program with periodic measuring of lead levels, only scattered, small-scale screenings have been conducted. Thus far, sampling and treatment has been administered by various organizations including WHO, CDC, and the Mitrovica Institute for Public Health (not necessarily coordinating their actions with each other) on small groups of camp residents, mainly children (the focus on children made sense considering that lead exposure has comparatively the most serious effects on the growing human body). The absence of a systematically implemented public health strategy for the camps is strongly linked to the absence of comprehensive data on the blood lead level for the current and former residents of contaminated sites.

Due to the lack of appropriate medical assistance throughout the years, the information provided to camp residents about the health situation and associated risks, as well as about ways to treat the serious cases of lead contamination, has been far from complete. Some general awareness raising has been facilitated through trained Roma activists and local doctors.[204] Nevertheless, the information given on these occasions to residents of the camps related only to the improvement of hygiene, the need for better diet, and the dangers of carrying out smelting activities, without telling them about the necessity to treat serious cases medically through chelation therapy.[205] Also, aggregated results of testing, showing prevalence and trends, have never been transmitted to the community at large.[206]

In his report from a mission to Kosovo in June 2005, Walter Kälin, UN representative on the human rights of internally displaced persons, emphasized that the failure of "the international community responsible to immediately evacuate the IDPs concerned to non-contaminated areas and to provide the necessary sources for this without delay (...) was tantamount to a violation of the right of the affected children to have their health and physical integrity protected," recommending to UNMIK and the Provisional Institutions of Self-Government (Kosovo's then administration) to "proceed with a humanitarian evacuation of IDPs in Northern Mitrovica as fast as possible."[207]

The question of compensation for violations of the right to health was discussed during the Human Rights Committee's review of UNMIK in July 2006. When asked whether "UNMIK intended to compensate the victims who had been knowingly exposed to such grave danger," an UNMIK representative confirmed, "In case where serious health impediments were clearly attributable to action – or inaction – on the part of UNMIK, the persons affected would be compensated."[208] To date, UNMIK has not acted upon this acknowledgement.

Right to a Healthy Environment

Article 12 of the International Covenant on Economic, Social and Cultural Rights obliges states parties to improve "all aspects of environmental and industrial hygiene," in order to prevent, treat, and control "epidemic, endemic, occupational and other diseases."

The ESCR Committee has clarified that this right imposes on states "the requirement to ensure an adequate supply of safe and potable water and basic sanitation; the prevention and reduction of the population's exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health."[209]

In a number of cases, the European Court of Human Rights has ruled that environmental pollution, and the failure to give those affected full information, violates human rights under the European Convention, including article 1 (respecting rights)(Okyay v. Turkey; Öneryildiz v. Turkey ),[210] article 2 (right to life)(Öneryildiz v. Turkey),[211] article 3 (prohibition of torture, cruel, inhuman and degrading treatment)(Ostra v. Spain),[212] article 6 (right to a fair hearing)(Okyay v. Turkey),[213] article 8 (right to a private life)(Ostra v. Spain; Guerra v. Italy),[214]and article 13 (right to an effective remedy) (Öneryldiz v. Turkey).[215]

Each of these cases were brought by individuals suffering adverse consequences because of exposure to environmental contamination, specifically a plant treating liquid and solid waste located next to the applicant's home (Ostra); pollution from a chemical plant located 1 kilometer from the applicant's home (Guerra); failure of the authorities to shut down thermal power plants located in close proximity to the applicant's home town (Okyay); and the death of nine members of the applicant's family due to a methane gas explosion in a shanty town built on land surrounding a rubbish dump containing decomposing waste (Oneryldiz).

In the Mitrovica region, over the years, some efforts have been made to provide the camps' inhabitants with better living conditions. Principally, it was claimed that closing Kablare and Zitkovac and moving the residents to better living conditions in Osterode or the Mahalla, in conjunction with better diet and hygiene, would mitigate the effects of the lead contamination.[216]But this was not accompanied by the delivery of medical treatment for lead contamination.

Moreover, almost nine years after UNMIK's decision to close the Trepca mine complex on environmental grounds, there is still no comprehensive plan to tackle the underlying environmental contamination either in relation to the camps or the Mitrovica region as a whole. Since 1999 a number of organizations including KFOR and the US Centers for Disease Control and Prevention, as well as independent experts, have taken samples of soil and water to assess the level of contamination. The results of this testing is not publicly available, but from what Human Rights Watch learned, these pilot tests were supposed to inform further policy decisions.[217] Policy and plans as they have materialized have not dealt with how to address the sources of environment pollution, such as whether to cover the toxic slagheaps of lead-contaminated soil.

The persistent failure to address the contaminated environment has a disproportionate impact on those residents in the camps located near to the Trepca complex, including the Osterode camp, which-contrary to assertions from UNMIK-is close to the epicenter of lead contamination. Coupled with the failure to provide residents in the camps with durable solutions that would allow them to relocate to areas of lower contamination, it constitutes a violation of the right to a healthy environment.

Right to Adequate Housing

The right to adequate housing is enshrined in international law, including the Universal Declaration of Human Rights article 25 (1), which states, "Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including ... housing." Also, the International Covenant on Economic, Social and Cultural Rights in article 11 (1) recognizes "everyone's right to an adequate standard of living, including ... housing." The European Social Charter article 16 contains a similar provision: "With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of life by such means as ... provision of family housing.[218]

The United Nations Guiding Principles on Internal Displacement emphasize the responsibility to provide "to the greatest practicable extent, that proper accommodation is provided to the displaced persons."[219]

In October 2005 the UN special rapporteurs on adequate housing, on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and on the adverse effects of the illicit movement and dumping of toxic waste products and wastes released a joint appeal calling on UNMIK to act urgently to secure an alternative non-contaminated site to host the Roma, in order to avoid further exposure "to lead poisoning and other environmental health problems."[220] UNMIK replied that "the search for suitable relocation sites had been time consuming and difficult," but that "a viable option existed in Camp Osterode ... which had full infrastructure in place, including water, sewage and electricity"[221](Osterode was not yet in use as an IDP camp at that time). The special rapporteur on adequate housing noted in response that "the information received from non-governmental organizations in November 2005 that several IDPs, including children, have allegedly died from lead poisoning in the camps... seriously questions the suitability of suggested future relocation sites alleged also to be contaminated by toxic chemicals."[222]

Although Osterode was envisioned as a transit location to a future durable housing solution, the residents moved there in 2006 are still there, with no immediate prospect of their relocation. This is clearly linked to the limited success of efforts to facilitate returns to the Roma Mahalla.