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II. Background

A Critical Moment

After eight years of UN rule and ambiguity about its legal relationship to Serbia, Kosovo’s status finally appears to be on the road to resolution. The final status recommendation by Martti Ahtisaari, the UN special envoy to Kosovo, created the momentum to wind up stalled negotiations between Pristina and Belgrade and refer the issue back to the UN Security Council. 

Ahtisaari’s recommendation generated strong reactions from radical elements among the Kosovo Albanian majority, notably among the Kosovo Albanian Self-Determination Movement (Lëvizja Vetëvendosje), which organized a large protest against the plan in Pristina on February 10, 2007. The demonstration turned violent, and international police responded with teargas and rubber bullets, killing two demonstrators and injuring many more. On February 19, unknown perpetrators detonated an explosion in the centre of Pristina, damaging several UN vehicles. In subsequent weeks, there were further acts of violence, including a rocket grenade attack on the Serbian Orthodox Dečan/Deçani monastery and two bomb attacks in the Bosniak district in Mitrovica/Mitrovicë.

The delayed and inconsistent reaction of UNMIK to the deaths of the protesters on February 10 prompted criticism from local and international human rights organizations, and in the local media.² Several days elapsed before senior UNMIK officials publicly expressed regret about the deaths and launched an investigation into the role of international police in the events. On February 14 UNMIK dismissed Steven Curtis as UN police commissioner, the head of UNMIK having endorsed him just a day earlier.³ UNMIK’s response stood in contrast to the rapid response from Kosovo’s provisional government: it made an immediate public apology, Prime Minister Agim Çeku subsequently made a visit to the families of the protesters who were killed, and Minister of Interior Fatmir Rexhepi resigned on February 13.

The events of February 10 demonstrated the lack of standing accountability mechanisms for UNMIK police (see Section III: Current Accountability Mechanisms, below) and highlighted ongoing concerns about limited accountability and oversight of international institutions in Kosovo. 

Accountability—the extent to which an institution, and the officials within it, are held responsible for their actions—is a key element of good governance, together with transparency in decision making and the rule of law. Some of the elements needed to create accountable institutions include: the presence of independent mechanisms to which victims can submit complaints; judicial and non-judicial remedies; external monitoring and oversight; and scrutiny by the media and nongovernment organizations.

The UN Human Rights Commission’s resolution on the role of good governance in the promotion of human rights identifies accountability as a critical element to the enjoyment of human rights.⁴ Research by the World Bank indicates a positive correlation between good governance (including accountability) and respect for human rights. ⁵

Kosovo’s Accountability Gap

Since 1999 the United Nations Interim Administration Mission in Kosovo has effectively functioned as Kosovo’s government. During its eight years, the mission has not succeeded in establishing itself as a model of good governance practices. UNMIK has come under repeated criticism by international organizations, NGOs and the media for failing to establish a functioning system of checks and balances to its powers, despite recommendations to improve accountability by inter-governmental and nongovernmental organizations (the financial oversight systems introduced at the behest of the United Nations and European Union donor countries being a notable exception).

The lack of formal mechanisms to ensure international accountability is particularly problematic in Kosovo because local institutions, media, and civil society are weak, and have been largely unable to act as an effective check against the authority of international institutions.

In late January 2007 Human Rights Watch visited Kosovo to assess the mood prior to the announcement of the UN special envoy’s final status recommendation. During discussions with representatives of the media, NGOs, political figures, and ordinary citizens, it was clear that there is widespread concern at the lack of accountability and the absence of effective oversight over international institutions in Kosovo.⁶

Impatience with delays in the resolution of Kosovo’s final status has undoubtedly played a part in the poor perception of UNMIK, but the failure to establish effective oversight mechanisms over its actions has not helped UNMIK to win “hearts and minds,” or to gain legitimacy in the eyes of those it has governed. During riots that took place in Kosovo in March 2004 and left more than 30 people dead,⁷ some of the violence was directed against UNMIK. According to a recent opinion poll, UNMIK’s rate of approval hit a new low in April 2007, with a mere 24 percent of respondents reporting they were “satisfied” with the work UNMIK does.⁸

Concerns over accountability in international peace operations are not unique to Kosovo. It has previously been brought to public attention mainly in the context of sexual abuse or other cases of gross personal misconduct by military or civilian peacekeepers in Bosnia, Haiti, Timor Leste, Burundi, Sierra Leone, Côte D’Ivoire, and, more recently, the Democratic Republic of Congo and Sudan.⁹ While the Kosovo mission has faced similar accusations, the Kosovo accountability debate is much more complex because of the extensive powers exercised by international civilian and military bodies in Kosovo.

In the past, the international Ombudsperson investigated complaints across the mandate of UNMIK and KFOR, from property rights to procedures of military arrests and weapon searches, but (as discussed below) that role was rescinded in early 2006.¹⁰ Recently, the German government reportedly commissioned a confidential report on the performance of UNMIK and KFOR since 1999, which was said to be extremely negative in its assessment of the performance of both institutions.¹¹ NGOs and international organizations have voiced concerns over the role of UN personnel in managing the return and reconstruction process, administering mental health facilities, or performance in the field of the criminal justice system.¹² As for KFOR, past areas of concern ranged from sexual misconduct to the failure to protect minority lives and property during the March 2004 riots.¹³ More routine criticism relates to the lack of clear procedures allowing for payment of compensation when international actions resulted in members of the public suffering damage or loss.

The lack of accountability for UNMIK’s and KFOR’s actions in Kosovo has been criticized by top human rights bodies. At the Council of Europe, the Venice Commission issued a report in 2004 expressing concern that international institutions in Kosovo function like a government yet lack the checks and balances that hold governments to account.¹⁴  The United Nations Human Rights Committee (which assesses compliance with the International Covenant on Civil and Political Rights, ICCPR) invited UNMIK in 2005 to submit a report on its efforts to secure the rights contained in the ICCPR. UNMIK agreed to submit a report, establishing a positive precedent. The concluding observations of the committee, however, were critical of the lack of accountability for the actions of UNMIK and KFOR. ¹⁵

UNMIK and KFOR troop-contributing nations have been the subject of human rights claims in the European Court of Human Rights (ECtHR). A 2006 claim against UNMIK brought by Roma groups was ruled inadmissible by the court, on the ground that it lacks jurisdiction over an international administration that is not a party to the European Convention on Human Rights.¹⁶ Cases against French, German, and Norwegian troops, alleging failure to prevent the death and maiming of Kosovo children from the detonation of unexploded NATO cluster bombs in one case, and unlawful detention in other, awaited a ruling by the ECtHR Grand Chamber for over six years before being deemed inadmissible in May 2007.¹⁷ The German government is the subject of a pending claim, arising from alleged expropriation of property in Kosovo by German KFOR troops, without compensation to its owner, a displaced Kosovo Serb.¹⁸

Despite the volume of existing analysis and recommendations on the international accountability gap in Kosovo, there has been little progress toward closing that gap. The transition from UNMIK to a new slimmed down International Civilian Representative and an EU police and justice mission provides an opportunity to finally put in place effective accountability mechanisms for international institutions, including the NATO-led military presence. In order to determine how best to establish such mechanisms, it is important first to analyze the current accountability, to see what lessons can be learned from its functioning and impact.