Legal accountability of the United Nations Interim Administration Mission in Kosovo : Responsibility for Human Rights Violations

(1)

Legal accountability of the

United Nations Interim

Administration Mission in

Kosovo

RESPONSIBILITY FOR HUMAN RIGHTS VIOLATIONS

Jeroen Boonzaaijer | Master’s Thesis | 2 January 2017

Master track Public International Law

(2)

Abstract

In the last report of the Human Rights Advisory Panel, the United Nations Mission in Kosovo is been condemned for its refusal to implement the recommendations of the Panel with regard to human rights violations by the Mission in Kosovo. This demonstrates that internal accountability mechanisms like the Human Rights Advisory Panel are highly dependable on the good faith of the UN and its willingness to cooperate. To ensure accountability for the far-reaching powers that the UN assumed in Kosovo, it should be held legally responsible by an independent, judicial party.

Despite that the UN can be regarded as legally responsible for the human rights violations by UNMIK in Kosovo, this responsibility cannot effectively be enforced before a court because of the UN’s immunities and the lack of jurisdiction of courts over conduct by the UN. This is even more problematic because the violations by UNMIK cannot be attributed to involved states under the framework of the Draft Articles on International Responsibility as produced by the International Law Commission. Therefore, despite that the UN is legally responsible for the human rights violations by UNMIK, international responsibility cannot improve the problem concerning the accountability of the United Nations.

(3)

Introduction

“UNMIK remains as unaccountable now for the human rights violations that it committed as it was in 2004 when the Venice Commission proposed to establish a mechanism to bring some oversight to UNMIK’s compliance with human rights standards. For its part, the Panel apologizes profusely to the complainants for its role in this sham.”1

In June 2016, the Human Rights Advisory Panel (“HRAP”), issued its last reports concerning alleged human rights violations by the United Nations Mission in Kosovo (“UNMIK”) before ceasing its operations, which included above quoted conclusion on its functioning. HRAP especially condemned UNMIK’s “unwillingness to follow any of the Panel’s recommendations”.2 By its refusal to cooperate with HRAP, UNMIK contributed to the unaccountability of the Mission with regard to human rights violations and demonstrated that ensuring accountability for human rights violations by creating internal accountability mechanisms is highly dependent on good faith of the involved authorities. This discussion about the unaccountability of the Mission in Kosovo is part of a wider discussion about the unaccountability of its Organization: the United Nations (“UN”). This debate is mainly the result of many unresolved claims for damages caused by sexual abuse in, inter alia, the Democratic Republic of the Congo and the Central African Republic, the cholera epidemic in Haiti caused by UN peacekeeping forces and the conduct of UN contingents with regard to the massacre in Srebrenica.3 In operations like these the UN has assumed state-like sovereign powers which, according to the

1 _{HRAP, Annual Report 2015/2016, para. 21.}

2 _Idem.

(7)

International Law Commission (“ILA”), “entail accountability: the duty to account for its exercise”.4

As exemplified by HRAP, internal accountability mechanisms provide no effective manner to ensure compliance by the UN with human rights provisions or reparation to victims of its human rights violations when the respective authorities do not cooperate.5It is therefore necessary to shift to other forms of accountability. As Weiler and Tzanakopoulos have argued, forms of democratic and political accountability are deemed to be ineffective when applied to the UN, especially when concerning missions authorized by Security Council Resolutions under Chapter VII of the Charter of the United Nations (“the Charter”) and legal accountability is in that case the only adequate form of accountability.6

To enforce legal accountability of international organizations, the International Law Commission developed the Draft Articles on the Responsibility of International Organizations for internationally wrongful acts (“DARIO”), which is considered the accountability mechanism in rem ex post facto.7 To examine whether the UN is legally responsible, in the meaning of DARIO, for the human rights violations committed by or attributable to UNMIK, these draft articles will be applied to the circumstances in Kosovo in this thesis. At the end of this thesis, I will be able to answer the question to what extend the United Nations can effectively held responsible for the human rights violations by UNMIK.

4 _{ILA, Report of the 71st Conference, p. 5; Tzanakopoulos 2011, p. 1.} 5 _{HRAP, Annual Report 2015/2016, para. 21; Peace 2016.}

6 _{Weiler 2004, pp. 560 – 562; Tzanakopoulos 2011, p. 7 – 13.} 7 _{Tzanakopoulos 2011, p. 5.}

(8)

METHODOLOGY

The purpose of this thesis is to examine to what extent the United Nations can be effectively held responsible for human rights violations committed by or attributable to UNMIK. Considering the scope of this thesis, I hereby focus my case study on one of the most well-known human rights violations by UNMIK: the Balaj (and Others) case, which has extensively been treated in secondary literature and in the reports of HRAP. This case is highly indicative with regard to the far-reaching powers of UNMIK in Kosovo and the impact of human rights violations by the Mission to the Kosovar population.

From an externally perspective I (try to) describe the relevant materials concerning the international responsibility of international organizations and the United Nations Missions in Kosovo in a neutral, objective manner. However, I acknowledge that my interpretations of the relevant materials are not fully neutral, since the interpretation of international law inherently implies political choices and because I am educated in a European, continental approach to international law as thought at the Universities of Utrecht and Amsterdam.8

Moreover, this thesis is driven by a constitutionalist approach to international law that attaches great importance to principles as transparency and accountability of international institutions.9This more rule of law-inspired thinking focuses on the availability of rights and remedies for individuals and hereby often conflicts with more functionalist perspectives on international institutions.10I thus cannot deny that this thesis at the end is partly built on normative approaches and choices.

I will study the lex lata on a legal, positivistic method, based on their bindingness on the United Nations. These materials include the Charter of the United Nations, the ILC Draft

8 _{Koskenniemi 1990, p. 31.} 9 _{Koskenniemi 2009, p. 17.} 10 _{Reinisch 2013, pp. 573 – 574.}

(9)

Articles on the Responsibility of International Organizations and several UNMIK Regulations. Nonetheless, I will also refer to “soft law” such as reports by the Secretary-General, statements and resolutions. Because of the lack of stare decisis in the international, institutional system, this use “soft law” also includes references to various judgements and advisory opinions by, inter alia, the International Court of Justice (“ICJ”), European Court of Human Rights (“ECtHR”) and, in a few cases, domestic courts.11

This thesis will be structured in several chapters. First of all, the factual background before the establishment of UNMIK will shortly be treated. Hereafter, I examine the legal basis for the establishment of UNMIK, as this is relevant to demonstrate that, despite the Mission’s unprecedented scope of powers, the Security Council acted in accordance with its general competences and that, therefore, UNMIK is not so sui generis as often is claimed. In the third chapter, the compliance with human rights law is treated in depth. In chapter four I will apply the circumstances of this case to the provisions of DARIO to conclude whether or not the UN is responsible for these violations. Fifthly, I will assess whether or not involved member states can also be held responsible for these violations. In chapter six, the effectiveness of international legal responsibility will be shortly evaluated and finally I will conclude whether or not the UN can be effectively held responsible for human rights violations by UNMIK in the Balaj case.

(10)

1 Factual Background

1.1 YUGOSLAVIA

After the World War II, the Socialist Federal Republic of Yugoslavia (“SFRY”) was formed under the leadership of resistance leader Josip Tito. This federation was made up out of six socialist republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. Kosovo and Vojvodina, however, did not obtain republic status and were brought under Serbian control as an autonomous provinces.12

After Slobodan Milosevic rose to power in the 1980s, Serbia took control in Kosovo, Vojvodina and the Republic of Montenegro and also tried to impose Serbian rule over the other Yugoslav republics. This eventually led to the declaration of independence by Slovenia, Croatia and Bosnia and Herzegovina and the emergence of an armed conflict within the then dissolutive SFRY: The Third Balkan War.13

1.2 ETHNIC CLEANSING IN KOSOVO

Kosovo declared independence in 1991. This, however, was followed by forced subordination by Kosovo to the newly formed Federal Republic of Yugoslavia (“FRY”), which from 1992 consisted out of the former SFRY republics of Montenegro and Serbia including its autonomous provinces Kosovo and Vojvodina. After the paramilitary Kosovo Liberation Army (“KLA”) increased its activities in the end of 1997, FRY changed its policy towards Kosovar Albanians from repression to military assaults and ethnic cleansing.14

12 _{Weller 2009, pp. 11, 19, 28 - 35.} 13 _{Idem, pp. 11, 29, 30 and 41.} 14 _{Idem, pp. 30, 31, 67 and 71.}

(11)

1.3 NATO AIR STRIKES

In the end of 1998, the North Atlantic Treaty Organization (“NATO”) began to threat with the use of force if FRY would not meet the demands laid down in Security Council Resolutions 1160 and 1199. After Belgrade rejected the proposed peace agreement that was drafted by NATO in Rambouillet, NATO authorized air strikes against FRY on 22 March 1999.15

The air strikes were conducted without prior authorisation by the United Nations Security Council (“Security Council”), but were legally justified by NATO members by referring to the, now popularly known, doctrine of Responsibility to Protect (“R2P”), which was (and still is) highly disputed by especially China and Russia.16

In the following months, NATO bombed the military infrastructure of FRY and demanded agreement on the provisions of the proposed Rambouillet Peace Agreement and the withdrawal of FRY troops from Kosovo. In June 1999, after Russian mediation, Belgrade accepted NATO demands. With the adoption of the Security Council Resolution 1244 (1999) on 10 June 1999, NATO bombing ended.17

1.4 SECURITY COUNCIL RESOLUTION 1244

Security Council Resolution 1244 (“Resolution 1244”) entailed a complete withdrawal of Serbian forces from Kosovo, demilitarisation of the KLA and deployment of an international security presence with substantial NATO participation (“Kosovo Force” or “KFOR”).18 Moreover, the Security Council authorized the United Nations Secretary-General (“Secretary-Secretary-General”) to establish “an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo

15 _{Idem, pp. 104, 110, 111 and 154.}

16 _{Idem, pp. 155 – 158; Press Statement by NATO on 23 March 1999.} 17 _{Weller 2009, pp. 154 – 155, 165 – 167, 176 – 177.}

(12)

can enjoy substantial autonomy within the Federal Republic of Yugoslavia”.19 This interim administration was eventually established as the United Nations Mission in Kosovo (“UNMIK”).

Resolution 1244, however, did not include a final solution for Kosovo. The Security Council limited itself to a political solution whereby the territorial integrity and sovereignty of the FRY was reaffirmed, without determining the final status of Kosovo, which was left open for further negotiations.20

Until today, UNMIK still exists. However, since the unilaterally declared independence of Kosovo and the establishment of the European Union Rule of Law Mission (“EULEX”) in 2008, UNMIK plays a rather minor role.21

1.5 CONCLUSION

After the dissolution of the SFRY and the repression of ethnic Albanian Kosovars by the Serbian-dominated FRY, armed conflict and ethnic cleansing emerged in Kosovo. After military invention by NATO, the Security Council adopted Resolution 1244, which ensured a withdrawal of FRY forces from Kosovo. Moreover, it authorized the deployment of the NATO-led military presence, KFOR, and the establishment of an interim civil presence, UNMIK.

19 _{UNSC Res. 1244, supra note 18, para. 10.} 20 _{Stahn 2008, pp. 310 - 311.}

(13)

2 UNMIK: Powers and Legal Basis

In June 1999, Security Council Resolution 1244 authorized the deployment of an international security presence (KFOR) and an internal civil presence in order to provide an interim administration (UNMIK). In Resolution 1244, the sovereignty and territorial integrity of FRY was reaffirmed.22 However, UNMIK’s civil presence and KFOR’s military presence effectively removed the official presence of the FRY in Kosovo.23 UNMIK was established with a wide range of powers, which I will now firstly assess. These powers are relevant to demonstrate the almost state-like competences that the UN, via UNMIK, assumed in Kosovo. Secondly, I will treat the legal basis in the Charter of the United Nations (“the Charter”) to grant these powers. If the Security Council acted in accordance with its general competences, UNMIK is presumably not so sui generis as often is claimed. In both parts I will focus on the UNMIK’s powers concerning police forces.

2.1 POWERS OF UNMIK

With Resolution 1244, the Security Council authorized the Secretary-General to establish an international civil presence in Kosovo.24 The Security Council decided that the main responsibilities of UNMIK would include:25

a) Promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo, taking full account of Annex II and the Rambouillet accords;

b) Performing basic civilian administrative functions where and as long as required;

22 _{UNSC Res. 1244, supra note 18, preambular para. 10.} 23 _{Wilde 2008, p. 144; Tomuschat 2002, p. 325.} 24 _{UNSC Res. 1244, supra note 18, para. 10} 25 _{UNSC Res. 1244, supra note 18, para. 11}

(14)

c) Organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement; d) Transferring, as these institutions are established, its administrative

responsibilities while overseeing and supporting the consolidation of Kosovo’s local provisional institutions and other peacebuilding activities;

e) Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords;

f) In a final stage, overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement;

g) Supporting the reconstruction of key infrastructure and other economic reconstruction;

h) Supporting, in coordination with international humanitarian organizations, humanitarian and disaster relief aid;

i) Maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo;

j) Protecting and promoting human rights;

k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo;

These responsibilities were, however, “main” responsibilities and thus an enumeration of responsibilities that are included in the range of responsibilities of UNMIK. The total bill of powers were still to be determined by the office holders in Kosovo.26 This was especially the task of the Secretary-General and the Special Representative of the Secretary-General (“SRSG”), who was appointed by the Secretary-General in cooperation with the Security Council.27

26 _{Tomuschat 2002, pp. 324 – 325.} 27 _{UNSC Res. 1244, supra note 18, para. 6.}

(15)

In July 1999, the Secretary-General appointed Bernard Kouchner as SRSG and issued a report that outlined UNMIK’s authority and competencies.28 In this report, the Secretary-General granted the SRSG the right to alter existing laws when these were incompatible with Resolution 1244 or with the aims and purposes of UNMIK.29 This was confirmed in UNMIK’s first Regulation on “the authority of the interim administration in Kosovo” by vesting all legislative and executive authority, including the administration of the judiciary, in UNMIK.30 Moreover, the SRSG attributed himself the power to confirm or remove any person in the civil administration, including the judiciary.31 All these competencies together formed a wide scope of both legislative and executive powers which was, according to De Brabandere, “unprecedented in that context”.32

2.1.1 Police forces

Resolution 1244 entrusted both KFOR and UNMIK with the responsibility to ensure public order.33_{The need for the establishment for a police force to maintain law and order}

was crucial after KFOR had ensured that FRY withdrew their military, paramilitary and police forces from Kosovo and hereby no domestic police force was left in Kosovo.34 The Security Council and Secretary-General divided the process for maintaining civil law and order in three stages. Firstly, KFOR had to ensure that public safety and order was maintained until the international civil presence could take over this responsibility.35 _In

the meantime an international police force (“UNMIK Police”) would arrive and give advice to KFOR on its policing operations.36 Secondly, after the transfer of executive police powers from KFOR to UNMIK Police, UNMIK was authorized to maintain civil

28 _{Report of the Secretary-General on UNMIK, 12 July 1999, paras. 1 – 3.} 29 _{Report S-G, supra note 28, paras. 39 – 40.}

30 _{UNMIK Regulation 1999/1, 25 July 1999, Section 1 (1).} 31 _{UNMIK Regulation 1999/1, 25 July 1999, Section 1 (2).} 32 _{De Brabandere 2009, p. 38.}

33 _{UNSC Res. 1244, supra note 18, para. 9 (d) and 11 (i).}

34 _{UNSC Res. 1244, supra note 18, para. 9 (a); Report S-G, supra note 28, para. 60; De Brabandere 2009, p.}

162.

35 _{UNSC Res. 1244, supra note 18, para. 9 (d); De Brabandere 2009, p. 162.} 36 _{Decker 2006, p. 502.}

(16)

law through UNMIK Police and in the meantime establish a local police force.37 This local police force would consists out of indigenous police forces and was called the Kosovo Police Service (“KPS”). In the third stage, executive policing would be transferred to the KPS, with an advisory and monitoring role for the UNMIK Police.38 Where in previous UN missions keeping law and order was primarily an objective for local polices forces which were monitored by unarmed UN Police Officers, UNMIK Police in the second stage was armed and fully in charge of maintaining law and order.39 KPS eventually took full executive authority of police functions (the third stage) in January 2006. However, UNMIK Police kept policing in cooperation with KPS and senior management remained under the authority of UNMIK.40

2.2 LEGAL BASIS

The authority of the UN to establish an interim administration is not explicitly provided by the UN Charter. An amendment, proposed by Norway at the 1945 San Francisco Conference, enabling the Security Council to authorize interim administration, was withdrawn because the original drafters agreed that the general authority for the Security Council to make binding decisions and apply military sanctions would be sufficient to establish international administrations.41

Because of the absence of an explicit legal basis, several legal constructions have been invoked in the past that legally underpin the establishment of territorial administration under the Charter.42 In light of the Charter’s drafting history and these legal constructions, it would not be problematic to find a legal basis for the establishment of an interim civil administration like UNMIK and its policing powers.

37 _{UNSC Res. 1244, supra note 18, para. 11 (i).} 38 _{Decker 2006, p. 502.}

39 _{Report S-G, supra note 28, paras. 60 – 62; De Brabandere 2009, p. 161.} 40 _{Decker 2006, p. 513; De Brabandere 2009, p. 164.}

41 _{Chesterman 2004, p. 50; Stahn 2008, p. 416; Wilde 2008, p. 268.} 42 _{Stahn 2008, p. 423.}

(17)

2.2.1 Legal basis for the establishment of UNMIK

The primary responsibility of the Security Council can be found in Article 24 of the UN Charter:

In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 24 of the Charter can been seen as a delegation of the obligations borne by both member states and the UN to, respectively, refrain from the use of force (Article 2(4) of the Charter) and take effective collective measures for the removal of threats to peace (Article 1 (1) of the Charter) to the Security Council.43In the past, the Security Council in practice expressed that it regarded Article 24 of the Charter as sufficient to authorize an international administration.44

The competences of the Security Council to realize this responsibility are regulated in Chapters VI, VII, VIII and XII of the Charter. In Resolution 1244, the Security Council referred to Chapter VII of the Charter as the legal basis for establishing UNMIK.45 Chapter VII can only be used in case of threats to the peace, breaches of the peace, and acts of aggression, which existence shall be determined by the Security Council.46 In Resolution 1244, the Security Council did not mention a specific article, which is consistent with its general practice. In the judgement of the ECtHR in the Behrami and Saramati case in 2007, the ECtHR regarded several articles in Chapter VII suitable as legal bases to authorize UNMIK, which I will now assess.47

43 _{Wilde 2008, p. 268.} 44 _{De Brabandere 2009, p. 56.}

45 _{UNSC Res. 1244, supra note 18, preambular para. 13 and para. 3 of Annex II;} 46 _{UN Charter, Article 39.}

(18)

Chapter VII of the Charter

First of all, Article 39 of the Charter, besides determining whether or not a certain situation qualifies as a threat to or breach of the peace or an act of aggression, also authorizes the Security Council to make recommendations. Action under Article 39 depends on the consent of the state concerned. Prior to the adoption of Resolution 1244, FRY in fact accepted the deployment of an international military and civil presence. Nonetheless, at the time of the Resolution (1999), the Federal Republic of Yugoslavia was not seen as a member of the UN since it was not regarded as the successor of the Socialist Federal Republic of Yugoslavia.48 Moreover, it would be against the exact forceful nature of a Security Council Resolution and its subsequent implementation to be dependable on cooperation by the concerned State.49 Therefore, Article 39 of the Charter would probably not provide the legal basis for UNMIK.

Article 41 of the Charter, which provides the Security Council with the power to authorize measures not involving the use of armed force, could very well provide the legal basis for UNMIK. Despite that international civil administration is not enumerated in the list of possible measures in this article, this would not form a problem, as this list is not-exhaustive and the Security Council has a margin of discretion in the choice for the measure it finds necessary to make an end to a threat to peace.50 This interpretation of Article 41 is in accordance with the judgement of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in the Tadic case, which considered the only condition on measures under Article 41 was that they should not involve “use of force”.51 In addition, the Charter allows the Security Council to establish subsidiary organs to realize the performance of its functions, which could include civil administration.52 Article 41 of

48 _{De Brabandere 2009, pp. 38 and 61 – 63.}

49 _{Tomuschat 2002, p. 338 – 399; De Brabandere 2009, p. 63 – 64.}

50 _{UN Charter, Article 39; Stahn 2008, pp. 424 – 425; De Brabandere 2009, p. 62.}

51 _{ICTY, Decision of 2 October 1995, Tadic, paras. 31 and 35; De Brabandere 2009, pp. 62 – 63.} 52 _{UN Charter, Article 29.}

(19)

the Charter could, therefore, very well serve as the legal basis for the authorization of UNMIK.

However, to remove any doubt with regard to the “use of force”, it can be also necessary to consider Article 42 of the Charter as the legal basis for the establishment of UNMIK. Article 42 allows the Security Council to authorize action by air, see and land forces. It is obvious that the legal basis for the deployment of KFOR can be found be found in this article.53 Moreover, UNMIK was also delegated some powers that include the use of force, such as the responsibility to maintain law and order by the armed UNMIK Police. Furthermore, in contrary to the military and civil operations in Afghanistan, the establishment of UNMIK and deployment of KFOR were authorized under the same Security Council resolution. The wide scope of measures that can be taken under Article 42 of the Charter would provide a framework under which all the powers of UNMIK (and KFOR) can be authorized.54

Article 42 of the Charter can thus definitively serve as a correct legal basis for the entire Resolution, including both the military (KFOR) and the civil presence (UNMIK). There is, though, one important remark that has to be made with regard to the legal basis for all the powers that were attributed to UNMIK.

To maintain or restore international peace and security

Under Chapter VII, the Security Council possesses a wide range of powers. However, even the Security Council is not free from legal restraints. It should not forget that reliance on Chapter VII implies that adopted measures have to be aimed at the maintenance and restoration of international peace and security.55 To quote Judge Sir Gerald Fitzmaurice:

53 _{(In combination with) UN Charter, Article 48; Stahn 2008, p. 431.} 54 _{De Brabandere 2009, p. 63.}

(20)

“it was to keep up the peace, not to change the world order, that the Security Council was set up.”56

One can argue that because of UNMIK’s wide scope of powers, the Security Council exceeded its mandate. Examples of these powers are UNMIK’s responsibilities with regard to substantial autonomy and the development of provisional institutions for democratic self-government.57 According to Tomuschat, these responsibilities reflect to foster self-government: an aim that is not a primary function of the Security Council.58 However, in accordance with the principle of auto-interpretation and Article 39 of the Charter, the Security Council can decide for itself what it can and cannot authorize when it determines a situation as a threat or breach of international peace.59This was confirmed by the ICTY in the Tadic case and even the ICJ has thus far not engaged in declaring Security Council’s resolutions ultra vires, as demonstrated in the Lockerbie and Bosnia Genocide cases.60

Furthermore, in line with the Security Council’s expending definition of a threat to international peace and security, UNMIK’s responsibilities regarding self-governance and democracy in Kosovo can nevertheless be justified in the name of maintenance and restoration of international peace and security. While the situation in Kosovo could be regarded as an internal conflict within FRY, it could have resulted in serious regional instability and thus a threat to international peace and security. Creating a stable, democratic and substantive autonomous Kosovo could in this case very well be an effective method of maintaining that peace.61 Therefore, establishing these provisional democratic institutions and promoting substantive autonomy for Kosovo is in fact justified as a measure to ensure international peace and security.

56 _{ICJ, Dissenting Opinion of Judge Fitzmaurice, 21 June 1971 (South West Africa), par. 115.} 57 _{UNSC Res. 1244, supra note 18, para. 11 under “a” and “c”.}

58 _{Tomuschat 2002, pp. 340 – 341.}

59 _{UN Charter, Article 39; Chesterman 2016, pp. 125 – 127.}

60 _{ICJ, Order of 14 April 1992, Lockerbie, paras. 42 – 46; ICJ, Order of 13 September 1993, Bosnia}

Genocide, p. 325; ICTY, Tadic, supra note 51, paras. 29 - 31; Chesterman 2016, pp. 129 – 137.

(21)

Conclusion on legal basis for UNMIK

The legal basis for the establishment of UNMIK can therefore at least be found in the Article 42 of the Charter. Despite that UNMIK’s responsibilities concerning self-governance and democracy could be difficult to explain in the light of its aim to maintain and restore international peace and security, this can very well be justified bearing in mind that the Security-Council has the right of auto-interpretation of its competences and has expended its definition of a threat to international peace over the years. This conclusion is supported by the findings of the ECtHR, which concluded that

“in any event, the Court considers that Chapter VII provided a framework for the above-described delegation of the UNSC's … civil administration powers to UNMIK.”62

I will now examine the legal basis concerning the UNMIK Police and the establishment of the KPS.

2.2.2 Legal basis with regard to policing

The competences granted to UNMIK with regard to the police forces are less controversial than the discussion around the entire mandate of UNMIK as treated above. In Resolution 1244, the Security Council determined that the situation in Kosovo remained a threat to international peace and security.63 In Kosovo, where KFOR ensured the withdrawal of Serbian (military and) police forces and thus no law enforces were present anymore, the restoration of public order was essential to remove this threat because of the wides-spread presence of heavy arms, looting and revenge killings by ethnic Albanian Kosovars against ethnic Serbs living in Kosovo.64The deployment of an international police force and build-up of the Kosovar Police Service can thus be linked

62 _{ECtHR, Behrami and Saramati, supra note 47, para. 130.} 63 _{UNSC Res. 1244, supra note 18, preambular para. 12.} 64 _{De Brabandere 2009, p. 162.}

(22)

to the Security Council’s competences under Chapter VII with the aim of maintaining and restoring international peace and security. Moreover, the re-establishment of law and order is often one of the major priorities in post-conflict areas, as this is an essential condition to proceed to further reconstruction activities.65

Bearing in my mind that UNMIK Police was armed and had executive policing authority, the soundest legal basis for the police branch of UNMIK can be found in Article 42 of the Charter.

2.3 CONCLUSION

With Resolution 1244, UNMIK was granted a wide range of main responsibilities. These responsibilities were turned into even broader powers by Regulation 2000/1. With regard to police forces, UNMIK was authorized to deploy an international police personnel (UN Police) and to establish a local police force (KPS). The UNMIK Police Commander, under the authority of the SRSG, would retain authority and control over both UNMIK Police and KPS until KPS would be able to enforce law and order by itself.

When adopting Resolution 1244 and hereby establishing UNMIK, the Security Council referred to Chapter VII of the Charter of the United Nations as the legal basis for their conduct. Article 42 would have definitively been able to provide for this legal basis. In light of the Security Council’s expanding definition of threat to the international peace and the principle of auto-interpretation, even UNMIK’s responsibilities with regard to democracy and the substantial autonomy of Kosovo, can be justified as measures that aim to restore or maintain international peace and security. Moreover, the competence of the Security-Council of to authorize UNMIK with the responsibilities to maintain civil law and order by establishing local polices forces (Kosovo Police Service) and meanwhile deploy international police personnel can be found in Article 42 of the Charter.

(23)

The legal basis for the establishment of UNMIK and its wide scope of powers can thus be found in Article 42 of the Charter. These far-reaching powers granted to UNMIK, highly resemble the sovereign powers that used to belong exclusively to independent states. As stated above, these powers “entail accountability: the duty to account for its exercise”.66 Accordingly, in the next chapter the provisions, institutions and alleged human rights violations of UNMIK concerning the accountability of UNMIK will be examined.

(24)

3. Human Rights Protection and Violations

In June 2016, the last annual report of the Human Rights Advisory Panel was published. The report covered the period between January 2015 and May 2016 in which the panel issued a number of opinions on cases concerning alleged human rights violations committed by or attributable to UNMIK.67 In addition, HRAP produced its Final Report in which it treated the history and legacy of its whole eight-year mandate.68

Before the alleged violations will be treated in detail, I will firstly assess the relevant provisions that regulate the protection of human rights and the institutions in Kosovo that were mandated to examine possible human rights violations by UNMIK. After this I will focus on the human rights violations allegedly committed by the UNMIK Police and KPS in general and in the Balaj and Others case (“Balaj case”).

3.1 UNMIK AND HUMAN RIGHTS

In Resolution 1244, the Security Council explicitly stressed protection and promotion of human rights as one of the main responsibilities of UNMIK.69This was confirmed by the Secretary-General in his first report on UNMIK by stating that “UNMIK will be guided by internationally recognized standards of human rights as the basis for the exercise of its authority in Kosovo.” He also expressed that all persons undertaking public duties or holding public office in Kosovo would be required to observe internationally recognized human rights standards, which was also confirmed in the first and several other UNMIK Regulations.70

67 _{HRAP, Annual Report 2015/2016, p. “i”.} 68 _{HRAP, Final Report, p. 3.}

69 _{UNSC Res. 1244, supra note 18, para. 11 (j); De Brabandere 2009, p. 217.}

70 _{Report S-G, supra note 28, paras. 38 and 42; UNMIK Regulation 1999/1, Section 2; UNMIK Regulation}

(25)

Moreover, the Secretary-General stated that UNMIK would provide for mechanisms to ensure that the police, courts and other judicial structures would operate in accordance with human rights. To ensure independent review, he also called for the establishment of an ombudsperson, which would have jurisdiction over alleged regards human rights violations by any person or entity in Kosovo, including UNMIK.71

3.1.1 UNMIK Ombudsperson

The UNMIK Ombudsperson was established to ensure that all persons in Kosovo would be able to effectively exercise the human rights and fundamental freedoms safeguarded by international human rights standards. The Ombudsperson had jurisdiction to investigate complaints about human rights violations by UNMIK, but only had the power to make non-binding recommendations and provide advice to the relevant authorities.72 The UNMIK Ombudsperson was generally seen as an effective mechanism for supervision of human rights violations. However, the Ombudsperson itself called the effective implementation of human rights standards in Kosovo “a myth”.73 This conclusion was supported by Venice Commission, an advisory body of the Council of Europe, who pointed out a “wide array of human rights problems under UNMIK’s stewardship”.74 _{To tackle these problems, the Ombudsperson’s jurisdiction was}

transferred to the Human Rights Advisory Panel in 2006.75 3.1.2 Human Rights Advisory Panel

Like the Ombudsperson, the Human Rights Advisory Panel was mandated to examine complaints about human rights violations by UNMIK and could apply several internationally recognized human rights standards, such as the Universal Declaration of Human Rights (“UDHR”), the European Convention for the Protection of Human Rights

71 _{Report S-G, supra note 28, paras. 85 – 90.}

72 _{UNMIK Regulation 2000/38, Sections 1 – 4 and 13; De Brabandere 2009, p. 112 and 219.} 73 _{De Brabandere 2009, p. 219; UNMIK Ombudsperson, Annual Report 2003 – 2004, p. 15.} 74 _{HRAP, Final Report, p. 8.}

(26)

and Fundamental Freedoms (“ECHR”) and the International Covenant on Civil and Political Rights (“ICCPR”).76

Similar to the Ombudsperson, HRAP could only make recommendations to the SRSG and its findings were only of advisory nature. HRAP could examine complaints about human rights violations that had occurred until 9 December 2008, when the EU mission “EULEX” took over UNMIK’s responsibility with regard to justice and police in Kosovo.77

The jurisdiction of HRAP to receive and investigate complaints about human rights compliance was ended on 31 March 2010 by an UNMIK administrative direction in October 2009. The Annual Report over 2015 and 2016 and a Final Report, covering the overview and analysis of the Panel’s conclusions and recommendations, were the last documents presented to the SRSG and the public in June 2016.78

HRAP made multiple recommendations to UNMIK about the continuing violations of the ECHR. However, in its final annual report HRAP doubted UNMIK’s good faith in cooperating with HRAP, called its eight-year mandate a “total failure” and “a human rights minstrel show” and even apologized to the complainants for HRAP’s involvement in “this sham”. The biggest reason for this unsatisfactory conclusion was the lack of implementation of HRAP’s recommendations by UNMIK, in particular in the matter of financial compensation to the complainants.79

3.1.3 UNMIK Police and Human Rights

The mandatory observance of internationally recognized human rights standards by all persons undertaking public duties as declared by the Secretary-General and in UNMIK regulations also applied to the UNMIK Police forces. Regarding KPS it was explicitly

76 _{De Brabandere 2009, p. 112; UNMIK Regulation 2006/12, Sections 1.2 and 2.}

77 _{UNMIK Regulation 2006/12, Sections 1.2, 1.3, 17.1 and 2; HRAP, Final Report, p. 9; Verdirame 2011, p.}

265.

78 _{HRAP, Annual Report 2015/2016, p. “i”; HRAP, Final Report.} 79 _{HRAP, Annual Report 2015/2016, pp. “i”- “ii” and 30.}

(27)

confirmed that its forces should act in accordance with internationally recognized human rights standards.80 To ensure compliance with these standards, UNMIK Police developed specialized human rights courses for officers and investigators with regard to arrest, detention, search and seizure. Moreover, a Human Rights Office was established and codes of conduct that included human rights standards for both the UNMIK Police and the KPS were adopted.81

To examine possible human rights violations and offer remedies to persons who felt their human rights were violated, internal investigation mechanisms were established. Partly because the UN was not prepared for a civil police mission like UNMIK Police, many problems with regard to compliance with human rights standards came to surface.82

3.2 HUMAN RIGHTS VIOLATIONS

In spite of the above mentioned obligations and responsibilities to comply with human rights, HRAP in total received more 527 complaints about human rights violations by UNMIK. In 335 of these cases, HRAP found a wide range of human rights violations attributable to UNMIK and made recommendations about some form of reparation to victims of these violations. The majority of cases treated by the Ombudsperson and HRAP concerned property claims by persons who fled Kosovo during the outbreak of violence and had to leave their property behind unprotected.83

Another big portion of the investigated complaints involved conduct by UNMIK Police and KPS, which I will now further assess.

3.2.1 Human Rights Violations by UNMIK Police and KPS

Since their establishment, several alleged violations of human rights by UNMIK Police and KPS rose to surface. Most cases treated by the Ombudsperson and HRAP with regard

80 _{UNMIK Regulation 2005/54, Section 1.3.}

81 _{Decker 2006, p. 507; UNMIK Police, Annual Report 2000, p.9.} 82 _{Decker 2006, p. 508 – 510.}

(28)

to human rights violations by the police forces concerned the length of detention, arbitrary arrest, inhumanly holding cell facilities, inadequate police investigations into murders and missing persons and the right to life. With these violations, UNMIK contravened several human rights articles such as Articles 9 and 14 of the ICCPR and Articles 2, 3, 5 and 6 of the ECHR.84

The examination of all these human rights violations does not fit inside the scope of this master’s thesis. Therefore, I will focus on one of the cases brought before HRAP that received considerable public attention and media coverage: the so called Balaj and Others case.85

3.2.2 Human Rights Advisory Panel: Balaj case

The Balaj case involved the deaths of two protesters and two seriously injured protesters after unauthorized and excessive use of force by police forces during a street demonstration in Pristina on 10 February 2007.

After protesters in favour of the independence of Kosovo encountered a police blockade in one of the streets of Pristina, they tried to break through the police line. The police forcers responded by pushing back and, after projectiles were thrown at the police, by using pepper spray and rubber bullets. Despite the use of rubber bullets, four protesters where heavily injured by them, of which two persons later died in the hospital.86

The involved polices forces consisted out of three UNMIK Police units (one Polish, one Romanian and one Ukrainian unit) and one KPS unit. The deadly bullets were fired by Romanian police officers under the command authority of UNMIK.87

84 _{HRAP, Final Report, pp. 63 – 72; HRAP, Annual Report 2015/2016, pp. 12 – 13. Becker 2006, pp. 505 –}

507; Verdirame 2011, pp. 264 – 266.

85 _{Verdirame 2011, p. 266.}

86 _{HRAP, Opinion of 27 February 2015, Balaj and Others v. UNMIK, paras. 49 – 56.}

87 _{HRAP, Opinion of 27 February 2015, Balaj and Others v. UNMIK, paras. 40 and 45; HRAP, Final Report,}

(29)

HRAP found that the use of force to disperse the protesters, of which the deaths of Mr. Balaj and Mr. Xheladini was the result, was not absolutely necessary within the meaning of Article (2) of the ECHR. Beside this violation of the substantive limb of this Article concerning the right to life, UNMIK in this case also violated the procedural element of it. According to HRAP, the investigation into the circumstances leading to their deaths was too “prompt and did not display sufficient guarantees of independence and impartiality”.88 This violation of the procedural element of the right to life is indicative for the failure of both the policing and judicial authorities in Kosovo under the auspices of UNMIK and, inter alia, the result of ethnically biased Kosovar officials. The lack of effective investigation was also often the case with cases concerning murders and abductions of ethnic Serb persons.89

Furthermore, in the view of HRAP, UNMIK’s forceful intervention of the demonstration was disproportionate and not necessary in a democratic society for the prevention of disorder and therefore in violation of Article 11(2) ECHR, concerning the right to freedom of peaceful assembly and association.90

Accordingly, UNMIK violated both the substantive and procedural elements of Article 2 of the ECHR concerning the right to life and the right to freedom of peaceful assembly and association as provided by Article 11 of the ECHR.

3.3 CONCLUSION

When adopting Resolution 1244, the Security Council explicitly granted UNMIK the responsibility to promote and protect human rights. This was confirmed by both the Secretary-General and several UNMIK Regulations, which also provided that all persons undertaking public duties were required to observe internationally recognized human rights standards. Moreover, several provisions with regard to human rights and the

88 _{HRAP, Final Report, pp. 82 – 83.}

89 _{De Brabandere 2009, p. 162.; Verdirame 2011, pp. 265 – 266.} 90 _{HRAP, Final Report, pp. 82 – 83.}

(30)

UNMIK Police and KPS were adopted. In addition, the Ombudsperson and HRAP were established to ensure to supervise compliance with human rights by UNMIK.

Despite all these provisions and institutions, a wide range of human rights violations attributable to UNMIK occurred, including ones conducted by the UNMIK Police. The Ombudsperson and HRAP adopted recommendations to UNMIK to prevent further violations, which were nonetheless in most cases not implemented by the relevant authorities. Therefore, it can be concluded that while the Ombudsperson and HRAP might have been well-functioning advisory mechanisms for UNMIK, its role as internal accountability mechanism did not significantly contribute to the accountability of UNMIK with regard to human rights violations. This demonstrates that, despite their functioning, internal accountability mechanisms are highly dependent on cooperation of the respective authorities. This opinion was already shared by the Venice Commission in 2004, who stated that HRAP should have more than just the power to make recommendations of advisory nature and that UNMIK should “commit itself to accept the findings of [HRAP] that express the view that UNMIK is violating human rights.”91 Because of this unsatisfactory conclusion about the effect of both internal accountability mechanisms, I will, in the next chapter, examine the legal responsibility of the UN for the human rights violations by UNMIK.

(31)

4. Responsibility of the United Nations

To examine the responsibility of the United Nations for human rights violations by UNMIK, I will assess this conduct under the framework provided by the ILC Draft Articles on the Responsibility of International Organizations (“DARIO”). To limit my research, I will focus on the human rights violations by the UNMIK Police and KPS in the Balaj case. I will start with a short introduction on the responsibility of international organizations under DARIO. Afterwards I will assess if these Articles are applicable to the United Nations in the case of human rights violations by UNMIK. Hereafter, I will apply the criteria as provided by DARIO on the human rights violations by UNMIK Police and KPS to examine whether or not the UN can be held responsible for these violations.

4.1 RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS

It seems obvious that when an international organization violates international law, it hereby triggers responsibility for this violation and the obligation to ensure compensation to the victims of this violation.92 However, it was not before 2011 that the International Law Commission (“ILC”) adopted the Draft Articles on the Responsibility for International Organizations, on which it had worked from the year 2001 when it was recommended to do so by the General Assembly of the United Nations.93

Despite the absence of an earlier treaty or articles on this kind of responsibility, the content of DARIO has generally not been seen as a new phenomenon. That a violation of an international obligation entails responsibility and mandatory reparation, was already confirmed by the PCIJ in the Chorzów case in 1927.94 The responsibility of States for internationally wrongful acts was explicitly confirmed as international customary law by

92 _{Chesterman 2016, p. 556} 93 _{Gaja 2011, p. 1.} 94 _{PCIJ, Chorzów, p. 21.}

(32)

the ICJ in the Gabčikovo-Nagymaros Project case in 1997 and later codified by the ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“DARS”).95 DARIO follows the system and content of DARS quite closely. Unlike DARS, which was based on long-standing patterns of customary law, DARIO was said to lack an underlying normative basis and that it was not based on practice in the field of organizations. Nonetheless, DARIO has already been extensively used in several cases, including cases before the ECtHR.96 For these reasons, Chesterman stated that ILC’s DARIO is regarded as largely codifying international customary law.97

Article 3 of DARIO states that:

Every internationally wrongful act of an international organization entails the international responsibility of that organization.

For the conception of this international responsibility one can distinct three main criteria: (1) the concerned organization has to be regarded an “international organization”98_{; (2)}

there has to be an act or omission committed by that international organization that breaches an international obligation of that organization99; and (3) the act or omission has to be attributable to that organization under international law.100

Before the criteria of DARIO will be applied to the possible responsibility of the United Nations for human rights violations of UNMIK, it is first necessary to determine whether or not DARIO is applicable to the United Nations.

4.1.1 Applicability on the United Nations

According to the ICJ in the Reparations for Injuries case in 1949, the United Nations is an international person and has international legal personality distinct from that of its

95 _{ICJ, Judgement of 25 September 1997, Gabčikovo-Nagymaros Project, paras. 51 – 52.} 96 _{Klabbers 2015, pp. 315 – 317.}

97 _{Chesterman 2016, p. 579.} 98 _{DARIO, Article 2 (a).} 99 _{DARIO, Article 4 (b).} 100 _{DARIO, Article 4 (a).}

(33)

member states.101This meant that the United Nations is a subject of international law and capable of possessing international rights and duties. International legal personality therefore does not only entail rights, but also the duty to respect international law.102 By mentioning “international law”, the ICJ does not refer to explicit sources of international law. A later advisory opinion in the Interpretation of Agreement case did not clarify this significantly by stating that “international organizations are subjects of international law, and, as such, are bound by any obligations upon them under general rules of international law.” Nonetheless, Verdirame concludes that “the most plausible interpretation” of the ICJ’s notion of general international law is that it refers to customary international law of universal application and general principles of law.103This is largely supported by Article 38 of the Statute of the ICJ, according to Verdirame “the most authoritative statement on the sources of international law”, which states that the recognized formal sources of international law are treaties, custom, general principles and, as subsidiary means, judicial decisions and academic writings.104_{Therefore, it can be}

concluded that the duty for the UN, as international legal person, to respect international law inter alia means that it is bound by customary international law.105

As stated above, the international responsibility of international organizations, as later codified by DARIO, is largely regarded as international customary law. Therefore, DARIO is in fact applicable to the United Nations, as it possesses international legal personality and is hereby bound by customary international law.

The four main criteria provided by DARIO will now be assessed in more detail and applied to the human rights violations in the Balaj case.

101 _{ICJ, Reparations for Injuries, Advisory Opinion of 11 April 1949, p. 179.}

102 _{ICJ, Reparations for Injuries, supra note 101, p. 179; De Brabandere 2009, p. 98; Chesterman 2016, pp.}

509 – 510.

103 _{ICJ, Advisory Opinion of 20 December 1980, Interpretation of the Agreement, p. 89 – 90; Verdirame}

2011, p. 71.

104 _{Verdirame 2011, p. 55.}

(34)

4.2 INTERNATIONAL ORGANIZATION

For the establishment of international responsibility the concerned organization, whose conduct is allegedly in violation of an international obligation, must be regarded an “international organization”. According to Article 2 (a) of DARIO

“international organization” means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;

In the case of the UN, this criterion will not be problematic. In 1945, the representatives of the founding member states agreed in San Francisco to the Charter of the United Nations and hereby established the United Nations.106 The UN was thus established by a treaty. As explained above, the ICJ ruled in the Reparations for Injuries case that the UN possesses its own international legal personality.

Therefore, the United Nations qualifies as an international organization and thus meets the criterion of Article 2 (a) of DARIO.

4.3 BREACH OF INTERNATIONAL OBLIGATION

It is more challenging to determine whether or not the UN breached one of its international obligations by violating human rights through the conduct of the UNMIK Police and KPS. According Article 10 (1) of DARIO

there is a breach of an international obligation by an international organization when an act of that international organization is not in conformity with what is required of it by that obligation, regardless of the origin or character of the obligation concerned.

(35)

However, there is no breach when the organization is not bound by the obligation at the time the act occurs.107 Therefore, it is first necessary to examine whether or not the UN was bound to the human rights provisions that were violated by UNMIK. Concerning the Balaj case, the violated human rights provisions were Articles 2 and 11 of the ECHR. As explained under paragraph 3.1, human rights were widely promoted and applied to conduct and responsibilities of UNMIK and the UNMIK Regulations establishing the Ombudsperson and HRAP listed (inter alia) the ECHR, UDHR and ICCPR as internationally recognized human rights. Despite all this, it is not manifest that the United Nations itself is bound to act in accordance with these human rights standard, because the UN itself is not a party to human rights treaties as these treaties are generally only open to accession by states.108Therefore, one can ask itself whether or not the UN is bound to the obligation not to violate human rights.109

In fact there are several approaches that can suggest that the UN is bound by human rights standards, which are based on (1) obligations rising from the UN Charter and (2) obligations rising from international customary law.

4.3.1 Human rights obligations rising from the UN Charter

The UN Charter contains several provisions that express a possible obligation towards human rights compliance. To start with the preamble of the Charter which reaffirms the UN’s “faith in fundamental human rights”. Furthermore, Article 1 of the Charter lists cooperation in promoting and encouraging respect for human rights and fundamental freedoms as one of the purposes of the UN and Article 55 states that the UN shall promote universal respect for and observance of human rights and fundamental freedoms.

107 _{DARIO, Article 11.}

108 _{For example: Article 48 (1) ICCPR and Article 59 ECHR.}

(36)

Because of this expressed references to human rights, some academics feel that, for policy reasons, the UN is fundamentally required to respect human rights.110

As morally appealing this argumentation might be, it does not form a legal obligation for the UN to observe human rights law, considering that the drafters of the Charter opted to commit the UN to “promote” human rights and not mandatorily comply with it. Therefore, the UN Charter does not include a legal basis entailing an expressed obligation under international law to observe human rights in conduct by or attributable to the UN.111

Despite that the UN’s obligation to act in accordance with human rights law cannot be based on the Charter, the UN is, in fact, bound by some human rights rising from international customary law, which I will demonstrate below.

4.3.2 Human rights obligations rising from international customary law

As explained under paragraph 4.1.1, the UN is bound by international customary law. Subsequently, if human rights provisions can be regarded international customary law, the UN is bound to these provisions.

According to Simon Chesterman, it is widely held that all states are subject to minimally basic human rights law on the basis of customary law.112 This corresponds to the judgement of the ICJ in the Barcelona Traction case in which the Court judged that “basic rights of the human person” can be considered “general international law or conferred by international instruments of universal or quasi-universal character”.113 Moreover, several authors have claimed that the Universal Declaration of Human Rights, or at least the fundamental parts of it, can be considered international customary law. In addition, human rights provisions that can be regarded international custom include the

110 _{De Brabandere 2009, p. 96; Chesterman 2016, pp. 508 – 509.} 111 _{De Brabandere 2009, p. 97.}

112 _{Chesterman 2016, p. 512.}

(37)

prohibition against arbitrary detention, due process rights and jus cogens norms like the prohibition of inhumane or degrading treatment, racial discrimination and slavery. All these human rights provisions thus bind its subjects not only based signature of the relevant human rights treaties but also under international customary law.114

Nonetheless, some argue that the UN cannot be bound by human rights, as these are in essence addressed to states and not to international organizations.115 Whereas this could be a good argument in cases involving other Missions of the United Nations, this argument does not stand up with regard to missions like UNMIK. Since the establishment of civil administrations like UNMIK and UNTAET in East Timor, the UN has assumed more and more state-like functions and duties, where it performed the functions of the public authority of that territory. As stated by HRAP, in Kosovo UNMIK assumed the role of a “surrogate state”.116 _{As human rights mainly regulate the conduct of public}

authority, it makes sense that when the UN assumes this administrative, state-like responsibility, it would be bound by human rights. This approach follows the approach as adopted by the ICJ in the Reparations for Injuries case. According to the ICJ, the United Nations had international legal personality because of its functions and duties and thus was a subject of international law. Therefore, one can also imply that the UN should respect customary human rights obligations when its function and duties entail this obligation. Moreover, it would be very questionable if states could avoid their obligations to human rights by acting through the UN.117 For these reasons, once a human rights norm has become customary law, it should also be applicable to an international organization like the UN.

114 _{Chesterman 2016, p. 481; De Brabandere 2009, pp. 98 – 99.} 115 _{De Brabandere 2009, p. 99.}

116 _{HRAP, Final Report, p. 3.}

(38)

Concluding, the UN, especially when operating civil administrations like UNMIK, is bound by those fundamental human rights provisions that are considered international customary law.

Articles 2 and 11 of the ECHR

With regard to the Balaj case, human rights as provided by the Articles 2 (right to life) and 11 (right to peaceful assembly and association) of the ECHR were violated. In order to become binding to the United Nations, these Articles have to be considered international customary law.

The ICJ considered in the North Sea Continental Shelf case that for a rule to become international customary law, it must fulfil two conditions: (1) there has to be extensive and virtually uniform state practice in the sense of the provision invoked and (2) the states concerned must feel that they are conforming to what amounts to their legal obligation (opinio juris sive necessitatis).118 The condition regarding opinio juris was later slightly relaxed in the Nicaragua case when the Court stated that it was sufficient if the conduct was “in general” consistent with the rule. Moreover, the ICJ ruled that important UN General Assembly Resolutions could contribute to the formation of an opinio juris.119 _{Treaty-making can even be relevant for the fulfilment of the condition of}

state practice.120

This is highly relevant, because the violated Articles 2 and 11 ECHR are also included in other human rights treaties. The right to life is not only laid down in Article 2 ECHR, but also in Article 6 of the ICCPR and Article 3 UDHR. In fact the right to life can be considered a cornerstone within these human rights standards, because without protection of one’s life, one cannot enjoy the other human rights as provided by these treaties. Like the right to life, the right to peaceful assembly and association as provided by Article 11

118 _{ICJ, Judgement of 20 February 1969, North Sea Continental Shelf, paras. 74 and 77.} 119 _{ICJ, Judgement of 27 June 1986, Nicaragua v. US, paras. 99-100.}

(39)

ECHR is also included in the human rights provisions of the UDHR (Article 20) and ICCPR (Article 21 and 22).

In line with the judgements by the ICJ in the Nicaragua and North Sea Continental Shelf cases, incorporation in the UDHR is very contributable to the conditions of state practice and opinio juris. Dimitrijevic even called the UDHR “an indispensable contributing element to the creation of customary law.”121 In addition, De Brabandere agreed with several authors that the UDHR, as instrument containing fundamental human rights, can be considered international customary law.122

Regarding the ICCPR, the ICJ also underlined the importance of the treaty by declaring it even applicable “in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”. This was in conformity with the intention of the drafters of the ICCPR who did not intend to “allow States to escape from their obligations when they exercise jurisdiction outside their national territory.” In consonance with this, it would seem unnatural if the UN, under whose umbrella the ICCPR was formed, could in reality escape the application of the ICCPR on its conduct.123

Because of their incorporation in the UDHR and ICCPR and the underlined, fundamental importance of these treaties by the ICJ, Articles 2 and 11 of the ECHR are part of international customary law. Accordingly, the UN is bound to the obligation not to violate Articles 2 and 11 of the ECHR. Now I will examine whether or not the UN breached this obligation by violating these two human right articles.

4.3.3 Balaj case: breach of an obligation?

In order to qualify the acts by UNMIK which violated human rights as a breach of the obligation of the UN to comply with human rights, these acts has to be not in conformity

121 _{Dimitrijevic 2006, pp. 8 – 9.} 122 _{De Brabandere 2009, p. 98 – 99.}

(40)

with what is required by that obligation.124 In order to make this determination, it is sufficient to refer to the opinions of HRAP on the conduct of UNMIK.

With regard to the Balaj case, HRAP ruled the conduct of the UNMIK Police and KPS during the street demonstration in February 2007 in violation, and thus not in conformity, with the Articles 2 and 11 of the ECHR.125 For this reason, the criterion of Article 10 (1) of DARIO is fulfilled. As a result of the obligation of the UN to observe Articles 2 and 11 of the ECHR, the acts of UNMIK Police and KPS can be considered a breach of an international obligation of the UN, as provided by Article 4 (b) DARIO.

4.4 ATTRIBUTION

The condition that the act in violation of the international obligation of the concerned international organization has to be attributable to that organization, as provided by Article 4 (a) DARIO, is specified in Articles 6 to 9 DARIO. I will now whether or not the conduct by UNMIK Police and KPS in Balaj can be attributed to the UN.

Article 6 DARIO

Article 6 (1) DARIO states that

“the conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.”

According to Verdirame, for the fulfilment of this article, it would be sufficient to demonstrate that by this conduct the organization is exercising its functions through that organ or agent.126It is obvious that this is the case regarding UNMIK Police, as UNMIK, mandated to maintain civil law and order and to deploy an international police personnel

124 _{DARIO, Article 10 (1).}

125 _{HRAP, Final Report, pp. 82 - 83.} 126 _{Verdirame 2011, pp. 102 – 103.}

(41)

by Resolution 1244, performed through its functions by executing police operations through UNMIK Police.127

Moreover, in the Behrami and Saramati case, the ECtHR explicitly noted that UNMIK was institutionally directly and fully answerable to the Security Council and thus a subsidiary organ of the UN.128 This is not different in the Balaj case as the UNMIK Police was commanded by the UNMIK Police Commissioner who would report to the SRSG and his Deputy.129 The SRSG, directly or via the Secretary-General, would eventually report to the Security-Council about the functioning of the international police force.

Therefore, the UNMIK Police acted as an organ of the UN.

It seems less obvious that KPS can be considered an organ of the UN, because of its Kosovar character. However, the KPS at the moment of the violations in the Balaj case could not be regarded a separate entity from UNMIK.

As provided by UNMIK Regulation 54/2005, the KPS functioned under the authority of the SRSG and under the control and supervision of the UNMIK Police Commissioner. Moreover, the KPS Discipline Committee was established under the authority of the SRSG.130 From 2002 onwards, the KPS was handed law enforcement functions. However, until the establishment of EULEX, UNMIK Police had primacy in law enforcement and retained overall control over law enforcement in Kosovo. Before the operation concerning the street demonstration on 10 February 2007, final approval of the Operational Order Plan was given by the UNMIK Police Commissioner, who, as stated above, reported to the Security Council. As stated above, this Police Commissioner eventually reported to the Security Council. Moreover, most senior management

127 _{UNSC Res. 1244, supra note 18, paras. 10 and 11 (i); Rep. S-G, supra note 28, para. 60.} 128 _{ECtHR, Behrami and Saramati, supra note 47, paras. 118, 142 and 143.}

129 _{Report S-G, supra note 28, paras. 60 – 62; De Brabandere 2009, p. 161.} 130 _{UNMIK Regulation 2005/54, Sections 2 and 5.}

(42)

positions within the UNMIK command structures were staffed by UNMIK, and not KPS, officials.131 Moreover, the UNMIK Police Commander, under the authority of the SRSG, retained full discretion to dismiss or discipline KPS Officers and to investigate alleged human rights violations or other misconduct by members of KPS.132 Because of the command structure as enumerated above, KPS could not be regarded autonomous from UNMIK. Just like UNMIK Police, KPS is thus part of UNMIK and hereby the conduct by the KPS officers can be attributed to the UN.

The violations of human rights by UNMIK Police and KPS can therefore be considered an act by an organ of the UN and are thus attributable to the UN.

4.5 CONCLUSION

Under the framework of DARIO every internationally wrongful act of an international organization entails the international responsibility of that organization. Despite that the UN is not a party to human rights treaties, it is bound to fundamental human rights in the case they can be considered international customary law. This is in fact the case with the human rights that were violated in the Balaj case, namely Articles 2 and 11 ECHR concerning the right of life and the right to peaceful assembly and association. For this reason, the UN had the obligation to observe these human rights provisions. As these articles were violated by the UNMIK Police and KPS, the UN breached this obligation. Because the UNMIK Police and KPS are part of UNMIK and UNMIK is considered a subsidiary organ of the UN, the violations of human rights can be attributed to the UN. Accordingly, the conduct of UNMIK Police (including the Romanian police officers) and KPS, entails the legal responsibility of the United Nations under the framework provided by DARIO.

131 _{HRAP, Balaj and Others, supra note 87, paras. 21 and 30 – 35.} 132 _{Report S-G, supra note 28, para. 64}

Legal accountability of the United Nations Interim Administration Mission in Kosovo : Responsibility for Human Rights Violations