Post-Conflict Institutions That Fall Short: The UN Mission in Kosovo
Human Rights Dialogue, Series 2, Number 5
January 6, 2001
How has the international community implemented its mandate to protect the rights of the Kosovars, Serbs, Roma, and Turks in Kosovo? Advancing human rights in the region is one of the primary responsibilities of the UN Mission in Kosovo (UNMIK), the first international civil administration authorized and created by the United Nations Security Council.
The scope of UNMIK’s mission is unprecedented. According to the resolution that created it, UNMIK is to “provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.” In addition, its powers are extraordinary and provide for “all legislative and executive authority … including the administration of the judiciary.” In exercising these powers, the UN Mission is specifically required to observe internationally recognized human rights standards as contained in a variety of international human rights conventions.
Yet, UNMIK’s human rights rhetoric diverges noticeably from its practice of human rights on the ground. Granted, enforcement of human rights norms was difficult in the chaotic environment in Kosovo when NATO forces entered in 1999. The ongoing political instability and lack of consensus on the future status of the territory have since created a politically complex environment in which the United Nations must carry out its objectives. Still, UNMIK has not moved with sufficient speed to bring its administration of Kosovo in line with human rights principles. In our view, the effects of the humanitarian intervention and subsequent UN administration on the development of human rights norms in Kosovo fall short of international obligations and potentially could be devastating.
One of the clearest problems regarding respect for human rights lies with the administration of the courts and police system in Kosovo. In a number of cases, basic human rights have been transgressed, such as the rights to bail, to counsel, and to a speedy and effective trial. These transgressions often result from the confusion created by the use of a hybrid of Federal Republic of Yugoslavia (FRY) law and the new regulations promulgated by UNMIK, both of which are recognized in Kosovar courts. Under the FRY Constitution, there is no right to bail. Under the criminal code, a trial judge may interfere with the confidential communication between a criminal defendant and her counsel. Additionally, there are no provisions ensuring counsel for criminal defendants or even permitting arrested suspects to talk with their attorneys. There is no express supremacy of international human rights laws over those of the FRY; as a result, when FRY laws are in conflict with international human rights law, courts and law enforcement officers often apply FRY laws.
UNMIK regulations themselves are sometimes in conflict with international human rights law. Under one regulation, law enforcement officers may arrest and detain individuals “for security reasons.” This gives law enforcement officers broad powers to engage in “preventive detention” contrary to the European Convention for the Protection of Human Rights. The situation is exacerbated by another UNMIK regulation, which allows the detention of a person without an independent review by a court for up to six months before trial. The suspect may then be kept for an additional three months by order of a court that is not required to consider whether the detention is even lawful. In one of the most egregious violations of the basic principles of international human rights law—and also FRY law—the Kosovo UN police, with the complicity of Kenyan police, arrested and transported Moses Omweno from Kenya without a formal extradition proceeding last June. Omweno was suspected of stealing DM 190,000 from the International Organization for Migration while in Kosovo. Held for more than a week before being presented to a court, he was then detained for another two months.
Such disrespect for basic civil rights is striking for three reasons. First, an intergovernmental organization is at least partly responsible for the abuses. Second, these violations are being committed in the name of “humanitarian intervention.” Third, UNMIK’s response to charges of human rights violations—that human rights can only be ensured once a certain stage of political or economic development has been achieved—resembles arguments often made by authoritarian governments of developing countries, which are understandably dismissed by Western observers. Still, UNMIK officials insist that “political imperatives” militate against the full recognition of all human rights when the situation is potentially explosive.
UNMIK is also subject to local criticism for making critical decisions without obtaining the consent of all sides involved. One of UNMIK’s obligations under the Security Council resolution is to establish and oversee the development of provisional democratic self-governing institutions. This implies a need to use, where possible, local political authority structures, giving the local population not only a chance to participate meaningfully in the administration of its own affairs, but also to enhance the capacity of the local political structures to adopt human rights standards and other principles of co-existence. In fact, however, UNMIK’s efforts to consult local populations in Kosovo are minimal, and in practice, the institutional structures of UNMIK, such as the Joint Transitional Council—a structure within UNMIK where locals are joint department heads—involve Kosovars only symbolically: They have no real voice.
This practice has created much resentment on all sides of the Kosovo conflict. In one case Kosovar Albanians were angered when UNMIK shut down a local newspaper in Pristina on the grounds that it was running inflammatory articles. The paper had published a list of “Most Wanted Genocide Criminals” and criticized UNMIK for not doing enough to bring war criminals to justice. One of the Serbs identified by the paper was murdered shortly thereafter. In response, UNMIK closed down the paper and hurriedly passed a punitive press law that was widely criticized as unduly restrictive of freedom of the press.
In another case, Serbs were angered when UNMIK decided to close the Trepca Mining and Industrial Complex in the north Mitrovitca region. UNMIK claimed that closure was necessary in order to reverse “rising levels of atmospheric lead in northern Mitrovica.” Serbs, however, regarded this act as discriminatory since the owners and most of the workers were Serbian. They pointed to an agreement between UNMIK and an international consortium to manage the complex as evidence of an attempt to unfairly siphon off resources from the Serb community.
These examples are not meant to suggest an abuse of power, but rather to show that UNMIK’s administration works against the goal of instilling respect for human rights. A lack of local participation in the enforcement of UNMIK’s administrative obligations negatively affects the legitimacy of the intervention and the local appreciation for human rights. It is incumbent upon UNMIK to exercise power in a way that encourages confidence in the local political authority. Without that, many in the international community, as well as in Kosovo, fear that the local people will not have the tools to develop a responsible government based on a respect for human rights.
One of the greatest challenges to the human rights movement today is the misappropriation of its moral language. Utmost care must be taken in instances where multilateral organizations invoke the moral authority of human rights for their actions. The actions of these organizations send powerful signals to the international community and to the people directly affected by these actions about the true nature, function, and legality of human rights. Only a coincidence of rhetoric and practice can build local institutions infused with human rights norms. These in turn may cultivate a culture of genuine respect for human rights and help lead to democratic governance—which, in the end, is the best method of preventing conflict.