Outlining KFOR Accountability in Post-Conflict Kosovo

Issue:

Volume:

By:

John Cerone

Date:

October 08, 2000

I. Introduction

Protecting individuals from gross violations of human rights was the proclaimed purpose and justification of the March 1999 NATO intervention in Kosovo. In the aftermath of the armed conflict, violence has continued to plague the territory and has required a firm response by the Kosovo Force (KFOR), the NATO-led "security presence" deployed under Security Council Resolution 1244. As the international community considers strategies for quelling the violence, it is appropriate to examine the possible limitations imposed by international law on those strategies, in particular on KFOR's treatment of individuals under its control.

One might question whether KFOR, owing to the unique conditions of its deployment, is bound by the provisions of the core international human rights and humanitarian law instruments.

Many of the major human rights instruments, and notably those binding on NATO countries, oblige states to ensure to everyone within their territory or subject to their jurisdiction the rights contained therein. Kosovo could not be considered part of the national territory of any state but the Federal Republic of Yugoslavia (FRY), and any other state's exercise of jurisdiction in the strict sense (e.g. by applying and enforcing its own domestic laws with respect to the local population) would be difficult to justify.

As for application of the 1949 Geneva Conventions and Additional Protocols thereto, which embody the bulk of modern humanitarian law (i.e. the laws of war designed to protect individuals and to restrict the methods and means of warfare), it would appear that there has been a general cessation of hostilities following the signing of the Military Technical Agreement in June 1999, thus heralding an end to the ordinary application of the laws of war.

A more rigorous analysis, however, shows that the issues are more complex than this.

II. The International Presence in Kosovo

In Resolution 1244, the UN Security Council, acting under Chapter VII,authorized the creation of KFOR and UNMIK (the United Nations Interim Administration Mission in Kosovo), to operate in Kosovo on behalf of the international community with the purposes of securing and administering the territory.

KFOR, which is led by and primarily composed of NATO forces, is charged with: "[d]eterring renewed hostilities, maintaining and where necessary enforcing a ceasefire, and ensuring the withdrawal . . . of Federal and Republic . . . forces.; [d]emilitarizing the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups.; [e]stablishing a secure environment.; [e]nsuring public safety and order until the international civil presence can take responsibility for this task; [s]upporting, as appropriate, and coordinating closely with the work of the international civil presence."

UNMIK, which is composed of four "pillars" led by the UN, UNHCR, OSCE, and the EU, is mandated to "provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia," and is specifically responsible for, inter alia, "[p]rotecting and promoting human rights."

Together, these two entities are effectively authorized and mandated to exercise all public authority in Kosovo.

III. Human Rights Law

There are at least three different modalities through which international human rights law might apply to the conduct of KFOR soldiers in Kosovo: the mandate of Resolution 1244; the human rights obligations of the Federal Republic of Yugoslavia; and the human rights obligations of the governments of the national contingents of KFOR.

The UN Mandate: While Resolution 1244 expressly mandates UNMIK to protect and promote human rights, this task is not listed among the responsibilities of KFOR, which has a separate mandate and is outside of UNMIK's command. Nor is any limitation on the means KFOR may use in carrying out its responsibilities expressly stated in the Resolution. Further, it is unclear whether UNMIK regulations requiring public authorities in Kosovo to comply with international human rights law are applicable to KFOR.

There are, however, at least two arguments for holding that KFOR has been mandated by the UN to act in conformity with human rights law. The first is that as a security presence deployed "under United Nations auspices," KFOR is bound to comply with the purposes of the United Nations, among which is the promotion of human rights. Secondly, as noted above, Resolution 1244 lists among KFOR's responsibilities "supporting, as appropriate, the work of the international civil presence," which includes the protection and promotion of human rights.

State Succession: The Socialist Federal Republic of Yugoslavia (SFRY), the predecessor to the FRY, was a party to all of the major universal human rights instruments. There is authority for the proposition that the law of state succession provides for automatic succession with respect to human rights obligations. This would mean that the obligations of the SFRY continue in force in the FRY. While these human rights obligations technically apply only to the FRY government, the principle of automatic succession for human rights obligations may imply obligations on the part of any public authorities acting in the place of the FRY government.

Human Rights Obligations of Individual States: The various KFOR contingents may also be bound by the human rights obligations of their sending states. This third approach is particularly significant because unlike the first two, it can provide for individual state accountability

Almost all NATO countries are parties to the International Covenant on Civil and Political Rights (ICCPR), and all of the European member states of NATO are parties to the European Convention on Human Rights (ECHR). While these instruments limit the scope of their application to persons subject to the jurisdiction of the state party, the term "jurisdiction" has been construed broadly by international human rights institutions.

Under the relevant jurisprudence, it is clear that states' human rights obligations can extend to their extraterritorial treatment of non-nationals. Issues that have not been definitively settled include: the degree of control required to be exercised by the state over the complainant before jurisdiction will be found, the relevance of the fact that KFOR was deployed pursuant to a Chapter VII resolution, and the degree to which individual states remain accountable when acting through intergovernmental organizations. However, recent decisions of regional human rights institutions lend support to the proposition that a state's human rights obligations apply with respect to its treatment of non-nationals abroad where such individuals find themselves under its control, whether directly, through that state's armed forces, or through a subordinate local administration, and irrespective of the legality of the state's presence abroad or whether that state is acting alone or with the acquiescence of the state in whose territory the violation occurs.

IV. Humanitarian Law

All of the national governments of the various KFOR contingents are bound by the Geneva Conventions, which form the core of modern humanitarian law.

Even assuming that the FRY's agreement to the principles annexed to Resolution 1244 and its signing of the Military-Technical Agreement (MTA) brought an end to armed combat between the parties, this does not necessarily mean that international humanitarian law has ceased to apply. According to Article 6 of the Fourth Geneva Convention, its provisions apply from "the outset of any conflict or occupation" until there has been a "general close of military operations." In the case of occupied territory, its provisions continue to apply for one year beyond the general close of military operations, and some provisions continue for the duration of the occupation. Before determining whether there has been a general close of military operations, it is necessary to consider whether Kosovo can be deemed an occupied territory.

The primary criterion for determining whether the presence of foreign troops in a given territory constitutes an occupation would logically be whether the sovereign has been displaced without its consent from the exercise of public authority over the territory.

As noted above, KFOR and UNMIK exercise public authority in Kosovo to the virtual exclusion of Belgrade authorities from the territory. While the FRY did consent to the KFOR presence in signing the MTA, that may have amounted only to formal consent. In light of the emphasis of the Geneva Conventions on factual circumstances, as opposed to labels, formal consent would arguably be insufficient to overcome the presumption of occupation that arises from the circumstances leading up to the signing of the MTA. Further, formal consent may itself be lacking in this case.

Whether there has been a close of military operations is also subject to debate. In any event, even following a general close of military operations, if the law of occupation were deemed to apply, KFOR would still be bound by certain provisions of the Fourth Convention to the extent that it continued to exercise public authority in the fields to which those provisions apply.

V. Piercing the Intergovernmental Veil: State Accountability for Violations

Whether or not KFOR can be collectively held to the standards contained in the instruments cited above, it is important to inquire whether individual states participating in KFOR may be accountable for violations of those standards.

The strongest factor weighing against individual state accountability is that formally each national contingent is an integral part of KFOR and does not purport to be acting in Kosovo on behalf of its sending state. However, notwithstanding this formal affiliation with KFOR, the home governments of the KFOR contingents retain a substantial degree of residual control over their forces, exemplified by variations in each contingent's rules of engagement and the treatment of KFOR personnel in UNMIK Regulations.

Even if it could be demonstrated that the individual home governments lacked effective control over the troops they contributed to KFOR, accountability could still arise based upon their freely entering into a multinational operation if human rights violations resulted from that operation.

Another factor weighing in favor of individual state accountability is the effectiveness principle, according to which human rights treaties must be interpreted and applied so as to make their safeguards practical and effective.

VI. Derogation

All of the major human rights instruments provide for the possibility of derogation of certain rights in times of public emergency. Some rights, including (among others) the right to life, the right to be free from torture or cruel, inhuman or degrading treatment, the right to be free from servitude, and the right to freedom of thought, conscience and religion, are not subject to derogation. Even the derogable rights may be suspended only "to the extent strictly required by the exigencies of the situation." A state availing itself of a right of derogation is required to inform other states parties of the provisions from which it has derogated. No declarations of derogation have been lodged for armed forces deployed in Kosovo. Nor would open deployment as a "security presence" amount to a declaration of derogation, since human rights obligations apply to a state's armed forces. The humanitarian law of armed conflict, such as the law under the Geneva Conventions, is never subject to collective derogation.

VII. Conclusion

Arguments can be made for the application of both human rights law and the humanitarian law of armed conflict to the situation in Kosovo. The full analysis, including the author's conclusions, will appear in a forthcoming issue of the European Journal of International Law.

About the Author:

John Cerone is presently serving as a Legal Advisor within the Human Rights Policy Bureau of the United Nations Mission in Kosovo. He holds a Juris Doctor from Notre Dame Law School and an advanced law degree in Public International Law from NYU. He has previously worked as an OSCE Human Rights Officer and Legal System Monitor in Mitrovica, Kosovo; as a Legal Consultant to the International Secretariat of Amnesty International; as an International Legal Officer with the International Crisis Group's Humanitarian Law Documentation Project; and as a Legal Analyst for the NGO Working Group on the Optional Protocol to the Women's Convention. The views expressed in this article are solely those of the author. He may be contacted at JPLC1@alumni.nd.edu or Cerone@un.org.

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Outlining KFOR Accountability in Post-Conflict Kosovo