ACCOUNTABILITY AND RESPONSIBILITY
INTRODUCTION
Despite Kosova’s declaration of independence, we will continue to be governed by an unelected
and unaccountable international administration, which consists now of not just one, but three
missions: The International Civilian Office, EULEX and UNMIK. The very existence of these
missions as executive administrations denies us our right to enjoy the independence and
sovereignty declared on 17th February: our right to freedom from Serbia and to democratic
government. The substance of these missions will lead us further away from this goal: Their
mandates are contrary to the interests of Kosova and they are accountable for their actions to
international bodies which are divided between countries which have or have not recognized us.
We are not opposed to international guidance and expertise, but we are opposed to being
governed by internationals.
Their mandates are contrary to our interests:
o UNMIK is staying to facilitate negotiations between Prishtina and Belgrade and to implement
the plan for ‘functional partition’ proposed in Ban Ki-moon’s letter.
o The ICR is here to implement the Ahtisaari Plan which proposed ethnic and territorial
partition, but now appears to be in opposition to Ban Ki-moon’s even worse concessions to
Belgrade.
o EULEX is here to implement a system of law and order in Kosova by which it will not be
bound itself. As it is ‘status-neutral’ it will not recognize the constitution of Kosova upon
which basis it is meant to be implementing a system of law and order!
These missions are accountable to external international bodies with conflicting loyalties:
o EULEX will be accountable to both UNMIK (in an undefined form) and the EU
o The ICR will be accountable to the EU and an international Steering Group
o UNMIK will be accountable to the UN Secretary General and the Security Council.
o Both the UN and EULEX will be ‘status-neutral’ which means they do not recognize the
declaration of independence
o The EU, the UN Security Council and the Steering Group all include members or
organizations which have not recognized Kosova’s independence.
None of these missions are accountable in any way to the institutions of Kosova.
This document summarizes first the mandates and powers of these three missions, their chain of
command and to whom they are accountable in order to identify the structure of power which
will continue to deny us independence and sovereignty. Second, it explains how Lëvizja
VETËVENDOSJE! proposes that this unjust system of international administrations can at least
be held to account for their actions and policy decisions in Kosova.
INTERNATIONAL CIVILIAN OFFICE
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The International Civilian Office (ICO) in Kosova is here in order to implement the Ahtisaari
Plan. In order to do this, the International Civilian Representative (ICR) has been given the
competence to be the final authority which interprets this plan. All his decisions regarding this
plan are binding. Should an elected official act against this Plan, the ICR has the right to remove
him or her from office. Furthermore, should the elected Assembly pass a law which the ICR
deems to be contrary to the Plan, this law can be annulled. The Ahtisaari Plan states that the ICR
himself may set up a mechanism to review the use of his powers, but this has not occurred. There
is no mechanism of legal redress for the Assembly or officials against the use of these powers.
All officials who work in the ICO will be immune from the law of Kosova. The only
institution to which the ICR is accountable is an ad-hoc and unaccountable ‘Steering Group,’
whose members include France, Germany, Italy, Russia, United Kingdom, United States,
European Union, European Commission and NATO. In May six new members were added:
Bulgaria, Estonia, Ireland, Latvia, Luxembourg and Poland. This group represents the interests
of its members, of which Russia opposes Kosova’s independence and the EU, EC and NATO
have no defined position. There is no representative from the Kosova institutions in this group,
which the ICR himself chairs.
There is no democratic mechanism through which the people of Kosova can oppose the
Ahtisaari Plan which the ICR is here to implement. According to Article 143 of the Constitution,
the Ahtisaari Plan is the highest legal act in Kosova and therefore prior to the Constitution. The
laws relating to this package have been passed in a special procedure without debate. It is not
possible for a village that refuses to be incorporated into a new Serb majority municipality to
oppose this by seeking legal redress in the Constitutional Court because this Court has no right to
rule on issues relating to the Plan. For the same reason, a villager who is not able to use his land
because it has been incorporated within a Special Zone, has no right to legal redress. Nor is it
possible for an individual Deputy or the head of a municipality to oppose parts of this Plan
because the ICR can remove them from office. This means that the only spaces of opposition
remaining are outside of the institutions - in civil society, which because it is dependent on
funding, remains dependent politically; and in the street.
EULEX
EULEX is defined as a ‘crisis management operation’ in Kosova, here to administer and develop
a system of law and order. In order to maintain ‘stability’, EULEX has been given the right and
competences to annul any administrative decisions which it interprets as contrary to law and
order, in consultation with the ICR. It also has the right to select all international judges and
prosecutors, who are then approved (APPOINTED) by the ICR, and to chose which cases will be
dealt with by internationals. There will therefore continue to be no separation between the
executive and the judiciary.
Approximately 2,000 police, customs officials and lawyers will work inside Kosova’s
institutions, coming from states which have and have not recognized Kosova’s independence. All
of them will be above the law which they are here to implement. EULEX will be accountable to
the EU Secretary General, Javier Solana and according to Ban Ki-moon’s recent proposal, also to
the UN Secretary General, although this has not yet been defined. According to his proposal,
EULEX will be a so-called ‘status-neutral’ mission, even though it is here to implement rule of
law which requires respect for the constitution of Kosova, its sovereignty and territorial integrity.
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All EULEX staff are immune from prosecution in Kosova and can be held accountable only by
their home states or seconding EU institutions. There is no democratic mechanism through which
the people of Kosova can hold an EULEX policeman, lawyer or judge responsible for their
actions. Not only are they immune, but they are not subject to oversight by any Kosova
institution.
AMBIGUOUS EMERGENCY POWERS
Both the ICR and EULEX have the right to extend their executive powers if necessary and the
circumstances in which they can do this, or the measures they can take, are not clarified.
o As well as annulling operational decisions by the Kosova Assembly, EULEX can
‘assume other responsibilities, independently or in support of the competent Kosovo
authorities. (Annex IX, Article 2.3, Ahtisaari Plan)
o The ICR’s powers ‘may include, but are not limited to’ annulling laws or decisions by the
Kosova Assembly, and he has the right to sanction or expel officials ‘or take other
measures, as necessary.’ (Annex IX, Article 2.1, Ahtisaari Plan)
UNACCOUNTABILITY
Based on previous cases taken to the Court of Human Rights, it is unlikely that either the ICO or
EULEX can be subject to the court’s jurisdiction because it is the organization, and not states,
that are held responsible for their actions. (See Sheremeti versus Norway; Behrami versus
France; and Alimuhamet versus Greece). In Bosnia, in 2006 the Constitutional Court ruled that
manner in which the EU High Representative expelled public officials from their jobs was a
violation of the European Convention of Human Rights because no evidence was presented to an
independent authority and there was no right to appeal. The court ruled that Bosnian institutions
were obliged to obey Bosnia’s constitution, which is based on the ECHR and were thus obliged
to oppose the EU High Representative’s decision. In response the international Steering Group
reminded Bosnia’s institutions that their commitment to Dayton was primary.
The only mechanism of holding individual international staff to account for their actions is
through their home states. As the case of the 10th February 2007 clearly demonstrates, justice
cannot be dependent on another states’ conception of justice. Romania has never taken any legal
action against the members of the Romanian UN police unit suspected of murdering Mon Balaj
and Arben Xheladini.
The Kosova Assembly has no right of redress against the decisions of the ICR or EULEX. Nor
do any officials sanctioned or expelled from their positions by the ICR have any mechanism of
redress.
The Ombudsperson does not currently have the competence to investigate claims of human
rights violations by either the ICR or EULEX. It does have the right to investigate violations by
UNMIK, until a permanent Kosova Ombudsperson is appointed.
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Since the beginning of 2008, the UNMIK Human Rights Advisory Panel has begun to review
complaints against UNMIK (it was founded in Regulation 2006/12 in March 2006). Its
recommendations are not binding on the SRSG.
BEING ACCOUNTABLE
The ICR and EULEX claim that they are not an ‘EU Protectorate.’ They argue they are simply
here to ‘help’ and ‘advise’ the institutions of Kosova in order to strengthen democracy, law and
order. But the powers and responsibilities these missions hold demonstrate clearly that they are
executive missions which are unaccountable and above the law which they are here to
implement. There is no mechanism inside Kosova by which the people of Kosova can hold them
accountable for the policies they implement here and the actions they take. They are in essence
authoritarian state-building missions. If the law EULEX is implementing is good enough for the
people of Kosova, then surely it is good enough for them?
Lëvizja VETËVENDOSJE! opposes the presence of any international presence in Kosova which
has executive authority to govern. The only just solution is to allow Kosova to be governed by its
own sovereign and freely elected Assembly. However as this is being denied us and these
missions are already governing us, we demand that they be held to account for their actions and
policy decisions in Kosova.
We suggest therefore the following measures:
1) Accountability for policy and operational decisions
a) The ICR/EUSR and Head of EULEX should be subject to questioning by the Assembly of
Kosova once a week.
b) All deputies in Kosova to have the right to send written questions to the ICO and EULEX
regarding issues within their competences. The ICO and EULEX to be obliged to reply to
these written questions within 3 working days.
c) An independent Policy Accountability Commission should be established to monitor the
ICR and EULEX’s role in policy and operational management of Kosova. This should
consist of members of Kosova’s society.
2) Transparency
a) The ICO and EULEX to open a public library in which official documents are available
to the public to read within an established time frame. A copy of all archives of the ICO
and EULEX to remain in the Archives of Kosova.
3) Independence of the Judiciary
a) A Judicial Accountability Committee to be established within the Judicial Council. This
Committee must not include any international judges.
b) The appointment of international judges and prosecutors selected by EULEX should be
approved by the Kosova Judicial Accountability Committee.
c) International judges and prosecutors should be subject to oversight by the Kosova
Judicial Accountability Committee.
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d) The selection of cases for international judges and prosecutors to be monitored by the
Kosova Judicial Accountability Committee
4) Accountability for Human Rights Violations
a) The Ombudsperson to be given competences to investigate alleged violations by the ICO
and EULEX. Where the Ombudsperson institution determines that a violation has
occurred, his conclusions should be considered binding by the ICR/EULEX and relevant
sending country.
b) Based upon the Ombudsperson’s conclusions, Kosova’s institutions should be able to
take the following actions:
o The Judicial Accountability Committee can require that the defendant’s immunity
be removed so that he or she can be prosecuted in Kosova.
o The Judicial Accountability Committee can require that the sending country be
obliged to prosecute the defendant in their country on the basis of the case file
sent to them.
o Kosova’s Assembly can require that the defendant be expelled from Kosova, on
the basis of Article 9 of the Vienna Convention on Diplomatic Relations, as a
‘persona non grata’.
5) Accountability for criminal offences
a) If there is reasonable suspicion that a crime has been committed by an ICO or
EULEX member of staff, the Judicial Accountability Committee and Assembly should
be able to implement the same measures listed in 4.b
o The Judicial Accountability Committee can require that the defendant’s immunity
be removed so that he or she can be prosecuted in Kosova
o The Judicial Accountability Committee can require that the sending country be
obliged to prosecute the defendant in their country on the basis of the case file
sent to them. .
o Kosova’s Assembly can require that the defendant be expelled from Kosova, on
the basis of Article 9 of the Vienna Convention on Diplomatic Relations, as a
‘persona non grata’
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