The ‘Kafkaesque Accountability’ of International Governance in Kosovo

Abstract

Abstract This article explores the institutionalized and legalized forms of 'unaccountability' evident during the United Nation's protracted and extensive administration of Kosovo, which were implemented to protect the UN from liability in case the United Nations Interim Administration Mission in Kosovo was accused of human rights violations in Kosovo. Two mechanisms were put in place to review the accountability of international governance in Kosovo: the Ombudsperson Institution and later the Human Rights Advisory Panel. This article highlights how the United Nations Interim Administration Mission in Kosovo systematically restricted and obstructed the operation of these mechanisms, by constraining the space for the independent and meaningful investigation of cases, by invoking immunity safeguards, and by failing to cooperate and remedy human rights abuses caused by the United Nations Interim Administration Mission in Kosovo. This article argues that avoiding accountability for human rights abuses can seriously undermine the legitimacy of UN peacekeeping missions, establishing negative practices and losing the trust of the local population, which ultimately encourages undemocratic practices among weak and fragile local institutions. At the global level, any attempt to take on greater international responsibility without accountability harms the prospects for establishing global institutions structured around the principles of democratic governance. Keywords: UN transitional administrationshuman rights abusesaccountabilityKosovo Acknowledgements The author would like to thank Grace Bolton, Rand Engel, and two anonymous reviewers for their valuable help and comments in finalizing this article. Notes 1. While the term 'Kafkaesque' can have different meanings and connotations, the term is used in this article to describe how UNMIK in Kosovo established human rights review mechanisms while regulating the legal framework for dealing with allegations. In practice this created another set of obstacles and barriers that weaken the right to seek justice within the established mechanisms due to a complex and prolonged procedure for dealing with cases, which limited the public transparency and cooperation. Accordingly this article argues that UNMIK has shown a systematic tendency to avoid, if not to hide and ignore allegations of violations of human rights and ethical standards. 2. In its first special report sent to the SRSG, the Ombudsperson found that: 'UNMIK Regulation Citation2000/47 is incompatible with the following provisions of the European Convention on Human Rights: Article 6, in that individuals have no judicial forum meeting the requirements of that Article in which to raise civil claims against KFOR or UNMIK or their respective personnel; Article 1 of Protocol No. 1, in that KFOR and UNMIK can occupy or damage property without compensating individual property owners; Article 8, in that KFOR and UNMIK can deprive individuals of access to their homes; and Article 15, in that KFOR and UNMIK have limited these and other human rights beyond what is strictly necessary, even if the situation in Kosovo can be considered to constitute a 'public emergency threatening the life of the nation' (OIK Citation2000–1, p. 10). 3. Interview with OSCE Senior Minority Rights Officer, June 2010. 4. Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child. 5. Human Rights Advisory Panel Caseload, Communications and Determinations 2006 to 31 December 2010. Available from: http://www.unmikonline.org/human_rights/documents/Statistical-summary-eng.pdf [Accessed 23 March 2011]. 6. The two killed civilians were adult protestors who were involved with Vetevendosje Movement. The protest was solely between Kosovo Albanians and UNMIK Police and the nature of protest was not a clash between ethnic groups. 7. Case No. 26/08, N.M. and Others against UNMIK, 31 March 2010, Available from: http://www.unmikonline.org/human_rights/documents/Decisions/eng/DC_No_26-08-2.pdf. For a broader discussion of minority issues and institutional support in Kosovo see: Visoka and Beha (Citation2011). 8. SRSG's comments on HRAP opinion in the case of Nadica KuŠic (case no. 08/07), available from: http://www.unmikonline.org/human_rights/documents/Decisions/eng/DC_No_08-07-SRSG-comments.pdf.