Stav Thomasa Hammarberga o OHR-u, IPTF-u, KFOR-u, UNMIK-u i EULEX-u/ Viewpoint of Thomas Hammarberg on OHR, IPTF, KFOR, UNMIK & EULEX

https://web.archive.org/web/20200701092237/https://www.coe.int/en/web/commissioner/-/international-organisations-acting-as-quasi-governments-should-be-held-accountable

Stav Thomasa Hammarberga iz vremena kada je bio Komesar za ljudska prava Vijeća Evrope (2006-12.). Nakon Hammarberga funkciju Komesara preuzeo je Nils Muižnieks.

The position of Thomas Hammarberg from the time when he was  the Commissioner for Human Rights of the Council of Europe (2006-12). Hammarberg was succeeded by Nils Muižnieks.

"Kada međunarodne organizacije vrše izvršnu i zakonodavnu vlast kao surogat država, njih moraju obavezivati isti mehanizmi uzajamne kontrole koji obavezuju demokratski izabranu vlast. Moguća zloupotreba državne vlasti se u normalnim demokratijama ograničava podjelom vlasti na izvršnu, zakonodavnu i sudsku. Međutim, u slučajevima kada je vlast povjerena međunarodnim organizacijama, događa se da je cijela vlast u rukama samo jedne osobe ili organizacije, koja snosi vrlo nizak stepen odgovornosti za posljedice svojih odluka."Kao posebni primjeri navode se situacije u BiH (IPTF i OHR) i Kosova (UNMIK, KFOR i EULEX)./ "When international organisations exercise executive and legislative control as a surrogate state they must be bound by the same checks and balances as we require from a democratic government. Potential abuse of governmental power is combated in normal democracies by a separation of powers between the executive, the legislative and the judiciary. Where international organisations govern, power is in some instances invested in one person or organisation with too little accountability for the consequences of the decisions taken." The situations from BaH (IPTF and OHR) and Kosovo (UNMIK, KFOR and EULEX) have been used as examples and briefly analyzed. 

International Organisations acting as quasi-governments should be held accountable

[08/06/09] When international organisations exercise executive and legislative control as a surrogate state they must be bound by the same checks and balances as we require from a democratic government. Potential abuse of governmental power is combated in normal democracies by a separation of powers between the executive, the legislative and the judiciary. Where international organisations govern, power is in some instances invested in one person or organisation with too little accountability for the consequences of the decisions taken.
Accountability in terms of a government implies that the decision-making processes are transparent, that there is good access to government information, and that there is participation from civil society and the wider population.
Accountability also entails that there is a means to review and sanction the misconduct of those invested with public powers, such as civil servants and state officials. We require actors to bear the consequences of their actions.
For a number of years, it has been accepted that principles of accountability must apply to United Nations peacekeeping operations and the UN has taken a number of steps to prevent and punish abuse and sexual exploitation in its operations.1
Accountability must also apply when an international organisation acts as a quasi government.2 The UN has been involved in a number of territorial administration missions where it acted or acts as a surrogate government, for example in Namibia, Cambodia, East Timor, Bosnia and Herzegovina and Kosovo.3
In these circumstances, the “international administrations” act both as de facto local public authorities and as an international organisation.
Lack of accountability may undermine public confidence in the international organisation and thereby its moral authority to govern. Such governing promotes a climate of impunity for acts committed by their staff and sets a negative model for domestic governments.
Models of good governance, on the other hand, call for answerability which in turn enhances the credibility of the work of the organisation and acts as a dissuasive to future abuses of power and misconduct. Mechanisms to ensure accountability are still needed when an international organisation is in charge – it is not enough to just rely on their good faith.
The European Union, for example, realised that its own institutions needed a mechanism for complaints. The European Ombudsman, elected by the European Parliament, was set up precisely to deal with complaints from citizens concerning maladministration by EU institutions and bodies. Moreover, the European Court of Justice in Luxembourg is empowered to review claims from the Council of the European Union, the European Commission, the European Parliament and member states regarding the illegality of EU acts. Individuals may also challenge decisions addressed to them.
I have discussed issues related to the accountability of international actors in particular during my visits to Bosnia and Herzegovina and Kosovo.
Thirteen years after the signing of the Dayton Peace Agreement, international organisations are still present in large numbers in Bosnia and Herzegovina. The Office of the High Representative (OHR) in Bosnia and Herzegovina was set to up facilitate the Parties own efforts to implement the Dayton peace agreement. A few years later, the High Representative’s powers were extended to include the ability to remove from office public officials who violate legal commitments and the Dayton Peace Agreement, and to impose laws as he sees fit if Bosnia and Herzegovina’s legislative bodies fail to do so.
I visited Sarajevo in 2006 to discuss complaints made by some 260 police officers from the national police force that had been barred from police service (“decertified”) and stripped of their social and pension rights through a vetting procedure organised by the UN International Police Task Force.4 My concern related to the limited possibility for those individuals to challenge the merits of the Task Force decision and the absence of an appropriate legal remedy.
The Council of Europe’s Venice Commission had proposed that the Security Council set up a special body to review these cases.5 After my visit I called on all parties to find a solution which would give justice to the individuals and enhance the credibility of the international community. Unfortunately, progress to find any suitable solution is still slow.
In Kosovo, UNMIK and KFOR (a NATO-led Kosovo Force) and their personnel, are all immune from any legal process.6The purpose of such a rule is to ensure that international organisations can perform their tasks without interference. Of course, this does not mean that personnel cannot be prosecuted in their home countries, although there are difficulties in ensuring that such prosecutions will be initiated or effective.
Moreover, according to the 2007 admissibility decisions of the European Court of Human Rights in the cases of Behrami7 andSaramati8 the actions of KFOR and UNMIK are attributable to the United Nations, and not to contributing member states. The result being that the Strasbourg Court has no jurisdiction over such complaints.
In 2005 the UN established a Human Rights Advisory Panel in Kosovo as a human rights accountability mechanism. The Panel acts as a quasi-judicial body which is fully independent of UNMIK. However, it has faced a number of difficulties which have hampered its smooth running, including delays in the appointment of its members, lack of sufficient secretariat support, and a question mark over how UNMIK will respond to the Panel’s recommendations. So far, no compensation has yet been paid following an adopted opinion of the Panel.
I think that UNMIK should now look at the legacy of its actions in Kosovo and stand ready to provide compensation and redress for violations of human rights. The new EU Rule of Law Mission (EULEX) which became operational last December must also establish its own accountability mechanism as a priority.
What type(s) of mechanism(s) ensure accountability of international actors?
The creation of an independent human rights court or panel in the country in question is a good option;
Other intra-organisational methods, such as complaints or claims commissions, can work, but the temptation to prevent information from becoming public which could damage the organisation may be too great;
The creation of an Ombudsman’s office with a strong mandate is one way to hold international administration regimes accountable for breaches of authority;
States which contribute personnel to international peacekeeping missions should ensure independent investigations, and full accountability of all those responsible for human rights violations, including through criminal, administrative and disciplinary procedures, where appropriate.
The International Criminal Court (ICC), as a court of last resort, has jurisdiction over crimes against humanity, war crimes and genocide, also when committed by UN peacekeepers;
Reporting obligations at the international level are also a form of accountability;
International organisations sometimes engage outside actors to perform independent assessments of their activities, as where the UN Secretary-General created an independent body to conduct an inquiry into UN conduct during the 1994 Rwandan genocide;
International and local media and NGOs have a key role to play as watch-dogs.
An international accountability deficit is no good for anyone, least of all the local population. No-one, especially an international organisation, is above the law.


Thomas Hammarberg


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Notes:


1. Following a 2004 report, the United Nations Secretary-General initiated wide-ranging reforms covering standards of conduct, investigations, organisational, managerial and command responsibility, and individual disciplinary, financial and criminal accountability. See also UN Security Council Resolution 1820 (2008) in the field of women, peace and security.

2. See the report of the Council of Europe’s Parliamentary Assembly “The State of Human Rights in Europe: the need to eradicate impunity” by Rapporteur Mrs Herta DÄUBLER-GMELIN, 3 June 2009, in particular chapter vii.

3. All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

4. Special Mission Report to Bosnia and Herzegovina by Thomas Hammarberg, CommDH(2007)2, 17 January 2007.

5. Opinion on the possible solution to the issue of decertification of police officers in BiH” Opinion no 326/2004.

6. UNMIK/REG/2000/47

7. Behrami and Behrami v France, Application No. 71412/01, admissibility decision of 31 May 2007

8. Saramati v France, Germany and Norway, Application No. 78166/01, admissibility decision of 31 May 2007.

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