ERRC Training for Kosovo Officials Highlight the Difficulties of International Human Rights Treaties

21 November 2007

James Duesterberg¹

On 14 and 15 June 2007, the European Roma Rights Centre (ERRC) participated in a training session for Court Liaison Officers from the Ministry of Justice in Kosovo. The session, organised by the European Center for Not-for-Profit Law (ECNL), was aimed at the "capacitation" of the liaison officers in human rights work, and the ECNL brought in Partners Hungary Foundation, an organisation working towards conflict resolution in emerging democracies, as well as the ERRC, to conduct the training. The programme as a whole was aimed at increasing the officers' ability to play their part in accomplishing the mammoth – and yet quite illdefined – task facing the Kosovo justice system: To bring the province into the fold of functioning national justice systems governed by positive legal conventions in line with international standards.

As an ERRC intern, I had the chance to sit in on the last two days of the week-long session, during which ERRC Human Rights Trainer Larry Olomoofe presented background information on the ERRC's work, Romani issues, and the nuances of international human rights frameworks. As someone new to human rights work, I found the session quite interesting, both in terms of the content presented and the context in which it was received. A group of liaison officers from a Ministry of Justice, which is not that of an actual country, hearing a lecture on international legal instruments to which they have no access given by an advocacy group fighting for the rights of an ethnic group which has no nation-state with which to identify – in addition to the three-layered translation (from English into simultaneous Serbian and Albanian and vice-versa) – presented an interesting example of the windy path to a globalised yet multicultural society, and a vivid illustration of the obstacles and challenges faced on the way. Most of all, the session showed both the promise and the uncertainty of a worldwide effort to eliminate discrimination through international institutions. The promise, evident in the presentation of the vast and expanding array of international legal instruments available to combat discrimination and in the participants' clear interest in learning about them, was obvious; so, however, were the uncertainties. Kosovo's uncertain constitutional status and shaky social fabric were reflected in the liaison officers' reticence to engage fully in the difficult questions generated by the discussion.

Indeed, although the participants were clearly paying close attention to the presentations given – many took notes, and jokes, most of which addressed the bleakness of the situation, elicited immediate and knowing laughter – when Mr Olomoofe asked the liaison officers how they worked to help victims of discrimination, they fell silent. In response to the question, "what exactly do you do in Kosovo," one officer responded, with only a hint of irony, "nothing."

Though they took in the information presented, they did not engage with it. Any comments made seemed to circle around the clichés of global human rights advocacy, and there was no attempt to question what Kosovo's relation to these "fundamental universal principles" might be, but rather a weary rehearsal of the need to move towards international human rights standards. Though off-putting, this attitude came off less as pessimism than simply a reflection of the profound uncertainty of the situation. One officer remarked that he hoped that they would be able to use the international human rights instruments "but we simply don't know yet" whether it would be possible. One had the sense that the seemingly false note struck by many of the officers when asked to give their opinions was more likely a genuine affirmation of shared hopes, coloured by a feeling of frustration and a lack of clear possibilities for change.

Looming ominously over the session was the broader question of how diverse societies – not necessarily initially conforming to the (Western) model of constitutional republics with relatively cohesive "national" unity to which current convention members adhere – might integrate into international organisations based around this model. The case of Kosovo served as a pressing reminder for the uninitiated participant (i.e., me) of the obstacles that we face in creating a truly "flat", seamless international community based around universally agreed-upon principles.

Strategic Litigation and the Importance of Legal Frameworks

Mr Olomoofe's presentation focused on the idea of "strategic litigation," a core component of ERRC's activity, and its role in the development of a strong portfolio of civil rights protections for citizens. Strategic litigation aims to establish legal precedent and not only win a specific case; the point is the advocacy and the political situation surrounding it, with an eye to changing the framework with which similar issues are dealt in the future. Thus, cases like 1954's Brown v. Board of Education in the United States – in which a case was brought by the National Association for the Advancement of Colored Persons (NAACP) to a local court claiming that segregated education violated the 14th Amendment right to equal treatment, and when denied was brought successfully to the Supreme Court, eventually resulting in nation-wide desegregation of the school system – become strategic vehicles for changing federal legislation. Sometimes with strategic litigation you may even take cases intending to lose – if the current legal framework is biased, a case can be brought with full knowledge that it will likely fail, with the intention of gaining publicity and setting a precedent which can later be overturned, based either on revised interpretation (e.g. as happened when Brown v. Board of Education overturned the earlier Plessy v. Ferguson which had allowed for the discriminatory principle of "separate but equal" to be applied in education), or on the application of broader or higher laws.

It is this latter possibility – for a judgment based on a set of local laws to be overturned by reference to a broader legal framework with which human rights discourse is most concerned, especially in the case of developing or "democratising" countries. If a local – i.e., even national – law can be shown to be in conflict with an international legal commitment, then there is the potential to change national legislation through strategic litigation that brings the relevant cases to international courts, which can subsequently induce national governments to comply with their international commitments. In this way, prejudicial or unfair laws can be changed in an effort to stimulate a change in the legal or social culture of the country, as opposed to having to wait for the culture to change before being able to afford rights to disadvantaged minorities.

This approach then "leads with legislation", ensuring a democratic legal framework as an encouragement to a democratic and egalitarian culture that is truly open to minorities. This approach is promising, innovative, and can often enact change at a pace that other types of activism simply cannot match. Yet it also reveals the unique problems faced by developing countries trying to ensure equality for institutionally and socially disadvantaged minorities; moreover, it makes manifest some of the implicit presuppositions of international "human rights discourse" which often are taken for granted. The venues for the international consideration of human rights abuses are all, necessarily, tied to international diplomatic organisations to which a state must be party in order for its citizens to have access to the corresponding courts. Amongst the main frameworks for international human rights law in Europe are the European Union's Race Equality Directive (RED), the European Convention for the Protection of Fundamental Freedoms and Human Rights (ECHR), the Council of Europe's Framework Convention for the Protection of National Minorities (FCNM), and the United Nations' International Covenant on Economic, Social and Cultural Rights (ICESCR). These treaties and directives create binding legal obligations on the States Party to the treaty or the Member State in the case of EU legislation and, in some cases, these obligations imply sweeping changes: For example, once a plausible case has been brought, Article 8 of the RED shifts the burden of proof in discrimination cases to the defendant, who must then prove discrimination did not take place.

It seems almost redundant to point out that for the international treaties to be in force and effective in combating discrimination in a particular area, there must be a government in place which is a party to the treaty. Yet, the case of Kosovo provides an example of how it is not necessarily a simple matter of using incentives to get government leaders to sign treaties. It is rather a complex process of creating stable governments, civil societies, and legal cultures that can come to constitute a modern nation-state. Without these – without a stable constitutional framework and the necessary apparatus to enforce it as well as the culture to make it acceptable to the population – a head of state's signature on an international treaty is largely meaningless. International human rights law, which depends on the ability of codified law to be a potent actor in society, is thus dependant on and only truly meaningful for what we recognise as "modern nation-states" with the necessary, cohesive culture for this law to function.

The Case of Kosovo

What happens, then, when a country or region wants to move towards a modern rights framework yet does not enjoy the status of nation-state? Even if the globalised economic and political climate means that nationhood is the only desirable option, what if it is currently impossible? This is the question faced by Kosovo, a province in Serbia that is for all intents and purposes governed by a UN-led interim administration (United Nations Mission In Kosovo – UNMIK), while still being technically considered a part of Serbia. Kosovo's status, in fact, has been in question for decades, but the current ambiguity is a legacy of the break-up of former Yugoslavia. When Yugoslav leader Josip Tito died in 1980, the Socialist Federal Republic of Yugoslavia (SFRY) began to fall apart, with ethnic and religious tensions fracturing the Republic. Kosovo, an area historically inhabited mostly by ethnic Albanian Muslims, had been an autonomous province within the federal unit of Serbia in the SFRY, with its own national and political institutions. However, the rise of Serbian nationalism in the wake of Tito's death and Serbian independence, led by Serbian leader Slobodan Milosovic, resulted in significantly increased central control by Belgrade. In response, Albanian nationalists began a guerrilla war against the Serbs, forming the Kosovo Liberation Army (KLA). By 1998, the KLA had gained effective control over part of the country, and was attracting large numbers of recruits from Albania, as well as a full-scale counter-offensive from the Serbian government which attempted to reinstitute control in the province. The Serbian government was accused of attempting to ethnically cleanse Albanians from Kosovo during this time, with a clear policy aimed at reducing Albanian influence and representation in the governing institutions of the province and the expulsion of tens, if not hundreds, of thousands of ethnic Albanians. In March 1999, what is known at the Kosovo War began, with NATO forces bombing Serbian targets as a response to Serbian police and military actions against Albanians.

After heavy losses by the Serbs, bombing was suspended and a peace treaty was signed with Milosovic in June. The treaty stipulated that Kosovo would be governed by an UN-led interim administration and that there would be no referendum on Kosovo independence (the stated goal of the KLA's actions) for at least three years. The terms of the treaty were enshrined in UN Security Council Resolution (UNSCR) 1244, adopted on 10 June 1999. With the exit of Serbian forces from Kosovo, there was an immediate, massive influx of returning Albanian refugees. This resulted in a reversal of the tide of aggression, with Albanians exacting revenge on Kosovo Serbs and attempting to drive them out of the province.² Kosovo Roma, seen as Serbian collaborators and emphatically non- Albanian, were also the victims of widespread ethnically-motivated violence.³

Eight years later, the situation is characterised more by distrust and uncertainty than any sense of progress towards a stable solution. Official unemployment was over 50% in 2004,⁴ the latest date for which figures are available, and GDP was around 1,500 EUR per person.⁵ A cycle of high unemployment and crime has thus set in, with frustration over lack of economic opportunity often channelled into violence towards ethnic minorities (e.g. Roma and Serbs), who are consequently even more economically marginalised because of fear and discrimination.

Concomitant with and indeed contributing to the uneasy social climate is Kosovo's stillunresolved political and constitutional status. UNSCR 1244, which is still the framework for Kosovo's governance, is ambiguous. The resolution was passed in order to end the fighting and provide a solution temporarily acceptable to both parties (i.e., Serbia and the Kosovo Albanians); it was not explicitly a question of determining a lasting political solution. The document reaffirms both "the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region," and "the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo."⁶ Thus to the extent that it addresses autonomy, it is in the context of developing self-government without (at least not explicitly) an eye towards independence. In the past few years, the Kosovo Provisional Institutions of Self-Government (PISG), which includes a legislative assembly,⁷ has taken over some of the functions of UNMIK; however, UNMIK is the recognised authority with ultimate political, civic and military control.

Meanwhile, Serbia has essentially no power over Kosovo. The 2003 constitution of (the now-defunct) Serbia and Montenegro recognised de facto international control over the province of Kosovo, while still claiming it as part of the country.⁸ This situation, as recognised both by Serbia and the international community, means that on the international level, there is no "state" responsible for Kosovo. Over and above the social unrest this indeterminacy has caused, Kosovo citizens are essentially unable to access most of the instruments and guarantees provided by international human rights law. As Mr Olomoofe noted – and the court liaison officers nodded with weary understanding – in, e.g., the European Court of Human Rights which oversees the ECHR, you must take a State to court. Who would one take to court for violations occurring in Kosovo? The Serbian administrative and judicial systems do not govern Kosovo and thus cannot be held responsible for human rights violations within the province; yet UNMIK is not itself a state. PISG, the interim Kosovo government, does not represent a sovereign state, and thus not party to any international treaties.

What is required, then, for people to gain meaningful access to "universal" human rights? For those living in Kosovo – not least minority Serbs and Roma – these rights are desperately needed, yet categorically out of reach. International courts and tribunals and the treaties that give them power depend on the agreement of States Parties or Member States; the idea of a Member State, in turn, must not be taken for granted but rather must be acknowledged as requiring a specific form of government, one based on the (Western, liberal-democratic) nation-state with a strong form of constitutional and precedent-based law and a willingness to use law as the basic codification of social values (such as egalitarianism). Even if the state is legally bound to an international convention guaranteeing rights, for these guarantees to become effective, there must be local cultural and governmental apparatuses which enable and enforce these rights. For Kosovo – rent by ethnic distrust and prejudice, destroyed economically and socially by repeated wars, and most importantly victim of an uncertain constitutional status⁹ – the hope for accessing international treaties guaranteeing equality and universally-respected human rights must remain, for the moment, a dream.

Endnotes:

1. James Duesterberg completed a summer internship at the European Roma Rights Centre in 2007. He is in his senior year at Washington University in Saint Louis, studying for a degree in Humanities.
2. Johnsson, Jessica. 2006. International assistance to democratisation and reconciliation in Kosovo, p. 7. Last accessed on 18 July 2007.
3. See, for example, the ERRC's 2006 report to the UN Human Rights Committee on the situation of Roma in Kosovo. Available online at: http://www.errc.org/cikk.php?cikk=2531.
4. European Commission. 2005. : Progress towards meeting the economic criteria for accession: 2005 Country assessment, p. 10. Last accessed on 18 July 2007.
5. World Bank. 2006. Kosovo Brief 2006. Last accessed on 19 July 2007.
6. Resolution 1244/1999. Available online at: http://www.nato.int/Kosovo/docu/u990610a.htm. Last accessed on 18 July 2007.
7. See: http://www.unmikonline.org/civiladm/index.html. Last accessed on 18 July 2007.
8. Available online at: http://www.worldstatesmen.org/SerbMont_Const_2003.pdf.
9. As of October 2007, there was significant progress towards a permanent solution for Kosovo's uncertain status, with indications that actual independence was on the horizon. UN Special Envoy Martti Ahtisaari had proposed a draft settlement proposal to be the basis of a new UNSC Resolution. The proposal would institute a supervised transition to independence, though it envisions a significant international presence for the foreseeable future, with powers to veto laws in order to protect minority rights. See: USINFO. Backed by the United States, the United Kingdom and other Security Council members, it still faces opposition from Serbia and more importantly Russia, which, as a permanent member of the Security Council, possesses veto power. See: SETIMES. The US State Department's website quoted an American official as characterising the proposed draft settlement as a way for both Serbia and Kosovo to "accelerate irreversibly [their] journey to a free Europe and the trans-Atlantic world." See: USINFO.