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Human Rights Watch Memorandum on the Western Balkans Prepared HUMAN RIGHTS WATCH 350 Fifth Ave, 34th Floor New York, NY 10118 Phone: 212.290.4700 Fax: 212.736.1300 [email protected] Kenneth Roth, Executive Director Allison Adoradio, Operations Director Michele Alexander, Development & Outreach Director Carroll Bogert, Associate Director Peggy Hicks, Global Advocacy Director Iain Levine, Program Director Dinah PoKempner, General Counsel James Ross, Senior Legal Advisor Joe Saunders, Deputy Program Director Wilder Tayler, Legal and Policy Director PROGRAM DIRECTORS Brad Adams, Asia Holly Cartner, Europe & Central Asia Peter Takirambudde, Africa José Miguel Vivanco, Americas Sarah Leah Whitson, Middle East & North Africa Human Rights Watch Memorandum on the Western Balkans Jamie Fellner, United States Joseph Amon, HIV/AIDS Bruni Burres, International Film Festival Prepared for EU Foreign Ministers’ informal meeting Richard Dicker, International Justice Bill Frelick, Refugee Policy Salzburg March 10-11, 2006 Arvind Ganesan, Business & Human Rights Steve Goose, Arms LaShawn R. Jefferson, Women’s Rights March 7, 2005 Scott Long, Lesbian, Gay, Bisexual & Transgender Rights Lois Whitman, Children’s Rights ADVOCACY DIRECTORS Steve Crawshaw, London Loubna Freih, Geneva Human Rights Watch welcomes the opportunity to highlight a number of Marianne Heuwagen, Berlin Lotte Leicht, European Union pressing concerns pertaining to the Western Balkans in advance of the Tom Malinowski, Washington DC Joanna Weschler, United Nations informal Gymnich meeting of EU foreign ministers in Salzburg on March BOARD OF DIRECTORS 10-11, during which relations with the countries of the region will be Jane Olson, Chair James F. Hoge, Jr., Vice-Chair discussed. Below we provide a summary overview of these concerns, Sid Sheinberg, Vice-Chair John J. Studzinski, Vice-Chair structured along three broad themes – Kosovo, accountability for war crimes Omar Amanat Lloyd Axworthy throughout the region, and concerns in areas other than war crimes David Brown accountability in two of the countries (Croatia and Serbia and Montenegro) – Dorothy Cullman Edith Everett and offer a number of concrete suggestions for specific steps the EU should Jonathan Fanton, Chair (1998-2003) 1 Michael Gellert take to address them. Richard Goldstone Vartan Gregorian Wendy Keys Kosovo Robert Kissane Bruce Klatsky Joanne Leedom-Ackerman Josh Mailman Status negotiations Susan Manilow Kati Marton Despite recent progress toward resolving the future status of Kosovo, with Linda Mason the first of a series of discussions between Belgrade and Pristina beginning Lore Harp McGovern Barry Meyer just a few weeks ago, the human rights situation in the province remains Joel Motley Samuel K. Murumba bleak. This conclusion is underscored by the comprehensive review of the Catherine Powell Sigrid Rausing situation in Kosovo carried out by the U.N. Secretary-General’s Special Victoria Riskin Envoy Kai Eide in October 2005, as well as the more recent report by the Kevin Ryan Domna Stanton Secretary-General to the Security Council on the international administration John Taylor Shibley Telhami in Kosovo, submitted in January 2006. In the latter report, the Secretary- Robert L. Bernstein General makes the disturbing observation that despite progress on status Founding Chair, (1979-1997) preparations, there were “delays or setbacks in most areas of standards Bruce Rabb, Secretary implementation.” Current human rights concerns in Kosovo include impunity and access to justice, and the protection of minorities, including the return of displaced 1 For a more detailed overview of Human Rights Watch’s concerns regarding human rights developments in the countries of the Western Balkans, see our World Report 2006, available at http://www.hrw.org/wr2k6/. BERLIN BRUSSELS GENEVA LONDON LOS ANGELES MOSCOW NEW YORK SAN FRANCISCO TORONTO WASHINGTON persons and refugees to their homes. It is crucial that these human rights concerns and overall progress on standards implementation are at the heart of the status negotiations. The European Union and its member states have a crucial role to play in ensuring a success of the negotiations, and the measure of that success must include progress on these critical issues. It is also of paramount importance that EU member states remain committed to ensuring that the international community and the national provisional institutions of self-government (PISG) adhere to their fundamental human rights commitments. This will require sustained diplomatic and financial investment in the future of Kosovo, regardless of its political status. Impunity and access to justice While the challenges in establishing a new justice system in Kosovo are considerable, progress to date has been disappointing. The failure to bring to justice many of those responsible for serious crimes has created a climate of impunity that recent efforts have done little to change. Shortcomings in the justice system include: a growing backlog of cases; shortage of qualified judges; virtually nonexistent mechanisms for witness protection and relocation; poorly-trained and inadequately supported investigators and prosecutors; inadequate defense counsel; perceptions of bias by local judges; and problematic sentencing practices. The problems embedded in the justice system are further exacerbated by the poor quality and tardiness of police investigations. These problems affect all communities living in Kosovo, undermining confidence in the criminal justice system and the rule of law as a whole. The poor record on prosecuting war crimes and post-war inter-ethnic and political violence also persists. The criminal justice response to the March 2004 violence is an excellent case in point. While at first the figures would appear to indicate a dramatic improvement in the numbers of prosecutions as compared to those relating to war crimes – almost 450 cases as compared to less than two dozen – the reality is that most of them were for minor offences, with only around half completed two years later. Where adjudicated, cases often resulted in the imposition of only minor penalties or fines, at times below minimum sentencing guidelines. The problems with the criminal justice system are mirrored in Kosovo’s civil courts. An extreme case backlog (up to 60,000 according to some estimates), limited access to the courts for ethnic minorities, and failure to implement court decisions, are among the chief obstacles that persist. Our research also indicates that there are no case management or tracking systems in place, with the exception of a few relatively new pilot projects. A previously designed databasing system remains unimplemented in the local courts, while international judges track their involvement in cases through a separate system. There is inadequate oversight over the local judiciary. As a result of these deficiencies, it is unclear what the real backlog is, how long it takes to adjudicate cases, and whether there are particular patterns of case management or adjudication that require attention. The ability of prosecutors, both local and international, to effectively participate in the judicial process is also cause for concern. They face similar case management challenges as the judiciary, frequently find themselves having to adjust their work according to changing political priorities, and are chronically understaffed and under-resourced. Another problem stems from the strict separation between local and international prosecutors, with the latter retaining jurisdictional 2 power to take over certain sensitive cases while local prosecutors are left to pursue ordinary cases in local courts, providing little opportunity for interaction and sharing of experience The further transfer of judicial and criminal justice powers from the United Nations mission to local Ministries of Justice and Interior underscore the importance of urgent action by the international community in concert with the provisional governments to address the deficiencies in the justice system, and to establish effective mechanisms for its oversight and evaluation. Protection of minorities: limited freedom of movement and returns The security situation in Kosovo remains fragile. While rates of reported inter-ethnic crime generally fell in 2005, many organizations working with minorities suspect that the decrease simply reflects greater physical separation and lack of interaction between communities since major clashes between majority Albanians and Serbs and widespread rioting in March 2004. There has been an increase in serious security incidents, including those targeting Kosovo Serbs—a development highlighted by the Secretary-General in his report on Kosovo to the Security Council in January 2006. Low-level harassment and intimidation remain frequent reminders of the divide between communities in some areas. Minorities also continue to suffer from widespread discrimination in employment and access to public services such as health care, education, and the courts. Roma communities are particularly affected. Their living conditions in the northern part of the province have been a serious source of concern for some time now, prompting the European Roma Rights Center to file an application in February 2006 with the European Court of Human Rights on behalf of 184 Romani citizens of Kosovo against the interim U.N. administration (UNMIK) alleging violations of their right to life and freedom from torture and discrimination among others. Progress on returns of the more than 200,000 Kosovar minorities displaced since the conflict
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