Sargsyan and Chiragov: The Strasbourg Court takes aim at frozen conflicts?

by Rhodri C. Williams

Last week I joined Philip Leach of the European Human Rights Advocacy Centre (EHRAC) in Strasbourg to present the European Court of Human Rights’ June 2015 judgments in two cases related to the Nagorno-Karabakh conflict to government representatives at the Council of Europe, at a briefing event organised by the European Implementation Network and the Open Society Justice Initiative.

The cases were Sargsyan v Azerbaijan and Chiragov v. Armenia, which were effectively joined by being relinquished from their original chambers to the same composition of the Grand Chamber in 2010. Both judgments found continuing violations of the applicants’ rights to property and their homes (as well as an effective remedy) based on their displacement in the early 1990s and subsequent inability to return to or access their properties.

While not (yet) signaling the initiation of a pilot judgment procedure, the court notes that the cases typify repetitive claims resulting from the respondent states’ failure to peacefully resolve the Nagorno-Karabakh conflict, reiterate the “primordial” importance of subsidiarity to the functioning of the Convention system, and recommend that both states take immediate steps to address property claims on their own steam:

…it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment. (Sargsyan, para. 238, Chiragov, para. 199)

Taken together, the judgments represent intriguing developments at a number of levels.

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The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

by Massimo Moratti

Protecting the property rights of displaced persons in post-conflict scenarios presents a number of interesting challenges, not least when internally displaced persons (IDPs) face illegal construction on their land and therefore are forced to seek remedies before the relevant institutions, including mass claims mechanisms.

One of these cases, which is probably not an isolated one, occurred recently in Kosovo, where the Kosovo Property Agency (KPA) is the local mass claim mechanism which inherited the competences of the UNMIK Housing and Property Directorate (HPD).  Established in 2006, the Kosovo Property Agency became an independent agency functioning in accordance with the Constitution of Kosovo after the unilateral declaration of independence.  The mandate of the KPA focuses on claims for land and commercial property, which were not addressed by the UNMIK HPD, since the HPD’s mandate did not cover such claims and the local courts were in theory competent for the receiving them. Since its inception, the KPA has collected claims for over 42,000 properties and decided 96% of those claims.

While the process of issuing decisions is approaching its end, the implementation of such decisions in a number of cases is becoming particularly problematic, especially those cases where a new building has been constructed on claimed properties. It is worth recalling that the KPA was created in 2006 and for the period 1999-2006 there was no claims mechanism to deal with claims for land, nor were courts capable of effectively processing such claims.  In the meantime, “a lot has been built in Kosovo”, to quote one of the officers of the Ombudsman office when contacted about the issue of illegal construction.

The problem the KPA is facing now is how to deal with such cases, where an illegal occupant has built a residential or commercial building on a claimed plot of land. In theory, the KPA could resolve to seize and demolish the building, sell it at an auction, broker a lease agreement or place the building under administration. However, practice has departed significantly from the procedures foreseen in the law. The KPA has instead developed a mediation procedure in order to try to solve these cases without resorting to destruction of buildings. IDPs facing illegal construction are now routinely informed by the KPA about the impossibility of demolish such buildings and offered the possibility for mediation.

This offer of mediation raises a number of issues and leaves a number of questions unanswered.  The case KI187/13 recently brought before the Constitutional Court of Kosovo highlights how the procedure of mediation collides with the provisions of the European Convention on Human Rights (ECHR). In this case, a female IDP who left Kosovo in 1999 and has lived in destitute conditions since sought repossession of a large plot of land in an attractive location outside Pristina with significant commercial value. On the same plot, an illegal occupant had built three houses with a swimming pool. The applicant claimed her property in 2006 and a KPA decision in her favor became final and binding in 2013.

The KPA however told the applicant that they could not enforce her claim, because the property had changed since the time she owned it and the KPA lacked the resources to demolish the existing buildings. They offered instead to mediate between her and the illegal occupant. The applicant refused such mediation and instead addressed the Constitutional Court of Kosovo, claiming a violation of her rights to property, to a fair trial and to an effective remedy.

New report on rule of law assistance in constitution building processes

by Rhodri C. Williams

I am very happy to announce the publication of a report I wrote last year on constitutional assistance for the Folke Bernadotte Academy in Sweden. The aim of the report is to discuss the trend toward greater international assistance to the ‘constitution-building’ processes that tend to accompany contemporary political transitions and post-conflict state-building efforts. It begins with an analysis of some of the debates that have characterized the emerging rule of law field of ‘constitutional assistance’ and goes on to describe the role of various actors at the international and regional levels.

The writing of the report was satisfying at a number of levels. One one hand, constitutional assistance is emerging as a very interesting field of activity, with more attention (if not always resources) from the UN Rule of Law machinery (not least in the form of a Secretary General Guidance Note), and a very active effort to digest and disseminate lessons learned, most recently in the form of extensive handbooks on constitution building by both Interpeace and International IDEA. The work also allowed me to re-engage with debates I had lost track of since my prolonged bath in post-conflict constitutionalism in Bosnia a decade ago. And not incidentally, it put me back in contact with Gianni La Ferrara, an old friend and constitutional guru from Bosnian days of yore.

The subject matter is inherently interesting, sitting as it does at the juncture of transnational dissemination of norms, international human rights and rule of law practice, power-sharing in divided societies and peace building. It is not without controversies as a result. Without going into detail on all of them (the report and its executive summary are available here), I will expand briefly on one which I think is perhaps most interesting, namely the question of whether the aim of ‘democratising’ constitutional processes comes into conflict with the tendency of international rule of law actors to interpose human rights norms into them.

Demonize the messenger – UN Housing Rapporteur accused of witchcraft

by Rhodri C. Williams

So here is the scenario. A wealthy Western country is early out in 2001 in extending a standing invitation to UN human rights rapporteurs to visit anytime they like. In doing so, they are taking up a Quaker initiative premised on the idea that the first step toward respecting human rights is willingness not be defensive about one’s own record.

Twelve years later, the UN Rapporteur on the right to housing announces the first visit by her mandate to said country, at a time of economic recession. Her initial PR and a subsequent set of preliminary findings praise the host country’s tradition of housing assistance for the poor and provide a reasoned set of criticisms of recent measures to deregulate private rental markets and ensure more efficient use of public housing stocks.

The response? Pandemonium. The chairman of the main party in the governing coalition speeds a letter to the UN Secretary General claiming that the rapporteur arrived uninvited, ignored the relevant government ministers and issued politically biased findings, suggesting “that the UN withdraw her claims” until a “full investigation” is carried out.

A national tabloid accuses her of being a Marxist witch while a conservative columnist is pleased to merely dismiss her as an idiot and a “Brazil nut”. She, of course being the (Brazilian) UN rapporteur Raquel Rolnik, and they being the Right Honourable conservative commentariat of the United Kingdom.

So. How has it come to pass that the United Kingdom, with its Magna Carta and its mother of parliaments is unable to engage in a reasoned dialogue with a UN human rights official? To express mild concerns about her criticism, promise to study them and let them slide gently toward the circular file like everyone else? Or conversely, why draw unnecessary attention to the report by engaging in shrill denunciation of UN activism (not to mention sexist and arguably racist ad hominem attacks on its author)?

Svaka čast Croatia

by Rhodri C. Williams

And let me say how honored I am that you chose my birthday for accession to the EU! I’ve had a pretty complicated relationship with you in the past, I have to admit. On the positive side, I used to flee to you when the narrow valleys of Bosnia got me feeling fenced in and I needed to pop over that last rise after the Metkovic border crossing and let that view – the burnished expanse of the Adriatic – seep physically into me. We also used to pile out to the north, going hell for leather from Slavonski Brod along the ex-Highway of Brotherhood and Unity, anything just to hit Zagreb before the only Mexican restaurant in the West Balkans announced last call.

Beyond my personal enjoyment of your charms, I was also impressed in a grim way by your ability to stick it out as a small country in a historically tough neighborhood. The sort of existential problems you faced in the 1990s were unlikely anything I could imagine, having grown up in the protected suburban vastnesses of the 1970s US midwest. The problem, in my mind, was not (only) that you didn’t have clean hands (nobody did). The problem was that you couldn’t come clean about it. Of course, nobody else could either, but you, unlike the others, just galumphed right over your historical indiscretions like so many speed bumps on the boulevard to European integration.

So what is my beef? Well, I worked on property restitution in Bosnia. So I watched as the ‘international community’ in Sarajevo turned the screws on the Bosnians until they extended restitution to cover not only all private houses but also all socially owned apartments (with a few fateful exceptions of course). And I watched as the same international community in Zagreb gradually conceded points that we had gone to the wall over in Sarajevo and started to purge terminology like ‘tenancy rights’ from documents like EU accession progress reports.

I also worked on the OSCE and ICHR friend of the court briefs in the ill-fated Blecic case before the European Court of Human Rights, and assisted the Council of Europe Parliamentary Assembly’s attempt to push for uniform restitution standards in Europe. I marveled both when the ICTY condemned the uncompensated confiscation of 30,000 socially owned apartments as part of a broader plan to remove Serbs from Croatia, and when that ruling fell on a seeming technicality. And I am left to conclude that the relatively prosperous and self-confident Croatian political elite was simply not held to the same rigorous standards still being applied to their poor and less organized cousins in Bosnia.

The bottom line is that the country that declared independence in 1991 had a 12.2% Serb minority while the country that joined the EU today has a 4.4% Serb minority, and that little statistic patches over a lot of ongoing misery and unredressed violations. Now I know its still not an easy time for you what with sliding EU support and all the commentators cracking wise about how you fought your way out of one oppressive, economically troubled confederation twenty years ago only to fling yourself into another today. So I’ll say only this. It is entirely to your credit that you have entered the hallowed precincts of the EU but it is troubling that you did so with a certain number of skeletons clanking around in your luggage.

Of course, one might as easily find fault for this state of affairs in Brussels as in Zagreb. But pressuring countries that are already in to observe such niceties as the Copenhagen criteria and the rule of law is not the EU’s traditional strong suit. In any case, that is nothing that should prevent you from finding that it lies in your own best interest to engage sooner rather than later with your past. And doing so in a clear-eyed way would, at a stroke, remove many of the excuses holding back your EU-aspirant neighbors from doing the same. And maybe leave both the EU and the western Balkans in better shape as a result. So, congratulations, and good luck as part of the European project of building a future worthy of the sacrifices and suffering of the past.

The Human Rights Advisory Panel holds the UN in Kosovo responsible for failing to investigate forced disappearances – too little, too late?

by Massimo Moratti

In the uphill struggle to ensure the accountability of international organisations and in particular of peacekeeping missions, the recent decision in S.C. against UNMIK issued by the UNMIK Human Rights Advisory Panel (HRAP) can definitely be considered a landmark case.

The HRAP is the body tasked in 2005 with examining complaints of alleged human rights violations committed by or attributable to the United Nations Interim Administration Mission in Kosovo (UNMIK). In doing so, the Panel applies the European Convention on Human Rights (ECHR) as well as other key global Human Rights conventions, and makes non-binding recommendations to the Special Representative of the Secretary-General (SRSG) in charge of UNMIK.

UNMIK was established following the Kosovo crisis of 1999 with full legislative and executive powers for the administration of Kosovo. UNMIK was, tasked under UNSC Res 1244 with “promoting and protecting human rights in Kosovo” and it performed police and judiciary functions until 9 December 2008, when those competencies were handed over to the EU Rule of Law Mission in Kosovo (EULEX).

Disappearances in Kosovo and UNMIK’s inaction.

It is within this context that Ms. S.C. lodged her complaint. Ms. S.C. was the wife of Ah.C and mother of An.C. On the 18 July 1999 An.C and Ah.C. while working at their family business in Prizren were ordered by three uniformed Kosovo Liberation Army (KLA) members to follow them to do some work. The KLA members said they would be back within half an hour. Their bodies were recovered one year later, in August 2000, by ICTY investigators near the Prizren cemetery. It was only in 2003 that M.C., the other son of the complainant, received the bodies of his father and brother after UNMIK had issued confirmation of identity certificates.

Ms. S.C. complained on several occasions, but the investigations conducted by UNMIK led to nothing. Although the bodies were recovered in 2003, the two persons were still considered as missing in the UMNiK investigation file as late as 2007. The complainants therefore alleged a violation of procedural limb of the Article 2 of the ECHR, i.e. the right to life, as well as a violation of the Article 3 of the ECHR for the mental pain and suffering allegedly caused by the situation.

Breaking news – Gotovina and Markač convictions overturned (UPDATED)

Update 19 November 2012: I am very grateful to Mark Kersten at the Justice in Conflict blog for inviting me to expand upon the below piece and guest post it there. For a fuller treatment of the issues arising from last Friday’s Gotovina judgment, readers are therefore referred to my post at Justice in Conflict, entitled “The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth“.

by Rhodri C. Williams

In April 2011, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted two Croatian Generals, Ante Gotovina and Mladen Markač to lengthy jail terms for their parts in planning and carrying out ‘Operation Storm’, a 1995 offensive that resulted in the flight of 250,000 Croatian Serbs. Today, in what has been described as “one of the most comprehensive reversals of the tribunal’s 19-year history”, the Appeals Chamber eviscerated the Trial Chamber’s findings and ordered the immediate release of both defendants.

This shock reversal is likely to generate intense legal and political debate, with Serbian Prime Minister Ivica Dačić having immediately claimed that it confirms that the ICTY is “not a court” but rather “fulfills pre-determined political tasks.” According to the summary read out in court this morning, the Appeals Chamber accepted the defense’s key arguments, first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand.

As described in TerraNullius at the time of the Trial Chamber decision, the finding of the existence of a JCE by the Trial Chamber allowed the defendants to be imputed guilt for a range of discriminatory actions and policies that accompanied the offensive including the ex lege cancellation of urban-dwelling Croatian Serb refugees’ rights to their ‘socially owned’ apartments. As set out in the summary of today’s decision (page 4), the rejection of a JCE removed this link:

With respect to liability via JCE, the Appeals Chamber observes that the Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings, but the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the Trial Chamber’s findings on the JCE’s core common purpose of forcibly removing Serb civilians from the Krajina rested primarily on the existence of unlawful artillery attacks against civilians and civilian objects in the Four Towns. While the Trial Chamber also considered evidence concerning the planning and aftermath of the artillery attacks to support its finding that a JCE existed, it explicitly considered this evidence in light of its conclusion that the attacks on the Four Towns were unlawful. Furthermore, the Trial Chamber did not find that either of the Appellants was directly implicated in Croatia’s adoption of discriminatory policies.

When the dust settles, it may well turn out that the Trial Chamber went too far with its JCE finding and that the Appeals Chamber was right to tighten the scope of the inquiry to focus on what criminal acts could be directly and unambiguously attributed to the defendants in this case. On the other hand, few serious observers doubt that the highest political and military leadership in Croatia at the time would not have lost much sleep if not one Serb had ever returned to the region. However, as one might fear, the Court’s narrow ruling on General Gotovina and Markač has quickly been read as a blanket vindication of Croatia’s conduct and aims during its 1991-95 war. As reported in the Guardian:

Gotovina’s defence lawyer, Greg Kehoe, said the appeal verdict demonstrated that Croatia’s Operation Storm in 1995 to regain control over the last Serb-run enclaves on its territory had been entirely legitimate under international law.

“This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia. More importantly, it vindicates what kind of soldier General Gotovina was,” Kehoe said.

At a broad level, the Gotovina case may hold the same lessons on the limitations of international criminal law that the European Court of Human Rights’ Cyprus cases have demonstrated with regard to human rights law. Litigation inevitably and necessarily disappoints by applying a zero-sum approach to complex historical problems in which all parties have almost always been cast both in the role of victims and victimizers. To treat Gotovina 2 as an absolution of Croatia’s well-documented sins is patently absurd and will only complicate the way to a long overdue regional reckoning with the past. Ultimately, Croatia can only legitimise its own narrative of victimhood by recognising the validity of those of its victims.