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Published online by Cambridge University Press: 06 March 2019
“In August 1998, at the ‘Black Eagles’ unit headquarters at Rznic, Idriz Balaj detained as prisoners Zenun Gashi, a former policeman, Misin Berisha and his son, Sali Berisha, all of Roma ethnicity. Zenun Gashi was last seen in the village of Kosuric/Kosuriq, municipality of Pec/Peja. On the day of his abduction, he was observed to have been badly beaten in a car with three KLA soldiers, in the neighbouring village of Barane/Baran. While detained, Sali Berisha's nose was cut off, in the presence of Idriz Balaj and of two other KLA soldiers. Idriz Balaj cut each of the three men on their necks, arms and thighs, rubbed salt into the cuts and sewed them up with a needle. Idriz Balaj then wrapped Zenun Gashi, Misin Berisha and Sali Berisha in barbed wire and used an implement to drive the barbs of the wire into their flesh. Idriz Balaj also stabbed Zenun Gashi in the eye. The three men were then tied behind Idriz Balaj's vehicle and dragged away in the direction of Lake Radonjic/Radoniq. They have not been seen alive since this day and are presumed to have been killed.”
1 Prosecutor v. Haradinaj, Balaj, & Brahimaj, Case No. IT-04–84-I, Indictment Decision, ¶ 64 (4 March 2005) [hereinafter Haradinaj ICTY Indictment].Google Scholar
2 Cahn, Claude and Kiuranov, Deyan, ERRC in Kosovo; Pogrom Situation, in Roma in the Kosovo Conflict 14 (European Roma Rights Center, 1999).Google Scholar
3 Haradinaj ICTY Indictment, supra note 1.Google Scholar
4 The other being an indictment against Kosovar Albanians for crimes against humanity and violations of the laws and customs of war involving violence against Serb and Albanian civilians in Lapusknik/Llapushnik Prison Camp of the KLA in the municipality of Glogovac/Gllogoc. This indictment covered crimes committed from May to July 1998, and does not mention minorities as victims. See Prosecutor v. Limaj, Bala, Musliu, & Murtezi, Case No. IT-03–66-I, Indictment (24 January 2003, amended 7 March 2003) available at http://www.un.org/icty/indictment/english/limai030307e.htm. In the amended indictment, charges against Murtezi were dropped. In a decision issued on 30 November 2005 concerning the actions of Bala, Limaj and Musliu, the Court found only Bala guilty of any acts for which charges had been brought.Google Scholar
5 Chief Prosecutor Del Ponte announced on 21 March 2001 that her office had opened an investigation into “activities against Serbs and other minorities in Kosovo by unidentified Albanian armed groups from June 1999 until the present….” Press Release, Statement by the Prosecutor, Carla Del Ponte, U.N.Doc. FH/P.I.S./578e (21 March 2001) available at http://www.un.org/icty/pressreal/p578-e.htm. Half a year earlier, in an address to the Security Council, Del Ponte acknowledged receiving “passionate pleas to investigate allegations of continuing ethnic cleansing against the remaining Serb and Roma population.” Asking the Council to modify the Tribunal statute to cover the alleged crimes (see section on the “armed conflict” jurisdiction requirement, below), Del Ponte expressed her office's belief in the importance of pursuing these allegations: “We must ensure that the Tribunal's unique chance to bring justice to the populations of the former Yugoslavia does not pass into history as having been flawed and biased in favour of one ethnic group against another. Besides, if we obtain this morally justified and necessary extension of our mandate, the Tribunal might become a deterrent factor against the ongoing ethnic-cleansing campaign in Kosovo.” Address to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the UN Security Council, U.N.Doc. JL/P.I.S./542-e (24 November 2000). The ICTY has however indicated that it did not intend to be “the main investigatory and prosecutorial agency in Kosovo,” and Del Ponte has stated that “[t]he vast majority of crimes committed during the armed conflict will have to be dealt with by the local Kosovo police and judiciary, currently under the mandate of the [UNMIK].” Press Release, Statement by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, on the Investigation and Prosecution of Crimes Committed in Kosovo, U.N.Doc. PR/P.I.S./437-E (29 September 1999).Google Scholar
6 “In response to a question as to whether the OTP was conducting an investigation into the tape that had recently been broadcast showing a Serb civilian being killed by Croatian soldiers, Nikiforov stated that it was regrettable that the tape had surfaced now just as the OTP had finished its investigative mandate.” See ICTY Weekly Press Briefing (9 August 2006) available at http://www.un.org/icty/briefing/2006/PB060809.htm.Google Scholar
7 International, Amnesty, Kosovo (Serbia and Montenegro) United Nations Interim Administration Mission in Kosovo (UNMIK): Briefing to the Human Rights Committee, 87th Session, July 2006, 15 (2006).Google Scholar
8 Id. at 15.Google Scholar
9 Id. At 15–7. Note: the events at issue in the Lekaj prosecution concern torture in the Hotel Pashtrik in Gjakove/Djakovica, not Prizren, as stated here. All other information included in the Amnesty report is beyond dispute.Google Scholar
10 Human Rights Committee, Eighty-Seventh Session, Geneva, Switz., 10–28 July 2006, Concluding observations of the Human Rights Committee, Advanced non edited version, Kosovo (Republic of Serbia), ¶¶12–13, U.N.Doc. CCPR/C/UNK/CO/1 (25 July 2006).Google Scholar
11 Id.Google Scholar
12 Id.Google Scholar
13 Commenting on Prime Minister Ramush Haradinaj's resignation to face war crimes charges in the Hague in March 2005, then-SRSG S⊘ren Jessen-Petersen said, “Thanks to Ramush Haradinaj's dynamic leadership, strong commitment and vision, Kosovo is today closer than ever before to achieving its aspirations in settling its future status. Personally, I am saddened to no longer be working with a close partner and friend.”Google Scholar
14 Human Rights Watch estimates that approximately 51,000 Kosovars took part in the March 2004 rioting. See Watch, Human Rights, Not on the Agenda: The Continuing Failure to Address Accountability in Kosovo Post-March 2004, Vol. 18, No 4(D), p. 5 (May 2006).Google Scholar
15 Letter from the Secretary-General addressed to the President of the Security Council (includes the Eide Report), p. 10, U.N.Doc. S/2004/932 (17 November 2004).Google Scholar
16 Id. at 6.Google Scholar
17 ERRC files NKos 447/2004–662/2006.Google Scholar
18 The UN Charter grants broad-based immunities to the UN and its employees. U.N. Charter art. 105 para. 1 and 2. See also Convention on the Privileges and Immunities of the United Nations (“CPIUN”), U.N.Doc. A/Res/22 (I) (13 February 1946).Google Scholar
19 Adverse health effects of lead exposure include: damage to the brain and nervous system; reproductive abnormalities in males and females; high blood pressure; memory and concentration problems; muscle and joint pain; and digestive irregularities. In children, the effects can be even more detrimental and include; behavior and learning problems; slowed growth, hearing problems; headaches, and damage to the brain and nervous system. See, e.g., Finkelstein, Y., Markowitz, M.E., and Rosen, J.F., Low-level lead-induced neurotoxicity in children: an update on central nervous system effects, brain research. brain research reviews (Brain Res Brain Res Rev), 1998 Jul; 27(2):168–76. See also Winneke, G. and Kramer, U., Neurobehavioral aspects of lead neurotoxicity in children, central european journal of public health (Cent Eur J Public Health), 1997 Jun;5(2):65–9.Google Scholar
20 ERRC files NKos 387/2004–665/2006.Google Scholar
21 Molano, Sandra and Andrejew, Andrej, First Phase of Public Health Project on Lead Pollution in Mitrovica Region, 17 (November 2000).Google Scholar
22 Id. at 13, 18 and 19.Google Scholar
23 Memorandum of the World Health Organization, Capillary Blood Lead Confirmation and Critical Lead-Related Health Situation of the Roma Camps Children, 3 (22 October 2004).Google Scholar
24 S. C. Res. 1244, U.N.Doc. S/RES/1244 (10 June 1999).Google Scholar
25 Letter from Jean-Marie Guéhenno, Under-Secretary-General for Peacekeeping Operations to Claude Cahn, Acting Executive Director of the European Roma Rights Centre (9 November 2005). On file at the ERRC.Google Scholar
26 ERRC files NKos 447/2004, NKos 449/2004, NKos 557/2005 and NKos 664/2006.Google Scholar
27 The UN official in the meeting at issue requested anonymity.Google Scholar
28 UNMIK Regulation On the Promulgation of the Anti-Discrimination Law adopted by the Assembly of Kosovo, UNMIK/REG/2004/32 (20 August 2004).Google Scholar
29 ERRC files NKos 32/2002–436/2006.Google Scholar
30 Press Release, Ombudsperson Institution in Kosovo, Non-Serbian Minority Representatives Discuss Ongoing Human Rights Issues with Ombudsperson Institution (7 July 2004). The Ombudsperson also reported that, as an urgent solution, several community leaders described situations in which citizens were forced to sell their property and homes as an emergency source of income.Google Scholar
31 ERRC files NKos 447/2004, NKos 449/2004, NKos 557/2005 and NKos 664/2006.Google Scholar
32 ERRC files NKos 301–307/2006.Google Scholar
33 Id.Google Scholar
34 ERRC files NKos 447/2004-NKos 664/2006.Google Scholar
35 ERRC files NKos 447/2004, NKos 452–458/2004, NKos 557–585/2005 and NKos 626–664/2006.Google Scholar
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