A/HRC/45/CRP.10
compensation only with respect to “claims of a private law character”, whereas the
complainants’ claims amounted, in essence, “to a review of the performance of UNMIK’s
mandate as the interim administration in Kosovo”. 45
47.
In the same letter she indicated that “the IDP camps came into existence as a result of
a major population displacement during the Kosovo conflict in 1999 and are located in the
proximity of long established residential areas in Northern Mitrovica (…) the Mitrovica
region has a long history of major industrial pollution, including lead contamination from the
Trepca mine. (…) the claims asserted involve alleged widespread health and environmental
risks arising in the context of the precarious security situation in Kosovo. The claims do not
constitute claims of a private law character and, in essence, amount to a review of the
performance of UNMIK’s mandate as the interim administration in Kosovo. Based on the
framework established by the Member States, therefore, the claims are not receivable under
Section 29 of the General Convention or General Assembly Resolution RES/521247. (…)
Notwithstanding the above, we would note that, while having no legal obligation to do so,
UNMIK has taken substantial steps to improve the condition of the IDP population. Notably,
in 2000, when the Trepca mine unilaterally resumed operation, UNMIK closed the smelter
down. Moreover, since 2000, UNMIK and the international community, in consultation with
the IDPs representatives, as well as representatives of the local structures in Kosovo have
expended considerable resources in the protection and assistance of the IDP population,
including the relocation of camp residents to Osterode camp and to newly constructed
housing in the Roma Mahala”.46
48.
Related to the above, it is worth drawing attention to the HRAP Opinion, which
considered irrelevant whether UNMIK’s actions and omissions towards the risks faced by
the complainants would be attributable to UNMIK as a “UN peacekeeping mission” or as
“an interim administration”. The Panel noted that, in either case, UNMIK had full legislative
and executive authority in Kosovo pursuant to United Nations Security Council Resolution
1244 (1999) which established as a core part of UNMIK’s mandate in Kosovo, among others
“Ensuring public safety and order […]” (section 9, d); “Protecting and promoting human
rights […]” (section 11, j) and “Assuring the safe and unimpeded return of all refugees and
displaced persons” (section 11, k). According to subsequent Regulations, UNMIK pledged
to exercise its powers in Kosovo in accordance with “internationally recognised human rights
standards” and the principle of non-discrimination47, and in particular, in observance of the
main international human rights instruments48, which protect the right to life. In addition, the
Guiding Principles on Internal Displacement state clearly that national de facto or de jure
authorities have the primary responsibility for the protection of IDPs within their jurisdiction.
In this respect, Principle No. 2 states that “all authorities, groups and persons, irrespective of
their legal status”, shall respect the rights of IDPs.49
49.
The Panel acknowledged that UNMIK’s interim character and related difficulties
must be duly taken into account with regard to a number of situations, but under no
circumstances could these elements be taken as a justification for diminishing standards of
respect for human rights, which were duly incorporated into UNMIK’s mandate. The Panel
considered that the same standards must apply to the substantive obligation to protect the
right to life. Furthermore, as the SRSG argued that “the financial resources of UNMIK were
limited to those of the Kosovo budget and human resources, in all fields, including medical
and social services”, the Panel noted that the SRSG had not provided the Panel with any
detailed argumentation or evidence to prove that the relocation of the complainants and the
provision of adequate medical care would have been a “disproportionate burden” that
UNMIK could not handle alone or in collaboration with other United Nations agencies and
other bodies operating in Kosovo.50
45
46
47
48
49
50
10
ibid.
ibid.
see UNMIK Regulation No. 1999/1 On the Authority of the Interim Administration in Kosovo, at
Section 2.
see UNMIK Regulation No. 1999/24 On the Law Applicable in Kosovo.
HRAP, N.M. and Others v. UNMIK, case 26/08 (26 Feb. 2016), para 220.
ibid., para 221.
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