PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
Chapter 11. Institution-building and Democratic Governance
A. From Interim to Elected Institutions
1. Freedoms and Ethnic Sensitivities in Kosovo
Besides the confirmation by the Transitional Administrator that, in exercising their functions, all people undertaking public duties or holding public office in Kosovo must observe internationally recognised human rights standards,1193 Chapter 2(b) of the 2001 ‘Constitutional Framework for Provisional Self-Government’ imposes on the Provisional Institutions of Self-Government the duty “to promote and
able to comment on public issues without censorship or restraint and to inform public opinion”
(§ 26). The Human Rights Committee equally considered the “right to freedom of association, including the right to form and join organizations and associations concerned with political and public affairs, [as] an essential adjunct to the rights protected by article 25” (§ 27). The 1993 Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in Vienna, 14–25 June 1993, equally confirmed the interdependency between democracy and human rights (Vienna Declaration and Programme of Action, UN Doc. A/
CONF.157/23 (12 July 1993)). See also Langlois, A. J., ‘Human Rights without Democracy?
A Critique of the Separationist Thesis’, 25 Human Rights Quarterly 990 (2003).
1190 GA Res. 45/150, ‘Enhancing the effectiveness of the principle of periodic and genuine elec- tions’, UN Doc. A/RES/45/150 (18 December 1990), para. 3.
1191 See e.g. European Court of Human Rights, ‘United Communist Party of Turkey v Turkey’, 30 January 1998, 1998 ECHR 1, paras. 25 and 43: “political parties are a form of association essential to the proper functioning of democracy”, and “political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society”. See also European Court of Human Rights, ‘Socialist Party and others v Turkey’, 25 May 1998, 1998 ECHR 45, para. 43: “[t]he protection of opinions and the freedom to express them [. . .] applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy. [. . .] Their activities form part of a collective exercise of freedom of expression”.
1192 Article XXII, Agreement concerning West Irian.
1193 UNMIK Regulation 1999/24, supra note 858, para. 1.3.
fully respect the rule of law, human rights and freedoms, democratic principles and reconciliation”.1194 Next to these general tools of human rights protection, several more specific instruments on the relationship between human rights and the holding of elections were adopted under UNMIK’s administration.
Regulation 2000/16 on the registration and operation of political parties established the right to create political parties and initiated a whole regime of registration, organisation and dissolution of political parties. A similar regulation was adopted governing the founding, registration, activities and dissolution of all legal persons organised as NGOs.1195 The regulation, drafted with the assistance of national and international NGOs, fully recognised the right of individuals to associate and work together in the common interest and for the public good.
The regulation also declared that it did not seek to limit the right of individuals to the freedom of association by providing simple procedures for associations to form a legal entity separate from the legal personality of its members. In a few years, the number of registered NGOs in Kosovo had risen to 2,800, with some 300 representing Kosovo Serbs.1196 However, on 23 February 2005, the Kosovo Assembly passed a ‘Law on Freedom of Association in NGO’, which raised concern since the draft law incorporated amendments which would in a way limit the right to free association through mandatory registration. Registration could indeed have been refused on certain grounds, which could thus generate obstacles to the formation of associations.1197 The former UNMIK Regulation merely offered the opportunity to be registered to form a separate legal entity.
The proposed law has not been promulgated by the Special Representative.1198 The Ombudsperson Institution mentioned above and created by UNMIK to receive complaints with regard to inter alia the observance of fundamental human rights and freedoms by the Kosovar official institutions, also played a vital role in safeguarding human rights. Although its powers were merely recommenda- tory, it was for a year the only human rights institution in the territory. Since its establishment, the office of the Ombudsperson has dealt with various cases of alleged human rights violations by Kosovo official institutions. One of the first
1194 UNMIK Regulation 2001/9, supra note 865.
1195 UNMIK Regulation 1999/22 on the registration and operation of non-governmental orga- nizations in Kosovo, UN Doc. UNMIK/REG/1999/22 (15 November 1999).
1196 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2005/88 (14 February 2005), para. 10.
1197 See on this issue Council of Europe, Advisory Committee on the Framework Convention for the Protection of National Minorities, ‘Opinion on the Implementation of the Frame- work Convention for the Protection of National Minorities in Kosovo’, Doc. Nr. ACFC/
OP/I(2005)004 (25 November 2005), para. 60.
1198 See Provisional Institutions of Self-Government, Assembly of Kosovo, ‘Evidence of the pro- cessed and adopted Laws’.
cases concerned the freedom of association with regard to political participation.
The Ombudsperson found that the ‘arbitrary’ removal by the Special Representa- tive of the Secretary-General of three people from the list of candidates of their respective political parties for the 2001 elections to the Kosovo Assembly violated inter alia the right to freedom of association guaranteed under Article 11 of the ECHR. The Ombudsman recommended that the Special Representative of the Secretary-General reinstate them for the elections to the Kosovo Assembly to take place on 17 November 2001.1199
With regard to the implementation of the right to freedom of expression, the climate in Kosovo was at least worrying at the time of the establishment of UNMIK. Intolerance had emerged within the Kosovo Albanian community, and the rights of the Kosovars to freedom of association and expression were generally challenged. As the KLA/UCK controlled most of the municipal administrations which had meanwhile been re-established and self-appointed, opposition to these new institutions led to several reports of intimidation and harassment.1200 The main problem in Kosovo is the complexity of maintaining peaceful coexistence and tolerance amongst all ethnic groups and of creating an environment in which freedom of opinion and expression can be exercised to the full. In that regard, the fact that defamation was still a part of criminal law seems to play a vital role in the initiation of legal action, in particular against journalists, and resulted in approximately 300 libel actions between 2000 and 2004.1201 The Kosovo Ombudsperson reminded the Special Representative of the negative effects of these provisions of the criminal code and urged him to remove criminal insult and libel from the code.1202 UNMIK’s presence was however indispensable for encouraging efforts to resolve these issues,1203 especially considering the years of oppression under the previous regime.
1199 Ombudsperson Institution in Kosovo, Ex Officio Investigation No 19/01: Report Regarding the Removal of Emrush Xhemajli, Gafurr Elshani and Sabit Gashi from the List of Candidates for the November 2001 Elections.
1200 OSCE Mission in Kosovo, ‘Human Rights in Kosovo: As Seen, As Told’, Volume II (October 1999).
1201 Human Rights Committee, ‘Concluding Observations of the Human Rights Committee:
Serbia and Montenegro’, UN Doc. CCPR/CO/81/SEMO (12 August 2004), p. 22.
1202 Ombudsperson Institution in Kosovo Press Release, ‘The Ombudsperson asks the SRSG to decriminalize defamation cases to safeguard freedom of expression’ (7 March 2005).
1203 Economic and Social Council, Commission on Human Rights, Report submitted by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression – Addendum 4 – Mission to the State Union of Serbia and Montenegro, UN Doc. E/CN.4/2005/64/Add.4 (8 February 2005).