Kosovo Force's Failures Led to Tragedy, Court Told
The failure by the NATO-led security force in Kosovo to defuse or fence off cluster bombs in areas where young children played resulted in ``an avoidable tragedy,'' a European court heard in a case examining national accountability for military actions abroad.
Gadaf Behrami died and his younger brother Bekim was permanently disfigured in March 2000 while playing with unexploded bombs that had been dropped during the bombardment of the Federal Republic of Yugoslavia by the North Atlantic Treaty Organization the year before. The European Court of Human Rights in Strasbourg, France, today heard the family's argument that individual nations should be liable for those events.
Keir Starmer QC, representing the family, dismissed the national governments' plea that they ``should bear no responsibility for acts or omissions'' of their troops. Complying with human rights ``should be at the heart of any peacekeeping mission,'' Starmer told the court.
Kosovo has been administered by the United Nations since the NATO air offensive drove former Yugoslav President Slobodan Milosevic's forces from the region in 1999. At the same time an international security force, called Kosovo Force or KFOR, was established.
Key Question
The question of accountability is key not only for the situation in Kosovo, but also other military operations such as that in Iraq, lawyers said.
``These cases are about past events and arose as a result of the very specific situation that exists in Kosovo,'' Nuala Mole, a legal adviser for the Behrami family, said in an interview after the hearing. ``Depending on the approach that the court takes this may have implications for other operations.''
Nations that have signed the European Convention on Human Rights must apply those rights ``to everyone within their jurisdiction.'' Those countries, as well as human rights organizations, are looking for clarification from the court on the definition of jurisdiction.
``Broadening the scope of jurisdiction to peace operations would have serious repercussions,'' said Rolf Einar Fife, representing the Norwegian government in a related case that the court also heard today.
Jurisdiction
The human rights court dealt with similar questions in an earlier case over the fatal bombing by NATO aircraft of a television station in Belgrade in 1999. The court concluded there was no jurisdictional link between the individuals in the then Federal Republic of Yugoslavia who had brought the case and the defendant countries. The convention applies in the territories of those countries that are signatories, the court said.
``The FRY clearly does not fall within this legal space,'' the court said in that case, Bankovic and others v Belgium and others. ``The convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states.''
Other cases have given more room for exceptions to this primarily territorial definition. A crucial question is how much control a signatory state must have in another country for it to be held accountable for its actions there.
The Behrami family claims that even though Kosovo isn't covered by the convention, the legislation is applicable because of the link with France. The death and injuries from the cluster bombs took place in the part of Kosovo under the control of French KFOR troops.
`Difficult Day'
Agim Behrami, the father of the boys, said in an interview at the hearing today that he hoped the court proceedings will help improve the protection of human rights.
``For me it's a severe suffering and a very difficult day,'' he said through an interpreter. ``I hope justice will be achieved.''
The other case heard today was brought by an Albanian from Kosovo, Ruzhdi Saramati, who complained about his detention by KFOR between July 2001 and January 2002. He claims he didn't have access to a court and that France and Norway failed to guarantee the convention rights of individuals living in Kosovo. The KFOR commander at the time of his arrest in July 2001 was a Norwegian who was replaced in October that year by a French general.
Norway's Fife said the applicants were using the ``coincidental nationality'' of the officers to establish jurisdiction. Fife and Edwige Belliard, representing France, emphasized the ``unified command and control'' of the international presence and that Norway and France always acted within the KFOR mission and not on orders from their states.
Undivided Control
``The respondent states were acting under one unified command, KFOR,'' Belliard said. ``These rights are one and whole and cannot be divided.''
When the legality of Saramati's detention was questioned, the KFOR legal adviser said KFOR had the authority to detain him ``to maintain a safe and secure environment,'' according to a court summary of events.
KFOR exercised ``arbitrary powers of detention,'' Hazer Susuri, representing Saramati, told the court.
``They have wantonly ignored the very principles they set out to respect,'' Susuri said.
Saramati dropped his original complaint against Germany following an investigation by that country, the court said today.
The cases are Behrami v France, 71412/01 and Saramati v France, Norway and Germany, 78166/01.
Gadaf Behrami died and his younger brother Bekim was permanently disfigured in March 2000 while playing with unexploded bombs that had been dropped during the bombardment of the Federal Republic of Yugoslavia by the North Atlantic Treaty Organization the year before. The European Court of Human Rights in Strasbourg, France, today heard the family's argument that individual nations should be liable for those events.
Keir Starmer QC, representing the family, dismissed the national governments' plea that they ``should bear no responsibility for acts or omissions'' of their troops. Complying with human rights ``should be at the heart of any peacekeeping mission,'' Starmer told the court.
Kosovo has been administered by the United Nations since the NATO air offensive drove former Yugoslav President Slobodan Milosevic's forces from the region in 1999. At the same time an international security force, called Kosovo Force or KFOR, was established.
Key Question
The question of accountability is key not only for the situation in Kosovo, but also other military operations such as that in Iraq, lawyers said.
``These cases are about past events and arose as a result of the very specific situation that exists in Kosovo,'' Nuala Mole, a legal adviser for the Behrami family, said in an interview after the hearing. ``Depending on the approach that the court takes this may have implications for other operations.''
Nations that have signed the European Convention on Human Rights must apply those rights ``to everyone within their jurisdiction.'' Those countries, as well as human rights organizations, are looking for clarification from the court on the definition of jurisdiction.
``Broadening the scope of jurisdiction to peace operations would have serious repercussions,'' said Rolf Einar Fife, representing the Norwegian government in a related case that the court also heard today.
Jurisdiction
The human rights court dealt with similar questions in an earlier case over the fatal bombing by NATO aircraft of a television station in Belgrade in 1999. The court concluded there was no jurisdictional link between the individuals in the then Federal Republic of Yugoslavia who had brought the case and the defendant countries. The convention applies in the territories of those countries that are signatories, the court said.
``The FRY clearly does not fall within this legal space,'' the court said in that case, Bankovic and others v Belgium and others. ``The convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states.''
Other cases have given more room for exceptions to this primarily territorial definition. A crucial question is how much control a signatory state must have in another country for it to be held accountable for its actions there.
The Behrami family claims that even though Kosovo isn't covered by the convention, the legislation is applicable because of the link with France. The death and injuries from the cluster bombs took place in the part of Kosovo under the control of French KFOR troops.
`Difficult Day'
Agim Behrami, the father of the boys, said in an interview at the hearing today that he hoped the court proceedings will help improve the protection of human rights.
``For me it's a severe suffering and a very difficult day,'' he said through an interpreter. ``I hope justice will be achieved.''
The other case heard today was brought by an Albanian from Kosovo, Ruzhdi Saramati, who complained about his detention by KFOR between July 2001 and January 2002. He claims he didn't have access to a court and that France and Norway failed to guarantee the convention rights of individuals living in Kosovo. The KFOR commander at the time of his arrest in July 2001 was a Norwegian who was replaced in October that year by a French general.
Norway's Fife said the applicants were using the ``coincidental nationality'' of the officers to establish jurisdiction. Fife and Edwige Belliard, representing France, emphasized the ``unified command and control'' of the international presence and that Norway and France always acted within the KFOR mission and not on orders from their states.
Undivided Control
``The respondent states were acting under one unified command, KFOR,'' Belliard said. ``These rights are one and whole and cannot be divided.''
When the legality of Saramati's detention was questioned, the KFOR legal adviser said KFOR had the authority to detain him ``to maintain a safe and secure environment,'' according to a court summary of events.
KFOR exercised ``arbitrary powers of detention,'' Hazer Susuri, representing Saramati, told the court.
``They have wantonly ignored the very principles they set out to respect,'' Susuri said.
Saramati dropped his original complaint against Germany following an investigation by that country, the court said today.
The cases are Behrami v France, 71412/01 and Saramati v France, Norway and Germany, 78166/01.