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European Court of Human Rights Has No Jurisdiction in Kosovo Lead Poisoning Case

3 April 2006

On 20 February 2006, the European Roma Rights Centre filed an application with the European Court of Human Rights in Strasbourg on behalf of 184 Romani residents of camps for Internally Displaced Persons (IDPs) in northern Kosovo. On 21 February 2006, the Court faxed a letter to the ERRC declining to review the case stating that it did not have jurisdiction to do so. Specifically, the Court claimed it was not competent to review the case since the United Nations Mission in Kosovo (UNMIK) is not party to the Convention.

In 1999, the camps were built on land known to be highly contaminated. Although the camps were intended as temporary housing for victims of the 1999 looting and burning of the Romani settlement in southern Mitrovica, today they continue to exist under the United Nations supervision, despite known and documented extreme health hazards arising from toxic lead contamination.

The United Nations Mission in Kosovo (UNMIK) has known of the scale of the health emergency since as early as 2000, when the World Health Organization (WHO) issued its first report analyzing the effects of lead pollution on the Mitrovica region. The report found that all children and most adults living around the industrial site had blood lead concentrations exceeding the permitted limits. Specifically, the researchers found higher than average lead concentrations among the Roma, as compared with the non-Romani population. By October 2004, the WHO had declared the area in and around the IDP camps uninhabitable, issuing a report that revealed that the lead concentration in the soil in Zitkovac camp was 100.5 times above recommended levels, while in the Cesmin Lug camp, the levels exceeded by 359.5 times those considered safe for human health.

A WHO analysis of numerous studies has shown that increases in blood lead from 10 to 20 micrograms/deciliter (µg/dl) were associated with a decrease of 2.6 IQ points. In 2004, WHO sampled 58 children living in the IDP camps, of whom 34 were found to have above acceptable blood lead levels. None of the Romani children sampled had a blood lead level below 10 µg/ dl. Twelve of the Roma children were found to have exceptionally high levels, with six of them possibly falling within the range described by the United States Agency for Toxic Substances and Disease Registry ("ATSDR") as constituting a medical emergency (=>70µg/dl). At the time of the report, in the summer of 2004, the WHO recommended urgent action for the twelve children mentioned above, including immediate diagnostic testing, aggressive environmental interventions and ongoing evaluation according to ATSDR guidelines. They did not receive that treatment. By October 2004, the WHO recommended the immediate removal from the camps of children and pregnant women and called the case of the Roma "urgent". They were not removed, save for a few women, for two days.

On 19 October 2005, the Society for Threatened Peoples based in Goettingen, Germany, brought Dr. Klaus-Dietrich Runow to Kosovo to test for toxic heavy metals in the three IDP camps near Mitrovica. Hair samples were collected from 48 children between the ages of 1-15. The readings range from 20 to 1200 µg/g while "normal" readings would be in the range 3-15. In spite of the volume of evidence indicating the extreme harms to the inhabitants of the camps caused by their continued residence there, the Roma concerned have still not been moved to a safe place after 6 years.

The application to the European Court of Human Rights alleged violations of the right to life (Article 2), prohibition of torture and inhuman or degrading treatment (Article 3), right to a fair hearing (Article 6), right to respect for private and family life (Article 8), right to an effective remedy (Article 13), and discrimination (Article 14). In addition, the application asked for interim measures or emergency action due to the immediate need for removal of the victims from the lead-contaminated camps and medical treatment.

The application was filed against UNMIK as the acting government or "state" in Kosovo. While UNMIK has granted itself immunity in Kosovo and the UN has certain immunities, the ERRC argued that the situation in Kosovo is unique and calls for an examination of the application of immunity in terms of international human rights norms. In this specific case, UNMIK has accepted that the European Convention for the Protection of Human Rights and Fundamental Freedoms applies to it and that it will abide by it. The UN has also accepted that international human rights laws apply to United Nations officials in the course of UN operations. The UN has a legal personality and the concomitant rights and responsibilities that go with that. The right to life and the right to freedom from torture are universal norms, jus cogens, from which no derogation is permitted. These obligations apply to States as well as organizations and individuals. No one is exempt from universal norms.

In Kosovo, UNMIK is acting not only as an international organization, but also as a surrogate state authority. It administers the territory, enters into international contracts, appoints judges, and makes law. As the "government" it cannot avail itself of wholesale immunity but rather, as every sovereign, must be answerable for its conduct under the law. Further, human rights flow to individuals, not to States. Residents of Kosovo are citizens of Serbia and Montenegro, a party to the Convention. At present, however, the authorities of Serbia and Montenegro do not have authority over the territory of Kosovo, and thus their ability to guarantee implementation of the Convention on the territory of Kosovo is limited. Individuals in Kosovo cannot be denied their human rights because a different government is in charge.

In a related action, during the week of 2 December 2005, the ERRC sent letters asking the United Nations Secretary General, the United Nations High Commissioner for Human Rights, and four Special Rapporteurs (on Housing, Toxic Wastes, Refugees, and Health), to take immediate action for the preservation of the lives and health of children in three Romani IDP camps in Kosovo. In the letters, the ERRC called on the U.N. High Commissioner for Human Rights to take immediate action in this medical emergency and asked the Secretary- General Kofi Annan to assist in rectifying this human rights tragedy, as well as commencing an internal investigation to ascertain how this dereliction of duty was allowed to continue for more than six years.

Additionally, on 13 February 2006, the ERRC filed a thirdparty complaint under the United Nations General Assembly Resolution A/RES/52/247 in which the UN agrees to compensate those who have been injured in their missions. On 5 March 2006, the ERRC filed a complaint with the UN Oversight Body under standards listed in two Secretary General's Bulletins, ST/SGB/1997/5 and ST/SGB/2002/7, requesting an investigation into the mismanagement of the IDP camps in Kosovo. Other legal actions are being considered.

The ongoing human rights violations suffered by Roma in Kosovo is the central theme in ERRC's Roma Rights Quarterly Journal Number 3 and 4, 2005 titled Justice for Kosovo. The full text of the journal is available at:
www.errc.org.

(ERRC)

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