NM and others v. UNMIK
5 October 2010, Phoenix, AZ
Dianne Post, Attorney for 155 Roma IDPs in Kosovo
In 1998 when NATO troops came into Kosovo, Albanian drove the Roma out. A community of 10,000 had been living for centuries in a mahalla near the river. But the Albanians wanted revenge and the land; they got both.
The Roma were relocated onto lead poisoned land. A local activist, Paul Polansky from Iowa, told the UNDP and later UNMIK that the land was poisoned and the Roma could not stay there. They promised to move them within six months. It is now 12 years - they are still there. The predictable results have occurred - miscarriages, babies with half a kidney, mental retardation, damaged eyes, convulsions, early deaths. After four-year-old Jenita Mehmeti died, the law suits started.
While at European Roma Rights Centre, I hired a local attorney to file a criminal complaint under Kosovo law. Nothing happened. The prosecutors are hired by UNMIK. Then I hired a different lawyer to file adverse possession claims for the property. He stole the money. I filed a claim with the European Court of Human Rights. They dismissed it for lack of jurisdiction without even giving it a number.
I filed a complaint against UNMIK under A/RES/52/247 on 10 February 2006 in New York and to date, the UN has taken not one step forward in resolving that complaint. No procedural rules or timelines exist that can force the UN to actually adjudicate the claim once it is filed. Thus, the procedure is a sham designed to deprive parties of their rights by failing to offer a remedy.
Given the refusal of the UN to act, I filed with The Human Rights Advisory Panel in Kosovo after it was constituted in 2008. A year later, 8 June 2009, they found the complaint admissible and wrote a very positive decision. Rather than respond to the merits, UNMIK changed the rules and on 17 October 2009 issued Administrative Direction No. 2009/1 that prohibited the Human Rights Panel from hearing any complaints that had been or could be filed under the third party complaint system of A/RES/52/247. The Panel then adopted a decision on 31 March 2010 in case 26/08 reversing their admissibility decision of 8 June 2009.
The Panel found “regretfully” that, since they are a creature of UNMIK, they have no jurisdiction to examine their own functioning in comparison with human rights standards. Therefore, they must comply with the Administrative Direction and find that the complaint is inadmissible on the basis that the third- party process is an available remedy.
As the Panel states, normally they would consider if that alleged remedy is in fact available, effective and capable of providing redress. Clearly, it is not. However, the Administrative Direction 2009/1 removes this jurisdiction from the Panel and they must simply concur with UNMIK that the third party process is sufficient – in spite of the facts.
The Panel then considered if some of the claims could come under the third party process and some under the Panel and concluded that they did, but since the facts and claims are so interlocking, it would be nonsensical to deal with substantive claims at the UN and procedural claims at the Panel. So it declared the entire claim inadmissible.
The Panel did leave one tiny door open. They said that the complaint could be resubmitted to the Panel after the completion of the third party process. However, the UN simply will never complete the third party process, leaving the Roma forever in limbo. Second, all claims must be submitted to the Panel by 31 March 2010 – the same day that the decision was made (mailed rather than emailed to the attorney who did not receive it until May). To resolve this issue, the Panel determined that it did have the power to create “special procedures” not covered by the Rules and allow the claim to be resubmitted.
In October 2009, the UK firm of Leigh Day filed a claim for another group of Roma in the same camps who had not signed on the earlier complaint. The response to them has been the same as the response to me. We will get to it in "due course". I guess that is like "with all deliberate speed".
Because of the intransigence of the UN and their failure to follow the Rule of Law, an international advocacy group has grown from the local activist. It is currently trying to get a petition to President Obama to put the remaining Roma in Bondesteel, the large U.S. base in Kosovo, until suitable housing can be procured. The web site and petition is at www.toxicwastekills.com I hope you will all sign the petition and get others to sign.
If any attorneys are interested in working on this case with me, please contact me at postdlpost@aol.com
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