Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC]

Information Note on the Court’s case-law No. 97

May 2007

Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC] - 71412/01

Decision 2.5.2007 [GC]

Article 35

Article 35-3

Ratione personae

Applications concerning acts performed by KFOR and UNMIK in Kosovo under the aegis of the UN: inadmissible

Behrami and Behrami: The two applicants, Agim Behrami and his son, Bekir Behrami, live in Kosovo, in what used to be the Federal Republic of Yugoslavia (FRY) and is now the Republic of Serbia; the application was also filed on behalf of another son, Gadaf Behrami, who is now deceased. At the material time, in March 2000, the applicants lived in the sector of Kosovo for which a multinational brigade led by France was responsible. The brigade was part of the international security force (KFOR) presence in Kosovo, mandated by UN Security Council Resolution 1244 of June 1999.

A group of children, including Bekir and Gadaf, found a number of unexploded cluster bombs which had been dropped during the bombardment of FRY by NATO in 1999. One of the children threw a bomb into the air; it exploded, killing Gadaf and seriously injuring Bekir. Police from the UN Interim Administration in Kosovo (UNMIK) – also mandated by Resolution 1244 and deployed under the aegis of the United Nations – investigated the incident. They found that the accident amounted to “an unintentional homicide committed by imprudence”. It was decided that no criminal prosecution would be brought because the bomb did not explode during the NATO bombardment. Mr Behrami complained to the Kosovo Claims Office that France had not respected the provisions of Resolution 1244 concerning de-mining. The claim was ultimately rejected on the ground that de-mining had been the responsibility of the UN since July 1999.

Saramati:The applicant, of Albanian origin and living in Kosovo, was arrested by UNMIK police in 2001 and placed in detention while a criminal investigation was conducted. He appealed successfully against a further detention order and was released. Later, UNMIK police informed the applicant by telephone that he should go to the police station to pick up his money and personal effects. The applicant complied and went to the police station, where he was arrested by two UNMIK police officers, acting on orders from the KFOR commander (COMKFOR), a Norwegian officer at the time. The police station was located in the zone where the KFOR multinational brigade was under the authority of Germany. COMKFOR extended the applicant’s detention. The KFOR Legal Adviser advised the applicant’s representatives, who had challenged the legality of his detention, that KFOR had the authority to detain under Resolution 1244 where this was necessary to protect KFOR troops and people residing in Kosovo. The applicant was sent before the district court for trial. His representatives requested his release but the trial court replied that his detention was the responsibility of KFOR. A French general then became COMKFOR. The applicant was convicted of attempted murder. The Supreme Court of Kosovo quashed the applicant’s conviction and his case was sent for re-trial. The applicant was released.

Saramati application in respect of Germany struck out: Mr Saramati initially contended that a German KFOR officer had been involved in his arrest. The German Government replied that thorough investigations had failed to produce evidence of any involvement of a German KFOR officer in the arrest. The applicant requested and obtained the removal of his application concerning Germany from the list.

Inadmissibility for incompatibility ratione personae of the applications in respect of France and Norway:

The Behramis complained that de-mining had not been carried out, noting that France had been in charge of the multinational brigade responsible for the sector. Mr Saramati complained of his detention by KFOR, emphasising that it had been ordered by COMKFORs of French and Norwegian nationality.

Prior to the material events the FRY had agreed, in a “military/technical agreement” to the presence of international troops. Resolution 1244 had then provided for the deployment of an international security force (KFOR), made up of contingents grouped into multinational brigades under the authority of a commanding country; those countries included France and Germany. The Resolution had also provided for the establishment of a civil administration under the aegis of the United Nations (UNMIK). It assigned KFOR full military control in Kosovo. UNMIK’s mission was one of international interim administration; the powers conferred on it by the Security Council included all the prerogatives of the legislature and the executive as well as the running of the judicial system. At the material time, therefore, Kosovo was effectively under the control of the international forces present there, which exercised the powers of public authority normally exercised by the government of the FRY. The question was accordingly whether the Court had jurisdiction to examine, in the light of the Convention, the role played by the States present in these civil and security capacities which were effectively in control of Kosovo.

On the issues of detention and de-mining, KFOR had been responsible for issuing detention orders and UNMIK for supervising de-mining operations. Could the UN be held accountable for the impugned action (Mr Samarati’s detention by KFOR) and inaction (UNMIK’s failure to clear the area of mines in the Behrami case)? The Security Council had validly delegated its security powers to KFOR and its powers of civil administration to UNMIK on the strength of Chapter VII of the United Nations Charter. The Security Council had retained ultimate authority and control. Effective command of operational matters lay with NATO.

Given that KFOR was exercising powers duly delegated to it by the UN Security Council, in application of Chapter VII, and that UNMIK, which had been set up by virtue of that same Chapter VII, was a subsidiary body of the UN, answerable for its actions to the Security Council, the impugned action and inaction were, in principle, attributable to the UN. That organisation was a legal entity distinct from its member states and was not a contracting party to the Convention.

Was the Strasbourg Court competent ratione personae to examine actions carried out by the respondent states on behalf of the UN? More generally, what was the relationship between the European Convention on Human Rights and actions carried out by the UN under Chapter VII of its Charter, entitled “Action with respect to threats to the peace, breaches of the peace and acts of aggression”?

The main aim of the UN was to maintain international peace and security. The protection of human rights made an important contribution to international peace-keeping (cf. the Preamble to the Convention), but the main responsibility for this lay with the UN Security Council, which had substantial means of achieving it under Chapter VII, including the adoption of coercive measures. The Security Council’s responsibility in this connection was unique. In the instant cases Chapter VII enabled the Security Council to adopt coercive measures in response to a specific conflict deemed to be a threat to peace, the said measures being set out in Security Council Resolution 1244 establishing UNMIK and KFOR. The operations set in motion by the Security Council’s resolutions under Chapter VII of the United Nations Charter were essential to the UN’s mission to preserve international peace and security, and relied for their effectiveness on the contributions of the member states.

It followed that the Convention could not be interpreted in such a way as to place under the control of the Strasbourg Court the actions and omissions of contracting parties covered by Security Council resolutions and committed prior to or during UN missions aimed at preserving international peace and security.

This would amount to interference in the accomplishment of an essential mission of the UN in this field, or in the effective conduct of such operations. It would also amount to placing conditions on the implementation of a Security Council resolution for which no provision was made in the text of the resolution itself. This reasoning also applied to the deliberate acts of the respondent states, for example when a permanent member of the Security Council voted in favour of the particular resolution under Chapter VII and the deployment of troops on a peacekeeping mission: strictly speaking such acts might not be obligations resulting from membership of the United Nations, but they were essential to the effective fulfilment by the Security Council of its mandate under Chapter VII, and therefore to the UN’s accomplishment of its paramount task of maintaining peace and security. The complaints must be declared incompatible ratione personae.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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