British forces not liable for a failure to protect or investigate the killing of Serbs in Kosovo in 1999


Re: Kontic & Ors v The Ministry of Defence [2016] EWHC 2034 (QB)

The claimants were relatives of Serbs abducted or murdered in Kosovo by members of the Kosovo Liberation Army between 16 June and 5 July 1999, when the international military coalition comprised of UK forces occupied the region. They brought claims under the Human Rights Act 1998 and under Kosovan law alleging that British forces failed to protect those murdered or failed to properly investigate the killings.

The court was asked to determine a number of technical matters related to this claim.

It held that the actions of the UK Kosovo Forces could not be attributable to the United Kingdom, as they were acting within the remit attributable to the United Nations, as a result of Resolution 1244. The Grand Chamber had previously held that the UN was responsible for the Kosovo Forces in Behrami and Saramati v France and Norway, that actions of the Kosovo Forces were within the remit attributable to the UN, as a result of Resolution 1244. Subsequent House of Lords and Supreme Court decisions had firmly approved this assessment, based on the International Law Commission’s draft Articles on the Responsibility of International Organisations.

While this finding disposed of the claim, the court proceeded to consider the remaining preliminary issues raised.

It rejected the submission that the region in question was within the jurisdiction of the UK for the purposes of ECHR, art 1, as the UK Kosovo Forces were not and could not have been expected to be in effective control within days of the takeover of the region.

It also rejected the argument that jurisdiction arose as a result of state agent authority and control, as in the instance cases, the claimant’s relatives were never physically controlled by the defendant. There were no positive duties to investigate under ECHR, arts 2 and 3, and even if there were, such a duty could not be open-ended in time. The fact that the defendant surrendered any civil administration responsibility to the United Nations Interim Administration Mission in Kosovo (UNMIK) in autumn 1999 meant that no investigative duty could have logically continued.

The court concluded that the Human Rights Act 1998 did not apply to the claims, and that the Kosovan law claims were barred as a result of a UN documentation conferring immunity under Kosovan law. Immunity, which was established in a Joint Declaration and a UNMIK Regulation, operated to bar the local courts in Kosovo having jurisdiction over such claims. As the present claim attempted to argue that Kosovan law was the applicable law, such actions could also not be pursued in England.

Michelle Butler was involved in this case.