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

“2. In respect of all of the claims: a. Are they barred in the English Courts as a matter of international law by reason of the immunity conferred on the Defendant under UN Security Council Resolution 1244 and set out in the Joint Declaration and UNMIK Regulation 2000/47? Alternatively, are they barred as an abuse of the process of this Court as a matter of English procedural law? b. Were the acts and omissions as alleged against the Defendant: i. Attributable to the United Kingdom; or ii. Attributable to the UN? 3. In respect of the HRA claims: a. Whether or not the HRA claims are time barred. In this regard: i. Did time start to run from an ‘instantaneous act’ of the authorities; and/or ii. is there a continuing violation of the Convention for the purpose of extending the one year limitation period under the Human Rights Act 1998. b. Does the HRA apply to the deaths and disappearances which are the subject of the complaint given that the HRA does not have retrospective effect in relation to deaths that occurred prior to 2 October 2000? c. Were the Claimants within the jurisdiction of the UK for the purposes of Article 1 ECHR? d. Does an operational protective duty arise under Articles 2 and 3 ECHR? e. Does an investigative duty arise under Articles 2 or 3 ECHR and is there a continuing duty to investigate 16 years later? f. Are Articles 8 and 13 of the ECHR engaged?” a. Are they barred in the English Courts as a matter of international law by reason of the immunity conferred on the Defendant under UN Security Council Resolution 1244 and set out in the Joint Declaration and UNMIK Regulation 2000/47? Alternatively, are they barred as an abuse of the process of this Court as a matter of English procedural law? b. Were the acts and omissions as alleged against the Defendant: i. Attributable to the United Kingdom; or ii. Attributable to the UN? a. Whether or not the HRA claims are time barred. In this regard: i. Did time start to run from an ‘instantaneous act’ of the authorities; and/or ii. is there a continuing violation of the Convention for the purpose of extending the one year limitation period under the Human Rights Act 1998. b. Does the HRA apply to the deaths and disappearances which are the subject of the complaint given that the HRA does not have retrospective effect in relation to deaths that occurred prior to 2 October 2000? c. Were the Claimants within the jurisdiction of the UK for the purposes of Article 1 ECHR? d. Does an operational protective duty arise under Articles 2 and 3 ECHR? e. Does an investigative duty arise under Articles 2 or 3 ECHR and is there a continuing duty to investigate 16 years later? f. Are Articles 8 and 13 of the ECHR engaged?”

“The Security Council … 5. Decides on the deployment in Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel as required, and welcomes the agreement of the Federal Republic of Yugoslavia to such presences; 6. Requests the Secretary-General to appoint, in consultation with the Security Council, a Special Representative to control the implementation of the international civil presence, and further requests the Secretary-General to instruct his Special Representative to coordinate closely with the international security presence to ensure that both presences operate towards the same goals and in a mutually supportive manner; 7. Authorizes Member States and relevant international organizations to establish the international security presence in Kosovo as set out in point 4 of annex 2 with all necessary means to fulfil its responsibilities under paragraph 9 below; 8. Affirms the need for the rapid early deployment of effective international civil and security presences to Kosovo, and demands that the parties cooperate fully in their deployment; 9. Decides that the responsibilities of the international security presence to be deployed and acting in Kosovo will include: … (c) establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; (d) Ensuring public safety and order until the international civil presence can take responsibility for this task; … (f) Supporting, as appropriate, and coordinating closely with the work of the international civil presence; 10. Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo; 11. Decides that the main responsibilities of the international civil presence will include: … (i) Maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo; (j) Protecting and promoting human rights; (k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo.” … (c) establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; (d) Ensuring public safety and order until the international civil presence can take responsibility for this task; … (f) Supporting, as appropriate, and coordinating closely with the work of the international civil presence; … (i) Maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo; (j) Protecting and promoting human rights; (k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo.”

“The parties to this agreement reaffirm the document [approved in Belgrade on 3 June] … to include deployment in Kosovo under United Nations auspices of effective international civil and security presences …”

“4. The international security presence with substantial North Atlantic Treaty Organization participation must be deployed under unified command and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.”

“16. …In the case of the UK, I had what is referred to as “Operational Control” of troops from 4th Armoured Brigade and 5th Airborne Brigade which allowed me to direct them within certain limits to fulfil KFOR’s mission within Kosovo. However, the TCNs such as the UK retained control of certain aspects of their forces such as discipline and equipment for which the national chain of command remained in place. There were also sections of the forces contributed by TCNs which remained national assets and were not within my command. This was generally because they fulfilled a supporting function such as logistics. The important thing for me was that I had Operational Control of the troops, such as those from 4th Armoured Brigade and 5th Airborne Brigade, who were on the streets providing security and other tasks directly connected with our mission under UNSCR 1244. … 18. Along with the other national Commanders in the other sectors, Brigadier Rollo and Brigadier Freer reported to me. I was in constant contact with the Brigade Commanders. I received daily updates on events within their sectors both orally and in writing. We had conference calls each day at 6pm to which all MNB Commanders were invited and I had numerous more ad hoc discussions with the MNB Commanders as events happened and circumstances changed. 19. The majority of the directions I provided to the MNB Commanders would have been given orally at the daily update calls or on more ad hoc occasions. This was complemented by formal written operational orders and guidance issued by my headquarters (some examples of which I discuss later). 20. An important point to appreciate is that commanding a force as large as KFOR requires a dynamic chain of command. UNSCR 1244 provided a clear statement of KFOR’s mission which we all followed. In putting this into action, we all had to respond to events as they happened in circumstances which were constantly evolving. My role as COMKFOR was to set the overall direction of travel for KFOR. In doing so, my aim was not to impose a centralised style of command, but to provide clear direction for separate but coordinated action. This allowed the MNB Commanders and those they commanded to apply their local knowledge of the sectors over which they had command to carry out KFOR’s tasks in UNSCR 1244 in their sectors based on the direction I set.”

“…both to deter or to catch those carrying out intimidation (grenades were the favoured weapon as they were easy to conceal and discard) and to provide some reassurance to the occupants.”

“what distinguished Kosovo was the level of aggression … [the Kosovars] were prepared to risk it”

“37. I asked him to join us in Belgrade, but he said he would be alright, that he had received a guarantee from a general and mentioned the name Jeremy, who I now know is Major General Jeremy Rowan.”

“4. The acts with which we are presently concerned are alleged to have occurred for the most part from the summer of 1999 onwards against a background of great confusion throughout the region. The Serbian security forces had abandoned Kosovo, and the troops of KFOR (NATO’s international Kosovo Stabilisation Force) were making a rather slow start in establishing themselves; while tens of thousands of Kosovar Albanian refugees were originally trying to reach Albania and then to return home, with ethnic Serbs in turn seeking refuge in the territories controlled by the Serbian Army. It was chaos: there was no functioning administration on the part of the Kosovars, and KFOR took quite some time to gain control of the situation, evidently not possessing the know-how needed to cope with such extreme situations. The NATO intervention had essentially taken the form of an aerial campaign, with bombing in Kosovo and in Serbia – operations thought by some to have infringed international law, as they were not authorised by the UN Security Council – while on the ground NATO’s de facto ally was the KLA. Thus, during the critical period that is the focus of our inquiry, the KLA had effective control over an expansive territorial area, encompassing Kosovo as well as some of the border regions in the north of Albania. KLA control should not be understood as a structured exercise of power, and it was certainly far from assuming the contours of a state. It was in the course of this critical period that numerous crimes were committed both against Serbs who had stayed in the region and against Kosovar Albanians suspected of having been “traitors” or “collaborators”, or who fell victim to internal rivalries within the KLA. These crimes have largely gone unpunished and it is only years later that a rather diffident start has been made in dealing with them.”

“We learned that certain KFOR contributors (for example the United Kingdom) took all their records away with them and that these records were subsequently made accessible to EULEX investigators only on the basis of reasoned case by case applications, a complex procedure which considerably slows down the work of justice.”

“… used the term “attribution” in the same way as the ILC [International Law Commission] in Article 3 of its draft Articles on the Responsibility of International Organisations.”

“129. … In particular, that Resolution 1244 authorised “Member States and relevant international organisations” to establish the international security presence in Kosovo as set out in point 4 of Annex 2 to the Resolution, with all necessary means to fulfil its responsibilities listed in Art. 9. Point 4 of Annex 2 added that the security presence would have “substantial [NATO] participation” and had to be deployed under “unified command and control”

“Article 5 [7] Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”

“The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.”

“The United Nations Security Council had effective control (and ultimate authority and control) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN.”

“The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”

“…in which the seconded organ or agent still acts to a certain extent as organ of the seconding state or as an organ or agent of the seconding organisation.”

“4. The criterion for attribution of conduct either to the contributing State or organization or to the receiving organization is based according to article 7 on the factual control that is exercised over the specific conduct taken by the organ or agent placed at the receiving organization’s disposal. As was noted in the comment by one State, account needs to be taken of the “full factual circumstances and particular context”

“Rather than asking which international organization or state retained effective control of KFOR, the Chamber seemed to employ more formalistic criteria to determine responsibility, asking whether the Security Council “retained ultimate authority and control so that operational command only was delegated”

“As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to "take into account" EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.”

“A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.”

“a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts.”

“136. In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan v Turkey (2005) 41 EHRR 45 at [91], the Court held that “[D]irectly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”

“149. It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention. 150. Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant’s son died on 8 May 2003; the first and fourth applicants’ brothers died in August 2003; the sixth applicant’s son died in September 2003; and the spouses of the second and third applicants died in November 2003. It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basrah City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant’s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant’s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also.”

“138. Another exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV, Banković, cited above, § 70; Ilaşcu, cited above, §§ 314-316; Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (Cyprus v. Turkey, cited above, §§ 76-77). 139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu, cited above, §§ 388-394)....”

“152. …checkpoint had been set up in the execution of SFIR’s mission, under United Nations Security Council Resolution 1483 (see paragraph 93 above), to restore conditions of stability and security conducive to the creation of an effective administration in the country. The Court is satisfied that the respondent Party exercised its “jurisdiction” within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint. That being the case, the Court finds that the death of Mr Azhar Sabah Jaloud occurred within the “jurisdiction” of the Netherlands, as that expression is to be construed within the meaning of Article 1 of the Convention.”

“Although the obligation to secure the entire range of Convention rights is the consequence of finding jurisdiction based on effective control over an area, given the nature of the test of control, I think it clear that this consequence also determines the degree of control required to establish jurisdiction. Once it is recognised that jurisdiction does not depend on whether the state’s presence and activities in the relevant territory are lawful or unlawful, but solely on whether the state is as a matter of fact in a position to secure to people within the territory the rights guaranteed by the Convention, it follows that the test of effective control over the area will not be satisfied unless the state has the practical ability to secure the full package of Convention rights.”

“75. In Al-Skeini … the Court found that the applicant’s relatives fell within the United Kingdom jurisdiction because … the United Kingdom had assumed authority for the maintenance of security in South East Iraq and the relatives were killed in the course of security operations carried out by United Kingdom troops pursuant to that assumption of authority (Al-Skeini paragraphs 143-150). In the light of Al-Skeini it was unnecessary to determine whether jurisdiction also arose on the ground that the United Kingdom was in effective military control of South Eastern Iraq during that period. However, the statement of facts in Al-Skeini included material which tended to demonstrate that the United Kingdom was far from being in effective control of the South Eastern area which it occupied, and this was also the finding of the Court of Appeal which heard evidence on this question in the domestic Al-Skeini proceedings…”

“… where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of ministries in the ability of the authorities to protect them from the threat of racist violence.”

“148. There is, however, an important distinction to be drawn in the Court’s case-law between the obligation to investigate a suspicious death and the obligation to investigate a suspicious disappearance. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred (see also the definitions of disappearance set out above in part II B. “International law documents on enforced disappearances”). This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. It cannot therefore be said that a disappearance is, simply, an “instantaneous” act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation (see Cyprus v. Turkey, cited above, § 136). This is so, even where death may, eventually, be presumed. 149. It may be noted that the approach applied in Šilih (cited above, § 163) concerning the requirement of proximity of the death and investigative steps to the date of entry into force of the Convention applies only in the context of killings or suspicious deaths, where the anchoring factual element, the loss of life of the victim, is known for a certainty, even if the exact cause or ultimate responsibility is not. The procedural obligation in that context is not of a continuing nature in the sense described above.”

“The procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty. Although it is triggered by the Acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent “interference” with the meaning of the Blečić judgment. In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date.”

“163. Secondly there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account – will have been or ought to have been carried out after the critical date.”

“97. In the light of this rather unsatisfactory state of affairs, there would be much to be said for our deciding the issue of whether McKerr remains good law on this point. However, given that it is unnecessary to resolve that issue in order to determine this appeal, we ought not to decide it unless we have reached a clear and unanimous position on it. We have not. On the one hand, the respondents’ case is supported by the unanimous decision of a five-judge court in McKerr, whose ratio is clear and simple to apply, but it could lead to undesirable conflicts between domestic and Strasbourg jurisprudence. On the other hand, the appellants’ case derives significant support from two, and arguably three, of the judgments in the subsequent seven-judge court in McCaughey, and, while it involves applying Strasbourg jurisprudence which has been criticised for lack of clarity, it would ensure that domestic and Strasbourg jurisprudence march together. 98. Accordingly, I would leave open the question whether, if the Strasbourg court would have held that the appellants were entitled to seek an investigation into the Killings under article 2, a UK court would have been bound to order an inquiry pursuant to the 1998 Act.”

“Whether in the light of the State’s detachable duty to investigate suspicious deaths, there is an existing duty to conduct an Article 2 compliant enquiry into the deaths which are the subject of this appeal. On that basis it is impossible to say that, simply because the HRA came into force on 2 October 2000, ipso facto, there is no such duty.”

“252. My unequivocal answer, therefore to the question, should the temporal jurisdiction of the national court under the HRA be coterminous with that of ECtHR is that it should not be. Just because the Strasbourg court does not have temporal jurisdiction, it should not be regarded as automatic that the national court does not.”

“Irrespective of whether the Human Rights Act applies to the Defendant’s duties under Articles 2 and 3 of the Convention prior to commencement in 2000, the Defendant is not absolved of any substantive obligation under Article 2 and 3 or equivalent obligations under customary international law.”

“The rules of international law are incorporated into English law unless they are in conflict with an act of Parliament.”

“150. Speaking generally, in my opinion, the presumption when considering any such policy issue is that CIL, once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.”

“CJ (00)0320 17 August 2000 The Special Representative of the Secretary-General of the United Nations and the Commander of the Kosovo Force: Recalling Security Council Resolution 1244 (1999) of 10 June 1999 authorized member States and relevant international organizations to establish the International Security Presence in Kosovo with all necessary means to fulfil its responsibilities under paragraph 9 of the Resolution; Recalling that, by the same Resolution, the Security Council authorized the Secretary General with the assistance of relevant International Organizations, to establish an international Civil Presence in Kosovo – UNMIK – in order to provide an interim administration for Kosovo with the main responsibilities as set out in paragraph 11 of the Resolution; Noting that, by the same Resolution, the Security Council requested the Secretary General to instruct his Special Representative to co-ordinate closely with the International Security Presence, to ensure that both presences operate towards the same goals and in a supportive manner; In order to affirm, within Kosovo, the status of UNMIK and KFOR and their personnel, and privileges and immunities to which they are entitled, Hereby declare as follows: 1. UNMIK and KFOR, their property, funds and assets are immune from any form of legal process; 2. UNMIK and KFOR personnel shall respect the laws and regulations applicable within Kosovo in accordance with UNMIK Regulations 1999/1 and 1999/24 insofar as they do not conflict with the fulfilment of the mandates given to UNMIK and KFOR by the Security Council; 3. UNMIK personnel shall be immune from any form of legal process in respect of words spoken or written and all acts performed by them in their official capacity; 4. KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending States. They shall be immune from local criminal, civil and administrative jurisdiction and from any form of arrest or detention other than by persons acting on behalf of their sending States;”

“REGULATION NO. 2000/47 ON THE STATUS, PRIVILEGES AND IMMUNITIES OF KFOR AND UNMIK AND THEIR PERSONNEL IN KOSOVO The Special Representative of the Secretary-General, Pursuant to the authority given to him under United Nations Security Council resolution 1244 (1999) of 10 June 1999, … Section 2 Status of KFOR and its Personnel KFOR, its property, funds and assets shall be immune from any legal process. 2.2 All KFOR personnel shall respect the laws applicable in the territory of Kosovo and regulations issued by the Special Representative of the Secretary-General insofar as they do not conflict with the fulfilment of the mandate given to KFOR under Security Council resolution 1244 (1999). 2.3 Locally recruited KFOR personnel shall be immune from legal process in respect of words spoken or written and acts performed by them in carrying out tasks exclusively related to their services to KFOR. .4 KFOR personnel other than those covered under section 2.3 above shall be: immune from jurisdiction before courts in Kosovo in respect of any administrative, civil or criminal act committed by them in the territory of Kosovo. Such personnel shall be subject to the exclusive jurisdiction of their respective sending States; and immune from any form of arrest or detention other than by persons acting on behalf of their respective sending States. If erroneously detained, they shall be immediately turned over to KFOR authorities.”

“Empowered to regulate within the areas of his responsibility laid down by the Security Council in its Resolution 1244 (1999). In doing so, he may change, repeal or suspend existing laws to the extent necessary for the carrying out of his functions, or where existing laws are incompatible with the mandate, aims and purposes of the interim civil administration …”

“Regulation 2000/47 provides that it should be deemed to have entered into force on 10 June 1999. Further, it provides it “shall supersede any provision in the applicable law which is inconsistent with it”

“The questions I was asked to answer are essentially: (1) whether or not Yugoslav/Serbian law, as it stood in 1989 and 1999, would give rise to the finding of liability in tort of the Ministry of Defence as argued by the Claimants in their amended particulars of claim … and (2) whether or not the Claimants’ claim is time barred under Yugoslav/Serbian law as it stood in 1989 and 1999.”

“KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending state.”

“The immunity/abuse argument has nothing to do with alleged breaches of fundamental human rights norms (including those that cannot be derogated from, e.g. Article 3). They stand or fall on the ECHR/HRA arguments already dealt with. … The immunity is relied upon as a bar to the Kosovan law tort claims.”

“Moreover, as the Court has stated (in the context of the personal immunities accorded by international law to foreign ministers), the law of immunity is essentially procedural in nature (Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 25, para. 60). It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful.”

“The 1946 Convention on the Privileges and Immunities of the United Nations applies to Security Council subsidiary organs such as the United Nations Peacekeeping Operations. It does not, however, apply to operations authorised by the Security Council and conducted under the control of States or regional organisations. Consequently, the 1946 Convention … does not apply as such to ISAF and its personnel.”

“A claim should normally be filed within 90 days of discovery of the damage. However, if you have a legitimate reason for a delay, the claim may be accepted and processed.”

“In the protracted attempts to find information and redress there was not one reference to the existence of a compensation scheme/policy.”

“2. It was ordered by the District Judge, in accordance with agreement between the parties, that the defendant's liability should be determined according to English law pursuant to s 12 of the Private International Law (Miscellaneous Provisions) Act 1995, and that there should be a separate trial on the issue of liability. The defendant has conceded that it is vicariously liable for any wrongs committed by any of the soldiers. The Crown retained command of the British forces notwithstanding that they were acting under the auspices of the UN.”

“It is, however wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merit-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all the possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”