Dianne Post, postdlpost|AT|aol.comEmail address Cynthia Rollings, crollings|AT|blhny.comEmail address 22 February 2016
Before the 1999 Kosovo conflict, the Roma community in Mitrovica in northern Kosovo was "one of the most vibrant and distinctive communities in the former Yugoslavia. Their neighborhood, known as the Roma Mahalla, comprised around 750 houses, with an estimated 8,000 inhabitants...was completely destroyed by the ethnic Albanians in the summer of 1999." Human Rights Watch June 23, 2009 Report: "Kosovo: Poisoned by Lead".
The Roma were relocated by the UN and church groups to makeshift camps for internally displaced persons (IDPs) on lead contaminated land across the Ibar River at the site of the Trepca mine and plant next to giant piles of lead tailings. A local activist, Paul Polansky from Iowa, told the UNDP and later the United Nations Mission in Kosovo (UNMIK), the UN body set up to administer Kosovo, that the land was toxic and that the Roma occupants were being poisoned. The World Health Organization conducted studies that proved both the contamination and the toxic and unacceptably high lead levels in the blood of Roma children. It was well known then and now that children are highly susceptible to lead poisoning and that the damage to small bodies is serious and irreparable. UN officials said the camps were temporary and they would relocate the Roma. Twelve years later, they were still there. The predictable consequences ensued - miscarriages, babies with half a kidney, mental retardation, damaged eyes, convulsions, early deaths. After four-year-old Jenita Mehmeti died, the lawsuits started.
While I [Dianne Post] was legal director at the European Roma Rights Centre (ERRC), an international NGO founded by George Soros, the ERRC attempted to assist the Roma. We hired a local attorney to file a criminal complaint under Kosovo law. Nothing happened. Then we hired a different lawyer to file adverse possession claims for the property. He took the ERRC's advance and disappeared without filing anything. We tried to file a complaint with the European Court of Human Rights but the Court rejected the case as inadmissible, without even assigning it a docket number, on the ground that the Court lacked jurisdiction because UNMIK-administered Kosovo was not a state.
After leaving the ERRC, I continued to represent the displaced Roma as a class and in 2006 filed a third-party complaint against UNMIK at the UN in New York under A/RES/52/247. There are no procedural rules or timelines governing such claims. On July 25, 2011, the UN, claiming immunity, finally ruled that the "...claims do not constitute claims of a private law character..." and were therefore "not receivable", rejecting the complaint. (In 2015 the UN rejected the claims of the Haitian cholera victims on similar grounds.)
Given the earlier refusal of the UN to act, I had also filed with The Human Rights Advisory Panel (HRAP) in Kosovo after it was constituted in 2008. A year later, in June 2009, the Panel found the complaint admissible and wrote a favorable decision. Rather than respond to the merits, UNMIK changed the rules and on 17 October 2009 issued a directive that prohibited the Human Rights Panel from hearing any complaints that had been or could be filed under the UN's third party complaint system. On 31 March 2010, the Panel reversed the previous admissibility decision and declared the entire claim inadmissible on the basis that the third- party process was an available remedy, which as noted above turned out not to be the case.
The Panel left open the door of resubmitting the claim after completion of the third party process. Accordingly, after the UN's July 25, 2011 rejection, I refiled with the Panel in October 2011. On 10 June 2012, the Panel ruled that it would re-open the case. Despite written submissions by both sides in 2012 and additional information requested and submitted in early 2015, no decision has been issued.
I also filed a complaint against the European Rule of Law Mission in Kosovo
(EULEX), the international mission in Kosovo operating under the umbrella of UNMIK, with a different panel known as the Human Rights Review Panel (HRRP). The HRRP issued a decision in November 2015 declaring that the "right of the complainants to an effective remedy remains affected by the absence of a demonstrable effective investigation" and "inviting" the head of mission to update the Panel of the progress of the investigation no later than 28 February 2016. It is now 16 years since the placement of the Roma on toxic land.
It is worth noting that the Roma have been characterized as the most disadvantaged ethnic minority in Europe; they may be the most disfavored and least championed ethnic group in the world. They have no financial resources or political voice; their only reliable supporter of means may be George Soros.
Their plight is not unconnected to their status.
The same can be said of the residents of Flint, Michigan, the latest victims of lead poisoning. It is no accident that Flint was chosen as the community to have its water provided from a river known to be highly polluted, with catastrophic results which are only beginning fully to come to light. Flint is a community where the racial breakdown, according to the U.S. Census Bureau, is 57% African American and 36% white, and the median household income from 2009-2013 was $24,834, compared to $48,411 for Michigan as a whole, with more than 40% living below the poverty level. It is one of the predominantly black, less affluent communities in Michigan where the state's Governor chose to override locally elected officials by installing so-called "emergency managers" reporting directly to the Governor. As stated in a recent New York Times editorial, "there is little doubt that an affluent, predominantly white community- say Grosse Pointe or Bloomfield Hills- would never face such a public health catastrophe, and if it had, the state government would have rushed in to help." NYTimes, "Depraved Indifference Toward Flint", January 22, 2016.
Flint's Emergency Manager and state officials proceeded in disregard of local democracy to take actions which may rightly be characterized as constituting "environmental racism." Events and consequences in Flint to date bear alarming similarity to events in Kosovo.
According to the January 27, 2016 federal complaint filed by the ACLU of Michigan, in early 2014, Flint's Emergency Manager and state officials decided to switch the city's drinking water source from Lake Huron to the Flint River, long known as contaminated by industrial dumping. On April 14, 2014 the Flint water system began pumping Flint River water "into homes, schools and churches in Flint without following federal requirements for treating and testing drinking water for lead." As the contaminated Flint River water corroded the city's water pipes, lead leached into the community's drinking water. Even in Flint, as almost everywhere else these days, the authorities knew or should have known of the dangers of lead exposure, particularly to young children. The Flint authorities knew of the presence of lead in Flint's drinking water, just as the Kosovo authorities knew of the presence of lead in the soil and air surrounding the IDP camps erected near the lead pilings in Mitrovica. According to the ACLU complaint, samples of Flint drinking water contained lead concentrations well in excess of the federal "lead action level" of 15 parts per billion (ppb). Governmental authorities also knew or should have known that residents of Flint were being poisoned by the lead in the drinking water they were now being provided- according to the ACLU's complaint, medical records of local children showed doubling and tripling of blood lead levels since the water system began using Flint River water. Yet, according to the Governor's newly released emails, authorities appear to have turned a blind eye to the calamitous consequences of their actions. Instead of responsibly investigating initial complaints, they stonewalled and insisted that the water was safe to drink. They inflicted harm on the most vulnerable in our society and then failed to act to protect them. When caught, they initially refused to take responsibility.
There are, of course, many differences between the Roma in Kosovo and the residents and situation in Flint. Among other things, Flint is a motivated community of 100,000 people who are up in arms. Thanks in large measure to the efforts of local advocates, local press and strong NGOs such as the NAACP and ACLU, Flint is now receiving the attention of the national press as well as federal administrators and class action and civil rights lawyers, but the next chapter remains unwritten. We can hope that concerned leaders and US laws and courts will provide redress to the victims of this entirely avoidable man-made catastrophe. How many years will it take?
Dianne Post is a lawyer in Phoenix, Arizona. She was Legal Director of the European Roma Rights Center in Budapest in 2005-06.
Cynthia Rollings is a lawyer in New York City. She provided pro bono legal assistance to the ERRC and Dianne Post.