"THE RIGHT TO RETURN IN BOSNIA AND HERZEGOVINA: OBSTACLES TO ITS IMPLEMENTATION"
Dissertation
M.A. Theory and Practice of Human Rights
University of Essex
2000-2001
CHIARA BISCALDI
INTRODUCTION
During the war in Bosnia and Herzegovina 2.3 million people -more than half of the population- fled their homes because of the systematic practice of ethnic cleansing. Forcible movement of population was a means of waging war for asserting control over territory; thereby it was a strategic objective in itself.
The recognition -under the Dayton Peace Agreement- of the right to freely return home of refugees and displaced people was the response of the international community to the ethnic cleansing and the implementation of this right was seen as a means to recreate a multi-ethnic Bosnia. Dayton gives precise content to the right to return home, and it affirms detailed obligations on the Parties in order to make this right fully respected. However, return home has been exceptionally difficult to achieve in practice.
The purpose of this paper is to analyse the framework, which provides for the right to return in Bosnia and Herzegovina. The starting point of this analysis is an examination of the international legal standards which relate to the right to return and then the paper will turn to present an overview of the legal framework in BIH. An attempt will be made to argue that the legal framework, which has been created in BIH, provides a greater right to return than under the relevant international standards. However, this dissertation illustrates that despite an impressive legal framework the right to return in BiH has not been given meaning due to a number of factors which will be discussed in chapters three and four. In chapter three violations of property rights and of other basic economic social and cultural rights which result in obstacles to the exercise of the right to return will be examined. While the issue of civil and political rights will not be addressed although it is recognised that the right to return home entails also the full respect of these rights. In chapter four the institutional choices designed in the Dayton Agreement to promote return will be assessed. An attempt will be made to argue that the difficulties met in the implementation of the right to return home although mainly due to lack of political will of BIH institutions to fulfil the commitments undertaken with Dayton, are also due to the BIH constitutional framework, per se in a manner not conducive to ethnic reintegration.
THE RIGHT TO RETURN: LEGAL FRAMEWORK
1.1The Right to Return in International Human Rights Law
The right to return is found in a vast array of international and human rights treaties, although its formulation differs[1]. Article 13 (2) of the Universal Declaration of Human Rights affirms 'everyone has the right to leave any country, including his own and to return to his country'[2]. It is also guaranteed a contrario in article 12 (4) of International Convenant on Civil and Political Rights which reads 'no one shall be arbitrarily deprived of the right to enter his own country'[3]. Provisions relating to the right to enter or return are further contained in article 5(d ii) of the Convention on the Elimination of All Forms of Racial Discrimination[4], in article 10 (2) of the Convention of the Rights of the Child[5] and in the three regional human rights instruments[6]. The right has also been repeatedly reaffirmed in intergovernmental conferences[7] and United Nations resolutions[8].
While the right to return is well established under international human rights law its scope and its modalities of implementation are less clear.
In the ECHR and in the ACHR the right to return is linked to citizenship thereby expressly limiting the right only to nationals. On the contrary, article 12 (4) of the ICCPR refers to everyone and guarantees the right to return to 'own's country' as opposed to the country of nationality, making no distinctions between nationals and aliens[9]. The scope of 'his own country' embraces at very least an individual who because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien[10]. The formulation of the right to return contained in article 12 (4) ICCPR differs in an other respect that is the qualification 'arbitrarily', which is not present in other international human rights instruments. Among scholars is widely recognised that the word arbitrarily refers to only one specific factual instance, that of the use of exile as a penal sanction as the reading of the Travaux Preparatoires suggests[11].
It should be noted that as it is recognised in international human rights law the right to return is to one's own country or to the country of nationality and not a general right to return to community or home of origin or habitual residence. However, if one sees the right to return as a form of exercise of other rights such as freedom of movement and choice of residence which are recognised in most international human rights instruments, it follows that a denial of the right to return to one's home involves violations of other human rights[12].
According to the majority of the scholars, the right to return as affirmed in the above mentioned international human rights instruments is an individual right which does not apply to large groups of dislocated population. This view is based on the fact that there is no evidence in the text or in the travoux preparatoires of the relevant provisions that mass movement of groups were intended to fall within the scope of the right to return.[13] However, the silence of the text and travoux preparatoires could be interpreted in an opposite way: 'as the drafters did not intend to except mass movements of refugees and displaced people from this right particularly since the UDHR the ICCPR and the ICERD do not indicate that the right to return should be linked to one's group status'.[14]
Those in favour of a narrow interpretation of the right maintain that the issue of returns of masses of dislocated people is either a political problem or one of self-determination. However, the fact that in practice the return of mass group of people always depends on political feasibility does not mean that the right to return does not apply to them. Further, the right to return and the right to self-determination are not mutually exclusive. Both of them can be relevant in the case of mass displacement: the former as a collective right and the latter as an individual right that applies regardless one's group affiliation[15].
The growing number of refugees and displaced people seems to urge an extensive interpretation of the right to return so as to make it applicable, irrespective of whether or not one is part of a mass movement of population. Such a broad interpretation of the right would not be contrary to the provisions contained in human rights instruments mentioned previously, particularly as nothing in the texts explicitly limits this right to individuals. However, state practice is still insufficient to support such an extensive right[16].
The right to return is a derogable right. All human rights instruments, which provide this right, contain a provision, which allows states to restrict its application. The ICCPR's derogation clause is strictly limited to those 'public emergency which threaten the life of the nation ' and which are officially proclaimed'. Similarly the UNDHR allows the right to be limited as 'determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society'. All the three general human rights instruments provide for derogation in emergency situations as well[17].
It should be noted that, although human rights instruments allow states to derogate, restrictions to the right to return as well as to the freedom of movement may be justified on these grounds only in a limited number of cases and should not be contrary to peremptory norm of non discrimination[18].
1.2Right to Return in International Humanitarian Law
Provisions relating to the right to return are contained also in international humanitarian law, which regulates inter-state armed conflicts. Particularly, articles 110 and 118 of the Third Geneva Convention regulate repatriation of prisoners of war[19]. Further, articles from 132 to 136 of the Fourth Geneva Conventions provide for a right to return for internees and other aliens[20]. According to the above-mentioned articles the High Contracting parties have an obligation not to delay the repatriation after the cessation of the hostilities. Repatriation may be obligatory even before hostilities are over as Article 49 (2) provides[21]. Deliberate and unjustifiable delay in the repatriation of civilian is a grave breach of the Geneva Conventions as affirmed in article 85 (4b) of the First Protocol [22].
1.3Right to Return in International Refugee Law
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol do not contain any explicit provision on the right to return[23]. 'Return ' is only considered when one of the clauses for the cessation of the refugees' status applies[24]. Indeed, the Convention ceases to apply as soon as a refugee[25] decides voluntarily to return or when return occurs because of the changed circumstances in the country of origin on account of which a refugee looses the interim protection of the Convention, particularly the right not to be forcibly returned to a situation in which his life or freedom is threatened[26].
The 1951 Convention does not offer any protection in repatriation, which rather falls within the mandate of the United Nations High Commissioner for Refugees[27]. According to article 1 of the Statute, the functions of the UNHCR encompass 'providing international protection' and 'seeking permanent solutions[28] to the problem of refugees by assisting governments and subject to the approval of the government concerned, private organisations to facilitate[29] the voluntary repatriation of such refugees or their assimilation within new national communities'. Repatriation defined as 'the basic rights of a person to return voluntary to the country of origin'[30] is considered by UNHCR to be the most appropriate solution to refugee problems[31] as affirmed by the former High Commissioner for Refugees, Ms Sadako Ogata[32]. Such repatriation however, must be voluntary[33]- the result of the individual refugee's free and informed decision making, and it must be conducted in a way to guarantee the returnee' safety and dignity[34]. Otherwise, repatriation amounts to refoulment, which is strictly forbidden under international and regional refugees and human rights instruments[35].
Voluntariness, safety and dignity- also apply to the return of Internally Displaced People (IDPs) to their homes or places of habitual residence[36]. IDPs do not fall within either the scope of the 1951 Convention or UNHCR mandate[37]. However, at least since 1972,[38] when the General Assembly and ECOSOC endorsed operation in Sudan, UNHCR's work with people 'displaced within the country' has been legitimate. Indeed, UNHCR can legitimately provide protection to IDPs, acting beyond its mandate, when its functions are extended by the General Assembly[39]. UNHCR involvement with IDPs has been carried out also on the basis of a broad interpretation of article 8 (b) of the Statute[40] and as a way to 'ameliorate refugee-producing conditions so that 'to protect potential refugees'[41]. Even though UNHCR's activities for IDPs may be (mis)interpreted as obviating the need for international protection and asylum involvement within countries[42], 'to view working with internally displaced people as 'an exceptional occurrence' while refugees who cross an international border remain its central concern is to ignore reality'[43].
THE RIGHT TO RETURN: LEGAL FRAMEWORK IN BOSNIA AND HERZEGOVINA
The Dayton Peace Agreement takes the form of a brief General Framework Agreement for Peace in Bosnia and Herzegovina, twelve much more detailed Annexes and the Agreement on Initialling, concerning the modalities of conclusion and entry into force of the other agreements[44]. The GFA is an international treaty concluded between the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia[45]. The Annexes - each of them constituting an international treaty- set up the provisions for peace in Bosnia and Herzegovina. They are in form of agreement between various parties, mainly between the Republic of Bosnia and Herzegovina and the two Entities directly involved in the conflict: the Republika Srpska and the Federation of Bosnia and Herzegovina - which are not party to the GFA. The GFA represents thus the instrument, which guarantees the implementation of the provisions contained in the Annexes, from both a political and a juridical point of view.[46]
Since the beginning of the conflict, the right to return has been a cornerstone of the international community's efforts to bring peace in the region and recreate a unified multi-ethnic Bosnia.[47] It constitutes one of the foundational principles of the DPA and its content goes well beyond that relatively well-established under international law, right to repatriate to the country of origin. Indeed , under Dayton the right to return has been interpreted broadly as a right to return home and to repossessproperties wrongfully taken during the war which applies to both refugees and internally displaced people[48].
The firm recognition of the right to return home under the DPA was though as a means to reverse ethnic cleansing. In a way, this can be seen as a counter-balance element to the creation of a State of Bosnia and Herzegovina which is constituted by ethnically defined Entities -the Federation and the Republika Srpska- which have substantial autonomy within a federal structure that is highly decentralised.
2.1 Legal Provisions
Provisions relating to the right to return are contained in Annex 4 (Constitution), Annex 6 (Agreement on Human Rights) and Annex 7 (Agreement on Refugees and Displaced Persons) to the GFA.
Article II (5) of the Constitution states that:
all refugees and displaced persons have the right freely to return to their homes of origin. They have the right, in accordance with Annex 7 to the General Framework Agreement, to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that cannot be restored to them[49].
Annex 7 provides that the Parties 'shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution, or discrimination, particularly on account of their ethnic origin, religious belief, or political opinion'[50] and they 'shall prevent activities within their territories which would hinder the safe and voluntary return[51]. Further, the Parties have specially committed to take a number of immediate confidence building measures. These are: to repeal discriminatory domestic legislation and administrative practices, to prevent incitement of ethnic or religious hostility, to disseminate warnings against and to suppress acts of retribution, to protect ethnic and minority population wherever they are found, and to dismiss officials responsible for violation of minority rights[52]. Annex 7 also affirms the right to choice of destinations without external interference and with respect of the principle of the unity of the family. It is particularly affirmed that 'the Parties shall not interfere with the returnees' choice of destination, nor shall they compel them to remain in or move to situations of serious danger or insecurity, or to areas lacking in the basic infrastructure necessary to resume a normal life.'[53] The Parties have also promised 'to create in their territories the political, economic, and social conditions conducive to voluntary return'[54], to provide all possible assistance to refugees and displaced persons and to facilitate their return in accordance with UNHCR plan[55], to 'not discriminate against returning refugees and displaced persons with respect to military service', and to establish a general amnesty for 'refugees or displaced persons charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or common crimes unrelated to the conflict.'[56]
The right to return is further strengthened by the provisions contained in the Constitution and in Annex 6, both of which recognises the right to freedom of movement and residence of which the right to return can bee seen as an expression. Furthermore, the BIH citizens are guaranteed 'the highest level of internationally recognised human rights and fundamental freedoms' since the provisions of the ECHR[57] and its Protocols apply directly in the domestic legal system, with priority over all other law and Bosnia Herzegovina is obliged to remain or became a party to 15 additional International Human Rights instruments listed in the Appendix to Annex 6. Therefore the typical case of an individual being denied the right to return home involves a violation of both of the basic right to return under the Constitution and of a series of specific human rights recognised under the international human rights instruments[58].
2.2 Institutions
Besides, a highly developed interpretation of the right to return in terms of legal and constitutional principle the DPA provides a set of institutional structure to protect it: the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) and the Human Rights Commission. The CRPC is primarily a refugee mechanism that was created to deal with the enormous scale of dispossession of residential property, particularly in order to make decisions on property title of all the displaced and refugees who had fled their homes to escape from the systematic practice of ethnic cleansing[59]. Indeed, giving them a mechanism through out which they could have confirmed their real property rights was considered necessary for guaranteeing them a right to return. The second was created in order to make formal determinations of human rights claims against the State and the two Entities. This is relevant to the right to return given that respect for basic human rights, particularly right to property and the right not to be discriminated against is essential to return to occur and to be sustainable. Nevertheless, the Human Rights Commission is a mechanism for ensuring domestic protection and remedies for international legal standards rather than being a primarily refugee mechanism.
2.2.1 Commission for Real Property Claims of Displaced Persons and Refugees
The CRPC was established under Chapter Two of Annex 7 to the GFA, as the main legal mechanism for implementing the right to return.