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The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina

  • Marcus Cox

The use of terror to separate the ethnic groups in Bosnia and Herzegovina was a deeply tragic episode, with devastating effects on the lives of millions of people. Although the Dayton Agreement of December 1995 has brought a fragile peace to Bosnia and Herzegovina, it has done so at the cost of the division of its territory, its population and almost every aspect of civil life along ethnic lines. Two years into the peace process, the progress of return of refugees and displaced persons has been extremely disappointing. More than two million people—almost half the population—are still dispossessed of their homes. Some 600,000 of these are refugees abroad who have not yet found durable solutions, many of whom face the prospect of compulsory return into displacement within Bosnia and Herzegovina in the near future. Another 800,000 have been internally displaced to areas in the control of their own ethnic group, living in multiple occupancy situations, in collective centres or in property vacated by the displacement of others, often in situations of acute humanitarian concern. The fundamental issue for the future of the postwar society of Bosnia and Herzegovina is whether these people can or will return to their homes.

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1. The General Framework Agreement for Peace in Bosnia and Herzegovina, agreed in Sept. 1995, and entering into force on 14 Dec. 1995 (hereafter “the Dayton Agreement”): (1996) 35 I.L.M. 1171.

2. In this article the term “refugee” is used to refer to citizens of Bosnia and Herzegovina displaced outside the borders of Bosnia and Herzegovina, irrespective of their status under the Convention Relating to the Status of Refugees 1951 (“the 1951 Convention”), while “displaced person” refers to those displaced within the borders of Bosnia and Herzegovina.

3. There is extensive discussion of the reality of this threat in international relations literature: e.g. Brubaker, , Nationalism Reframed: Nationhood and the National Question in the New Europe (1996); Ryan, , Ethnic Conflict and International Relations (2nd edn, 1995); Gottlieb, , Nation Against State: A New Approach to Ethnic Conflicts and the Decline of Sovereignty (1993); Bowen, , “The Myth of Global Ethnic Conflict” (1966) 7 Journal of Democracy 3.

4. Gaeta, , “The Dayton Agreements and International Law” (1996) 7 E.J.I.L. 147.

5. The Washington Agreement provided for the establishment of a Bosniac-Croat Federation of ten cantons, under a constitution agreed on 18 Mar. 1994: (1994)33 I.L.M. 740.

6. The London Peace Implementation Conference in Dec. 1995 established a Peace Implementation Council as the successor to the International Conference for Yugoslavia, with a Steering Board including the US, Russia, France, Germany, UK, Japan, Canada, Italy, the EU Presidency, the European Commission and Turkey on behalf of the Organisation of the Islamic Conference: Conclusions of the Peace Implementation Conference Held at Lancaster House London, 8–9 Dec. 1995, para.21.

7. In this artide “return” is used to refer specifically to return to home of origin, rather than repatriation to country of origin.

8. The Dayton Agreement takes the form of a brief General Framework Agreement followed by much more detailed annexes. The parties to the General Framework Agreement are the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia, with the EU and each of the Contact Group States signing as witnesses. A number of the annexes have different signatories. The three most relevant to this article—Armex 4 (Constitution), Annex 6 (Agreement on Human Rights) and Annex 7 (Agreement on Refugees and Displaced Persons)—each have the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska as parties. At the time of signature, these entities represented the three ethnic groups in Bosnia and Herzegovina, and the term “parties” in this article is used as shorthand for the three separate political and military blocs. For a detailed analysis, see Gaeta, op. cit. supra n.4.

9. Agreed Principles, Geneva, 8 Sept. 1995, paras.2.4, 3.1: Office of the High Representa- tive, Bosnia and Herzegovina: Essential Texts (undated). The same principles were reiterated in the Further Agreed Basic Principles adopted at New York on 26 Sept. 1995: idem.

10. Constitution of Bosnia and Herzegovina. Art.5.

11. Annex 7, Art.I–2.

12. Art.I–3.

13. Art.I–4.

14. Constitution, Art.II–1.

15. Art.II–2.

16. Art.II–3.

17. Art.II–6.

18. Art.II–7 and Annex I to the Constitution.

19. Art.III–3(b).

20. Annex 7, Art.XI.

21. Annex 7, Art.XII.

22. Annex 6, Art.II–2. The Chamber has held that Annex 6 does not have retrospective application, and that its jurisdiction is therefore limited to violations occurring after 14 Dec 1995. However, although most refugees and displaced persons left their homes before that date, the denial of property rights represents a continuing human rights violation which falls within the Chamber's jurisdiction: Decision on the Admissibility of Case No.CH/96/23 Kalincevic v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, 6 June 1997, para.11.

23. Annex 6, Art.V.

24. Annex 6, Art.XI.

25. Conclusions of the Peace Implementation Conference Held at Lancaster House London, 8–9 Dec. 1995, paras.17–18.

26. Annex 10, Art.II.

27. Annex 10, Art.V.

28. Bonn Peace Implementation Conference, 8 Dec. 1997. Art.XI–2.

29. OHR Press Release, 16 Dec. 1997. Various other binding measures have since been imposed, including the dismissal of police and municipal officials.

30. UNHCR was asked to undertake this role in a letter from the UN Secretary-General dated 25 Oct. 1991: Barutciski, “The Reinforcement of Non-Admission Policies and the Subversion of UNHCR” (1996) 8 I.J.Ref.L. 49, 80.

31. : Annex 7, Art.1–5.

32. Ibid.

33. In 1997 the UN received a total of US$288 million for civilian programmes in the former Yugoslavia, of which UNHCR's portion was US$235 million: UN Department of Humanitarian Affairs, “United Nations Consolidated Inter-Agency Appeal for Bosnia and Herzegovina, Croatia. Federal Republic of Yugoslavia and Former Yugoslav Republic of Macedonia January-December 1998” (1997), p.19.

34. Barutciski, op. cit. supra n.30.

35. Political Declaration from the Ministerial Meeting of the Steering Board of the Peace Implementation Conference (Sintra, 30 May 1997). para.44.

36. Security Council Res. 1022 of 22 Nov. 1995 would have automatically rehnposed sanctions on the Federal Republic of Yugoslavia if the agreement had not been signed by the Serbs.

37. Personal communication to the author from US Department of State officials.

38. The institutions of Bosnia and Herzegovina have responsibility for foreign affairs and trade, customs and monetary policy, immigration, inter-Entity criminal law enforcement, communications and transport, and air traffic control (Art.111–1). The residue of powers go to the Entities, including property matters. The Constitution does provide that Bosnia and Herzegovina shall assume responsibility for the matters agreed in the Annexes (Art.111–5). However, by tacit consent of the parties, no action has been undertaken at that level by any institution of Bosnia and Herzegovina.

39. For a more detailed description, see Slye, , “The Dayton Peace Agreement: Constitutionalism and Ethnicity” (1996) 21 Y.J.I.L. 459.

40. The term “Bosniac” is an old term revived by the Bosnian Muslims during the course of the war to denote their nationality. Muslims have been recognised as a “Nation of Yugoslavia” in the Yugoslav Constitution since 1991, although the percentage of those practising their religion was lower in the Republic of Bosnia and Herzegovina than in any other Republic Poulton, The Balkans: Minorities and States in Conflict (1993).

41. Equivalent provisions apply to the Bosniac and Croat representatives from the Federation, and no provision is made for the representation of Serbs in the Federation, even though Serbs constituted 20% of the pre-war population of that territory.

42. Slye argues that the Constitution is in breach of Ants.2(1) (non-discrimination) and 25 (right to participate in government) of the International Covenant on Civil and Political Rights: op. cit. supra n.39.

43. “Only in the intended end-state of peace implementation, with two multi-ethnic Entities functioning on the basis of the rule of law. equipped with effective judiciary and administrative institutions, achieving the levels of human rights protection and freedom of movement throughout the country to which the Parties have committed themselves, will such decisions [to relocate] be truly voluntary.” Statement by the Deputy High Representative. Mr Andrew Bearpark, to the Humanitarian Issues Working Group, Geneva, 17 Dec. 1997.

44. Personal communication to the author from US Department of State officials.

45. Annex 7. Art.XI.

46. Annex 7, Art.XIV.

47. Art.III–3(b).

48. Law on Abandoned Real Property Owned by Citizens During a State of War or in a Case of Direct Threat of War (Official Gazette of the Republic of Bosnia and Herzegovina No.1497/93). All references to domestic legislation are to English translations circulated by the Office of the High Representative in Sarajevo.

49. Usually 8 days: s.15.

50. Basic La w on Housing Relations of the Socialist Republic of Bosnia and Herzegovina.

51. Law on Abandoned Apartments (Official Gazette of the Republic of Bosnia and Herzegovina No.6/92, 8/92, 12/92, 16/92, 13/94, 36/94, 9/95 and 33/95).

52. Law on the Use of Abandoned Property of the Republika Srpska (Official Gazette of the Republika Srpska No.3/96).

53. The Peace Implementation Council has declared that “maintaining administrative or other bodies that are unconstitutional, will not be tolerated. This applies to existing institutions of the former Herceg Bosna as well as of the former Republic of Bosnia-Herzego-vina.” Political Declaration from Ministerial Meeting of the Steering Board of the Peace Implementation Council, Sintra. 30 May 1997.

54. E.g. the Decree on Abandoned Apartments (National Gazette of Herzeg-Bosna No. 13/93).

55. For a fuller description, see UNHCR, “Repatriation and Return Operation 1998” (HIWG/97/7, 1997). Parts VI and VII.

56. Opinion of the Legal Adviser to the High Representative, Jan. 1997.

57. Peace Implementation Council, op. cit. supra n.53, at paras.38–39.

58. The Parliament of Republika Srpska has recently elected a more moderate government with a single-seat majority, which has pledged itself to respecting the Dayton Agreement. The outcome of this development remains to be seen.

59. “Survey the Balkans”, The Economist, 24–30 Jan. 1998.

60. Law on executive procedure of the Socialist Republic of Bosnia and Herzegovina.

61. UNHCR, op. cit. supra n.55, at p.9.

62. The draft EU Guidelines for Harmonised Asylum Policy state “there must be reasonable guarantees that the alternative location can be reached safely and provides stability and safety”: para.8.

63. Information provided by officials of UNHCR Bonn. For the UK position see Macdonald, and Blake, , Macdonald's Immigration Law and Practice (4th edn, 1995), para.12.36.

64. UNHCR, The State of the World's Refugees 1995 (1995), p.70.

65. High Commissioner Sadako Ogata, Statement to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, Geneva, 29 July 1992.

66. Op. cit. supra n.30.

67. See infra.

68. “Those refugees who could easily identify solutions for themselves on return have already done so. As most of the refugees remaining abroad originate from areas where they would now form part of the minority group, the days of ‘easy returns’ are over.” UNHCR, “Information Notes May/June 1997” (1997), p.1.

69. UNHCR, op. cit. supra n.55, at p.9.

70. Information provided to the author by UNHCR officials in Germany.

71. The cost and logistical difficulties associated with deportations from Germany are enormous, and it would take many years to deport the entire refugee population from Bosnia and Herzegovina. Highly publicised deportations, together with threats and curtailment of benefits, are therefore being used strategically to induce the greatest possible number of “voluntary” returns.

72. UNHCR, op. cit supra n.55, at p.3, estimates that more than 70% of repatriating refugees in the second half of 1997 did not return to their homes.

73. Idem, Part VII.

74. James, Hathaway, Law of Refugee Status (1991), p.111.

75. UNHCR, loc. cit. supra n.64.

76. The available data is not always complete or entirely reliable, and some of the figures given are estimates or extrapolations.

77. Official Census of the Republic of Bosnia and Herzegovina 1991 (Cro-Stat, Zagreb, Apr. 1995).

78. Defined by UNHCR, op. cit. supra n.55, at p. 10, to include repatriation and local integration measures, refugee or permanent resident status, or resettlement to a third country.

79. Idem, p.9.

80. Idem, p.15.

81. These figures are based on municipal registration figures provided by the Bosnia and Herzegovina/Federation Institute of Statistics in Sarajevo, but are not completely accurate due to discrepancies in the registration process: UNHCR, “Registration of Repatriates in the Federation of BiH and Entitlement to Food Assistance and Medical Care” (1997).

82. UNHCR, op. cit. supra n.55, at p.3.

83. CRPC and UNHCR, “Return, Relocation and Property Rights” (1997), Annex.

84. This is a net figure, taking into account additional displacement occurring in 1996.

85. UNHCR, “Repatriation and Return Operation 1997”; Amnesty International, “Righting the Wrongs: Recommendations Regarding Return of Refugees and Displaced Persons for 1998” (EUR 63/28/97,1998); Office of the High Representative, “Report of the High Representative for Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations” (11 July 1997); International Crisis Group, “Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia and Herzegovina” (1997); CRPC and UNHCR, op. cit. supra n.83.

86. International Management Group, “A Draft Proposal for a Preliminary Approach to the Return and Relocation of Refugees and Displaced Persons in Bosnia and Herzegovina” (1997).

87. UN Dept of Humanitarian Affairs, op. cit. supra n.33, at p.30.

88. The German development bank Kreditanstalt für Wiederaufbau has been developing a housing construction loan programme using local commercial banks, but implementation has been delayed by the poor condition of the local banking system.

89. UNHCR, op. cit. supra n.55, at p.24.

90. Idem, pp.17–22.

91. These are Bihac, Busovaca, Gorazde, Kakanj, Konjic and Vogosca.

92. Examples of this include Bugojno (now a Muslim town) and Jajce (Croat), where a substantial number of families were allowed to return to surrounding villages during 1996, but were subsequently driven out again. In the case of Jajce, most of the evicted families were later able to return.

93. The results of the surveys and focus groups carried out by the Property Commission are published in full in CRPC and UNHCR, op. cit. supra n.83, at pp.1219.

94. UN Dept of Humanitarian Affairs, op. cit. supra n.33, at p.48.

95. UNHCR, op. cit. supra n.55, at p.24.

96. Statement by UN High Commissioner Mrs Sadako Ogata to the Humanitarian Issues Working Group, Geneva, 17 Dec. 1997.

97. Statement by Bearpark, supra n.43.

98. Statement by the Chairman of the Property Commission, Mr Jean-Pierre Hocke, to the Humanitarian Issues Working Group, Geneva, 17 Dec. 1997.

99. See Griffiths, , Levine, and Weller, , “Sovereignty and Suffering”, in John, Harriss (Ed.), The Politics of Humanitarian Intervention (1995).

* The author is a former legal adviser to the Commission for Real Property Claims of Displaced Persons and Refugees in Sarajevo, and recently undertook a study on behalf of UNHCR and the Property Commission concerning return and relocation issues in Bosnia and Herzegovina: UNHCR & CRPC. “Return, Relocation and Property Rights: A Discussion Paper” (1997). This article builds upon the results of that study, but represents only the opinions of the author, not the institutions which supported the research.

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