Achieving Peace or Protecting Human Rights? Conflicts between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement (The Raoul Wallenberg ... Institute Human Rights Library, V. 23)

ACHIEVING PEACE OR PROTECTING HUMAN RIGHTS? CONFLICTS BETWEEN NORMS REGARDING ETHNIC DISCRIMINATION IN THE DAYTON PEACE AGREEMENT

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 23

ACHIEVING PEACE OR PROTECTING HUMAN RIGHTS? CONFLICTS BETWEEN NORMS REGARDING ETHNIC DISCRIMINATION IN THE DAYTON PEACE AGREEMENT

BY

GRO NYSTUEN

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 23

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2005

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ACKNOWLEDGEMENTS This book was first publihed as a doctoral thesis at the University of Oslo Faculty of Law, and defended in August 2004 for the degree Dr.juris. I wish I could express my great gratitude to my first supervisor, Paul C. Szasz, who died in the spring of 2002. His pointed and sharp, but always very friendly and constructive comments during the first two years of work with this thesis were essential. Paul, who was born in Vienna in 1929 and emigrated to the US in 1941, knew better than most people the potentially devastating effects of ideologies based on race and ethnicity. It thus seems appropriate to dedicate this thesis to him. Fortunately, I can thank my two other supervisors: Manfred Nowak, who was generous enough to step in during this past and crucial year of work, and who, with his insight and expertise in this field, has been a great support and an inspiring commentator, and last but not least, Hans-Christian Bugge, for his always very pertinent comments, and for his support and encouragement throughout the period of work with this thesis. Many other people have been kind enough to read through and comment on the thesis, or parts of it, and have also given me help and inspiration in other ways. I especially wish to mention Ove Bring, Asbjørn Eide, Jan Helgesen, Njål Høstmælingen, Jasna Jozelic, Maria Lundberg, Christian Moe, Jim O’Brien, Bertie Ramcharan, Ørnulf Røhnebæk, Inger Johanne Sand, Wegger C. Strømmen, Margit Tveiten, Julie Wille and Jørgen Aall. I also wish to thank the Norwegian Ministry of Foreign Affairs, for granting me leave to write this thesis, and the Norwegian Centre for Human Rights at the University of Oslo Faculty of Law, for providing a stimulating work-environment. I also want to extend warm thanks to the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund, Sweden, for offering to publish this thesis. Finally, I wish to thank Thorvald Stoltenberg, for giving me the opportunity to work with legal issues at the International Conference on the Former Yugoslavia, and Carl Bildt, for keeping me busy with even more legal issues at the Office of the High Representative. I would clearly never have written the thesis without this experience. Gro Nystuen

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TABLE OF CONTENTS ACKNOWLEDGEMENTS ................................................................................................ v CHAPTER 1. INTRODUCTION ............................................................................................................ 1 1. The Dilemma: Conflicts Between Human Rights Protection and Political Goals in Peace Settlements..................................................................................... 1 2. Peace and Human Rights in International Law................................................... 5 2.1. The Scope and Status of the Prohibition Against the Use of Force ............. 5 2.2. Human Rights in the UN Charter ................................................................ 8 2.3. Human Rights in Emergencies and War.................................................... 10 3. The Dayton Peace Agreement and the Prohibition Against Ethnic Discrimination ...................................................................................................... 11 3.1. Background................................................................................................ 12 3.2. The General Framework Agreement (GFA).............................................. 13 3.3. Non-discrimination Rules in the Dayton Peace Agreement ...................... 14 3.4. Constitutional Discrimination in the Dayton Peace Agreement? .............. 14 3.5. Contradictory Rules within the Dayton Peace Agreement?....................... 15 3.6. Can Non-compliance with Human Rights be Justified? ............................ 16 4. The Structure and Content of the Book: An Overview..................................... 17 4.1. Author’s Background ................................................................................ 19 CHAPTER 2. METHODOLOGY ........................................................................................................ 21 1. Introduction ...................................................................................................... 21 1.1. Traditional Sources and Methods of International Law............................. 21 1.2. A Contemporary Approach to Sources of International Law .................... 24 1.3. The Sources and Methods Used Here........................................................ 25 1.4. Subjects of International Law .................................................................... 28 1.5. Positivism and Natural Law....................................................................... 29 1.6. A Legal Positivist Approach...................................................................... 30 CHAPTER 3. THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW........................ 35 1. Introduction ...................................................................................................... 35 2. Historic Context................................................................................................ 35 3. The Possible “Processing” of Peace Agreements in the UN System of Collective Security ............................................................................................... 38 3.1. The Legitimate Means to Prevent or Terminate the Use of Force ............. 38 4. The System of Collective Security and the Dayton Peace Agreement ............. 42 4.1. The International Conference on the Former Yugoslavia (ICFY) ............. 42 4.2. The UN Protection Force (UNPROFOR) .................................................. 43 4.3. Arms Embargo........................................................................................... 45 4.4. Economic Sanctions .................................................................................. 46 vii

CONTENTS 4.5. The International Criminal Tribunal for the Former Yugoslavia (ICTY).. 46 4.6. The Security Council and the Dayton Peace Agreement ........................... 47 4.6.1. The Role of the Security Council vis-à-vis Possible Human Rights Problems in the Dayton Peace Agreement.................................................... 50 5. Earlier Peace Proposals .................................................................................... 50 5.1. The Carrington Conference ....................................................................... 50 5.2. The Cutiliero Principles............................................................................. 51 5.3. The International Conference on the Former Yugoslavia.......................... 51 5.3.1. The Vance-Owen Peace Plan.............................................................. 52 5.3.2. The Owen-Stoltenberg Peace Plan ..................................................... 52 5.4. The European Union Plan.......................................................................... 53 5.5. The Washington Agreement ...................................................................... 53 5.6. The Contact Group for the Former Yugoslavia ......................................... 54 5.7. Increased US Leadership ........................................................................... 55 5.8. The Agreed Basic Principles ..................................................................... 55 6. The Dayton Setting........................................................................................... 57 6.1. The Lack of a Role for the UN .................................................................. 58 7. The Peace Implementation Conference and Council (PIC) .............................. 59 8. Concluding Comments ..................................................................................... 59 CHAPTER 4. THE GENERAL FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA ...................................................................................... 61 1. Introduction ...................................................................................................... 61 2. The General Framework Agreement (GFA)..................................................... 61 2.1. The Parties ................................................................................................. 61 2.2. The Content ............................................................................................... 61 2.3. The Annexes to the GFA ........................................................................... 62 2.3.1. Parties to the Annexes ........................................................................ 62 3. The Status of the Dayton Peace Agreement ..................................................... 63 4. Overview of the BH Constitution ..................................................................... 66 4.1. Legal Continuity of the State ..................................................................... 67 4.2. Two Entities............................................................................................... 68 4.3. The Citizenship Issues ............................................................................... 69 4.4. Human Rights and Refugees ..................................................................... 70 4.5. Distribution of Governmental Powers ....................................................... 72 4.6. Entity Responsibility ................................................................................. 73 4.7. The Parliamentary Assembly..................................................................... 74 4.8. The Presidency .......................................................................................... 76 4.8.1. The “Dayton Mistake”........................................................................ 78 4.9. The Council of Ministers ........................................................................... 83 4.10. The Constitutional Court ......................................................................... 83 4.11. The Relationship to the International Criminal Tribunal for the Former Yugoslavia (ICTY) ........................................................................................... 85 4.12. Amendment Procedure ............................................................................ 86 viii

CONTENTS 4.13. Entry into Force ....................................................................................... 86 5. Overview over the Human Rights Annex (Annex 6)........................................ 87 5.1. The Office of the Human Rights Ombudsman .......................................... 87 5.2. The Human Rights Chamber ..................................................................... 88 6. Concluding Comments ..................................................................................... 90 CHAPTER 5. PROTECTION AGAINST ETHNIC DISCRIMINATION IN BOSNIA AND HERZEGOVINA..... 93 1. Introduction ...................................................................................................... 93 2. Human Rights in Previous Peace Proposals ..................................................... 93 3. Structure of the Human Rights Protection in the Dayton Peace Agreement .... 94 3.1. Article II of the Constitution of Bosnia and Herzegovina ......................... 95 3.2. Agreement on Human Rights .................................................................... 97 4. Article II (2): Direct Application and Priority of the ECHR and Protocols...... 98 4.1. Interpretation of the Term “All Other Law” .............................................. 99 4.2. The Relationship between ECHR and Potentially “Higher Standards” in Other Instruments ........................................................................................... 100 4.3. Which Protocols are Covered? ................................................................ 101 4.4. Non-discrimination Protection in the ECHR ........................................... 102 4.5. Discrimination in the Exercise of Political Rights under the ECHR and Article 3 of Protocol 1 ................................................................................... 103 5. Article II (4): Non-discrimination in other Instruments.................................. 104 5.1. Non-discrimination in the Human Rights Agreement ............................. 107 5.2. ICCPR...................................................................................................... 110 5.2.1. Accessory Non-discrimination Clause.............................................. 110 5.2.2. General Non-discrimination Clause.................................................. 110 5.2.3. Political Rights in the ICCPR ........................................................... 113 5.3. ICERD ..................................................................................................... 114 5.3.1. Definition of Racial Discrimination.................................................. 114 5.3.2. The Rights Catalogue ....................................................................... 116 5.3.3. Political Rights in ICERD ................................................................ 116 5.4. Other Instruments Applicable in Bosnia and Herzegovina...................... 117 5.5. The Non-discrimination Grounds ............................................................ 118 5.5.1. Race .................................................................................................. 119 5.5.2. Colour ............................................................................................... 120 5.5.3. Language .......................................................................................... 121 5.5.4. Religion ............................................................................................ 121 5.5.5. National Origin ................................................................................. 122 5.5.6. Ethnic Origin and Descent................................................................ 122 5.5.7. Association with a National Minority............................................... 124 5.5.8. Other Status ...................................................................................... 126 5.6. The Human Rights Chamber and the Non-discrimination Criteria.......... 126 5.7. Concluding Comments ............................................................................ 129 6. Peremptory Norms of General International Law .......................................... 130 6.1. Background.............................................................................................. 130 ix

CONTENTS 6.2. The Jus Cogens Requirements................................................................. 132 6.2.1. Prohibition Against Ethnic Discrimination as a Jus Cogens Rule? .. 133 6.3. Concluding Comments ............................................................................ 136 CHAPTER 6. ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION ................................. 137 1. Introduction .................................................................................................... 137 2. Constituent Peoples ........................................................................................ 137 2.1. The “Constituent Peoples” Decision from the BH Constitutional Court . 139 2.2. The Decision on Amendment of the Entity Constitutions by the High Representative ................................................................................................ 142 3. The House of Peoples and the House of Representatives............................... 142 3.1. The Parliaments of the Entities and the Selection Process ...................... 144 3.1.1. Constitutional Discrimination of Serbs?........................................... 144 3.2. Competencies of the Parliamentary Assembly ........................................ 146 3.2.1. The Decision Making Process .......................................................... 147 3.2.2. “Ethnic Veto” on Parliamentary Decisions....................................... 148 4. The Presidency ............................................................................................... 150 4.1. Competencies of the Presidency .............................................................. 151 4.2. The Decision-making Process ................................................................. 151 5. Consequences of the Constitutional Provisions on Ethnicity ......................... 154 5.1. Exclusion of “Others”.............................................................................. 154 5.2. Exclusion of Constituent Peoples in the “Wrong” Entity ........................ 157 6. Concluding Comments ................................................................................... 159 CHAPTER 7. THE SCOPE OF CONFLICT BETWEEN THE NON-DISCRIMINATION RULES AND THE RULES AUTHORISING ETHNIC DIFFERENTIATION .................................................... 161 1. Introduction .................................................................................................... 161 2. ECHR: Article 3 of Protocol 1........................................................................ 163 2.1. The Second Chamber............................................................................... 164 2.2. The Exclusion Criteria............................................................................. 167 3. ICCPR: Article 25 .......................................................................................... 171 3.1. The Right to Take Part in the Conduct of Public Affairs......................... 172 3.2. The Right to Vote and to Stand for Election............................................ 173 3.2.1. The Parliamentary Assembly............................................................ 173 3.2.2. The Presidency ................................................................................. 178 3.3. ICERD Article 5 ...................................................................................... 179 4. Derogation ...................................................................................................... 180 5. Concluding Comments ................................................................................... 180 CHAPTER 8. POSSIBLE JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES .......... 183 1. Introduction .................................................................................................... 183 2. Derogation ...................................................................................................... 184 x

CONTENTS 2.1. State of Emergency.................................................................................. 187 2.1.1. Was there a State of Emergency in Bosnia and Herzegovina? ......... 191 2.2. Were the Ethnic Requirements Measures? .............................................. 192 2.3. Which Rights May Not Be Derogated from? .......................................... 192 2.4. Discriminatory Measures......................................................................... 194 2.4.1. Ethnic Discrimination and Derogation in the ICCPR....................... 194 2.4.2. Ethnic Discrimination and Derogation in the ECHR........................ 196 2.4.3. The Non-discrimination Criteria....................................................... 199 2.4.4. The Term Solely................................................................................ 205 2.5. The Consistency Requirement ................................................................. 206 2.5.1. A Customary Right to Derogation? .................................................. 209 2.6. Strictly Required by the Exigencies of the Situation ............................... 212 3. Necessity ........................................................................................................ 217 3.1. Introduction ............................................................................................. 217 3.2. Customary Human Rights Obligations .................................................... 218 3.3. Customary Basis for Necessity ................................................................ 220 3.4. Circumstances Precluding Wrongfulness in the Draft Articles on State Responsibility ................................................................................................. 222 3.5. Article 25 of the Draft Articles on State Responsibility .......................... 224 3.5.1. The Balancing Requirement ............................................................. 228 3.5.2. The Time Aspect............................................................................... 236 4. Concluding Comments ................................................................................... 237 CHAPTER 9. POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION ................................. 239 1. Introduction .................................................................................................... 239 2. The Priority Rule ............................................................................................ 239 2.1. Constitutional Amendment by the Parliamentary Assembly ................... 241 2.2. Judgement by the Constitutional Court ................................................... 241 2.3. Judgement by the Human Rights Chamber ............................................. 243 2.4. Decision by the High Representative....................................................... 244 2.5. New Negotiations by the Parties to the Dayton Peace Agreement .......... 247 2.6. Decision by the European Court of Human Rights.................................. 248 2.7. The Human Rights Committee ................................................................ 249 3. Concluding Comments ................................................................................... 249 CHAPTER 10. CONCLUDING REMARKS .......................................................................................... 251 BIBLIOGRAPHY ........................................................................................................ 255 TABLE OF CASES ..................................................................................................... 263 ANNEX I .................................................................................................................. 267 ANNEX II................................................................................................................. 283 INDEX ...................................................................................................................... 293

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CHAPTER 1. INTRODUCTION 1. THE DILEMMA: CONFLICTS BETWEEN HUMAN RIGHTS PROTECTION AND POLITICAL GOALS IN PEACE SETTLEMENTS This book will discuss possible contradictions between human rights protection against ethnic discrimination, and provisions in peace settlements that might undermine such human rights. The Dayton Peace Agreement from 1995 will be used to illustrate these contradictions, as this agreement contains both an extensive human rights regime, as well as a constitutional system based on exclusion because of ethnicity.1 The book will seek to determine the scope of conflict between these two sets of rules, and to assess, on a more general basis, whether the non-fulfilment of human rights may be justified in order to secure peace. Provided that such justification might exist, it must be determined to what extent human rights may be set aside, under what circumstances, and how long such non-fulfilment of human rights can justifiably last. The main aim of this book is thus to contribute to the debate on how international law can be used to balance the need for terminating violent conflicts through concluding peace settlements, against the need for securing human rights in crisis situations. There is often a significant relationship between human rights abuses and armed conflicts. Although it is never easy to determine the actual causes of violent conflicts, one will often find human rights abuses, and particularly alleged discrimination against certain population groups, listed as important “root causes”. Naturally, the very same human rights issues often transpire in the context of ending armed conflicts through peace settlements. Many recent peace settlements have contained extensive human rights provisions, discrimination prohibitions, minority protection measures etc..2 At the same time, in order to stop the fighting, it has been necessary to reach political solutions to which the conflicting parties could agree, solutions which are not necessarily fully compatible with international human rights standards. Agreements on peaceful solutions to armed conflicts are thus by necessity often built on compromises based on assessments of what was politically possible to achieve under probably very difficult circumstances. This has sometimes led to contradictory provisions, even within the same peace settlement – on the one hand, there are provisions intended to secure and protect human rights, on the other hand, there may be provisions that actually undermine such human rights. If peace 1 The General Framework Agreement for Peace in Bosnia and Herzegovina, dated 15 December 1995, entered into force on the same date. Publicised inter alia at <www.ohr.int>, (Website of the Office of the High Representative). 2 See for example Christine Bell, who has analysed the human rights aspects of the recent peace processes in South Africa, the Middle East, Northern Ireland and Bosnia and Herzegovina in her book Peace Agreements and Human Rights (Oxford University Press, 2000).

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CHAPTER 1 negotiations are influenced by the demands of the conflicting parties regarding specific political guarantees for their ethnic groups, such conflicting provisions are very likely to appear in the final settlements to ethnic conflicts. The end of the Second World War marked the beginning of a new international consciousness regarding racial and ethnic persecution and discrimination, notably because of the genocide against the Jewish people as well as other groups, but also in the wake of increasing opposition to colonial rule. These historic factors have, over the past five to six decades, contributed strongly to the development of moral and ethical standards as well as to the legal frameworks aimed at the protection of human rights, especially protection against racial discrimination. The almost universal condemnation of South Africa’s apartheid regime was a prominent example of the international commitment to fight racism in the post-war era. Ethnic and racial hatred in many forms, however, continued to surface throughout this period. And in the early 1990’s, large scale ethnic violence flared up, first in Europe, then in Africa. The international community became largely passive witnesses to extensive ethnically-based massacres and downright genocide of civilians, for example in the Balkans and in Rwanda. Questions of international peace and war have been the concern of the so-called “international community” for centuries. Since the Second World War, the international community has been working for international peace and democracy, and human rights through intergovernmental organisations such as the United Nations (UN), the Organisation for Security and Co-operation in Europe (OSCE), the Council of Europe and many others. When the cold war era ended and the UN Security Council began to respond more actively in situations where peace and security were threatened, the international community became increasingly involved in peace-building throughout the world, through seeking to assist in working out adequate frameworks for peaceful solutions to both international and internal conflicts. A number of recent peace processes have been burdened with ethnic tension. One may mention examples such as South Africa, Cambodia, East Timor, Northern Ireland, the Middle East, the Great Lakes (Rwanda/Burundi), Bosnia, Kosovo, Sri Lanka or Cyprus to illustrate that ethnic discrimination has been at the core of many of the most devastating conflicts that have taken place in the past decades. And for that reason the possible peace settlements to these conflicts need provisions that secure human rights in the future and try to remedy human rights violations of the past. At the same time they must be politically achievable – otherwise they will not stop the violence. Although some might reject the idea that there are contradictions between full implementation of human rights and achieving peace settlements in principle, it seems clear that such contradictions often exist in practice. In her book “Peace Agreements and Human Rights” Christine Bell states: “While a connection between human rights and peace may seem obvious and is acknowledged in human rights instruments, in practice the precise nature of the connection is problematic and controversial. Linking of human rights protections

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INTRODUCTION with peace-building is often challenged as partisan/or idealistic. The view that human rights law provides unnegotiable minimum universal standards is often presented as in tension with the need for a pragmatic peace involving compromise, including compromise on human rights.”3

An article by a proponent of what might be called a pragmatic approach was published in Human Rights Quarterly in 1996. The writer was presented as “Anonymous” and he/she clearly has a good deal of insight into the peace negotiations that were carried out by the ICFY from 1992 to 1995 regarding Bosnia.4 The author describes how, in 1993, the Owen-Stoltenberg Peace Plan was criticised by the international public after initially having been accepted by all the three parties: “Again the howls went up from the pundits and the penwarriors: Bosnia is being ethnically divided; aggression and ethnic cleansing are condoned; Munich has returned and the Chamberlains are once more at work. A week later the Bosnian government, which had negotiated freely and accepted the deal, chose to repudiate it. It chose war over peace. And the dying continued . . . Eventually, they (the parties) were brought around the table in Dayton, Ohio, in November 1995 – a year and a half after the blueprint was established and the policy of not talking to the Bosnian Serbs was instituted. Who will accept moral responsibility for the deaths and injuries that took place in these seventeen months? In November 1995 a fragile peace was worked out in Dayton. By any reckoning, it is nowhere as good as the Vance-Owen plan put forward in April 1993, or the Stoltenberg-Owen plan put forward in September 1993. As a correspondent in the Financial Times of London put it: In the end, what took place was precisely what was bitterly criticised in 1993; the parties got together and made the best deal they could under the circumstances . . . What had the critics done between 1993 and 1995: Had they prolonged the war and multiplied the deaths? Are their victories to be found in the graveyards of Bosnia? What lessons should the human rights community learn from this sorry tale?”5

It would seem that the international condemnation of the peace efforts in Bosnia in 1993 was based on the fact that the proposed political solutions included a degree of ethnic division between the warring parties. And while everybody in the international arena agreed that this was a poor solution, some thought it was preferable over continued war, while others thought that a future peace agreement which might remedy injustice and prevent human rights violations to a greater extent made continued fighting worth while. It could be claimed of course, that these were not the only options, and that human rights could have been taken into account to a 3

Bell, Peace Agreements and Human Rights (Oxford University Press, 2000) page 5. One might guess that the “Anonymous” author was an international civil servant who had taken part in much of what was going on, but who could not identify him/herself because of the limitations on the freedom of expression on sensitive political issues that in practice pertains to persons in such positions. 5 Anonymous, ‘Human Rights in Peace Negotiations’, Vol.18 Human Rights Quarterly (1996) pp. 249– 258. 4

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CHAPTER 1 greater degree without necessarily ruining the prospects of a settlement. Manfred Nowak makes the following observations: “The Yugoslav experience most likely represents the most striking example of how the relationship between human rights and peace should not be handled. Both sides constantly accuse each other. The peace negotiators complained that the human rights movement, in strongly criticizing the various peace plans . . . contributed to the non-acceptance of these settlements and thus shared a certain responsibility for the continuation of the war and further suffering. Taddeusz Mazowiecki, Cherif Bassiouni, Richard Goldstone and other persons entrusted with an international human rights mandate protested that human rights were not, or were only inadequately, taken into account by the peace negotiators.”6

He then notes that: “Since the major Western governments were not able to agree on a common strategy and thus prevented the Security Council from imposing a peace based on human rights on the parties in the former Yugoslavia, the peace negotiators had neither carrots nor sticks to put weight behind their arguments.”7

It could be argued, however, that imposing a peace settlement through military intervention authorised by the Security Council was simply not an option. The international community, as represented by the Security Council, would not engage in a military intervention on the side of the Bosniacs, chiefly because this would entail full scale war with the Serb (and possibly Croat) armed forces, which doubtlessly would mean the loss of many soldiers’ lives – and there was no political will by the Western powers to pay such a price. Furthermore, this scenario would undoubtedly have led to a determined refusal to implement any part of such a settlement by two of the three parties, and very likely also to considerable armed resistance. It would therefore have required a much larger international military and police presence than the approximately 31,000 persons who were assigned to the implementation of the Dayton Peace Agreement. The fact that the core of the political part of the settlement depended on special privileges for the three (within their respective communities) dominant groups, implied that it was not possible to reach a settlement without this element, notwithstanding the fact that it represented a human rights problem. The link between specific ethnicities and certain political rights constituted an inherent part of the political compromise. The question, in this author’s opinion, was not so much whether the ethnic privileges should have been accepted in the first place, but rather whether it would have been possible to set up a system for the eventual termination of the ethnic requirements within the peace settlement. A huge responsibility lies with those who make the political choices that determine which course to take in a situation of ethnic armed conflict. The question 6

Manfred Nowak, Lessons for the International Human Rights Regime from the Yugoslav Experience, Collected Courses of the Academy of European Law, Volume VIII, Book 2. (Kluwer Law International, The Hague, 2000) p. 198. 7 Ibid.., p. 200.

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INTRODUCTION that will be dealt with in this book is to what extent international law can provide support for such choices; taking into account that these are choices that might have serious consequences for peace as well as for human rights. 2. PEACE AND HUMAN RIGHTS IN INTERNATIONAL LAW Since much of the emphasis of the discussions in this book will pertain to the overriding assumption that a peace settlement, even with human rights deficiencies, is preferable to continued war, it is necessary to briefly visit the international legal regime pertaining to the international prohibition against the use of armed force and its relationship to the international legal regime of human rights protection. These legal regimes will constitute the fundamental basis for the following discussions. States have international legal obligations to protect peace and security as well as human rights. Generally speaking, one might say that these obligations arise both from treaty commitments and from general customary legal norms. The Charter of the United Nations,8 which was adopted in 1945, is the main international law instrument pertaining to peace and security, but it also contains references to, and lays down obligations regarding human rights. The Security Council has been entrusted by the collective of Member States in the UN9 with the responsibility of ensuring international peace and security, and the Council may authorise the use of force, including armed force, to this end.10 One underlying assumption for this system could be that it is impossible to secure any human right in an environment where there is no peace. On the other hand, one could argue that it is difficult to achieve sustainable peace as long as systematic human rights violations are allowed to take place. The UN Charter could be understood to mean that international peace and security are the most prominent common goals of the international community. 2.1. The Scope and Status of the Prohibition Against the Use of Force The main provision in the UN Charter prohibiting the use of force is Article 2 (4), which reads: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

The term force means armed force. In his commentary to Article 2 (4) Randelzhofer writes: “The term does not cover any possible kind of force, but is, according to the correct and prevailing view, limited to armed force.” This view is based on a

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Charter of the United Nations, 26 June 1945 (San Francisco), hereafter “the UN Charter”. The current number is 191, according to <www.un.org> (Updated 24 April 2003). 10 See below, Chapter 3 section 3.1. 9

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CHAPTER 1 contextual interpretation which refers to the preamble to the Charter which says that “armed force shall not be used, save in the common interest . . .”11 The question then is what can be classified as “armed force”. Clearly there is no requirement of a declaration of war, or even a military attack on another State. Article 42 of the Charter, which deals with the use of authorised military force, mentions demonstrations and blockades as examples of such armed force in addition to military action. The International Court of Justice (ICJ) specified in the Nicaragua case from 1986 that: “As regards certain particular aspects of the principle question, it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.”12

Not only the use of armed force, but also the threat of use of armed force is prohibited according to the wording of Article 2(4). The prohibition against the use of force against other States thus has a relatively wide scope. It covers not only outright military attacks against another State, but also other forms of threats or use of armed force, for example military blockades, as well as indirect force through supporting rebel groups inside an enemy country. The prohibition against the use of armed force belongs to a set of international rules that are often considered to have a higher status than other international norms. Article 53 of the Vienna Convention defines a peremptory norm of international law (jus cogens) as a norm of general international law, accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted.13 The International Law Commission (ILC) stated in its commentary to the Vienna Convention on the Law of Treaties that Article 2 (4) of the UN Charter: “constitutes a conspicuous example of a rule in international law having the character of jus cogens.”14

In the Nicaragua case the International Court of Justice repeated the quotation from the ILC, and said in addition that: “A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of

11 For supporting views among leading publicists, see footnote 25 in Albrecht Randelzhofer ‘Article 2 (4)’, in Bruno Simma (ed.), The Charter of United Nations, A Commentary (Second Edition, Oxford University Press, 2002) p. 117. 12 Case concerning Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. the United States of America, Judgment 27 June 1986, ICJ reports 1986, p. 101, para. 191. This position by the ICJ was recently confirmed in the Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment 6 November 2003. 13 See Chapter 5 on discrimination for a more thorough discussion on jus cogens. 14 Yearbook of the International Law Commission (YBILC) (18th session, 1966) Vol. II, p. 247.

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INTRODUCTION customary international law, but also a fundamental or cardinal principle of such law.”15

One could argue that the possible jus cogens character of Article 2 (4) is reinforced by the content of Article 2 (6) of the UN Charter which states: “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.”

This provision does not formally impose legal obligations on non-members of the United Nations as the Charter is a treaty, which according to ordinary treaty law binds only those who have adhered to it.16 Still it obligates the organisation to ensure that non-members adhere to the principles of the Charter to the extent this is necessary for the sake of international peace. This means that in reality it places restrictions on possible non-members – they may be subject to the considerable powers conferred on the organisation in matters of international peace and security if they choose to challenge the non-intervention principle. In any event, non-members are subject to the same prohibition against the use of force because of the international customary law and jus cogens character of Article 2 (4). Another manifestation of the special status of the prohibition against the use of force is the relationship between the obligations of UN Member States according to the UN Charter and other international obligations. Article 103 of the Charter specifies that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

This rule thus establishes a lex superior relationship between obligations under the Charter and other treaty commitments for the UN Member States, but it does not render a conflicting treaty obligation void as the case is with jus cogens; it simply prescribes that the Charter obligation shall prevail. The constitutional quality of Article 103 of the UN Charter was reflected in the Vienna Convention on the Law of Treaties. Article 30 pertains to the application of successive treaties relating to the same subject-matter, but lays down these rules “subject to Article 103 of the Charter of the United Nations”. The International Law Commission wrote in its commentary to Article 26 (later 30): “[t]he position of the Charter of the United Nations in modern international law is of such importance, and the States Members of the United Nations constitute so large a part of the international community, that it appeared to the Commission to be essential to give Article 103 of the Charter special mention and a special place in

15 16

Nicaragua v. the United States of America, supra note 12, p. 100, para. 190. See Article 34 of the Vienna Convention on the Law of Treaties.

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CHAPTER 1 the present Article . . . it decided to recognize the overriding character of Article 103 of the Charter with respect to any treaty obligations of Members.”17

Article 103 of the Charter also underlines the significant position of the prohibition against the use of force in the international legal system. The use of force by NATO against the FRY in 1999, seen in connection with the obligations of NATO members according to the UN Charter has been commented on by Simma: “Since Article 2(4) reflects a norm of jus cogens, any agreements, decisions and obligations conflicting with it are invalid. Hence, Article 103 renders the UN Charter itself, as well as the obligations arising under it from, for instance, binding Security Council decisions, a ‘higher law’ vis-à-vis all other treaty commitments of the UN member States, among them those stemming from NATO membership.”18

There is thus no doubt that the prohibition against the use of force is a norm of prevailing character in the international community. The only legitimate exceptions are the use of force in order to maintain or restore peace and security, and the right of self-defence. Both of these exceptions aim at preventing or reversing the illegal use of armed force. 2.2. Human Rights in the UN Charter The UN Charter clearly expresses the belief that fulfilment of human rights is a prerequisite for peace. In the preamble of the Charter it is stated that: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, . . .”19

Article 1 of the Charter states that the purposes of the United Nations are 1) to maintain international peace and security, 2) to develop friendly relations among nations, and 3) to achieve international cooperation in order to inter alia promote respect for: “human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”. The UN Charter, in spite of being the constitution of the world’s organisation and as such not containing many obligations for its member states, explicitly obliges member states to “take joint and separate action” in order to achieve “universal respect for, and observance of, human rights and fundamental freedoms”.20 It would seem that the drafters of the UN Charter, having future peace as their main goal, considered that peace could best be achieved through securing democratic states, 17

Sir Arthur Watts, The International Law Commission 1949–1998, Volume Two: The Treaties, part II, (Oxford University Press, Oxford, 1999) p. 675. 18 Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, Vol.10, No 1 European Journal of International Law (1999) p. 4. 19 Second preambular para. of the UN Charter. 20 Articles 56 and 55 of the UN Charter. There are also references to human rights in Articles 13, 62, 68 and 76.

8

INTRODUCTION and the best vehicle to secure democratic political systems would be to oblige states to respect and secure human rights . Nevertheless, the system of collective security does not explicitly secure human rights. It is apparent from the provisions of the UN Charter that Security Council authorisation of the use of force, including armed force, is dependent on the existence of a threat to international peace and security.21 Violations of human rights or humanitarian disasters are not, as a point of departure, sufficient reasons for the Security Council to take action. It seems apparent, however, that the Security Council on many occasions, and especially since the end of the cold war, has taken human rights violations into account when determining whether there has been a threat to peace. As early as 1965, the Security Council determined that the denial of the right of self-determination of the black population of Southern Rhodesia constituted a threat to international peace and security, and in turn imposed economic sanctions on the white regime.22 A year later, the Security Council determined that violations of basic human rights in Southern Rhodesia were a threat to international peace and security.23 A number of resolutions based on Chapter VII of the Charter were adopted with regard to the situation in South Africa during the 1970’s.24 After the end of the cold war, the Security Council has on numerous occasions authorised “humanitarian interventions”, in the sense of authorising force in order to address grave humanitarian situations and/or grave human rights violations. In 1991, the Security Council condemned Iraqi repression of the Iraqi Kurds, and considered this to be a threat to international peace and security in the region.25 During the first half of the 1990’s, the Security Council adopted a number of resolutions pertaining to the situation in Bosnia and Herzegovina, in which the humanitarian situation was a prominent element in the reasoning behind the authorisation of the use of force.26 The Council also established the ad hoc International Criminal Tribunal for the Former Yugoslavia, thus indicating that violations of international humanitarian law constitute a threat to international peace and security.27 In 1992, the Council stated explicitly, in a Chapter VII resolution pertaining to the situation in Somalia, that widespread violations of international humanitarian law in itself constituted a threat to international peace.28 In the case of Haiti in 1994, the Council referred to the deteriorating humanitarian situation and the systematic violations of human rights when authorising the use of armed force against the military regime in order to

21

See below in Chapter 3 section 3.1 on Article 39 of the UN Charter. S/RES/217 (1965). 23 S/RES/ 221 (1966). 24 S/RES/ 418 (1977) even imposed an arms embargo on South Africa partly with reference to its policy of apartheid. 25 S/RES/668 (1991). 26 S/RES/770 (1992), S/RES/824 (1993), S/RES/836 (1993). 27 S/RES/827 (1993). 28 S/RES/794 (1992). 22

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CHAPTER 1 reinstate the former democratically elected regime.29 In the case of Rwanda, the Security Council also referred to both violations of humanitarian law as well as human rights, and stated that this was a threat to international peace and security.30 It also established an international criminal tribunal for Rwanda, following the pattern of the above mentioned Yugoslavia Tribunal.31 In 1999, the Security Council referred to violations of international humanitarian law and human rights as a basis for taking measures according to Chapter VII in order to restore peace in East Timor.32 There is thus no necessary contradiction between the protection of peace and security and the protection of human rights. On the contrary, the Security Council seems to take the position that respect for human rights might be a prerequisite for peace. One might claim that instead of looking at international peace as the mere absence of war, the Council seems to be viewing peace as the absence of factors that may lead to armed conflict, including gross and systematic violations of human rights and humanitarian law. There are some difficulties, however, in drawing too general conclusions from the above-mentioned practice by the Security Council. One must not overlook the numerous occasions where there have been flagrant human rights violations and the Council has done nothing. The Security Council is, first and foremost, a political, not a judicial or humanitarian body. It will inevitably rely on political considerations, which, if overlapping with humanitarian concerns, may lead to “human rights-action” under Chapter VII. 2.3. Human Rights in Emergencies and War The international regime of human rights protection is, in principle, always applicable, irrespective of whether there is a war or other forms of crisis situations. The assumption is naturally that the need for human rights protection is even more pressing in a situation of instability and crisis. States are not always capable, however, of fulfilling all of their human rights obligations in such situations. Clearly in a situation of war, where perhaps the governmental authorities themselves are under heavy pressure, or even disintegrating, human rights can be difficult to ensure. International law in general, and international human rights law in particular, provide for the possibility of imposing special measures which may infringe on human rights in times of war and emergencies. Irrespective of the legitimacy or legality of an armed conflict, the affected States may derogate from certain of their human rights obligations. The reasoning behind such rules is the need for balancing the aspiration of States to protect their national security against the need for everyone’s human rights to be fully protected . The legal bases for such derogation are to be found in, for example, Article 4 of the International Covenant on Civil and 29

S/RES/949 (1994). S/RES/918 (1994). 31 S/RES/955 (1994). 32 S/RES/1264 (1999). 30

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INTRODUCTION Political Rights (ICCPR) and in Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Derogation from human rights obligations, however, is subject to certain requirements. Among other requirements, there has to be a public emergency that threatens the “life of the nation”, the measures that constitute human rights derogations must be “strictly required by the exigencies of the situation” and they must not be inconsistent with other obligations under international law. In addition to the explicit right of States to derogate in emergencies or war, there are general customary international rules pertaining to the institute of necessity. Necessity is well known, both in national legal systems as well as in international law. The rationale behind this legal institute is basically the same as under derogation, namely that through committing an unlawful act, one might prevent a bigger “evil” than the unlawfulness represents. In such situations, the wrongfulness of otherwise wrongful international acts might be precluded.33 The Draft Articles on State Responsibility, adopted by the General Assembly in 200134 contain a specific provision on necessity where the requirements for precluding the wrongfulness of an otherwise unlawful act are laid down. Discussing the various legal regimes that might be relied upon in times of crisis or emergencies is necessary in order to attempt to explain the complicated relationship between the international rules pertaining to human rights and those pertaining to peace and security. The scope and content of the former set of rules will, to a certain extent, depend on the success of implementing the latter – in times of war and conflict, at least some human rights may be temporarily set aside. Both derogation and necessity in relation to the negotiation and conclusion of the Dayton Peace Agreement will be discussed in more detail later in this book.35 3. THE DAYTON PEACE AGREEMENT AND THE PROHIBITION AGAINST ETHNIC DISCRIMINATION As mentioned above, the aim of this book is to examine the general legal issues pertaining to potential norm conflicts when trying to end an armed conflict and at the same time fully secure all human rights, - through looking at one specific peace settlement, the Dayton Peace Agreement from 1995. The rest of this chapter will therefore give a brief introduction to the Dayton Peace Agreement, its structure and human rights protection as well as the constitutional provisions pertaining to ethnic differentiation. Chapter 4 will delve into the same provisions in more detail.

33 Draft Articles on State Responsibility for Internationally Wrongful Acts, Report of the International Law Commission, UN General Assembly Official Records, Fifty-sixth session, supplement no.10 (A/56/10), Chapter IV, p. 194 ff. 34 Adopted 9 August 2001. 35 Chapter 8.

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CHAPTER 1 3.1. Background The General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Peace Agreement) was seen by many as a major diplomatic success because it achieved the goal of ending the war. But at the same time, it was also criticised for endorsing ethnic cleansing, because it failed to accomplish a political and geographical multiethnic structure in Bosnia and Herzegovina. As Zoran Pajic notes: “The Dayton Agreement is a masterful diplomatic creation precisely because of its imprecision – allowing all sides to claim some kind of victory. However, the document’s fundamental contradictions – declaring a unified state while recognizing two antagonistic entities as constituent parts of the state; proclaiming democracy while entrenching apartheid structures and ethnic based parties, and reaffirming individual rights while legitimizing ethnic majoritarianism – raise serious concerns about which vision will prevail for Bosnia.”36

The draft peace agreement was presented to the warring parties at Dayton37 by the international community, represented by the US government together with the Contact Group for the Former Yugoslavia.38 Although the draft agreement was subject to a certain amount of negotiation between the representatives of the Contact Group and the parties,39 many of the core ideas and concepts of the original draft remained. It is therefore clear that the international community had much of the responsibility for the content of the agreement, a content that was clearly influenced by an acute political need for the termination of the armed conflict. At the same time, large portions of international human rights law were inserted into the Dayton Peace Agreement in order to facilitate a situation in Bosnia and Herzegovina where human rights could be secured. The Constitution of Bosnia and Herzegovina (hereinafter the BH Constitution)40 contains several references to international law and human rights in its preamble. It has rather extensive human rights protection provisions laid down in Article II (1 – 8), and it even contains a specific provision in Article III (3) (b) which states that “The general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and of the Entities”. The rest of the Dayton Peace Agreement also contains a number of references to human

36 Zoran Pajic, ‘A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina’, Vol. 20 Human Rights Quarterly (1998) pp. 125–138. 37 The Wright-Patterson Air Force Base, Dayton, Ohio, USA. 38 The Contact Group for the Former Yugoslavia consisted in 1995 of the US, UK, France, Germany, Russia, EU/EC. 39 The settlement was discussed and negotiated, first in the Balkan region itself , and later in Dayton, Ohio. For an account of the whole peace process, see for example Richard Holbrooke, To End a War, The Modern Library, (Random House, New York, 1998); Carl Bildt, Peace Journey: The Struggle for Peace in Bosnia (Weidenfeld & Nicholson, 1998); Ivo H. Daalder, Getting to Dayton, The Making of America’s Bosnia Policy (Brookings Institution Press, Washington DC, 2000). 40 The BH Constitution is enclosed as Annex 1.

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INTRODUCTION rights and international law, in addition to a separate Human Rights Agreement (Annex 6 to the GFA).41 It was widely acknowledged that the armed conflicts in Bosnia and Herzegovina led to gross violations of human rights, and in particular violations of the right to non-discrimination. But it was not only the acknowledgement that human rights were important that prompted the mediators to include the wide-ranging human rights protection in the agreement. The international community needed the political and moral legitimacy that international human rights and other international law standards could provide, not least because previous peace attempts had been criticised for accepting the results of ethnic cleansing. Because the Dayton Peace Agreement itself was quite similar to those earlier drafts, particularly to the OwenStoltenberg Plan which 18 months earlier had been widely criticised for condoning ethnic cleansing,42 it was necessary to convince the potential critics that human rights would have a prominent place in the new peace settlement. 3.2. The General Framework Agreement (GFA) The Dayton Peace Agreement consists of a General Framework Agreement (GFA), to which the Republic of Croatia, The Federal Republic of Yugoslavia (SerbiaMontenegro) and the (then) Republic of Bosnia and Herzegovina are parties. Under this Framework Agreement there are 11 annexes,43 one of which is the Constitution of Bosnia and Herzegovina (Annex 4). The other annexes under the GFA are: an annex on the military implementation of the peace agreement (Annex 1A), an annex on regional stabilisation and disarmament (Annex 1B), an annex on election (Annex 3), an annex on arbitration (Annex 5), an annex on human rights implementation mechanisms (Annex 6), an annex on refugees and displaced persons (Annex 7), an annex on a commission to preserve national monuments (Annex 8), an annex on public corporations (Annex 9), an annex on the civilian implementation of the peace settlement (Annex 10), and an annex on an international police task force (Annex 11). The parties to the Annexes are not the same as the parties to the GFA, the parties to the Annexes are the three groups which were considered the Bosnian parties to the conflict; the Bosniacs, the Bosnian Croats and the Bosnian Serbs. The whole agreement, including the annexes, consists of 138 pages.44 The Dayton Peace Agreement entered into force upon signature of all three parties to the GFA on 14 December 1995. Its entry into force in Bosnia and Herzegovina was not subject to any domestic legal procedures, such as a parliamentary vote or a referendum. The existing parliament that had been established before the war was not seen as representative by the either the Bosnian Serbs or the Bosnian Croats. It was, in any case, very doubtful whether a referendum 41

Enclosed as Annex 2. See Chapter 3 section 5.3.2. 43 Nominally there are 12 annexes, but annex 1A and 1B are often counted as one. 44 This was the original text that was actually signed in Paris 14 December 1995. Later versions tend to be more compact. 42

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CHAPTER 1 in Bosnia and Herzegovina would have given the Dayton Peace Agreement much support or legitimacy, and it was not a risk the Contact Group was willing to take. In addition to providing the State with a new constitution, the Dayton Peace Agreement contained provisions determining which parts of the existing legal framework and existing institutions were to remain in force.45 One may therefore assume that the entry into force of the agreement started an entirely new legal regime – if previous legislation was still to be in force, it was only because it had been provided for in the Dayton Peace Agreement. 3.3. Non-discrimination Rules in the Dayton Peace Agreement A very solid non-discrimination regime has been laid down in the Bosnia and Herzegovina (BH) Constitution. Firstly, the rights and freedoms of the ECHR, including Article 14 on discrimination, are made directly applicable in Bosnia and Herzegovina and have been given priority over all other law.46 Secondly, there is a specific non-discrimination provision in Article II (4) of the Constitution, which imports the non-discrimination provisions from a long list of international human rights and humanitarian law instruments into the BH Constitution.47 There are also corresponding non-discrimination provisions in other parts of the Dayton Peace Agreement, notably in Annex 6 which is the Agreement on Human Rights. Both the Constitution and the Human Rights Agreement include references to a number of international human rights instruments. The thesis will identify and try to describe the relevant international human rights provisions that became applicable in Bosnia and Herzegovina upon the entry into force of the Dayton Peace Agreement. The thesis will thus primarily discuss the Dayton Peace Agreement itself, and not to any large extent the various legislative developments in Bosnia that have followed. The focus is on how to balance the need for peace against the need for full human rights protection in the conclusion of peace settlements. It is therefore the peace agreement itself and its human rights implications that will be the main subject. 3.4. Constitutional Discrimination in the Dayton Peace Agreement? This book gives an overview of the content of the Constitution of Bosnia and Herzegovina, and particularly the provisions that pertain to the ethnically-composed constitutional organs. As the BH Constitution is based on a specific ethnic balance within some of these organs, it will be argued that this reliance on ethnic criteria could be in violation of specific human rights provisions laid down in the same Constitution.

45

BH Constitution, Annex II, transitional provisions, Article 2. Article II (2) of the BH Constitution. 47 See Chapter 5 for a more detailed analysis of this provision. 46

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INTRODUCTION According to the constitutional system, only persons belonging to one of the three defined “constituent peoples”48 (the Bosniac, Croat, or Serb peoples) may run for the collective Presidency of Bosnia and Herzegovina (which must consist of one Bosniac, one Croat and one Serb), or hold office in the House of Peoples (which is the vetoing chamber of the two chambers of the Parliamentary Assembly). This means that those who do not belong to either of these groups, a pre-war population of approximately eight per cent, are excluded from taking part in these areas of constitutional activities. The constitutional system is based on an ethnic “balance” among the three constituent peoples which means that none of them may be “outvoted” by the others. Therefore it is only the ethnic segments in the House of Peoples that can “veto” decisions by the Parliamentary Assembly. The requirement is that they claim that the “vital interest” of their people is threatened. Elected representatives to the other parliamentary chamber, the House of Representatives, including persons belonging to other ethnic groups, do not have this right of vetoing decisions. This constitutional system not only seems to constitute a human rights problem, but it also represents a fundamental political problem because it ensures that ethnicity will remain an essential feature of all persons and political parties in Bosnia and Herzegovina in the foreseeable future. Ethnicity is likely to be the driving force behind political arguments on almost every political issue. This is not likely to be conducive in terms of developing a multi-ethnic society. 3.5. Contradictory Rules within the Dayton Peace Agreement? Following the discussions on the applicable human rights law and the constitutional provisions on ethnic criteria, the extent of contradictions between those two sets of rules will be examined. As a point of departure, it seems that unless the right to influence the governance and legislation of a country is formally equal for all citizens of a state under their common constitution, it will constitute both a human rights and political problem. The non-constituent peoples of Bosnia and Herzegovina are denied equal political rights. It therefore seems to be a conflict between the rules on prohibition against ethnic discrimination and those constitutional rules that actually provide for exclusion on ethnic grounds. To what extent the constitutional ethnically-based system in fact is in contradiction to the relevant human rights standards will be discussed and it will be asserted that the two sets of rules cannot actually be implemented at the same time; if the right to nondiscrimination were to be fulfilled for everyone, the ethnically-based constitutional system could not be sustained. On this basis it will be argued that in the current constitutional framework of Bosnia and Herzegovina the right to non-discrimination is not fulfilled. One might view the norm conflict between the two above-mentioned sets of rules as a conflict between international human rights standards on the one hand and the constitutional provisions of the Dayton Peace Agreement on the other. 48

See Chapter 6 section 2 for more on the meaning of the term “constituent peoples” in Bosnia and Herzegovina.

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CHAPTER 1 It also seems technically correct, however, to view it as a norm conflict within the BH Constitution itself, because the relevant international human rights provisions have been incorporated into the BH Constitution and given direct applicability, and even priority, over other law. The implications of these two different possible ways of seeing the norm conflict will materialise in the discussions on how to resolve it. 3.6. Can Non-compliance with Human Rights be Justified? The discussion on whether non-compliance with human rights can be justified presupposes a distinction between, on the one hand, the legal situation in Bosnia and Herzegovina as it appears to be today, and the legal regime that might have been applicable during the peace negotiations, on the other. Assuming that under international human rights law there is generally not much scope for allowing ethnic discrimination under any circumstances, it will nevertheless be argued that in a situation where a choice has to be made between continued war and measures allowing ethnic differentiation, the first priority must be to prevent the resumption of war. This would seem to follow from the UN Charter.49 The question is whether the situation under which the Dayton Peace Agreement was negotiated was so critical that allowing human rights infringements was unavoidable, and if so, what the duration and character of such infringements could justifiably be. There is little doubt that the rules providing for ethnic requirements, with regard to the Presidency and the House of Peoples in the BH Constitution, were decisive in reaching a settlement. The existing sets of rules on ethnic criteria in the BH Constitution were included in the text because of strong demands to this effect from some of the parties to the conflict.50 During the negotiations in Dayton, a very fragile cease-fire was in effect on the ground in Bosnia and Herzegovina.51 If the Dayton negotiations failed, there was no doubt that the war would resume. For this compelling reason, the debatable provisions were reluctantly accepted by the Contact Group mediators as a part of the “final deal” even if they seemed to be problematic with regard to certain human rights standards. It was not a choice between a peace agreement with some human rights deficiencies and a peace agreement that secured all human rights. The choice, it seemed, was between peace, with some human rights deficiencies, and war, with no human rights protection at all. It falls outside the scope of this book to enter into an extensive debate on the factual situation relating to these issues. Some might argue that the parties could have been pressured much harder on the controversial constitutional issues, and that it was unjustifiable that the mediators accepted the claims on special rights for the three constituent peoples. It could be argued that as the negotiations almost broke down over disagreements on the map, particularly the issue of which of the parties 49

Notably Articles 1 and 2, notably 2 (4), Articles 24, and 39–42 of the UN Charter. See Chapter 4. 51 See for example Holbrooke, supra note 39, p. 185; and Daalder, supra note 39, pp. 134– 136. 50

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INTRODUCTION would have control over Brcko and the narrow corridor between the eastern and western parts of Republika Srpska), the content of the Constitution could not really have mattered very much to the parties in the final analysis.52 It could be claimed that for these reasons the mediators should have been tougher in pushing for a nonethnic constitutional system. In response to such arguments, it has to be said that the ultimate question remains; should the mediators have been willing to risk the breakdown of negotiations and the inevitable resumption of the war for the sake of securing full ethnic equality within the constitutional system? At the time, it clearly seemed impossible for the Contact Group to take such a risk. The question that will be explored in this book is to what extent a legal justification could be claimed for the choices the international mediators made. 4. THE STRUCTURE AND CONTENT OF THE BOOK: AN OVERVIEW This chapter has outlined the principal legal issues, and in doing so it has provided a brief background to the discussions in the following chapters. It contained a brief account of the international prohibition against the use of force and its relationship with the regime of international human rights. Furthermore, it contained a basic outline of how the potential conflict between achieving peace and full implementation of human rights seems to have materialised in the Dayton Peace Agreement, particularly in its Annex 4 which is the Constitution of Bosnia and Herzegovina. Chapter 2 will briefly discuss the methodology and sources that are relied on in this book, and why this methodology has been chosen. 52

The issue of who would have control over Brcko was in the end, postponed. The Dayton Agreement provided for it to be subject to arbitration one year after the entry into force of the Agreement. The strong Serb reluctance to give Brcko back to the Bosniacs in Dayton was due to fear that the whole western part of Republika Srpska would be difficult to maintain as Serb territory if they lost control over the corridor. The western part of their territory would, in that case, be surrounded by “enemies”; the Bosniac/Croat Federation of Bosnia and Croatia proper. For the Bosniacs, on the other hand, the Serb take-over of Brcko was a symbol of grave injustice – it had been theirs before the war, and continued Serb control would be a reward for ethnic cleansing. From the mediators’ point of view, one significant aspect of the failure to solve the Brcko issue was that it demonstrated that the parties had no faith whatsoever in the Constitution they had agreed to sign. The Constitution lays down freedom of movement across the Inter Entity Boundary Line (IEBL), for persons, goods, services and capital (Article I.4 of the BH Constitution). It also lays down the right for refugees and displaced persons to return to their homes (Article II.5). If the Parties had thought that this would become a reality, the Brcko issue would not have been so important because anyone would have had the right to return to Brcko, regardless of their “ethnic” background, anyone would have had access to the harbour on the river Sava, and anyone would have been free to travel between the two Entities, crossing the IEBL anywhere they chose. See more on the Brcko arbitration on the web-site of the Office of the High Representative, <www.ohr.int> ; See also Gro Nystuen, ‘The Constitution of Bosnia and Herzegovina: State versus Entity’, Revue des Affaires Européennes/Law and European Affairs, 1997/4, page 394 -395.

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CHAPTER 1 Chapter 3 gives an historic overview and background of the Dayton Peace Agreement, including the various attempts by the international community (including the United Nations) to prevent and terminate the violence throughout the first half of the 1990s. This seems to be necessary in order to substantiate the claim that the situation during the Dayton negotiations indeed constituted an emergency. Chapter 4 gives a short overview of the content of the General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Peace Agreement) and in particular the BH Constitution and the Agreement on Human Rights. It also explains some of the Dayton negotiating history and how the parties and mediators in Dayton regarded some of the central provisions. Chapter 5 discusses the scope of the human rights protection laid down in the Dayton Peace Agreement through its Constitution and Human Rights Agreement. It will focus particularly on those international human rights provisions that pertain to protection against ethnic discrimination and that have been incorporated into the BH Constitution and made applicable in Bosnia and Herzegovina. This chapter will try to determine the actual content of international human rights protection against ethnic discrimination, as this is also the scope of the human rights protection against ethnic discrimination that is laid down in the BH Constitution. Chapter 6 describes the rules within the constitutional system that authorise different treatment of citizens based on their ethnicity. These are mainly rules pertaining to the right to hold office and be elected to two central institutions within the constitutional system laid down in the Dayton Peace Agreement, namely the House of Peoples and the Presidency. Chapter 7 discusses to what extent the rules described in chapter 6 might be inconsistent with the human rights protection described in chapter 5. The conclusion is that the constitutional system is based on ethnic differentiation, which seems to constitute a violation of certain international human rights standards. This thus implies that there is a conflict between norms within the BH Constitution itself. Chapter 8 addresses the very special circumstances around the peace negotiations and the conclusion of the Dayton Peace Agreement, and asks the question of whether the derogation regime in the relevant human rights instruments or the customary law regime of necessity could have provided justification for the ethnic differentiation laid down in the BH Constitution at that time. This is a hypothetical question as regards Bosnia and Herzegovina, as derogation or necessity was in fact never used as an argument for the ethnic differentiation measures. It nevertheless seems important to explore to what extent such ethnic differentiation might be justified through the State’s right to derogate from some of their obligations in a situation of war or emergency. The conclusion drawn in this chapter is that even if certain measures involving ethnic differentiation could have been allowed as temporary emergency measures, such provisions could not be accepted as permanent constitutional provisions, as was the case in the Dayton Peace Agreement. Chapter 9 briefly discusses possible ways of addressing the conflict between the two sets of norms. Leaving the situation as it is entails that the protection against 18

INTRODUCTION ethnic discrimination with regard to political rights cannot be implemented fully for everyone. Solutions aiming at terminating the system of ethnic discrimination would necessarily require the involvement of the Parliamentary Assembly, and also probably either the domestic courts (the Constitutional Court or the Human Rights Chamber) or the international human rights monitoring bodies (the European Court of Human Rights or the UN Human Rights Committee). These organs, as well as others, such as the High Representative, could possibly instigate a process of constitutional amendments. This chapter is thus an attempt to visualise various ways of facilitating the implementation of human rights at the expense of the ethnicallybased political system. Chapter 10 summarises some of the main points of the book and tries to draw some general conclusions from them. 4.1. Author’s Background The author of this book worked as a legal adviser to the UN Co-Chairman Thorvald Stoltenberg of the ICFY (International Conference on the Former Yugoslavia) in 1995. In the fall of 1995, she participated in the Dayton negotiations, as well as the preceding constitutional discussions, as a legal adviser to the EU Co-Chairman of ICFY, Carl Bildt, who was heading the EU-delegation within the Contact Group. Following that, she worked as a legal adviser to Carl Bildt in his capacity as High Representative for Bosnia and Herzegovina, until 1997.53 The author was seconded to these posts by the Norwegian Ministry of Foreign Affairs.

53

See Thorvald Stoltenberg and Kai Eide, De 1000 dagene – fredsmeklere på Balkan, (Gyldendal norsk Forlag, Oslo, 1996) p. 385; and Carl Bildt, Uppdrag Fred (Norstedts Forlag, Stockholm, 1997) p. 53, 142, 170, 347.

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CHAPTER 2. METHODOLOGY 1. INTRODUCTION The issues raised in this book concerning conflicts between different norms could be debated in a domestic law perspective as well as in an international law perspective. The specific provisions in the Constitution of Bosnia and Herzegovina securing the right to non-discrimination could be said to be infringed upon through the existence of other provisions of the same Constitution, and this could therefore be regarded as a domestic constitutional norm conflict. The BH Constitution, however, is also part of international law because the Dayton Peace Agreement is an international treaty which in itself forms part of the body of international law. Much of the substantive law that will be subject to debate in this book is therefore part of the Dayton Peace Agreement at the same time as it constitutes fundamental parts of international human rights law. It therefore seems both justified and useful to discuss these conflicts between different norms mainly from an international law perspective. The choices that lawyers make when it comes to their use of sources and methods depend to a great extent on what they are hoping to achieve. This chapter will briefly describe the traditional legal positivist approach and explain why this approach has been chosen, taking into account that the book’s overarching aim is to contribute to the debate on how international law can be used to balance the need for terminating violent conflicts through concluding peace settlements, against the need for securing human rights in crisis situations. The subject matter of this book is thus controversial. The legal method chosen to build the arguments is not. The choice of legal positivism as a method must be seen from this perspective. 1.1. Traditional Sources and Methods of International Law The sources and methods of international law are fundamentally different from those of national law because of the difference between the legal subjects in the two systems. The subjects of national law are individuals and legal persons who are bound by authoritative rules laid down by competent bodies, and they cannot choose whether they want to be bound by a rule or not. The subjects of international law are mainly States.54 The concept of State sovereignty implies that States are not subject to any higher authority. As a point of departure they can choose whether they want to consent to be bound by an international rule or not.55 The exception to the 54

International organisations and individuals can also be subjects of international law, in the sense that they can have rights and obligations according to international rules, see for example Ian Brownlie, Principles of Public International Law, Sixth Edition, (Oxford University Press, 2003) p. 58–69; Malcolm N. Shaw, International Law, Fourth Edition, (Cambridge University Press, 1997) p. 137–191. 55 Rosalyn Higgins makes the following observation about the difference between domestic and international law: “But, if the social purpose of international law and domestic law is 21

CHAPTER 2 principle of consent is when a rule of international customary status evolves – such rules are normally binding on all States, irrespective of their consent to be bound. Another basic principle of international law, which flows from the principle of sovereignty, is the principle of formal equality of States. One implication of this principle is that State sovereignty cannot be total in the sense that States can do whatever they want without regard to the interests of other States. Formal equality means that States have to relate to one another on the basis of bilateral or multilateral reciprocity.56 States often tend to place more emphasis on sovereignty than on formal equality, particularly when it comes to international criticism regarding possible human rights violations. Whether it is sovereignty or reciprocity that is the most fundamental principle has been the subject of some debate. In Brierly’s view, the Swiss lawyer and diplomat Emerich de Vattel (1714-69) had much of the responsibility for what he saw as an “exaggerated emphasis on the independence of states”.57 Vattel had classified the sovereignty and independence of States as part of the “law of nature”. Brierly claims this has had an unfortunate influence on contemporary legal philosophy: “All the same, the survival of Vattel’s influence into an age when the ‘principles of legal individualism’ are no longer adequate to international needs, if they ever were, has been a disaster for international law. By making independence the ‘natural’ state of nations, he made it impossible to explain or justify their subjection to law; yet their independence is no more ‘natural’ than their interdependence.”58

As it is virtually impossible to imagine, at least in the present international situation, the existence of one of these principles and not the other, this discussion will not be pursued further here. These two basic features of international law, sovereignty and formal equality of States, formed the basis for the traditional view that there was no hierarchy between the international norms. Antonio Cassese writes about the traditional international law point of view: “The unfettered freedom of States was reflected in another feature of international lawmaking: the absence of any hierarchy between custom and treaties as sources of

broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constituting factors against which the prescribing, invoking, and applying of international norms must operate.” (Emphasis added). Rosalyn Higgins, Problems and Process, International Law and How We Use it (Clarendon Press, Oxford, 1994) p. 1. 56 Brownlie notes that “The sovereignty and equality of states represent the basic constitutional doctrine of the law of nations, which governs a community consisting primarily of states having a uniform legal personality”. Brownlie, supra note 54, p. 287. 57 J.L. Brierly, The Law of Nations/An Introduction to the International Law of Peace, Fourth edition, (Clarendon Press, Oxford, 1949) p. 39. 58 Ibid.., p. 41.

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METHODOLOGY law. In other words, rules created by means of bilateral or multilateral treaties were not stronger than, or superior to, customary or “general” rules, and vice versa.”59

This horizontal structure of international law sources was reflected in rule 38 of the Statute of the International Court of Justice (ICJ).60 The sources of international law on which the Court may base its decisions were defined as: x x x

treaties (international conventions, whether general or particular, establishing rules expressly recognized by the contesting states) – Article 38 (1) a, custom (international custom, as evidence of a general practice accepted as law) – Article 38 (1) b and general principles (general principles of law recognized by civilized nations) – Article 38 (1)c.

Treaties are binding on those States that decide to be bound by them.61 General international customary law is considered to be binding on States regardless of whether they have expressly consented to be bound.62 General principles as the third main source were included in order to fill possible gaps in international law with generally accepted national principles of law.63 Article 38 goes on to say that the Court may also apply: x

judicial decisions (subject to the rule in Article 59 that decisions by the ICJ are only binding on the parties to each case), and the teachings (of the most highly qualified publicists of the various nations), - Article 38 (1) d, but only as subsidiary means for the determination of rules of law.

59

Antonio Cassese, International law (Oxford University Press, 2001) p. 117. Prior to the establishment of the UN it had been laid down in Article 38 of the statute of the Permanent Court of Justice (1920–45). 61 Article 26 of the Vienna Convention on the Law of Treaties. 62 For a more thorough discussion on customary law see for example Mark E. Villiger, Customary International Law and Treaties (Kluwer Law International, The Hague, 1997) and Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, Vol. 95, No. 4 American Journal of International Law (2001) pp. 757–791. 63 During the preparations for the establishment of the League of Nations in 1920, an Advisory Committee of Jurists was appointed to draft the statute for the Permanent Court of Justice. According to Ole Spierman, the Advisory Committee included this category among the primary sources of law for the Court. The reference to general principles inspired by national legal systems was meant to close the gaps in the system of international law. When the statute for the ICJ was drafted in 1945, the provision on sources of law (Article 38) for the new world court was not altered. Ole Spierman, Moderne folkeræt efter det 20. århundrede, (Jurist- og økonomforbundets Forlag, 1999) pp. 84-85. 60

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CHAPTER 2 The list in Article 38 has been widely accepted as the authoritative basis of sources for international law in general. It reflects the obvious point of departure, namely that State sovereignty is decisive for which sources are binding in international law. Article 38 was thus drafted on the basis that States are only bound by consent, with the exception of provisions that lie implicitly in customary law and general principles of international law. 64 1.2. A Contemporary Approach to Sources of International Law Today, there seems to be general agreement that the list of sources in Article 38 of the ICJ statute is not an exhaustive list of possible sources of international law. Rosalyn Higgins claims that the concept of sources of international law must be seen in a larger context than what literally follows from Article 38: “It is interesting that the route to the identification of sources is via an identification of what rules the International Court of Justice will apply in resolving legal disputes. That has led some writers to contend that international law is identified as that which the Court would apply in a given case. I find this to be too narrow: international law has to be identified by reference to what the actors (most often states), often without the benefit of pronouncement from the International Court of Justice, believe normative in their relations with each other.”65 (Emphasis added).

In spite of the formal limitations of Article 38 regarding, for example, the use of judicial decisions,66 case law is evidently important, not least in determining what is to be considered an international custom.67 Depending on how one might define sources of law, there may, of course, also be other sources than those mentioned in Article 38. Alf Ross defines sources of law as the general factors which are decisive for the judge when laying down the concrete legal content of a judicial decision.68 He makes a distinction between 1) authoritatively formulated objective legal norms (“the law”), 2) the non-formulated but still partly objective norms which may flow 64

For a more thorough treatment of sources of international law, see for example Brownlie, supra note 54, pp. 3–28; Shaw, supra note 54, pp. 54–96; Oscar Schachter, International Law in Theory and Practice, (Martinus Nijhoff Publishers, Dodrecht/Boston/London, 1991) pp. 35–99. 65 Higgins, supra note 55, p. 18. 66 See Article 59 of the Statute of the International Court of Justice, which says “The decision of the Court has no binding force except between the parties and in respect of that particular case”. 67 See for example Brownlie, who notes that “Strictly speaking, the Court does not observe a doctrine of precedent, but strives nevertheless to maintain judicial consistency”. Brownlie, supra note 54, p. 2. 68 Alf Ross, Lærebog i Folkeræt, Tredje utgave, (Munksgaard, Copenhagen , Almindelig del, 1951) p. 91; in Danish: (“Retskilden betyder herefter de almene Faktorer (Motivkomponenter), der er bestemmende for Dommeren ved Fastsættelsen af det konkrete Retsinnhold i Retsafgørelsen.” ).

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METHODOLOGY from previous case law and custom, and 3) the free, non-formulated, non-objective factors which nevertheless to a certain extent may influence the decision maker.69 Although Ross accepted that non-objective and non-formulated factors and principles may influence a judge’s decision, he nevertheless held that the objective and authoritatively formulated rules adopted by competent organs were the primary sources for the judge. The level of objectivity was proportionate to the level of significance as a source.70 Both positively formulated rules and non-formulated rules might be objective. In international law both treaty provisions and rules of international customary law are considered to be binding. The difference lies mainly in the level of specification; a customary rule is normally less stringent (such as the customary prohibition against torture) than a positively formulated rule (such as Article 1 in the UN Convention Against Torture). Both rules are equally binding, but the latter is more detailed in its content. 1.3. The Sources and Methods Used Here The sources of international law that this book is based upon can be categorised mainly within the traditional sources described in Article 38 of the ICJ statute. The most prominent source that these discussions will rely upon is treaty law. One treaty that forms much of the basis for the present discussions is the Charter of the United Nations. The UN Charter provides for the underlying rules on international peace and security, as well as the protection of human rights, which are fundamental to the theme of this book. The Vienna Convention on the Law of Treaties is also fundamental in that it provides for the method of interpretation of treaties and other fundamental rules pertaining to the body of international law. These rules of interpretation, found in Articles 31 and 32 of this treaty, will be relied upon here. As mentioned above, the Dayton Peace Agreement itself is an international treaty and forms part of the huge body of international conventional law. In addition, a number of the central international human rights treaties are subject to the present discussions, particularly the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),71 the International Covenant on Civil and Political Rights (ICCPR)72 and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).73 Certain other human rights instruments are also mentioned. It must be noted that the Dayton Peace Agreement incorporates a number of other, both human rights and humanitarian, treaties, which 69

Alf Ross, supra note 68, pp. 92–93. Ibid.. 71 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, (ECHR). 72 International Covenant on Civil and Political Rights, 16 December 1966, (ICCPR). 73 International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, (ICERD). 70

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CHAPTER 2 therefore also forms part of the legal basis that the discussions rely upon, even if they are not discussed explicitly. International customary law is another prominent source of international law, which is also relied upon in the present discussions. Customary law consists of both objective as well as subjective elements. One element of the objective aspect of customary law is State practice. Such practice can take the form of acts or omissions, as well as statements and votes in international fora. Some of the discussions in this book will pertain to customary law, both in the area of human rights and in the area of general emergency law such as necessity. One source which is often claimed in connection with human rights is the category of “peremptory norms of international law”. Such norms are defined in the Vienna Convention on the Law of Treaties as norms from which the “international community of states as a whole” agree that no derogation is permitted.74 It may be a matter more of terminology than substance whether this source is categorised as conventional or customary law. Clearly the the International Law Commission (ILC) considered the provision to be a codification of existing customary law: “The view that in the last analysis there is no rule of international law from which States cannot at their own free will contract out has become increasingly difficult to sustain, although some jurists deny the existence of any rules of jus cogens in international law, since in their view even the most general rules still fall short of being universal . . . Accordingly, the Commission concluded that in codifying the law of treaties it must start from the basis that today there are certain rules from which States are not competent to derogate at all by treaty arrangement, and which may be changed only by another rule of the same character.”75

In the discussions pertaining to both the obligations of States to adhere to the prohibition of the use of force, as well as their obligations to secure human rights, aspects of the status of certain rules as being peremptory will be assessed. One important source in the discussions on how the Dayton Peace Agreement was “processed” through the framework of the UN collective security are Security Council Resolutions. These can be viewed as a part of treaty law as they are adopted under the rules of the UN Charter. Article 38 in the ICJ statute mentions international jurisprudence as a secondary source of international law. As mentioned above, however, such jurisprudence often constitutes weighty arguments in international law discussions. Decisions from international courts may, as will be shown in the discussions on necessity, confirm the existence of international customary law, as well as provide legal arguments for lawyers and not least judges. But within international human rights law, it may be held that jurisprudence holds an even stronger position. It is generally accepted that human rights monitoring bodies may use a more dynamic interpretation than other international courts. The European Court (and Commission) of Human Rights have 74

Article 53 of the Vienna Convention on the Law of Treaties. Yearbook of the International Law Commission (YBILC), (18th session, 1966), Vol. II, p. 177. Also quoted in Watts, supra note 17, part II, p. 741. 75

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METHODOLOGY made it clear that notwithstanding the “ordinary meaning” of the text, the “object and purpose” of the treaty is also important as an interpretative principle. In 1968 the European Court stated that: “Given that it is a law making treaty, it is also necessary to seek the interpretation that is most appropriate to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties.”76

Ten years later the Court further elaborated: “the Convention is a living instrument which . . . must be interpreted in the light of present-day conditions.”77

The same dynamic approach has been adopted by other international human rights monitoring bodies as well. Case law from the relevant international monitoring bodies, particularly the European Court (and Commission) of Human Rights and the Human Rights Committee, will be subject to several key discussions in this book. Another important source that has been given “secondary” status in Article 38 of the statutes is legal literature (“the teachings of the most highly qualified publicists of the various nations”). Legal literature will be used here in order to support conclusions that might be drawn from the main sources, and to provide examples of how other authors of international legal literature have solved issues, or raised questions. Yet another source of law which might be more difficult to place squarely within the wording of Article 38 of the Statute of the ICJ, is case law from the two domestic Bosnian courts, which to a large extent have interpreted the Dayton Peace Agreement, namely the Constitutional Court and the Human Rights Chamber. However, as their contribution to the interpretation of the Dayton Peace Agreement (not least in a human rights context) is not only extensive but also basically the only case law that exists in this area, it seems important to include it in the discussions. Moreover, the two courts, because they are dealing with provisions that are part of the peace treaty and at the same time constitute international human rights rules, tend to base their decisions on international legal method.78 As a main rule, the preparatory work of a treaty shall not be an important factor in its interpretation.79 This is because it is difficult to assert that the preparatory work 76

Wemhoff v. Germany, Judgement of 27 June 1968, ECHR, Series A 7, para. 8 (under “As to the law”). 77 Tyrer v. United Kingdom, Judgement of 25 April 1978, ECHR, Series A. 26, para 31 (under “As to the law”). 78 See for example the Constitutional Court of Bosnia and Herzegovina, Partial Decision III, U 5/98 III, 30 June and 1 July 2000, para. 19, where the Constitutional Court states that “Contrary to the Constitutions of many other countries, the Constitution of BiH in Annex 4 of the Dayton Agreement is an integral part of an international agreement. Therefore, Article 31 of the Vienna Convention on the Law of Treaties . . . has to be applied for the interpretation of all its provisions, including the Constitution of BiH”. 79 Article 32 of the Vienna Convention on the Law of Treaties.

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CHAPTER 2 represents the “will of the parties”, or at least every one of them, and that the sovereignty principle implies that a State Party to a treaty has only agreed to be bound by the actual wording, not the possible “intentions” during the negotiations. However, since the author has a certain amount of first hand knowledge of what happened during the negotiations, including some of the background for why certain provisions were given their final wording, it seems appropriate to relate some of this information when it seems relevant. This does not mean that information on these issues can be taken to be conclusive evidence as to how certain provisions should be interpreted. This knowledge can only provide support for conclusions drawn on firmer bases, such as the wording of the text.80 1.4. Subjects of International Law As the development of sources of international law builds on a concept of sovereign and formally equal nation States, States remain the inevitable basic unit in international law. In spite of increasing globalisation and strengthening of multinational and multilateral institutions, which to some extent may have supranational powers, the sovereign State is still the foundation for such institutions and organisations. The supranational powers vested in such institutions are based on explicit agreement by each State to waive its sovereignty in certain areas (although the economic or other effects of not joining particular organisations may be so detrimental that one may claim that States in some instances have no real choice). There can be no doubt that the nation State in many respects plays a more modest role in the world today than it did just a few decades ago. It is nevertheless also clear that States are the bricks in the wall of world politics and also of international law. It seems unlikely that a substitute for States is about to appear anytime soon. In 2001 Michael Igantieff wrote: “[i]t is utopian to look forward to an era beyond state sovereignty. Instead of regarding state sovereignty as an outdated principle, destined to pass away in the era of globalization, we need to appreciate the extent to which state sovereignty is the basis of order in the international system, and that national constitutional regimes represent the best guarantees of human rights”.81

According to Danilo Türk, this statement has been left “remarkably uncontested” in spite of its “almost Westphalian” tone.82

80

Hypothetically it could, in exceptional circumstances, also determine the meaning of the text if the text “leaves the meaning ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”, Article 32 of the Vienna Convention on the Law of Treaties. 81 Michael Ignatieff, Human Rights and Idolatry (Princeton University Press, Princeton and Oxford, 2001) p. 35. 82 Danilo Türk, ‘Humanitarian Interventions: Balancing Human Rights and National Sovereignty’, paper based on a revised version of remarks presented at the Annual Lecture on Human Rights in Global Perspective, University of Missouri-St.Louis, January 24, 2002.

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METHODOLOGY Not only individual states, however, but also intergovernmental organisations play a key role as subjects of international law. The principle that intergovernmental organisations have rights and obligations according to international law standards was stated by the ICJ (International Court of Justice) in its advisory opinion in the Reparation case from 1949, where it was confirmed that the UN could be said to possess an international legal personality although this was not specified in the UN Charter.83 Today’s international interaction consists of a multitude of different relations and settings, on bilateral or multilateral inter-state levels, where both States as well as associations of States can be participants or members or parties.84 1.5. Positivism and Natural Law What distinguishes rules of international law (as well as national law) from other rules is not whether they are positively formulated or not, but rather that they are binding. Rules are binding when there is a legal obligation to adhere to them. This unexceptional observation does not solve the problem of what constitutes a legal obligation. Some writers have held that natural law or moral considerations form the ultimate basis for international law,85 others, that such obligations, arise out of consent to be bound86 (which can be seen to be a logic consequence of state sovereignty). The reason why an obligation to be bound arises from consent would, in a positivist view, be because this followed from authoritative rules laid down by competent organs. The natural law approach would be that rules are authoritative because they are rooted in a higher set of norms, having an a priori existence as jus divinum (divine law) or as moral norms that have an inevitable force through their reflection of right and wrong. Legal positivists will hardly dispute the fact that moral and ethical norms are a basis for positive rules, they would just claim that the binding force of positive rules stem from the fact that they have been adopted by a competent organ, or otherwise have acquired their status as legal norms through, for example, formation of customary law. From this point of view, there is a close relationship between natural law and legal positivism.87 83 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, p. 174. 84 The traditional conception, that international law consists of rules that are applicable to the subjects of international law, has been challenged by some writers who reject the dichotomy of subject-object in international law all together, and claim that international law consists of participants, who participate in a process of authoritative decision making. This perspective (and other perspectives) applied to processes of international law contributes to clarify how international rules are being developed and practiced in the very complex international society of today. See for example Rosalyn Higgins, supra note 55, p. 46–55. 85 See for example Stammler, Theory of Justice and del Vecchio, Formal Bases of Law, 1921, as referred in Shaw, International Law, Fourth Edition, page 44. 86 See for example Shaw, supra note 54, p. 638. 87 But see also Hans Kelsen, a prominent legal positivist, who sought to deny this relationship through the reference to the existence of a “Grundnorm” – the highest fundamental norm from which all other norms derived their binding force, see Hans Kelsen, General Theory of Law

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CHAPTER 2 This book will to a great extent pertain to human rights rules, particularly rules aiming at protecting individuals against racial or ethnic discrimination. It is maintained that such rules apply in Bosnia and Herzegovina both because the Dayton Peace Agreement made them binding, and because they were binding even before that time, through other treaty law or customary law. It is, however, clear that human rights in particular have a basis in natural law. The ordinary State reciprocity principle, which technically applies also when it comes to human rights treaties, is not sufficient as the main explanation why States consider themselves bound by human rights – they consider themselves bound also because it seems morally or ethically correct. The relationship between natural law and positive law is even more apparent in international law than it is in national legal systems. For example, it is virtually impossible to explain the formation of international customary law from a purely positivist view. The formation of international customary law happens, as was noted above, partly as a result of State practice, but also partly as a result of opinio juris, in other words, States are following rules they presume to be binding. As Brierly observes: “Implied consent is not a philosophically sound explanation of customary law, international or municipal; a customary rule is observed, not because it has been consented to, but because it is believed to be binding, and whatever may be the explanation or the justification for that belief, its binding force does not depend, and is not felt by those who follow it to depend, on the approval of the individual or the state to which it is addressed.”88

Legal positivism and natural law are thus not mutually exclusive; they are descriptive concepts which can be used to facilitate the understanding of different aspects of law. 1.6. A Legal Positivist Approach This book will not go extensively into the various schools on different methods and sources of international law. There are many views and directions among international lawyers on this subject. An interesting overview of the major trends in international law can be found in the American Journal of International Law,89 where the editors90 invited proponents of seven different approaches to international law to write about a specific legal problem,91 using their respective “methods” to solve the question that was presented. The seven methods of appraisal that were chosen were: legal positivism, the New Haven School (policy oriented approach), and State (English translation Anders Wedberg 1949), (Harvard University Press, 1949) pp. 110–122. 88 Brierly, supra note 57, p. 53. 89 Volume 93, No.2, American Journal of International Law (1999). 90 Steven A. Ratner and Anne-Marie Slaughter. 91 The theme the authors were asked to assess was the question of individual accountability for violations of human dignity committed in internal conflict.

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METHODOLOGY international legal process, critical legal studies, international law and international relations, feminist jurisprudence and law and economics. There are thus a number of different angles, methods or approaches that an international lawyer attempting to describe or solve a legal question may choose. It seems evident that all of the above-mentioned approaches to international law may contribute to understanding mechanisms and processes of international law, and to provide valuable insight into the reasons behind various forms of state behaviour and interstate relations, as well as in the role of non-state actors in international law. They may also give important contributions to discussions on how the law ought to have been. It is, however, equally logical for international lawyers who work with international law problems, in a context where it is important to persuade governments or intergovernmental institutions, to answer legal questions by offering informed guesses of what would be the concrete solution to the question laid down by an international tribunal or other authoritative international law body. The positivist contribution to the symposium, delivered by Bruno Simma and Andreas L. Paulus, convincingly argues that what they describe as an enlightened positivist view is the most functional approach for lawyers who want to convince those who are responsible for the development of international law. They summarise the classic positivist view on international law as follows: “Law is regarded as a unified system of rules that, according to most variants emanate from state will. This system of rules is an “objective” reality and needs to be distinguished from law ‘as it should be’. . . For international law, this implies that all norms derive their pedigree from one of the traditional sources of law, custom and treaty.”92

Even if Simma and Paulus agree that the discussion on law as it should be is vitally important, they maintain that governments that have been accused of violations of international law will invariably make the distinction between rules de lege lata and de lege ferenda, even if such a distinction may seem absurd from a humanitarian or moral standpoint. And they state that: “After all, it is usually governments we are dealing with when we present our views of ‘the law’. In our view, it is precisely this need to get our legal message through to other people, especially representatives of states who might not share our individual or moral or religious sensibilities, that constitutes one of the main reasons for the adoption of a positivist view of international law.”93

They then recognise that State representatives or other decision makers may not always follow the legal advice they have been given:

92

Bruno Simma, Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflict: A Positivist View’, Vol. 93, No. 2 American Journal of International Law (1999) pp. 303–316. 93 Ibid.., p. 303.

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CHAPTER 2 “Maybe a decision maker will decide to disobey a rule – for whatever reason, moral or immoral, egoistic or altruistic, humanitarian or state-interested. But the lawyer’s role is not to facilitate the decision maker’s dilemma between law and politics (and occasionally, between law and morals), but to clarify the legal side of things.”94

In other words, lawyers should enable decision makers to make informed decisions. And as the political legitimacy of a decision often is perceived as proportionate to its basis in international law, the decision makers normally try to choose the option that gives this credibility. States and interstate organisations are the main actors in contemporary peace efforts such as conflict prevention or settlement of violent conflicts. The legal advisors in the ministries of foreign affairs around the world, whatever their private views may be, have to relate to the positive sources of international law when making an argument for or against a specific solution to a problem. To discuss conflicts of norms relating to human rights and peace agreements in what may be called an “enlightened positivist” spirit, thus seems to be the most useful approach if the aim is to contribute to the international legal debate pertaining to international settlement of ethnic conflicts. This study will thus be based on a legal positivist approach. Having made that point, it is important to note that “the positive sources of international law” are not clearly defined or objectively observable norms which either can or cannot be applied on a certain set of facts. For an international lawyer it is rarely a question of “finding” and applying the “right” rule, but making choices. Hersch Lauterpacht wrote about the work of ICJ in as early as1958: “It is that necessity of making a decision not between claims which are fully justified and claims that have no foundation at all but between claims which have varying degrees of legal merit – it is that necessity which, in common with the activity of legal tribunals generally, characterises the work of the International Court.”95

In the application of rules there are many subjective elements, not least in international law because the international legal framework is a basic tool for promoting various political goals. Many writers acknowledge the close relationship between international law and politics, among them Higgins, who states:

94

Ibid.., p. 305. Sir Hersch Lauterpacht, The Development of International Law by the International Court (Stevens & Sons limited, London, 1958) p. 398.

95

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METHODOLOGY “A refusal to acknowledge political and social factors cannot keep law ‘neutral’, for even such a refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics.”96

When looking at the content of the Dayton Peace Agreement, and the circumstances under which it was made, this relationship between law and politics becomes very evident.

96

Rosalyn Higgins, ‘Integrations of Authority and Control: Trends in the Literature of International Law and Relations’, in B.Weston and M. Reisman (eds.), Towards World Order and Human Dignity, (Free Press, New York, 1976) p. 85.

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CHAPTER 3. THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW 1. INTRODUCTION The Dayton Peace Agreement ended the war in Bosnia and Herzegovina, which was one of the violent conflicts following the break-up of the Socialist Federative Republic of Yugoslavia (SFRY). This chapter will attempt to point out some of the key historic and political developments that ultimately led to the making of the Dayton Peace Agreement, in order to explain the main features of the rather complex background for this peace settlement. The numerous attempts by the UN, the EC and the Contact Group for the Former Yugoslavia to prevent the violence and make the parties find political solutions, and the huge difficulties in achieving this goal, demonstrate some of the general obstacles to finding political solutions to violent conflicts. The description of the various attempts by the international community to stop the violent conflict in Bosnia and Herzegovina seems to constitute the necessary background for understanding how the Dayton Peace Agreement became burdened with a constitutional system which made ethnicity a decisive factor for holding certain political offices. 2. HISTORIC CONTEXT The Socialist Federal Republic of Yugoslavia (SFRY) was declared on 29 November 1943, and came into being two years later, when the Second World War had ended. It encompassed six Socialist Republics (Serbia, Montenegro, Croatia, Slovenia, Macedonia, and Bosnia and Herzegovina), with a central Government, lead by the partisan leader Tito (Josip Broz). The republics had, to a large extent, mixed populations, and nationalist aspirations from the ethnic/national groups were generally suppressed. Tito died in 1980, but it was not until the end of the cold war that the Socialist Federal Republic of Yugoslavia seriously started to fall apart. One of the many reasons for the disintegration was that nationalism had begun to rise during the mid and late 1980s. Particularly Serb nationalist aspirations were high, and this also triggered increasing nationalism among other groups. The prospects of staying in a nationalist Serb dominated Yugoslav Federation, where the total Serb population outnumbered any of the other groups, generated fear and anxiety.97 97 For more on the historic background, see for example: Noel Malcolm, Bosnia, A short history, (New York University Press, New York, 1996); Susan L. Woodward, Balkan Tragedy: Chaos and Dissolution After the Cold War, (The Brookings Institution, Washington DC, 1995); Laura Silber and Allan Little, Yugoslavia: The Death of a Nation (Penguin Books, 1997); Misha Glenny, The Fall of Yugoslavia/The third Balkan War (Penguin Books, 1992); Misha Glenny, The Balkans 1804 – 1999, Nationalism, War and the Great Powers (Granta Books, London, 1999); Steven L. Burg and Paul S. Shoup, The War in Bosnia and

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CHAPTER 3 Croatia and Slovenia declared independence in June 1991.98 Bosnia and Herzegovina did the same in March 1992.99 The war started in Croatia and Slovenia during the spring and summer of 1991, and in Bosnia and Herzegovina a year later. By then, local Serb nationalists had already declared “self rule”, first in the Serbdominated areas in Croatia and then in the eastern part of Bosnia. The declarations of independence by Slovenia and Croatia effectively ended what remained of the SFRY. By 1993, four of the six republics had achieved international recognition as sovereign States and subsequently became UN members.100 The two remaining republics, Serbia and Montenegro, stayed together as a State under the name, the Federal Republic of Yugoslavia, and claimed to be a continuation of the SFRY, not a new state. This was opposed by the other successor States, as well as by the UN Security Council101 and General Assembly.102 It was not until after the fall of Milosevic that the FRY applied for membership in the UN.103 While the fighting in Slovenia had died out, chiefly because the population was relatively homogenous, it continued and increased in Croatia and in Bosnia and Herzegovina after their secession from the SFRY. In Croatia, there were roughly 200,000 Serbs before the war broke out. In Bosnia, there were, according to the 1991 census,104 4.4 million inhabitants of which 43.7 per cent were Muslim,105 31.7 per cent were Serbs, 17.3 per cent were Croats and 7.6 per cent were of other nationalities. When the Bosnian Presidency, led by President Alija Izetbegovic, declared independence on 20 December 1991,106 a majority of the Bosnian Serbs reacted with hostility. They were convinced that a Muslim-dominated Bosnia Herzegovina would mean oppression of the Serbs. An independent Bosnian State Herzegovina: Ethnic Conflict and International Intervention (M.E. Sharpe, Armonk, New York/London/England, 1999). 98 For a more detailed account of the impact of the recognition of Slovenia and Croatia by the international community, see for example Burg and Shoup, The War in Bosnia and Herzegovina: Ethnic Conflict and International Intervention (M.E. Sharpe, Armonk, New York/London/England, 1999) pp 121–127. 99 Opinion no.11, Arbitration Commission International Conference on the Former Yugoslavia – see B.G.Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers (Kluwer Law International, 1997) Vol. II, p. 1293. Bosnia and Herzegovina was admitted as a Member State of the United Nations by General Assembly Resolution A/RES/46/237 of 22 May 1992. 100 Bosnia and Herzegovina: A/RES/46/237 of 22 May 1992, Croatia: A/RES/46/238 of 22 May 1992, Slovenia: A/RES/46/236 of 22 May 1992, the Former Yugoslav Republic of Macedonia: A/RES/47/225 of 8 April 1993. 101 S/RES/777 (1992). 102 A/RES/47/1 of 22 September 1992. 103 Serbia and Montenegro became a UN Member State by A/RES/55/12 of 1 November 2000. 104 <www.fbihvlada.gov.ba/engelski/bosna> (Official Bosnia and Herzegovina Website). 105 The term “Bosniac” was introduced in 1994 instead of “Muslim”, and used in the Washington Agreement (and thus the Federation Constitution). 106 Silber and Little, The Death of Yugoslavia, (Penguin Books, BBC Books, 1995) p. 239.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW would moreover be a major obstacle to achieving a “greater Serbia”, which they had been mobilised to fight for since the end of the 1980s. The war started in April 1992107 with a Serbian offensive (against both civilian and military targets) so brutal that the international sympathy that the Serbs may have enjoyed until then disappeared almost completely. In the fall of 1992, war also broke out between the Bosnian Croats and the Bosnian Muslims. Both President Tudjman of Croatia and President Milosevic of Serbia supported their fellow “nationals” financially and militarily. Several books have been written about the by the international community’s peace-making activities from 1992 to 1995, and the possible reasons for the lack of success.108 Why the war went on for so long before the international community was able to stop it will not be subject to further discussion here. It will suffice to note that in this period many thousands of innocent civilians lost their lives and millions were displaced. In addition, houses, villages and cities were burnt, bombed and ravaged to the extent that the region’s entire economy was left in ruins. In March 1994, under heavy American and German pressure, Croatia’s President Tudjman and Bosnia’s President Izetbegovic agreed to end the fighting between Croats and Muslims. This so-called “Washington Agreement”109 basically consisted of a Constitution for a Federation between the Bosnian Muslims110 and the Bosnian Croats,111 which would later become one of Bosnia’s two “Entities”. The war continued, however, and the attacks by the Bosnian Serb Army on the UN-declared Safe areas112 in the summer of 1995, and particularly the massacres in Srebrenica 8 – 11 July, increased the pressure on the international community to act. American-led “shuttle diplomacy” between Belgrade, Zagreb and Sarajevo increased. The conflicting parties finally agreed to meet. On 21 November 1995, the

107

Silber and Little, The Death of Yugoslavia,( Penguin Books, BBC Books, 1995)p. 245. Misha Glenny, The Balkans 1804 – 1999, Nationalism, War and the Great Powers (Granta Books, London, 1999); Silber and Little, Yugoslavia: The Death of a Nation, supra note 97; Woodward, supra note 97; Malcolm, Bosnia, A short history, supra note 97; Burg and Shoup, The War in Bosnia and Herzegovina: Ethnic Conflict and International Intervention, supra note 97; Bildt, supra note 53; Daalder, supra note 39; Holbrooke, supra note 39. 109 It consisted of a Constitution, a Special Legal Regime for the Middle Bosnia and Neretva Cantons, and a detailed map of the canton distribution between the Bosniacs and Croats, subject to the final allocation of territory in Bosnia and Herzegovina, see Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers, (Kluwer Law International, 1997) Vol. I, p. 466 ff. 110 In the Washington Agreement, the term “Muslims”, which had been the term in the Constitution of the Socialist Republic of Bosnia and Herzegovina of 1974, was exchanged by “Bosniacs”. 111 The Constitution of the Federation of Bosnia and Herzegovina is printed in the “Official Gazette” of the Federation of Bosnia and Herzegovina, 1/94, 13/97, 13/97. 112 The “Safe Areas policy” had been laid down in S/RES/787 (1992), S/RES/819 (1993), S/RES/824 (1993), S/RES/836 (1993), S/RES/844 (1993). 108

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CHAPTER 3 Presidents of Serbia,113 Croatia and Bosnia and Herzegovina initialled the Dayton Peace Agreement in Dayton, Ohio. The Agreement was signed by the same parties in Paris on 14 December of the same year. 3. THE POSSIBLE “PROCESSING” OF PEACE AGREEMENTS IN THE UN SYSTEM OF COLLECTIVE SECURITY The Dayton peace process, as well as many other peace processes, has in many ways taken place within the framework of the UN system of collective security. It seems useful to relate some of the key features of this system in order to facilitate the understanding of the fact that the Dayton Peace Agreement was a result of a long process with many different stages before the actual termination of the violent conflict. 3.1. The Legitimate Means to Prevent or Terminate the Use of Force The system of collective security in the UN Charter consists of a comprehensive material prohibition against the use of force against States and of a legal basis for the use of armed force to prevent States from threatening international peace and security. Such means can be used against any member of the collective (UN member States) as well as non-member States of the UN. One might therefore call it a universal system of collective security. The collective security system under the Charter is described by Sarooshi in the following way: “The UN Charter constitutes a collective security system with the Security Council as its focus. A collective security system can be defined in broad terms as a system where a collective measure is taken against a member of a community that has violated certain community defined values. An important feature of collective security is the maintenance of the status quo of the system. This relies, however, on the perception by States that their individual interest is best served by ensuring that the interests of the community of States – in Charter terms; international peace and security is preserved.”114

The establishment of the United Nations following the Second World War was an effort by a majority of the (then) existing states to establish a system of collective security that would prevent war and secure peace in the future.115 The fact that only the five “victors” of the Second World War were given permanent membership in the Security Council and a right to veto any of its decisions, was a prerequisite for giving the Council the competence to authorise the use of force against member States (and other States). A more democratic model with regard to the right to 113

President Milosevic was representing both the Federal Republic of Yugoslavia (FRY) and the Bosnian Serbs, see Chapter 3 section 6. 114 Danesh Sarooshi, The United Nations and the Development of Collective Security (Oxford University press, 1999) p. 5. 115 There were 50 states present during the San Francisco negotiations on the UN Charter.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW decide on the use of force and to veto the use of force would inevitably have been very inefficient in terms of making decisions on the use of force. This “democratic deficit” in the world organisation meant that the five permanent members were assured that force authorised by the Security Council would never be directed against any of them.116 The UN Charter lays down not only the general prohibition against the use of force against States, but also the “tools” to implement this prohibition.117 These “tools” exist in the form of provisions giving the Security Council the task of facilitating peaceful solutions to emerging conflicts through voluntary arrangements under the provisions of Chapter VI,118 as well as the competence to enforce measures, including measures involving the use of armed force, in order to maintain or restore international peace and security, under the provisions of Chapter VII119 and VIII.120 Chapter VI pertains to the “pacific settlement of disputes”. Article 33 prescribes that the parties to any dispute which “is likely to endanger the maintenance of international peace and security” shall seek solutions by “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”. All States thus have this obligation. The Security Council is given the task of calling upon the parties to a dispute to seek peaceful solutions through the means mentioned above. The Security Council may, at any stage of a dispute, “recommend appropriate procedures or methods of adjustment”.121 Should the Security Council decide that a potential or existing dispute is unlikely to be solved through peaceful means, it can authorise the use of force. The provisions of Chapter VII lay down the authorisation to use armed force,122 as well as measures not involving the use of armed force,123 in order to maintain or restore international peace and security. Article 39 has the following wording: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 116

For a particularly critical review of the UN system of collective security, see Henry Kissinger, Diplomacy (Touchstone, New York, 1994) pp. 246–250. 117 Article 24 of the UN Charter says: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” 118 Chapter VI: Pacific Settlement Of Disputes. 119 Chapter VII: Action With Respect To Threats To The Peace, Breaches Of The Peace, And Acts Of Aggression. 120 Chapter VIII: Regional Arrangements. 121 Article 36 of the UN Charter. 122 Articles 39 and 42 of the UN Charter. 123 Articles 39 and 41 of the UN Charter.

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CHAPTER 3 The only reason the Security Council may invoke the use of force is therefore “any threat to the peace, breach of the peace or act of aggression”. The Security Council must determine whether any of these three alternative conditions exists before deciding on the use of force, including military force. Article 41 authorises the Council to use force, but not armed force, in order to impose binding measures on member states. It reads as follows: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

Article 42, on the other hand, authorises the Council to decide on the use of armed force in order to maintain or restore international peace and security: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

Another important feature of the system of collective security is the right of all States to individual or collective self defence.124 The Charter has made provision for this exception to the prohibition against the use of force in Article 51, which has the following wording: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

According to this wording, the first requirement for exercising self-defence is that there must be an “armed attack”. This makes the threshold for self-defence higher than the prohibition in Article 2(4) which relates to the term “force”. Even if it is agreed that force in the meaning of Article 2(4) means “armed force”, this still may fall significantly short of an “armed attack”. A military blockade of a harbour will, for example, not necessarily constitute an armed attack. Furthermore, the armed 124

Apart from the two exceptions (authorisation under Articles 39–42 and Article 51 on selfdefence) to the prohibition against the use of force, mention should be made of the now outdated “enemy-state-clauses” contained in Articles 53(2) and 107 of the UN Charter. These exceptions are of little interest today as they are largely considered obsolete, see for example Georg Ress, ‘Article 53’ and ‘Article 107’, in Bruno Simma (ed.), The Charter of the United Nations, A Commentary (Second Edition, Oxford University Press, 2002).

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW attack referred to in Article 51 must have occurred or be in the process of occurring; the text uses the present tense and says that self-defence can only take place “if an armed attack occurs”. This too raises the threshold from that of Article 2(4), where not only the use of force, but also the “threat” of the use of force is prohibited. There is thus a gap between the prohibition against the threat or use of force in Article 2(4) and the right to defend oneself from such a use of force. The mere use of force may not trigger the right to self-defence unless this can be classified as an armed attack, and equally, the threat of the use of force does not qualify as a justification for selfdefence. This lack of consistency between Article 2(4) and Article 51 has been criticised by, inter alios, Randelzhofer who states that there is: “very little effective protection against states violating the prohibition of the use of force, as long as they do not resort to an armed attack.”125

Still, this seems to be the intention of the Charter. Considering the overriding purpose of the Charter, this is not surprising. The aim of collective security requires that the threshold for justifiable self-defence should be high – the mere use or threat of force which does not amount to an armed attack – for example a military demonstration – should not lead to the use of an armed counterattack – which again would trigger yet another armed counterattack, and so on. The discrepancy between the prohibition against the use of force and the right to self-defence in the Charter increases the likelihood of avoiding outbreaks of hostilities. As Randelzhofer observes: “it cannot be overlooked that, being caught in the ‘dilemma between security and justice’, the UN Charter deliberately gives preference to the former.”126

Chapter VIII of the Charter states that nothing in the Charter should be interpreted as precluding “the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security”,127 but specifies that no such arrangements may take enforcement action without the authorisation of the Security Council.128 NATO is an example of such a regional arrangement. Its purpose is “individual or collective self-defence recognized by Article 51 of the Charter”.129 In the North Atlantic Treaty Article 7, there is an explicit reference to the “primary responsibility of the Security Council for the maintenance of international peace and security”.130 Chapter VIII foresees a flexible system of ensuring peace through regional security organisations, which may undertake efforts to achieve peaceful settlement of local disputes, (which they might 125

Randelzhofer, ‘Article 51’, in Bruno Simma (ed.), The Charter of United Nations, A Commentary (Second Edition, Oxford University Press, 2002) p. 791, para. 5. 126 Ibid.., p. 792, para. 8. 127 Article 52 of the UN Charter. 128 Article 53 of the UN Charter. 129 Article 5 of the North Atlantic Treaty, 4 April 1949. 130 Article 7 of the North Atlantic Treaty.

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CHAPTER 3 well be in a better position than the UN Security Council to do), or to refer such conflicts to the Security Council. 4. THE SYSTEM OF COLLECTIVE SECURITY AND THE DAYTON PEACE AGREEMENT The UN had been involved, throughout the conflict in Bosnia and Herzegovina, in trying to facilitate peaceful solutions, as well as giving humanitarian assistance, on many different levels. The UN peace-keeping operation UNPROFOR was established, as was the International Conference on the Former Yugoslavia (ICFY). The Security Council adopted various sanctions and other measures in order to prevent violence. In addition, many UN humanitarian agencies, such as the UNHCR and the UNICEF, were providing humanitarian relief, together with a number of other humanitarian organisations. The Secretary-General appointed a Personal Envoy for Yugoslavia131 and the Commission on Human Rights appointed a Special Rapporteur on the human rights situation in Bosnia and Herzegovina.132 There was also a special process on missing persons.133 The following will focus on how the UN system of collective security, as described above, was employed in order to try to remedy the consequences of the conflicts in the Balkans during the first half of the 1990s. 4.1. The International Conference on the Former Yugoslavia (ICFY) The International Conference on the Former Yugoslavia was established in London on 25 August 1992 by the United Nations and the European Community. In its Rules of Procedure, it was stated that its Co-Chairmen should be “the SecretaryGeneral of the United Nations and the Head of Government of the State currently holding the Presidency of the Council of Ministers of the European Community”.134 In practice, the co-chairmanships were delegated first to Cyrus Vance and later to Thorvald Stoltenberg on behalf of the UN, and David Owen, and later Carl Bildt, on 131

Secretary General Javier Perez de Cuellar appointed Cyrus Vance, former US Secretary of State, as his Personal Envoy for Yugoslavia on 8 October 1991, see The United Nations and the situation in the Former Yugoslavia, Reference Paper, 15 march 1994 (Reprint), and Add.1, 23 January 1995, United Nations Department of Public Information, page 1. 132 A special session on the human rights situation in the former Yugoslavia was convened by the Commission on Human Rights on 13–14 August 1994. The Commission condemned “ethnic cleansing” and human rights violations and asked the Chairman of the Commission to appoint a Special Rapporteur to investigate the human rights situation in the former Yugoslavia, in particular within Bosnia and Herzegovina, see resolution UN Doc. E/CN.4/RES/1992/S-1/1. 133 See about the process on missing persons and the Special Rapporteur in Nowak, supra note 6, pp. 148–155. 134 Rules of Procedure, International Conference on The Former Yugoslavia: London Session (August 1992), printed in Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers, (Kluwer Law International, 1997) Vol. I, p. 30.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW behalf of the EC. The Co-Chairmen and their secretariat were in constant session at the United Nations Office in Geneva, and later also in Zagreb and Belgrade. Six working groups, which sought to resolve different aspects of the conflict, were established.135 An arbitration Commission was also established under the auspices of the ICFY in order to make recommendations on issues of international law concerning the former Yugoslav Republics.136 The International Conference for the Former Yugoslavia (ICFY) was not established through a resolution by the Security Council, and there is no explicit reference to Chapter VI of the UN Charter in its constitutive documents. Nevertheless, it was clearly an attempt to reach “Pacific Settlement” within the meaning of Article 33 of the UN Charter. The ICFY worked with the parties to the conflict throughout the war, trying to get agreement on various peace proposals, employing several of the measures recommended in Article 33 of Chapter VI, including negotiations, mediation and conciliation. As mentioned, it also set up an arbitration regime for the former Yugoslav republics. 4.2. The UN Protection Force (UNPROFOR) In April 1992, the Security Council authorised deployment of the UNPROFOR (UN Protection Force).137 It was a peacekeeping force, and had from the outset no mandate to use force. UNPROFOR was first deployed in Croatia, but both the size of the force, and the geographical area and character of the mandate were altered in a number of subsequent resolutions throughout the war.138 The competence to establish peacekeeping forces has been seen as an implied power of the Security Council, which the Council may delegate to the SecretaryGeneral.139 There is no reference to the establishment of peacekeeping forces in 135

The following working groups were established under the auspices of ICFY: 1) Bosnia and Herzegovina Working Group, which promoted a cessation of hostilities and a constitutional settlement, 2) Humanitarian Issues Working Group, 3) Ethnic and National Minorities Working Group, 4) Succession Issues Working Group, 5) Economic Issues Working Group, and 6) Confidence and Security-building and Verification Measures Working Group, see Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers (Kluwer Law International, 1997) Vol. II, pp. 1303–1631. 136 The Badinter Commission, see Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers (Kluwer Law International, 1997) Vol. II, p. 1259. 137 S/RES/743 (1992), S/RES/749 (1992). 138 Security Council Resolutions pertaining to UNPROFOR in Bosnia and Herzegovina: S/RES/758 (1992), S/RES/761 (1992), S/RES/762 (1992), S/RES/764 (1992), S/RES/769 (1992), S/RES/776 (1992), S/RES/779 (1992), S/RES781 (1992), S/RES/815 (1993), S/RES/819 (1993), S/RES/824 (1993), S/RES/836 (1993), S/RES/844 (1993), S/RES/871 (1993), S/RES/908 (1994), S/RES/914 (1994), S/RES/947 (1994), S/RES/982 (1995), S/RES/1026 (1995). 139 The ICJ for example has noted that “The Charter does not forbid the Security Council to act through instruments of its own choice: under Article 29 it “may establish such subsidiary organs as it deems necessary for the performance of its functions”; under Article 98 it may

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CHAPTER 3 Chapter VI of the Charter, nor is there one in Chapter VII or VIII. As Sarooshi has mentioned : “The legality of the process of delegation of powers by the Council to the SG in respect of peacekeeping operations has been widely recognized.”140 A peacekeeping operation normally requires the consent of the parties to the conflict. It will thus normally only be initiated after a cease-fire or peace agreement has been reached. UNPROFOR’s deployment in Bosnia and Herzegovina, however, was not a peacekeeping force in this sense. There was no peace in Bosnia, and UNPROFOR’s mandate was to secure the delivery of humanitarian assistance in a war zone. This mandate required not only the usual right to self defence, which is widely recognised as legal for peacekeeping forces without any specific authorisation,141 but also the right to defend the humanitarian convoys. The Security Council thus moved from a normal peacekeeping mandate with no reference to the use of force, to resolutions that gave UNPROFOR a more robust mandate with a specific reference to Chapter VII. In Security Council Resolution 836 UNPROFOR was given the mandate, under Chapter VII of the UN Charter, to “deter attacks against the safe areas”.142(Emphasis added). The resolution furthermore specified the role of UNPROFOR in the following way: “acting in self defence, to take the necessary measures, including the use of force, in reply to bombardments against the areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys.”143

This text is obscure, leaving open to interpretation whether the UNPROFOR may go beyond acts in its own defence. It is also not clear what is meant by deterrence of attacks. A fact which is not irrelevant in this connection is that the UNPROFOR commander estimated that 34,000 troops were needed in order to “deter attacks” in the “safe areas”.144 The Security Council, however, only authorised a force of 7,600 troops, not even half of which were ever actually deployed in the safe areas.145 The Secretary-General (then Boutros-Boutros Ghali) was concerned that the force should not, in any way, be perceived as party to the conflict. Given the highly dangerous security situation in which the UNPROFOR troops in the enclaves found themselves, the Secretary-General and his staff therefore tended to interpret resolution 836 rather strictly. Ultimately, this resulted in the general view that the UN was obstructing efforts to use force against Serb aggression. entrust “other functions” to the Secretary-General”, see Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Reports 1962, p. 177. 140 Sarooshi, supra note 114, p. 64. 141 Ibid.., p. 71. 142 Which comprised “Sarajevo and other such threatened areas, in particular the towns of Tuzla, Zepa, Goracde, Bihac, as well as Srebrenica” (S/RES/824 (1999)). 143 S/RES/836 (1993), operative para. 5 and 9. 144 Report of the Secretary-General pursuant to General Assembly Resolution 53/35 (1998) (Srebrenica Report), para. 96. 145 Srebrenica Report, para. 96.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW In the same resolution, the UN Member States were authorised to take all necessary measures, including the use of air power, either in their national capacity or through regional arrangements (this was a reference to Chapter VIII, and the involvement of NATO),146 in order to support UNPROFOR in its mandate. Such support had to be subject to close coordination with the Secretary-General and UNPROFOR. This was the formula for the so-called “dual key” system which required agreement between UN and NATO commanders before initiating air support. Following Serb bombardment of Gorazde in 1994, the dual key was “turned” and NATO airplanes bombed Serb positions on 10 and 11 April. Three days later the Serbs took 150 hostages, mainly UNPFOFOR troops. They were released two days later, on the condition that the air patrols would be halted.147 This incident underlined the difficulties the UNPROFOR troop contributors were facing with the use of NATO air power. The question of air support for UNPROFOR troops on the ground came up again the next summer, when the Serbs were about to attack the enclave of Srebrenica. Again, the UN was ultimately given the choice between having the UNPROFOR soldiers and the civilian refugees in Srebrenica killed, or terminating the ongoing NATO air raids.148 The Srebrenica massacre of more than 8,000 persons was the devastating result.149 A few weeks later, the situation had changed. When the Bosnian Serbs, against numerous warnings, continued to shell Sarajevo later that summer, the dual key was “turned” once more. No UN soldiers or civilians were hostages this time. NATO aircraft initiated a two-week bombing campaign against Bosnian Serb targets, including their capital Pale, under the Chapter VII mandate given in Security Council Resolution (SCR) 836.150 This usage of armed force under the authority of Chapter VII was one of the key factors which eventually paved the way for a negotiated peace agreement later that fall. 4.3. Arms Embargo The first Security Council resolution with reference to the conflict in the former Yugoslavia was resolution 713, adopted in September 1991.151 It expressed deep concern over “the fighting in Yugoslavia which is causing heavy loss of human life and material damage”,152 and decided (with reference to Chapter VII of the UN Charter) that all States should implement a: 146

S/RES/836 (1993), operative para. 10. Srebrenica Report, para 136–138. 148 Srebrenica Report, para 306. 149 For a full account of the UN role in the Srebrenica massacres, see the Srebrenica Report. See also Jan Willem Honig and Norbert Both, Srebrenica: Record of a War Crime (Penguin Books, London, 1996). 150 See for example Daalder, supra note 39, pp. 30–31. 151 S/RES/713 (1991). 152 S/RES/713 (1991), preambular para. 3. 147

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CHAPTER 3 “general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia”.

It was thus an example of the use of “Chapter VII-force” through “measures not involving the use of armed force” in Article 41 of the Charter. This resolution was reaffirmed in a number of later resolutions, and also strengthened by resolution 757, adopted on 30 May 1992. The arms embargo was subject to much criticism as the war continued because it contributed to upholding the imbalanced military situation, leaving the Serbs with most of the former Yugoslav army’s equipment and preventing the other parties, and particularly the Bosniacs from receiving the means to defend themselves.153 4.4. Economic Sanctions Another prominent example of Chapter VII-sanctions, which were also “measures not involving the use of armed force”, was the economic sanctions against the Former Yugoslavia. In May 1992, the initial Security Council resolution on economic sanctions was adopted.154 It established a “wall of sanctions” on inter alia import, export or transhipment of any goods or finances, against the Federal Republic of Yugoslavia (Serbia and Montenegro). The economic sanctions played a central role during the conflict, as it was one of the few bargaining chips the international community could use in order to pressure Milosevic. 4.5. The International Criminal Tribunal for the Former Yugoslavia (ICTY) A third, and unprecedented example of “measures not involving the use of armed force”, was the establishment, by the Security Council, of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993.155 Already in 1992, the Security Council established a Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia.156 The Security Council stated in the resolution that it believed that “the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of humanitarian law will contribute to ensuring that such violations are halted and effectively redressed”.157 It has been alleged that establishing a criminal tribunal would not be within the competencies of the Security Council. Such arguments however, have been refuted, by both the ICTY,158 as well as by publicists. James O’Brien, for example, states that: 153

The arms embargo was terminated through S/RES/ 1021 (1995) on 22 November 1995. See also Silber and Little, supra note 97, pp. 218–219. 154 S/RES/757 (1992) 155 S/RES/827 (1993) 156 S/RES/780 (1992). See also Nowak, supra note 6, pp 163–164. 157 S/RES/827 (1993), preambular para. 7. 158 Decision on the Defence motion on Jurisdiction, Prosecutor v. Dusco Tadic, 10 August 1995, para. 16–23, available at the web-site of the ICTY.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW “The Council has the authority under chapter VII to take measures necessary to maintain international peace and security. The Council may suspend commerce between states or authorize the start of hostilities; it would be odd if it could not take the lesser, surgical step of ameliorating a threat to international peace and security by providing for the prosecution of individuals who violate well-established international law.”159

The Tribunal played an important role because its indictments, based on violations of the provisions of the Statute, led to isolation of the most extreme nationalist leaders.160 This prevented them from travelling as well as taking part in any form of political discussions with any of the international mediators, inside or outside of Bosnia and Herzegovina. 4.6. The Security Council and the Dayton Peace Agreement Already in 1993 the Security Council had adopted a resolution where it commended and welcomed the Vance-Owen Peace Plan, and declared its readiness “to take all necessary measures to assist the parties in the effective implementation of the peace plan once it has been agreed in full by all the parties”. This agreement, however, never materialised.161 On 21 September 1995, following the first meeting on the Agreed Basic Principles,162 the Security Council adopted a resolution in which it gave its support to the Principles.163 Neither of the two above-mentioned resolutions went beyond expressing political support for the ongoing peace initiatives. On 22 November 1995, the day after the initialling of the Dayton Peace Agreement in Dayton Ohio, the Security Council adopted resolution 1022, which, with reference to Chapter VII of the UN Charter, lifted the economic sanctions against the FRY and the Bosnian Serbs, subject to the FRY signing the Dayton Peace Agreement, and withdrawal from previously occupied areas to their (the Bosnian Serbs) designated zones as laid down in the Peace Agreement. Thus the economic sanctions became an important factor in ending the war, in the sense that they represented the means to actually put real pressure on the parties, particularly on Milosevic. 159

James O’Brien, ‘Current Developments: The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, 87 American Journal of International Law (AJIL) (1993) p. 643. 160 The two most infamous Bosnian Serb leaders, Radovan Karadic and Radtko Mladic were first indicted by the ICTY on 24 July 1995 (Indictment concerning Bosnia and Herzegovina), and then indicted specifically in connection with the Srebrenica massacres, on 16 November 1995, <www.un.org/icty/ind-e.htm>. They were thus formally prevented from any participation in the international negotiations concerning the peace settlement for Bosnia and Herzegovina, and would have been arrested had they traveled to any of the peace talks. See for example Holbrooke, supra note 39, p. 106–107 on this issue. 161 See this Chapter 3 section 5.3.1. 162 The Agreed basic Principles were the basis for the Dayton Agreement, see this Chapter 3 section 5.8. 163 S/RES/1016 (1995), adopted on 21 September.

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CHAPTER 3 This resolution also maintained the threat of reinforcing the economic sanctions automatically, should either the High Representative or the COMIFOR164 inform the Council via the Secretary-General that the FRY or the Bosnian Serbs were failing significantly to meet their obligations under the Peace Agreement.165 This resolution was thus an important tool in the subsequent implementation of the Dayton Peace Agreement as it gave the two representatives of the international community the power to reinforce the sanctions in the event parties to the Agreement tried to obstruct the implementation process. It was not a tool that could be easily used, however, because it could only be used once, and thereafter there would be no more means of putting pressure on the Serbs. The Dayton Peace Agreement was signed and entered into force on 14 December 1995. In its Annex 1 A, Article I(1)(a), the “United Nations Security Council is invited to adopt a resolution by which it will authorize Member States or regional organisations and arrangements to establish a multinational military implementation Force . . .” The day after, on 15 December 1995, the Security Council unanimously adopted resolution 1031, which aimed at facilitating the implementation of the Dayton Peace Agreement. The resolution took into account that the Dayton Peace Agreement was already an international treaty in force, and thus did not strictly need an authorisation from the Security Council in order to be implemented by its parties. Without the authorisation of the Security Council, however, the IFOR (a multinational Implementation Force) would not have had the mandate to use force if one or more of the parties to the Dayton Peace Agreement had withdrawn its consent. Therefore the Security Council was explicitly stating that it was acting under Chapter VII of the Charter in the adoption of this resolution.166 The resolution says that the Security Council “recognizes that the parties shall cooperate fully with all entities involved in implementation of the peace settlement” and that “the parties have in particular authorized the multinational force . . . to take such action as required, including the use of necessary force, to ensure compliance with Annex 1-A of the Peace Agreement” (Emphasis added).167 Nevertheless, in this resolution the Security Council itself also authorized “the Member States acting through or in cooperation with the organization referred to in Annex 1-A and of the Peace Agreement to establish a multinational implementation force (IFOR) under unified command and control in order to fulfil the role specified in Annex 1-A and Annex 2 of the Peace Agreement”. It further authorized them to “take all necessary measures to effect the implementation of and to ensure compliance with Annex 1-A of the Peace Agreement” (Emphasis added).168 This was an explicit authorisation of the use of force by IFOR to implement the military annexes, which technically was not needed since the parties to the Dayton 164

Respectively the civilian and military representatives of the international community in Bosnia and Herzegovina, see Chapter 4 section 2.3. 165 S/RES/1022 (1995), adopted on 22 November, operative paras. 1–3. 166 S/RES/1031 (1995), adopted 15 December, last preambular para. 167 S/RES/1031 (1995), operative para. 5. 168 S/RES/1031 (1995), operative para. 14.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW Peace Agreement had already agreed to such use of force by IFOR. It, however, clearly made the mandate for IFOR stronger in the sense that it would be less tempting for any of the parties to ignore their responsibilities under the military annexes. A similar pattern pertained to the establishment of a High Representative who would be responsible for the civilian implementation of the Dayton Peace Agreement. In Article I(2) of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) the parties “request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions . . .”. The Americans, in particular, had been strongly against the idea of the High Representative being appointed by the UN Security Council or the SecretaryGeneral. It was therefore agreed that the Peace Implementation Council (which was established later, on 8–9 December of the same year), would formally approve the designation of the High Representative. The Security Council, however, addressed the establishment of the High Representative in SCR 1031: “Endorses the establishment of a High Representative, following the request of the parties, who, in accordance with Annex 10 on the civilian implementation of the Peace Agreement, will monitor the implementation of the Peace Agreement and mobilize and, as appropriate, give guidance to, and coordinate the activities of, the civilian organizations and agencies involved, and agrees the designation of Mr. Carl Bildt as High Representative;”169

Resolution 1031 was not a prerequisite for the validity of the Dayton Peace Agreement, but the fact that the Security Council backed both the use of necessary force by IFOR and the civilian implementation through the High Representative, clearly strengthened the agreement and gave it considerably more weight vis-à-vis its somewhat reluctant parties. It also meant that the implementation of the Dayton Peace Agreement was not entirely up to the parties; should they fail to adhere to their obligations under the agreement, the international community would still have the authorisation from the Security Council to carry out the implementation. With the establishment of IFOR, the role of the UNPROFOR was clearly over. SCR 1031 decided that: “the mandate of UNPROFOR shall terminate on the date on which the SecretaryGeneral reports to the Council that the transfer of authority from UNPROFOR to IFOR has taken place”.170

Almost a year later, on 12 December 1996, the Security Council adopted resolution 1088, in which it, among other things, established a multinational stabilisation force (SFOR) as the legal successor to IFOR.171 This was also done under reference to Chapter VII of the UN Charter, and did not alter the content of the mandate.

169

S/RES/1031 (1995), operative para. 26. S/RES/1031 (1995), operative para. 33. 171 S/RES/1088 (1996). 170

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CHAPTER 3 4.6.1. The Role of the Security Council vis-à-vis Possible Human Rights Problems in the Dayton Peace Agreement SCR 1031 did not only authorise the IFOR and “endorse” the establishment of the High Representative, it also welcomed and supported the whole Dayton Peace Agreement, and affirmed the “need for the implementation of the Peace Agreement in its entirety . . .”.172 One must thus assume that the whole agreement, including all of the annexes, were subject to this embracement by the Council. There were no apparent reasons why the Security Council should have had any objections to the constitutional system, which in itself clearly constituted one of the core elements of the peace agreement. Even though it might be argued, as it will be done in this book, that the constitutional system contained in the Dayton Peace Agreement was in fact inconsistent with certain human rights, it was not the kind that might compare to the human rights violations that had prompted the Security Council to use its Chapter VII authority in situations such as those for example pertaining to Rwanda, Somalia, East Timor etc. But more importantly, in a situation where there was an acute risk that the peace process might fail and the war resume, the Security Council could, in this author’s opinion, only have had objections to the potential human rights deficiencies of the peace agreement if these had constituted a bigger threat to peace and security than the failure to reach an agreement did. Taking into account the devastating effects of the war on innocent civilians, this would not, even in a long time perspective, have been a possible choice. 5. EARLIER PEACE PROPOSALS The Dayton Peace Agreement was not based on a new concept. There had been, from the beginning of the 1990’s, several variations of draft peace plans, including constitutional arrangements, some of them were very close to parts of the proposal that were put to the parties in Dayton. 5.1. The Carrington Conference The first international initiative to prevent violent disintegration of the SFRY was taken by the Council of Ministers of the European Community through convening the EC Peace Conference on Yugoslavia, the so-called “Carrington Conference” in 1991. The Conference was led by the former Secretary-General of NATO, Lord Carrington, and it was an attempt to keep the Socialist Federative Republic of Yugoslavia together in a loose State.173 Carrington realised that the national aspirations of the different ethnic groups would be almost impossible to contain and resolve peacefully if parts of the SFRY were allowed to secede. In an interview in 172

S/RES/1031 (1995), operative para. 1 and 30. An early version of the Carrington plan, called “Treaty Provisions for the Convention”, appeared in U.N. Doc. S/23169 (1991), annex VII (Report to the SG pursuant to paragraph 3 of S/RES/713 (1991). The version actually considered by the Conference on 4–5 November 1991, has not been published. 173

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW 1993,174 he said that he had set two conditions as a chairman of the European Community Conference on Yugoslavia: first, a ceasefire had to be established, and secondly, none of the republics were to be recognised as sovereign states until there was an agreement. When the EC decided to recognise Slovenia and then Croatia, there was no longer any possibility of success for the Carrington concept, which had been agreed to by five of the six Yugoslav republics (the Serbian president, Slobodan Milosevic rejected it).175 The plan was thus abandoned, but parts of it were to be found in later drafts on constitutional arrangements for Bosnia and Herzegovina. 5.2. The Cutiliero Principles When it was clear that the SFRY was beyond salvation in any form, the Conference changed its focus to how to achieve an orderly dissolution. The so-called “Round of talks on Bosnian Constitutional Arrangements” was chaired by Portuguese Ambassador Jose Cutiliero and resulted in a draft provisional agreement on a “Statement of Principles for new constitutional arrangements for Bosnia and Herzegovina”.176 The agreement provided for a division of Bosnia into three largely autonomous entities with a relatively weak central government. This agreement, too, was quickly repudiated by the Bosnian President; Bosnia declared its independence and armed hostilities broke out.177 5.3. The International Conference on the Former Yugoslavia As mentioned above, the International Conference on the Former Yugoslavia (ICFY) was established by the United Nations and the European Community at the so-called London Conference in August 1992.178 It adopted a set of principles, and established a Secretariat and six working groups as well as an Arbitration Commission.179 The mandate was to carry out negotiations with a view to end the hostilities in all of the Former Yugoslavia. The Work Programme for the ICFY stated, “The International Conference on the Former Yugoslavia will remain in being until a final settlement of the problems of the former Yugoslavia has been reached”.180 174 Bertrand de Rossanet, Peacemaking and peacekeeping in Yugoslavia (Kluwer Law International, The Hague/London/Boston, 1996) p. 49. 175 Paul C. Szasz, ‘The quest for a Bosnian Constitution: legal aspects of constitutional proposals relating to Bosnia’, Vol. 19, No. 2 Fordham International Law Journal (1995) p. 364. 176 This draft agreement has not been published, but it is on file with the Fordham International Law Journal (see footnote 4 in Szasz, supra note 175). 177 Silber and Little, The Death of Yugoslavia, page 242. 178 Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers, (Kluwer Law International, 1997) Vol. I, p. 29–57. 179 Ibid.., p. 35–36. 180 Ibid.., P. 34.

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CHAPTER 3 5.3.1. The Vance-Owen Peace Plan The first co-chairmen of the ICFY, Cyrus Vance for the UN and David Owen for the EC, presented the so-called Vance-Owen plan in January 1993.181 In this plan, Bosnia was to be divided into 10 provinces; three to each “ethnic” group with a predominantly Serb, Muslim and Croat population, plus a multi-ethnic Sarajevo. In the nine constitutional principles, which were to be the basis for the future Constitution, the Central government was designed to be a relatively thin roof over the largely autonomous provinces. The plan was negotiated with the parties for several months. It was accepted by the Croats first, then by the Muslims, and eventually, after considerable pressure from inter alia Milosevic, by the Bosnian Serb leaders in April 1993, who agreed on the condition that the plan would be presented to the Bosnian Serb people. Thereafter the plan was predictably rejected by the Bosnian Serb National Assembly, followed by a referendum in Republika Srpska (RS) mid May 1993 with the same result.182 5.3.2. The Owen-Stoltenberg Peace Plan The ICFY continued its efforts in trying to find solutions while the war in Bosnia and Herzegovina raged on. Cyrus Vance was replaced by Thorvald Stoltenberg as the UN co-chairman in May 1993, and he and David Owen convened a series of meetings with the warring parties during the summer of 1993, which culminated in a brief negotiating session on board the British aircraft carrier “Invincible” in September of the same year.183 The Owen-Stoltenberg peace plan, (or the “Invincible Plan”, as it was called) was the first of the proposed peace plans that had a fully elaborated text package, including a detailed Constitutional Agreement.184 This plan took up the main idea from the Cutiliero Principles; establishing three predominantly “ethnic” republics held together in a relatively loose “Union”. It also had detailed provisions on a Human Rights Court, an ombudsman and a list of international human rights instruments to be incorporated in the constitutional legislation. These parts of the

181

For more on the Vance-Owen Peace Plan, see for example Burg and Shoup, supra note 97, pp. 189–255. The Vance-Owen Peace Plan is contained in UN Doc. S/25403 (12 March 1993), Report of the Secretary General on the Activities of the International Conference on the Former Yugoslavia, annex II–V. The report contains annexes and appendixes on a broad range of issues from cessation of hostilities to human rights mechanisms. 182 Daalder, supra note 39, p. 16. 183 Thorvald Stoltenberg and Kai Eide, supra note 53, p. 128. See also Burg and Shoup, supra note 97, pp. 263–280. 184 Published in Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers, (Kluwer Law International, 1997) Vol. I, p. 275. The Owen-Stoltenberg Peace Plan was never published as a UN document in its final version. Earlier versions exist in UN document S/26337/Add.1 (1993) and parts of the agreement exist in UN document S/26486 (1993), see Szasz, The quest for a Bosnian Constitution: legal aspects of constitutional proposals relating to Bosnia, supra note 175.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW Owen-Stoltenberg Peace Plan became the basis for the corresponding parts of later peace plans.185 The Owen-Stoltenberg plan was accepted by the Bosnian Serbs and the Bosnian Croats, and finally also by the Bosnian Muslims (including President Izetbegovic), but the Muslim acceptance was quickly withdrawn. The withdrawal was seen as an expression of discontent from the Muslim side186 because, inter alia, the territory allocated to the Muslim Republic was considered too small, with only 30 per cent of the Bosnian territory. The Government of the Republic of Bosnia and Herzegovina had demanded a minimum of 33.3 per cent.187 Another decisive factor that might have contributed to the Muslim rejection was that the plan was not backed by the Americans. 5.4. The European Union Plan The failure of the Owen-Stoltenberg plan, in spite of the (seemingly) substantial agreement on the constitutional aspects of it, prompted the newly established EU to try to negotiate a new territorial solution, and to keep the rest of the plan. Late in 1993, the EU embarked on a round of negotiations in which the main idea was to get Milosevic to convince the Bosnian Serbs to agree to let the Muslims get one-third of the territory. In exchange, Milosevic would get relaxation of the sanctions against the FRY. The Bosnian Serbs, who at this time were holding over 70 per cent of the territory, were not easily convinced, but in the end they gave in and agreed that the Bosniacs should have 33.3 per cent and the Bosnian Croats 17.5 per cent. This would leave roughly 49 per cent to the Bosnian Serbs.188 The parties now had agreed in principle on how to “divide” Bosnia and Herzegovina, but in the end there was no agreement on how the agreed division of territory should translate into a concrete map.189 The EU attempt to save the Owen-Stoltenberg plan was thus abandoned in January 1994. 5.5. The Washington Agreement In February 1994, the US initiated talks between the Muslims, the Bosnian Croats and the Republic of Croatia in order to stop the Croat/Muslim war. This resulted in the establishment of the Federation between Bosnian Croats and Bosnian Muslims (now called Bosniacs) in March 1994.190 A “Framework Agreement for the Federation” and an “Outline of a Preliminary Agreement on the Principles and 185

Szasz, supra note 175, p. 369. Ibid.., p. 370. 187 See report of the Co-Chairmen of the Steering Committee on the activities of the ICFY, Annex to UN Doc. S/26486 (1993), and Paul C. Szasz, ‘Protecting Human and Minority Rights in Bosnia: A documentary Survey of International Proposals’, Vol. 25, No. 2 California International Law Journal, (1995) pp. 243–244. 188 All later peace proposals, including the Dayton Agreement, have kept the 51/49 formula. 189 Szasz, supra note 175, p. 371. 190 Daalder, supra note 39, pp. 26–27. 186

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CHAPTER 3 Foundations for the establishment of a Confederation between the Republic of Croatia and the Federation” were negotiated and agreed to in Washington on 1 March 1994.191 The Federation Constitution was agreed to by the parties in Washington on 18 March, and then adopted by a Constitutional Assembly, now mainly consisting of the Muslim/Bosniac and Croat members of the Bosnian Parliament who had been elected in 1991. The Federation Constitution resembled the Vance-Owen plan in that it established eight Cantons out of which two were mixed and the rest predominantly either Bosniac or Croat. The “central government” of the Federation, however, had slightly more power than previous peace plans had allocated to such a body – this was achievable because there were only two of the three ethnic groups involved. The establishment of the Bosniac-Croat Federation (The Federation of Bosnia and Herzegovina) in principle ended the open hostilities between those two groups. 5.6. The Contact Group for the Former Yugoslavia In May 1994, the Contact Group for the Former Yugoslavia, consisting of the US, Russia, France, Germany and UK, was established.192 The hope was that the introduction of consolidated heavy political weight would make it easier to find a way to end the war between the Federation and the Bosnian Serbs. The Contact Group was concentrating first on the territorial aspects, but had great difficulties in getting the Bosnian Serbs to agree to the allocation of land, even though they accepted the 51/49 formula as the final percentage of division of Bosnia. In the meantime, there was not much enthusiasm for negotiating constitutional principles as long as there was no agreed-upon map. A proposed Union Constitution based on the Owen-Stoltenberg plan, but now with two instead of three entities under a structure with a thin roof, was never even presented formally to the parties.193 The Contact Group would, however, prove to be the vehicle with which the international community would finally arrive at a common format for the peace process. O’Brien describes the Contact Group in the following way: “The Contact Group was, however, still extremely valuable. It kept disagreements in house among the outside powers, reducing the ability of the parties to manipulate those disagreements. It ratified proposals coming from negotiators in the field, giving them leverage that would have been lacking to negotiators having to overcome a discordant international community. At the same time, and more importantly, the Contact Group ensured that the United States would remain actively involved. In short, the Contact Group kept the parties out and the United

191

UN document S/1994/255 (1994) (Letter dated 3 March From the Permanent Representatives of Bosnia and Herzegovina and Croatia to the United Nations addressed to the Secretary General). See also Szasz, supra note 175, p. 372. 192 Daalder, supra note 39, p. 28. 193 See Szasz, supra note 175, p. 374.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW States in. By early fall of 1995, then, the international community had a unified voice, and it spoke with an American accent.”194

5.7. Increased US Leadership During the summer of 1995, public pressure on the “international community” (the Contact Group) was increasing. The Western European public could not understand why it was so hard to stop the terrible war raging on its own continent, and the American public understood it even less. The Serbian massacre in Srebrenica, followed by a resumption of extensive Serb shelling of Sarajevo, prompted NATO and the UN to carry out air attacks against the Bosnian Serbs. At the same time, the US took the lead in another attempt to find a diplomatic solution.195 Intensive “shuttle diplomacy”, largely led by US negotiator Richard Holbrooke, between Belgrade, Zagreb and Sarajevo commenced.196 In ICFY, the UN Co-Chairman Stoltenberg, was working for a solution between the Serb Croatian minority and the authorities in Croatia, while the newly arrived Carl Bildt, who had taken over the position as the EU Co-Chairman in ICFY after Lord Owen, was concentrating on Bosnia. The efforts by the US, supported by ICFY and the Contact Group, led to two relatively broadly drafted documents, agreed to by the parties 197 in two meetings, one on 8 September in Geneva and one on 28 September in New York. The documents, called the Agreed Basic Principles,198 were based on the Contact Group’s draft Constitution from the year before. 5.8. The Agreed Basic Principles The Agreed Basic Principles constituted the basic outline for what the future Peace Agreement would contain. The parties involved in the Bosnian conflict publicly committed themselves to the Principles. When disagreement prevailed during the negotiations in Dayton, the parties felt obliged to accept the Agreed Basic Principles as an absolute bottom line. The Agreed Basic Principles thus became a doubleedged sword because although the principles were meant to be an absolute minimum that the parties could not go below, it also became a maximum, or ceiling, giving the parties the arguments to hold back on improvements or elaborations of the principles.

194

James O’Brien, ‘The Dayton Agreement for Bosnia and Herzegovina: A Ceasefire On Its Way to Becoming a Settlement’, in W. Zartmann (ed.), Peace vs Justice: Negotiating Forward- and Backward-Looking Outcomes (Lanham, Rowman & Littlefield, 2004). 195 How the Clinton administration changed its policy and became more involved during the spring and summer of 1995 is described in Daalder, supra note 39. 196 Also described by Holbrooke, supra note 39. 197 Represented by the Foreign Minister of the Republic of Bosnia and Herzegovina, the Foreign Minister of Croatia and the Foreign Minister of the Federal Republic of Yugoslavia. 198 The Agreed Basic Principles are reproduced e.g. in Bosnia and Herzegovina, Essential Texts, Office of the High Representative (1998).

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CHAPTER 3 The “parties” to the Agreed Basic Principles were the three States which were involved in the Bosnian war: Bosnia, Croatia and the FRY. The then FRY foreign minister, Milutinovic, together with foreign minister Sacirbey of the Republic of Bosnia and Herzegovina and with foreign minister Granic of Croatia were participating in the negotiations on the Agreed Basic Principles in Geneva and New York. The direct parties to the conflict, the two partners of the Federation of Bosnia and Herzegovina and the Republika Srpska, were in effect represented by these three ministers. The document was accompanied by a Joint Statement made by the three parties in which they agreed to the Agreed Basic Principles. The Statement was witnessed by representatives of all the Contact Group countries and by Carl Bildt in his capacity as EU Special Negotiator for the Former Yugoslavia. The Agreed Basic Principles laid down the fundamental structure for the new Bosnia and Herzegovina. It would be a decentralised state consisting of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska, which would be given territory according to the previously agreed 51/49 % key. This was an important step for the Bosnian Serbs, who had adopted their own constitution in 1992, but had not in any way been recognised by the international community as a legal entity before. The Agreed Basic Principles did not constitute a new legal situation as such, but politically it was significant that the Republika Srpska was mentioned in the document on the same terms as the Federation.199

The principles furthermore specified that the two Entities would continue to exist under their present constitutions, with an obligation to amend their constitutions to “accommodate” the Agreed Basic Principles.200 The common institutions of Bosnia and Herzegovina would consist of a Parliament, a Presidency, a Cabinet, a Central Bank and a Constitutional Court. The common institutions were explicitly given the responsibility for the foreign policy of Bosnia. The other areas that they would be in charge of were left open to further negotiations.201 The provisions on decision-making in the Presidency constituted a problematic part of the Agreed Basic Principles. Decisions were to be made by a two-thirds majority, but any one of the three “ethnic” groups were given the power to prevent Presidency decisions from taking effect, by declaring the decision destructive to that group’s “vital interests”. This meant that one ethnic group could create a situation of “deadlock” and paralyse the functioning of the Presidency. Despite intense efforts in Dayton to create a “deadlock breaking” mechanism, the “vital interest” clause survived not only in the constitutional provisions on the Presidency, but was extended to the Parliamentary Assembly as well.202 The Agreed Basic Principles contained provisions on the first national elections and on the role of the OSCE, on freedom of movement across the Inter Entity 199

The Agreed Basic Principles, Geneva, 8 September 1995, para. 2. The Agreed Basic Principles, Geneva, 8 September 1995, para. 2.2. 201 The Further Agreed Basic Principles, New York, 26 September 1995, para. 6. 202 See Article IV (3) (e) and V (2) (d) of the Constitution of Bosnia and Herzegovina and below under Chapters 4 and 6. 200

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW Boundary Line and the right to return for refugees and displaced persons. There was also agreement on establishing several commissions in areas such as human rights and refugees, as well as on national monuments, public corporations and a system for arbitration. All of these provisions were later transformed into provisions of the new Constitution or into other annexes under the Dayton Peace Agreement. 6. THE DAYTON SETTING The Dayton negotiations started on 1 November and finished on 21 November 1995. They took place at the Wright Patterson Air Force Base in Dayton, Ohio in the USA. The parties present in Dayton on the mediation/facilitation side were: The Contact Group for the Former Yugoslavia consisting of the American host delegation, led by Richard Holbrooke, EU’s Special Negotiator and Co-chairman of the International Conference on the Former Yugoslavia (ICFY), Carl Bildt and his team, as well as the British delegation led by Pauline Neville-Jones, the French delegation led by Jacques Blot, the German delegation led by Wolfgang Ischinger, and the Russian delegation led by Igor Ivanov, all of whom at the time were political directors in their respective Ministries of Foreign Affairs. The parties on the conflicting side were the three states: The Republic of Bosnia and Herzegovina led by President Alija Izetbegovic, the Republic of Croatia led by President Franjo Tudjman, and the Federal Republic of Yugoslavia, led by the (then) President of the Serb Republic, Slobodan Milosevic. In addition, there was a delegation of the Bosnian Serbs, who were present, but who had no power to negotiate on their own behalf. The Bosnian Serbs were represented by Milosevic.203 This was reflected in the last preambular paragraph of the General Framework Agreement, where the parties note: “the agreement of August 29, 1995, which authorized the delegation of the Federal Republic of Yugoslavia to sign, on behalf of the Republika Srpska, the parts of the peace plan concerning it, with the obligation to implement the agreement that is reached strictly and consequently . . .”.204

The negotiations on the different parts of the peace agreement were carried out on in parallel, and mostly between the mediators and one of the parties at the time. Only on very few occasions were the three presidents or indeed members of their delegations in the same room with each other. On 21 November the three presidents, Izetbegovic, Tudjman and Milosevic initialled the Dayton Peace Agreement, together with a special “Initialling 203

It was considered a major breakthrough towards negotiations when the agreement on full power on behalf of the Bosnian Serbs for Milosevic (the so-called Patriarch paper) came through, because the Bosnian Serb leader at the time was Radovan Karadzic, with whom the international community would not communicate because he had already been indicted by the ICTY, see Holbrooke, supra note 39, pp. 105–107, and Daalder, supra note 39, pp. 127–128. 204 For more on the relationship between the Bosnian Serbs and the Federal Republic of Yugoslavia, see for example Paola Gaeta, ‘The Dayton Agreement and International Law’, 7 European Journal of International Law (EJIL) pp. 150–153.

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CHAPTER 3 Agreement”, which was somewhat unusual,205 but which perhaps strengthened the parties’ determination to sign the Dayton Peace Agreement. The signing of the General Framework Agreement and its annexes took place in Paris on 15 December 1995, and it entered into force, according to its own provisions, immediately. 6.1. The Lack of a Role for the UN As described above, the UN had been involved in the situation in the former Yugoslavia on many different levels since the beginning of the conflict. Still, when the Dayton peace negotiations finally took place, the UN was not invited, and the role that was given to the UN in the Dayton Peace Agreement was a very modest one. The reasons for this must be seen in light of the events described above. The international community’s failure to terminate the conflict at a much earlier stage was to a large extent blamed on the UN, among other things because the UN had been reluctant to interpret UNPROFOR’s mandate as allowing for the use of force against the Bosnian Serbs. Notwithstanding the complexity of the situation and the strong reluctance to commit troops by the UN Member States, the lack of robust military means to fight the Serb forces, in order to inter alia prevent the Srebrenica massacres, was ultimately blamed on the UN. The fact that the UN was seen, particularly by the Americans, as obstructing the attempts to use force against the Serbs, contributed to the fact that the US government did not want the organisation to have any part in the peace negotiations in Dayton. Ivo H. Dalder writes about this: “The rejection of a UN role and the sharp separation between the military and civilian implementation efforts were to a significant extent driven by a misreading of previous UN and NATO experiences in Bosnia, especially the infamous “dual key” arrangement under which both UN and NATO officials had to approve the use of air power and the targets that could be attacked. Since Washington blamed the United Nations . . . for failing to authorize the forceful use of air strikes against Bosnian Serb targets in 1994 and 1995, excluding the UN from a decision making role was judged to be crucial to the success of any future operation. If only for political reasons, then, a continuation of a significant UN role in Bosnia – let alone any involvement in the military aspects of the implementation, was simply unacceptable to Washington.”206

205

The agreement decided that the initialling of the General Framework Agreement (GFA) and its annexes “expresses the consent of the Parties, and the Entities that they represent, to be bound by such Agreements”. According to Article 24 (1) of the Vienna Convention on the Law of Treaties, a treaty enters into force “in such manner and upon such date as it may provide”, and the GFA clearly states that it enters into force (and thus become binding on the parties) on the day of signature (which took place in Paris three weeks later). The Bosnian Serbs did not actually initial the GFA in Dayton, because they were deeply frustrated by the result. They initialled it however, in Pale a few days after the Dayton negotiations. 206 Daalder, supra note 39, pp. 154–55.

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THE DAYTON PEACE AGREEMENT – BACKGROUND AND OVERVIEW The lack of a UN presence at Dayton,207 and the very modest role in the peace implementation that was given to the UN in the Dayton Peace Agreement, must be seen in this background. 7. THE PEACE IMPLEMENTATION CONFERENCE AND COUNCIL (PIC) Between the initialling and the signing of the Dayton Peace Agreement, there was a conference in London for the purpose of establishing a new political body that would undertake the overall political responsibility for the implementation of the peace plan. The Conference decided that: “a Peace Implementation Council (PIC), composed of all those states, international organisations and agencies attending the Conference, will subsume the ICFY”.208 This council consisted of a large number of States and organisations, most of whom had been members of the ICFY. The Conference decided that a Steering Board, consisting of the members of the Contact Group plus Canada and Japan as well as the European Commission and the OIC, was to be established under the chairmanship of the High Representative.209 The PIC was to meet at least once a year, and the Steering Board monthly. The PIC did not have a permanent secretariat, and could therefore not carry on with the activities that the ICFY had undertaken. In reality, much of the existing ICFY work was taken over by the Office of the High Representative.210 8. CONCLUDING COMMENTS Although violent conflict may have its roots in many factors, ethnicity or other forms of group identity often seem to become a vehicle for hatred, discrimination and suppression. Without attempting to explain the level of, or reasons for, the ethnic hatred in the former Yugoslavia, it seems safe to assume that the international community throughout the first half of the 1990s underestimated the driving forces of the war. Silber and Little make the following observation: “When international mediators entered the fray, they behaved as though war was self evidently futile and irrational; all they needed to do was to persuade the ‘warring factions’ of this truism and, once the scales had fallen from their eyes, the

207

Unofficially, the (then) director of the ICFY, Bertrand G. Ramcharan, was present in Dayton during the negotiations and worked with the Contact Group Lawyers on the texts. Cochairman for the UN, Thorvald Stoltenberg was also in Dayton for a couple of days at the insistence of some of the European Contact Group members. 208 The Conclusions of the Peace Implementation Conference, London, 8–9 December 1995, para. 21 and 22, to be found at the web-site of the Office of the High representative: <www.ohr.int/pic/archive.asp?sa=on>. 209 Ibid.., para 21. 210 For more on the PIC, see Nowak, supra note 6, pp. 194–196.

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CHAPTER 3 guns would fall silent. They did not see (or chose not to) that war for many of Yugoslavia’s leaders had become a profoundly rational course of action.”211

While this may be a pertinent observation, it is also true that the international community did more than just have conversations about the irrationality of war with the Yugoslav leaders. As this chapter has shown, the Security Council adopted a number of resolutions with the intent of preventing the escalation of hostilities and put pressure on particularly the Serb leadership, through heavy economic sanctions. As explained above, the lifting of those economic sanctions became an important device in securing the actual signing of the Dayton Peace Agreement. The Security Council also established the International Criminal Tribunal for the Former Yugoslavia, which became instrumental in isolating some of the most extreme nationalist leaders and excluding them from the peace negotiations when they finally came about. The UN and the EC together operated the ICFY throughout the war, which while not succeeding in negotiating a peace settlement, made the foundations and blueprints for large portions of the Dayton Peace Agreement. The ICFY also monitored the economic sanctions, provided for international legal arbitration and did numerous other tasks. And finally, the Contact Group for the former Yugoslavia with its US leadership and political heavy weight finally managed to defeat the warmongers, not only through conversation, but also through the consorted use of force based in Chapter VII of the UN Charter. All this illustrates that it was not, by any standards, easy to reach a peace settlement. And because those political and military leaders in Bosnia who wanted war had chosen to nurture and encourage ethnic animosity, and use ethnicity as the driving force for their popular support, the ethnicity question became one of the key stumbling blocks in the peace settlement. It is indeed very hard to understand the oddities of the constitutional system of Bosnia and Herzegovina without the acknowledgement of the paramount difficulties in achieving a peace settlement at all.

211

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Laura Silber and Alan Little, The Death of Yugoslavia, page xxiv.

CHAPTER 4. THE GENERAL FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA 1. INTRODUCTION This chapter provides a brief and general introduction to the Dayton Peace Agreement, with particular emphasis on Annex 4, which is the Constitution of Bosnia and Herzegovina (the BH Constitution), and Annex 6, which is the Human Rights Agreement. Both of these annexes will be subject to further discussions later in the book, but it seems necessary to first place them within the overall constitutional framework, as a part of the general background for understanding the key constitutional provisions on ethnicity. Given the author’s presence at the Dayton negotiations, there are also some references to parts of the negotiating history, in order to shed some light on the background of certain provisions.212 2. THE GENERAL FRAMEWORK AGREEMENT (GFA) 2.1. The Parties The General Framework Agreement for Peace in Bosnia and Herzegovina was signed by three of the successor States to the SFRY; the (then called) Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia.213 2.2. The Content The General Framework Agreement for Peace in Bosnia and Herzegovina consists of 11 Articles and has 11 (or 12, if Annex 1-A and 1-B are counted as two) annexes.214 Article I of the GFA declares that the parties shall conduct their relations in accordance with the principles in the Charter of the UN as well as other instruments and principles of international law. It thus does not add any new obligations on the parties. The three States parties then commit themselves to the annexes, but this is stated in rather vague terms. In Articles II, III, IV, V, VI, and VIII the State Parties “welcome and endorse” the various arrangements set out in specific annexes. In 212

See above 1.4.1.1. The GFA was signed by President Izetbegovic on behalf of the Republic of Bosnia and Herzegovina, President Tudjman on behalf of the Republic of Croatia and by President Milosevic on behalf of the Federal Republic of Yugoslavia. 214 The GFA with all its annexes and side letters is printed in Bosnia and Herzegovina, Essential Texts, Office of the High Representative (1998). It is also available on the web-site of the Office of the High Representative: <www.ohr.int> . 213

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CHAPTER 4 Article VII, the State Parties undertake to “comply fully” with the human rights provisions set out in Annex 6 as well as with the provision regarding refugees and displaced persons set out in Annex 7. In Article IX, the States parties undertake to co-operate fully with all entities involved in the implementation of the peace agreement. Article X is formulated as an agreement between the FRY and the Republic of BH to recognise each other as sovereign States. Article XI lays down that the Peace Agreement enters into force upon signature, which was 14 December 1995. The annexes were also signed on 14 December 1995 (see below), and according to each annex, entered into force upon signature. 2.3. The Annexes to the GFA The annexes are: x Annex 1-A on the military aspects of the peace settlement, x Annex 1-B on regional stabilisation, x Annex 2 on the demarcation of the Inter Entity Boundary Line (the boundary between the two Entities), x Annex 3 on the first elections after the entry into force of the peace agreement, x Annex 4 which is the Constitution of Bosnia and Herzegovina, x Annex 5 on an agreement on the establishment of an arbitration procedure for solving disputes between the two Entities, x Annex 6 on a Human Rights Chamber and Ombudsman, x Annex 7 on return of refugees and displaced persons, as well as the establishment of a property claims commission, x Annex 8 on a commission to preserve national monuments, x Annex 9 on public corporations, x Annex 10 on civilian implementation, specifically on the Office of the High Representative and its functions and mandate, and x Annex 11 on an international police task force. 2.3.1. Parties to the Annexes The annexes were signed by the Federation of Bosnia and Herzegovina, the Republika Srpska, and by the Republic of Bosnia and Herzegovina.215 The Military 215

The Federation of BH between the Bosnian Croats and the Bosniacs, which had existed on paper since March 1994, was not functioning on any practical level when the Dayton Peace Agreement entered into force. It was the Government and Parliament that had come into office in 1991 that officially represented the sovereign state, the Republic of Bosnia and Herzegovina. There were certain claims that this Government and Parliament were not fully “legitimate” because they had been elected before Bosnia and Herzegovina had become an independent State, the terms of office of the Parliamentary representatives had expired 1994, and there had not been new elections. Under the circumstances it was, however, the only Government representing the Bosniacs and, to a certain degree, the Bosnian Croats. President

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA Annex (1-A) and the annex on the Inter Entity Boundary Line (2) were, in addition, endorsed by Croatia and the FRY. Annex 1-B on regional stabilisation and Annex 10 on civilian implementation were actually signed by Croatia and FRY in addition to the three parties. Annex 4, the Constitution of BH, was not signed as an agreement, but declarations on behalf of the three parties (the Republic of BH, the Federation of BH and the Republika Srpska) approving the Constitution were attached to it. It is worth noting that, of the three parties to the annexes, only one was a State. The two other parties were, through the entry into force of the Dayton Peace Agreement, non-state Entities, with limited capacity to accede to treaties. This was why the Entities were not made parties to the General Framework Agreement itself. 3. THE STATUS OF THE DAYTON PEACE AGREEMENT The structure of the Dayton Peace Agreement is unusual because it constitutes a framework agreement that contains a number of sub-agreements, and the parties to the framework agreement are not the same as the parties to the sub-agreements. The General Framework Agreement is also unusual because it is an agreement between three States on how one of them is to be governed. Neither FRY nor Croatia was formally a party to the conflict in Bosnia and Herzegovina at the time of its termination, but still they were parties to the peace treaty. The reasoning behind the structure of the peace agreement was multi faceted and had various political aims. One of the reasons was that it was generally recognised that both the FRY and Croatia were heavily implicated in the conflict, and that without their commitment and active involvement the conflict could not be solved. As noted by Gaeta: “However, the high legal status attributed to the General Framework Agreement reflects, once again, political realities. Plainly, without the political support of Croatia and the Federal Republic of Yugoslavia for a peace deal, the Bosnian Serbs and the Bosnian Croats would not have put an end to their fighting against the central authorities in Sarajevo. In other words, [the Republic of] Bosnia and Herzegovina has been able to achieve peace only by coming to terms with and relying on the support of those who had until that moment denied being the very minds behind the conflict.”216

The Croatian delegation and the FRY delegation in Dayton were negotiating on behalf of the Bosnian Croats and the Bosnian Serbs respectively. This is demonstrated for example in the text of the Agreement on initialling the GFA,217 Izetbegovic and his cabinet had been in charge throughout the war, both before and after the declaration of independence, and democratic elections could not have been held during the war. 216 Gaeta, supra note 204, p. 156. 217 The Agreement on Initialling the GFA is published in The Dayton Peace Accords, Office of Public Communication, Bureau of Public Affairs, U.S. Department of State, December 1995.

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CHAPTER 4 where Article II refers to the “Parties, and the Entities that they represent”. At the same time the annexes were to be implemented by the parties to the conflict inside Bosnia and Herzegovina, and it was hoped that those parties (the Bosnian Croats, the Bosnian Serbs and the Bosniacs) would feel more committed to implementing the annexes if they had actually signed them. The General Framework Agreement is an international agreement between three States, and, as a point of departure, subject to international law according to Article 1 of the Vienna Convention on the Law of Treaties, which says: “The present Convention applies to treaties between States.” The 11 annexes to the General Framework Agreement constitute the substantial part of the Peace Agreement, but the commitment to actually implement them does not primarily lie with the parties to the GFA. The annexes were signed by the two non-state entities (the Republika Sprska and the Federation of Bosnia and Herzegovina) and one of the State Parties to the GFA, the (then) Republic of Bosnia and Herzegovina. This structure raises questions about which parts of the Peace Agreement are subject to the rules of international law; is it just the provisions of the GFA, or are also the provisions of the annexes to be interpreted according to the rules of international law? In other words, which provisions of the Dayton Peace Agreement are binding on which parties? According to the wording of the provisions of the GFA, there are different levels of obligations on the three State Parties. Generally, they “welcome and endorse” the content of the different annexes and they undertake to “fully respect and promote the commitments” made in those annexes.218 The three State Parties, however, also “shall comply fully” with the provisions of the Annex on Human Rights and on Refugees and Displaced Persons.219 In addition they undertake to “cooperate fully with all entities involved in implementation of this peace agreement”.220 These formulations seem to indicate that only the provisions of the Annexes on Human Rights and on Refugees and Displaced Persons are directly binding on the three State Parties. As concerns the other annexes, the three State Parties have a duty to respect and promote them, but they are not bound by them as such. Taking into account the nature of those annexes, this of course makes sense. It would be impracticable to make for example the Bosnian Constitution (Annex 4) binding on Croatia or FRY. The Annexes are signed by and are, as a point of departure, also binding on the two Entities and the Republic of Bosnia and Herzegovina.221 A question one might ask is therefore whether the Annexes also are subject to the rules of international 218

GFA Articles II, III, IV, V, VI, VIII. GFA Article VII. 220 GFA Article IX. 221 Which in itself may seem somewhat odd, taking into consideration the fact that the two Entities came into being as Entities of Bosnia and Herzegovina at the entry into force of the Dayton Agreement, whereas the name “the Republic of Bosnia and Herzegovina” ceased to exist from the same time. Article I of the BH Constitution, however, makes it clear that it is only the name of the state that was changed, see below under 4.4.1. 219

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA law, or whether they must be seen as domestic legislation. The answer to this question has a bearing on which sources and methods to apply when interpreting the annexes; should it be international legal methods or should it be national rules of interpretation? There are (at least) two ways of looking at this. One is that only the General Framework Agreement itself is governed by international law methods, but that the annexes must be seen as a part of national law laid down as agreements between the newly established Entities within Bosnia and Herzegovina. The substantial part of the peace agreement would thus mainly have to be seen as national arrangements, subject to interpretation according to domestic legal methods. Another way of looking at this is that the General Framework Agreement must be seen as a treaty with the annexes as an integral part, and that the parties to the GFA have a commitment according to the ordinary rules of international law. The scope of those obligations must, however, be determined according to the concrete wording of the various provisions. The consequence of this perspective is that the methods of international law may be applied to the provisions of the General Framework Agreement as well as its annexes.222 Both of the above-mentioned approaches may be useful and they hardly exclude one another. For the purpose of this study the focus will be on the latter one. The Dayton Peace Agreement is, according to international treaty law, an international agreement. Moreover, it was, in its entirety, drafted and presented to the parties by the international community; it was not conceived or developed on any domestic (Balkan) level. The entire new construction of the State of Bosnia and Herzegovina was an international “invention”, and the parties were put under heavy political pressure to accept it. Furthermore, the GFA was drafted as a comprehensive “package”. The main substance of the agreement, as mentioned above, was contained in the annexes and not in the GFA, and the construction of the Agreement as a framework agreement, with a set of annexes, may be seen merely as a functional way of organising the Peace Agreement. It is in this connection worth noting that the Constitutional Court of Bosnia and Herzegovina, in its decision U/58-III, stated that: “Indeed, from a functioning point of view, the Dayton Constitution is part of a peace agreement as the name ‘General Framework Agreement on Peace in Bosnia and Herzegovina’ clearly indicates.”223

The view that not only the GFA itself but also the annexes are to be treated as part of international law, is further demonstrated in another decision pertaining to the same

222 For more on the legal status of the Dayton Peace Agreement, see Gaeta, supra note 204; Paul C. Szasz, ‘The Protection of Human Rights through the Dayton/Paris Peace Agreement for Bosnia’, Vol. 90, No. 2 The American Journal of International Law (AJIL) (1996); Fionnuala Ni Aolain, ‘The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis’, Vol. 19, No. 4 Michigan Journal of International Law (1998). 223 Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decision III, U/58-III, 30 June and 1 July 2000, para. 73.

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CHAPTER 4 case, in which the Constitutional Court refers to the rules on interpretation of treaties in the Vienna Convention on the Law of Treaties: “According to Article 31 of the Vienna Convention on the Law of Treaties it is necessary to further clarify the terms used in the BH Constitution by interpreting them in the context of the entire GFA, i.e. including its annexes.”224

It is thus clear that even from a national legal point of view, represented by the Constitutional Court of Bosnia and Herzegovina, the annexes of the GFA are considered as part of the body of international law. The GFA, with its 11 annexes, is a wide-ranging legal instrument. Szasz225 describes it as “an extremely complex instrument, and [is] the center piece of an even more complicated and extensive set of arrangements involving numerous international organizations and some individual states”.226 It contains transitional provisions aiming at implementing the first phases of the peace plan, such as the annexes on military and civilian implementation, as well as the annexes on return of refugees and displaced persons and on the first elections. It also contains permanent constitutional arrangements including the Constitution itself, as well as the Human Rights annex and the annex on the Inter-Entity Boundary Line. 4. OVERVIEW OF THE BH CONSTITUTION The Constitution of Bosnia and Herzegovina is the fourth annex under the General Framework Agreement for Peace in Bosnia and Herzegovina. It was negotiated along with the other parts of the Agreement in Dayton, November 1995. As mentioned above, the Constitution was not formulated as an agreement, instead of signing it, the three parties “approved” the Constitution in three separate “declarations” that were attached to the Constitution.227 The draft Constitution presented in Dayton was partly based on constitutional arrangements from previous draft peace agreements for Bosnia and Herzegovina.228 224

Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decision I, U/58-I, 28, 29 and 30 January 2000, para. 15. 225 Paul C. Szasz, ‘Introductory note’, International Legal Materials, 35 I.L.M. 75 (1996), p. 77. 226 The arrangements referred to are those for the NATO military control of BH, the establishment of the High Representative, the participation of the UN, OSCE, EU etc. 227 The Bosnian Serbs were in favour of formulating the Constitution as an agreement that they would sign, possibly because they thought this would have made it more legitimate for them to secede later. 228 The first draft presented to the parties at Dayton was an American draft which had not been discussed with or approved by the members of the Contact Group or by the EU special negotiator, Carl Bildt. Indeed, a draft BH Constitution, prepared by ICFY/Carl Bildt (largely drafted by Paul C. Szasz, with assistance from the Contact Group and ICFY lawyers) before the negotiations in Dayton commenced was largely ignored by the American delegation when preparing their first draft, which was given to the parties and to the other members of the Contact Group and the EU team on November 1. This led to considerable dissatisfaction

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA The main structure had already been laid down in the Agreed Basic Principles: it would be a State, consisting of two Entities, the Federation of BH and Republika Srpska.229 There would be a common Presidency, Parliament, cabinet of ministers and a Constitutional Court.230 The details of how this structure would work and the competencies of the bodies were left to be determined by the parties at the Dayton negotiations.231 The main disagreement between the parties in Dayton pertained to the question of how power would be divided between the central level and the Entity level. The wish of the Bosniacs to have a strong central state, and the preference of the Serbs and the Croats to have a weak state (from which they could possibly eventually secede) were overwhelming in almost every discussion in Dayton. This must be seen in light of not only the mutual suspicion and strong antagonism between the parties, but also of their political goals. The Bosniacs, as a point of departure, wanted Bosnia to be one centralised State, based on democratic principles, with as little power vested in the Entity governments as possible. The Bosniacs constituted a relative majority of the population and could thereby aspire to have considerable political control over the country. The Serbs on the other hand, basically wanted to take their territories out of Bosnia and join their “motherland”, the FRY. They therefore favoured a very weak central government and strong and autonomous Entities. The Croat agenda was, in spite of their participation in the Federation, not unlike the Serb one. The formula of Dayton, which was not satisfactory to any of the three parties, provided for 1) the geographical partition of Bosnia into the two Entities through the Inter Entity Boundary Line (IEBL), and 2) the possible political reintegration of the two entities and for the functioning of Bosnia as one state through the implementation of the Constitution. It was obvious that the second part was the harder one, and if that failed, the geographical parting through the IEBL would be what was left. Therefore the negotiations over the map were what ultimately seemed to matter most to the parties. 4.1. Legal Continuity of the State Article I(1) of the Constitution provides that the State formerly called the Republic of Bosnia and Herzegovina will now officially be called Bosnia and Herzegovina and that the entity will continue its legal existence as a State under international law within the Contact Group, and a new draft based on more input from the European and Russian Contact Group lawyers was presented to the parties on 12 November. (See also Bildt, supra note 53, p. 207). The negotiations consisted of meetings between Contact Group representatives and only one of the parties at the time. Based on both written and oral input from the parties, new drafts were presented to the parties on November 16 and 18, and also during the last days of the negotiations in Dayton. 229 Agreed Basic Principles, Geneva, 8 September 1995, para. 2. 230 Agreed Basic Principles, New York, 26 September 1995, paras. 6.1–6.4. 231 Agreed Basic Principles, New York, 26 September 1995, para. 6.5

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CHAPTER 4 with membership in the UN. The Bosniacs wanted to keep both the legal continuity and the old name, whereas the Serbs wanted Bosnia and Herzegovina to be established as a “new” state.232 There was finally agreement on a provision confirming the continued legal existence of BH, but on the condition that the name of the state would be changed as from the entry into force of the Constitution (14 December 1995).233 The provision thus represented a compromise. It is noteworthy and illustrative that both “Republika Sprska” and “The Federation of Bosnia and Herzegovina”, the formal titles of the two Entities, bear connotations of statehood, whereas the new title of the state itself, Bosnia and Herzegovina, does not. In its Article XII (1), the Constitution prescribes that it enters into force upon signature of the GFA and that from that time, it “amends and supersedes” the old Constitution of the Republic of Bosnia and Herzegovina. This formulation is not entirely clear, but it was assumed that it meant that the former Constitution was superseded in its entirety from entry into force of the new Constitution. In para. 2 of Annex II to the BH Constitution, there is a provision on continuation of laws, which states that all “laws, regulations, and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution . . .” The provision does not specify what would happen if a law in effect were to be deemed incompatible with the Constitution. Article III (3) (b), however, states that the Constitution “supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities . . .” Whether this means that inconsistent provisions are null and void and may be disregarded from entry into force of the Constitution of Bosnia and Herzegovina, or it means that the Constitutional Court must make a decision to this effect, is not clear. Article XII (2) says that within three months from the entry into force of the Constitution, the Entities “shall amend their respective constitutions to ensure their conformity with this constitution in accordance with Article III (3) (b)”. The consequences of failing to do this are not specified.234 4.2. Two Entities Article I (3) of the BH Constitution states that Bosnia and Herzegovina consists of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. This structure implied that the Bosnian Serbs in principle agreed to give up claims that the Republika Srpska was a sovereign state. They had nevertheless 232

The Republic of Bosnia and Herzegovina had been recognised as a member state of the United Nations on 22 May 1992, see UN Doc. A/RES/46/237 (1992). 233 See below on the entry into force of the Dayton Peace Agreement, 4.4.13. 234 A number of provisions in both Entity constitutions were in fact amended during the first year after entry into force, following a process that involved the Entity parliaments, the Office of the High Representative and the Venice Commission (European Commission for Democracy through Law of Council of Europe).

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA achieved recognition as a legal entity within the Bosnian state. The Bosnian Croat part of the Federation had, to a certain extent, also functioned as an independent entity in the same way as Republika Srpska had, but did not achieve official recognition as a legal entity under the Dayton Peace Agreement. The Bosnian Croats had to accept their role as a part of the Federation of BH. There was thus no way back from the “forced marriage” between the Bosnian Croats and the Bosniacs, which at the time of the signing of the Dayton Peace Agreement was not functioning on any practical level. Nevertheless, the Federation of BH had a constitution and thereby, potentially, a set of common institutions that were supposed to make the Bosnian Croats and the Bosniacs co-operate across their ethnic divide. It was foreseen in the BH Constitution that the two Entities would continue to exist on the basis of their own constitutions, but that these would be amended “to ensure conformity” with the BH Constitution (Article XII (2) and III (3) (b)).235 Article I (4) secures the freedom of movement across the Inter Entity Boundary Line (IEBL) for persons, goods, services and capital. Having divided Bosnia into two Entities in the previous paragraph, it was important to maintain that the IEBL should not be conceived as anything like an international border. In reality it continued to function as a border within Bosnia and Herzegovina, and even inside the territory of the Federation itself, there were unofficial “borders” between Croat and Bosniac areas. 4.3. The Citizenship Issues The parties were also deeply divided over the question of citizenship. The Bosniacs wanted a single Bosnian citizenship for everybody within Bosnia and Herzegovina, whereas the Bosnian Serbs wanted their own Republika Srpska citizenship. Article I (7) lays down that there is one citizenship of Bosnia and Herzegovina, and one citizenship of each of the Entities. All citizens of either of the two Entities are also automatically citizens of Bosnia and Herzegovina. According to the provision, one cannot be a citizen of Bosnia and Herzegovina without being a citizen of one of the Entities. This is not considered having a dual citizenship. The citizenship for international purposes is that of Bosnia and Herzegovina. The Entity citizenship is a domestic matter. The citizenship issues are to be regulated by legislation, on the central level (the Bosnia and Herzegovina citizenship) and on the Entity level (the Entity citizenship). The question of dual citizenship is addressed in Article I (7) d. The Bosniacs wanted to avoid it. Many Bosnian Croats had Croatian citizenship and were allowed to vote in Croatia. It was assumed that the Bosnian Serbs could possibly acquire Serbian or FRY citizenship and be allowed to vote there too. This meant that large numbers of Croat and Serb citizens could be expected to vote in Bosnia, something the Bosniacs feared would create instability. The end result was that dual citizenship was only allowed if there was a bilateral agreement to this effect between Bosnia and Herzegovina and the other country, subject to approval by the Parliamentary 235

See above 4.4.2., 4.4.5 and 4.4.6.

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CHAPTER 4 Assembly of Bosnia and Herzegovina. (In practice this meant that any of the three ethnic groups could block such an agreement, see below under 1.6.8.). In addition, Article I (7) (d) provides that persons with dual citizenship may only vote in Bosnia if Bosnia is their country of residence. According to Article I (7) (e), there is to be one common passport of Bosnia and Herzegovina, but it may be issued by either of the Entities. Responsibility for passport legislation is exclusively given to the central authorities. There would be a central register over all passports of Bosnia and Herzegovina on the state level. The “battle” over citizenship was therefore largely won by the Bosniacs who were able to ensure that there was both a single citizenship and passport for that of Bosnia and Herzegovina. The Serbs, however, secured one important right; the right to determine, through their own legislation, who would get the citizenship of Republika Srpska, and thereby automatically the citizenship of Bosnia and Herzegovina. In the process of elaborating a “package” of necessary legislation for Bosnia and Herzegovina,236 it was considered problematic to implement this provision of the Constitution because it did not give the State the final authority to decide who would become its citizens. It should, however, be noted that Article II (7)237 seen together with Article III (3) (b)238 of the Constitution lays down a number of standards which have to be respected in determining for example the criteria for citizenship of both BH and the Entities. 4.4. Human Rights and Refugees Article II (2) lays down that all the substantive rights (“rights and freedoms”) set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms (EHCR) and its additional protocols are to apply directly in Bosnia and Herzegovina, and are to “have priority over all other law”.239 The nondiscrimination clause in Article II (4) secures the above-mentioned rights and all the rights listed in the instruments in Annex 1 to the Constitution, without discrimination on any grounds.

236

This “package” (the Quick Start Package – QSP) was initiated by Carl Bildt through the Office of the High Representative in the spring of 1996, and it was presented to the Bosnian Council of Ministers in January 1997. It contained draft laws on citizenship, passports, foreign trade, foreign debt, foreign investments, the Central Bank, customs policy, customs tariff, parliamentary immunity and vacancies in the Presidency. For more on the QSP, see Gary O’Callaghan and Thomas Schiller, Developing a Legislative Economic Structure for Bosnia and Herzegovina: The Political Economy of the Quick Start Package, Revue des Affaires Européennes/Law and European Affairs, 1997/4, pp. 408–421. 237 This Article refers to an annexed list of 15 conventions on inter alia human rights, refugees, statelessness and international humanitarian law. 238 This Article says inter alia that the Entities shall comply with the Constitution as well as the general principles of international law. 239 Article II (2).

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA Article II (3) is an enumeration of the most important rights of the ECHR. Its main function is that it illustrates which key rights and freedoms are laid down in the Constitution through Article II (2). Article II (1) provides for the establishment of a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 of the GFA. The provisions in Annex 6 set up the Human Rights Commission which consists of a Human Rights Ombudsman and a Human Rights Chamber. The Human Rights Chamber was based upon the proposal for a Human Rights Court from the Owen-Stoltenberg plan. In Dayton, the Serbs did not accept the inclusion of the word “court”. It is, however, a court, with fourteen judges (who are called “members”), of which eight are international judges appointed by the Council of Europe, two are from Republika Srpska and four are from the Federation. The Human Rights Ombudsman was to be appointed by the OSCE. One factor which undermined the implementation of the human rights provisions was that the judiciary did not belong to the common competencies of the central authorities.240 According to the Constitution, the judiciary exists only on the Entity level, which means that there are two different court systems and different legislation from Entity to Entity.241 Even if the human rights provisions of the Constitution in principle supersede inconsistent laws of the Entities (according to Article III (3) (b)), this does not imply that the legislation on the Entity level actually secures those rights. In the Human Rights section of the Constitution, there is also a special provision on refugees and displaced persons in Article II (5), stating that all refugees and displaced persons have the right to return to their homes of origin, and have restored to them properties that were lost during the hostilities. The provision makes a reference to Annex 7 of the GFA, which contains detailed provisions on how these rights are to be implemented. Article II (8) states that all competent authorities in Bosnia and Herzegovina242 are to co-operate with, and secure access for, all international human rights monitoring and supervisory bodies working in Bosnia and Herzegovina, including the UN war crimes tribunal (International Tribunal for the Former Yugoslavia – ICTY). The content of central provisions on human rights will be subject to a more thorough discussion in Chapter 5.

240

This situation was somewhat remedied in 2000, when the High Representative imposed a law establishing a common “State Court” of BH, see the High Representative’s Decisions, Sunday, 12 November, 2000. Also to be found on the web site of the OHR; <www.ohr.int> . 241 Older legislation is, of course, from the Socialist Republic of Yugoslavia-period in both Entities. 242 The preposition “in” was chosen to make it clear that it applies to Entity authorities as well as the central authorities.

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CHAPTER 4 4.5. Distribution of Governmental Powers The key provision of the Constitution is Article III, which determines how the governmental powers are to be divided between the central authorities on the one hand and the Entities on the other. Article III (1) lists the areas of responsibility for the central institutions. According to Article III (3) (a), the functions and powers not expressly given to the central authorities in Article III (1) or elsewhere in the Constitution, shall belong to the Entities. This means that the list of items in the Constitution is exhaustive, with the exception of the areas mentioned in Article III (5) (a), which states that the central authorities also shall assume responsibility for “such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina . . .” The responsibility for the implementation of the mentioned annexes 5 through 8 – Arbitration, Human Rights, Refugees and Displaced Persons, and National Monuments – were largely put in the hands of international organisations or specially designed institutions (with the exception of Annex 5 on arbitration which is only a statement of principles and not an operational annex). What may be deemed “necessary” in order to preserve the sovereignty etc. of Bosnia and Herzegovina is open to interpretation, and will possibly be decided by the Constitutional Court. The list of competencies in Article III (1) was therefore of great importance during the negotiations in Dayton. The Bosniacs wanted it as extensive as possible, whereas the Serbs tried to keep it on a minimum level in order to keep as much power as possible in Entity hands. The end result was a slightly longer list than could have been expected; the Agreed Basic Principles only provided for Foreign Policy as a central competence, but Article III (1) of the BH Constitution finally came to contain several areas in addition to that. The list contains: a) Foreign policy, b) Foreign trade policy, c) Customs policy, d) Monetary policy, e) Finances of the common institutions and international obligations, f) Immigration, refugee and asylum policy and regulation, g) International and inter-Entity criminal law enforcement, h) Establishment and operation of common and international communication facilities, i) Regulation of inter-Entity transportation and j) Air traffic control. In the period after Dayton, during the process of implementing the BH Constitution through new legislation,243 the above-mentioned list has been subject to different interpretations. During the Dayton negotiations, there was no general agreement on the exact meaning of every item on the list. There was a certain logic, however, to the way the provisions were drafted. For instance, the word “policy” has 243

Mainly the so-called Quick Start Package of necessary legislation initiated by Carl Bildt in 1996, (see supra note 236) and the subsequent “decisions” by the High Representatives following the Bonn PIC meeting in 1997, see Chapter 9 section 2.4 for a discussion of the “Bonn Powers”.

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA a different meaning in relation to foreign policy than it has in relation to customs policy. Foreign policy, in the everyday meaning of the word, denotes both overall policy making and the more detailed practical execution of that policy. Customs policy, on the other hand, would normally be understood to mean only the overall policy making. Article III (1) (f) mentions “Immigration, refugee, asylum policy and regulation.” The fact that the last two words of that provision were not included in the provision on customs was assumed to mean that what qualifies as customs regulations, as opposed to customs policy, is Entity responsibility. Even if the total list of common responsibilities is longer than one might have expected, it has its significant shortcomings, the most notable one being the lack of a common judiciary, including police, courts and legislation relating to the judiciary. This means that the State as such was given no law enforcement competence. This system would seem to require delegation of power to the law enforcement authorities of the Entities if the State, for instance, was to become party to an international agreement which required implementation through law enforcement. Another shortcoming, which is highly unusual for a sovereign state, is the lack of a common army or military force.244 4.6. Entity Responsibility Article III (2) and (3) lay down what is Entity responsibility. The key provision, as mentioned above, is Article III (3) (a), which states that all governmental functions and powers not expressly assigned to the (common) institutions of Bosnia and Herzegovina shall be those of the Entities. Article III (2) (b) requires the Entities to comply fully with the BH Constitution and specifies that the BH Constitution supersedes any inconsistent laws of both the Entities and of Bosnia and Herzegovina. Article XII (2), however, requires the Entities to amend their respective constitutions to ensure their conformity with the BH Constitution within three months of the entry into force.245 The latter provision (Article XII (2)) must be seen as a way of implementing in practical terms the meaning of the former (Article III (2) b). Article III (a) prescribes the right for the Entities to establish “Special Parallel Relationships” with neighbouring States. What exactly “Special Parallel Relationships” means is not described further, but the provision states that such relationships must be consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina. The Constitutional Court has jurisdiction to decide 244

See below in this Chapter 4 section 4.8. Both Entity Constitutions were amended according to input from the Office of the High Representative and the Venice Commission during the first years of the existence of the Dayton Agreement. In 2000, the Constitutional Court issued four partial decisions which declared a further number of provisions in both Entity Constitutions invalid, see Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decisions, U/58-I, II, III and IV, dated 28, 29 and 30 January, 18–19 February, 30 June and 1 July, 18–19 August 2000, see Chapter 6 section 2. 245

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CHAPTER 4 whether “an Entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with this Constitution . . .” (Article VI (3) a). It follows that any Special Parallel Relationship between an Entity and a neighbouring State must respect the division of powers between the State level and the Entity level. No agreement establishing such a relationship may regulate any of the areas reserved for the common institutions of Bosnia and Herzegovina. It is not clear whether a special parallel relationship between an Entity and a neighbouring State requires consent from the Parliamentary Assembly of Bosnia. Article III (2) (a) on special parallel relationships does not require such consent, and the more general Article III (2) (d) states that the Entities may also enter into agreements with States and international organisations, provided that the Parliamentary Assembly of Bosnia and Herzegovina gives its consent to such agreements. This could mean, conversely, that such consent is not necessary when entering into agreements on special parallel relationships. The question was debated, but not resolved at Dayton. If the question arises, it is specified that the Constitutional Court has jurisdiction to decide “Whether an Entity’s decision to establish a special parallel relationship with a neighbouring State is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina”. The provision on special parallel relationships came as a result of Serb insistence that they should have equal rights to conclude what was known as a “Confederation Agreement” with a neighbouring State, and which had already been agreed between Croatia and the Republic and Federation of Bosnia and Herzegovina.246 The provision on special parallel relationships was seen in Dayton as potentially dangerous because such parallel relationships with the neighbours could undermine the power given to the State. If the ties between the Bosnian Serbs and the FRY or the Bosnian Croats and Croatia became even stronger as a result of such bilateral agreements, the risk for the disintegration of Bosnia and Herzegovina would increase. 4.7. The Parliamentary Assembly The BH Constitution provides for a Parliamentary Assembly of Bosnia and Herzegovina consisting of two Chambers; the House of Peoples and the House of Representatives (Article IV (1) and (2)). 246

The agreement had the form of a follow-up to the Washington Agreement between Croatia and the (then) Republic of Bosnia and Herzegovina and was basically a joint defence agreement against the Serbs, entered into on 22 July 1995 while the war was still raging. A follow-up agreement on the Establishment of a Joint Co-operation Council was signed by the Republic of Croatia, the Republic of Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, on 15 December 1995, and specified that it entered into force at the same time. This was, in reality, an agreement between two States and an Entity, and would therefore be subject to parliamentary consent, regardless of the interpretation of Article III (a). Such consent was never sought, and it is unclear what the legal status of the agreement is.

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA The House of Representatives consists of 42 members, one-third to be elected from the territory of the Republika Srpska and two-thirds from the territory of the Federation. This system entailed that the Bosnian Serbs would get “their” one-third of the seats, but that the Bosnian Croats had no such guarantee. The members of this chamber were to be elected directly, and it was very probable that the Bosniacs would get more than one-third of the seats from the Federation, and thus equally probable that the Croats would get less. There was therefore a strong demand during the Dayton negotiations, particularly from the Croat side, that an additional chamber be established in the Parliamentary Assembly, namely the House of Peoples, which guaranteed one-third of the seats of that chamber to each ethnic group.247 This parliamentary chamber would consist of 15 delegates, five from each ethnic group, who were to be selected by their respective Entity parliament members of the same ethnic group.248 The Delegates from the House of Peoples were given the special right to declare a proposed decision of the Parliamentary Assembly to be “destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates . . .” (Article IV (3) (e)). If this procedure should be invoked, the challenged decision would need a majority of the votes of each of the three ethnic groups selected from the Entity Parliaments to be finally adopted. If this is not achieved, the proposed decision would not be adopted. If a majority of either of the other two ethnic groups objects to the invocation of the “vital interest” procedure, the matter is, if not resolved by a Joint Commission, to be referred to the Constitutional Court which shall, according to Article IV (3) (f), “in an expedited process review it for procedural regularity”. This means that the Constitutional Court may only decide whether the proper procedure has been followed, and not on the substance of the matter at stake. There were many attempts in Dayton to introduce procedures for “deadlockbreaking” with regard to the procedures in the House of Peoples and the presidency, but to no avail. The Croats and Serbs were adamant that the ethnic veto should be final.249 The lack of a deadlock-breaking mechanism means that each of the three 247

Article IV (1) (a). Certain imposed amendments in the Entity Constitutions have modified the procedures for selecting delegates from the Entity legislatures (through the two Decisions of the High Representative on the respective Entity Constitutions of the Federation and Republika Srpska, 19 April 2002), but the provisions in the BH Constitution itself have not been subject to any amendments. 249 In the minutes from a meeting between Contact Group lawyers and the Bosnian Serb legal experts in Dayton, dated 9 November, the following point was made: “ X [one of the Bosnian Serb legal experts] acknowledged the utility of some form of deadlock breaking mechanism but stressed that the Serb peoples could not be bound by any decision not approved by Serbian representatives. Any other principle would allow the ‘outvoting’ (majorizacija) of the Serbs.” From the minutes of another meeting, dated 13 November, the following passage is illustrative: “Using [the] constitutional court as a deadlock breaking mechanism is unacceptable. Would embroil court in political issues. Use of arbitrational tribunal for deadlock-breaking is even worse. X [one of the Serb constitutional experts] claimed he did 248

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CHAPTER 4 “constituent peoples”250 can paralyse the legislative process indefinitely. Ronald Slye has described the negative effects of the ethnic requirements: “they make certain citizens of the two Entities ineligible for some representative offices based solely on their ethnicity. Second, they create an incentive for ethnic groups to segregate themselves into separate Entities. In other words, Serbs have a constitutional incentive to become citizens of Srpska, and Bosniacs and Croats have a constitutional incentive to become citizens of the Federation.”251

The ordinary decision-making process of the two chambers of the Parliamentary Assembly is described in Article IV (3) (d). Decisions in both chambers shall be taken by a majority of those present and voting, unless the dissenting votes include two-thirds or more of the delegates or members elected from either Entity. The term of office for the Parliamentary Assembly is not set out in the Constitution. This was an omission, due to the time pressure at Dayton. The term of office for the Presidency is four years, except for the term following the first elections after the entry into force of the Dayton Peace Agreement, which was two years. One might have assumed it practical to specify the same terms for the Parliamentary Assembly.252 According to Article IV (2), the elections to the House of Representatives are to be conducted according to the provisions of Annex 3 of the GFA on Elections, and thereafter to be regulated through Bosnia and Herzegovina legislation.253 The rules on the Parliamentary Assembly, particularly on the House of Peoples, and their implications for the human rights situation in Bosnia and Herzegovina will be subject to further discussions in Chapter 6. 4.8. The Presidency The number of members of the Presidency had not been determined in the Agreed Basic Principles, but there was early agreement in Dayton that the Presidency should consist of three Members. It was specified that one must be of Bosniac, one of Croat and one of Serb ethnicity. The three members of the Presidency were to be elected directly; the Serb Member from Republika Srpska and the Bosniac and Croat Members from the Federation (Article V). The Members of the Presidency were to appoint a Chair of the Presidency, according to legislation to be adopted by the not want to deadlock but had no ideas how to solve the problem.” The Croat side had similar views, whereas the Bosniacs were in favour of a deadlock breaking mechanism. Documents on file with author. 250 On the term “constituent peoples”, see Chapter 6 section 2. 251 Ronald C. Slye, ‘The Dayton Peace Agreement: Constitutionalism and Ethnicity’, Vol. 21, No. 2 The Yale Journal of International Law (1996) p. 463. 252 The first elections in Bosnia and Herzegovina, however, which took place in September 1996, were organised on the basis of the four-year election term for all governmental bodies of Bosnia and Herzegovina. 253 Election Law of Bosnia and Herzegovina, adopted 23 August 2001, Official Gazette of Bosnia and Herzegovina, 23/01.

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA Parliamentary Assembly, but for the first elections (which were held in September 1996) the Member who received the highest total number of votes254 was to become Chair until the next elections, which were to take place two years later. From then on, the election term was to be four years. There were no special powers conferred on the Chair of the Presidency through the provisions of the Constitution. The Members of the Presidency, however, adopted their own rules of procedure in which the Chair is given certain responsibilities regarding the conduct of business. The decision-making process for the Presidency was subject to difficult discussions in Dayton. The danger of a complete dead-lock in this important body was apparent if the “vital interest” clause were to be inserted here. In the end, however, it could not be avoided. It had been laid down as a premise in the Agreed Basic Principles, and the traditional Yugoslav way of deciding through consensus combined with the related fear of being “outvoted” as an “ethnic” group, made it impossible to get any effective deadlock-breaking mechanism into the procedures for the Presidency. Article V (2) (c) and (d) thus specify that the Presidency is to endeavour to adopt its “Presidency Decisions” by consensus, but if this fails, two of the Members can make a decision by majority rule. In such a case, however, one Member of the Presidency (e.g. the outvoted one) may declare such a decision to be destructive of the vital interest of the Entity from which that Member comes. If such a declaration were confirmed by the respective groups of the Entity Parliaments of the same “ethnic” origin as the Member of Presidency who made the declaration, the challenged decision would not take effect. There were differing views in Dayton concerning how much power the Presidency should have and how it would operate in conjunction with the Council of Ministers. From a Bosniac point of view, it was important to get a strong government that could actually execute the policies that were the responsibilities of the common institutions, and to have the Presidency more as a “head of state” function. The Serbs, on the other hand, wanted to have a weak government and to keep the power within the Presidency where they had more control because of the vital interest clause. The end result was that the Presidency was given a list of responsibilities encompassing the conducting of foreign policy, appointing ambassadors, representing the country and ratifying treaties with the consent of the Parliamentary Assembly, as well as proposing an annual budget and reporting on expenditures. Article V (5) (a) specifies that “[e]ach member of the Presidency shall, by virtue of the office, have civilian command authority over armed forces”. It is not clear what this means. The provision goes on to say that neither Entity shall threaten or use force against the other. It also says that all armed forces in Bosnia and Herzegovina shall operate consistently with the BH Constitution and with the sovereignty of the state. The implication is that there will be more than one army. 254

This was former President of the Republic of Bosnia and Herzegovina, Alija Izetbegovitc. The two other members of the Presidency were Momcilo Krajisnik (the Serb Member) and Kresimir Zubak (the Croat Member).

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CHAPTER 4 This is highly unusual, if not unique, for a sovereign state. Article V (5) (b) requires the members of the Presidency to select a Standing Committee on Military Matters to co-ordinate the activities of the different armed forces in Bosnia and Herzegovina, and that they themselves shall be members of that committee. 4.8.1. The “Dayton Mistake” During the final days of the negotiations in Dayton, a typing error with regard to the competencies of the Presidency was made. This has resulted in two different versions of Article V (2) (c) of the BH Constitution, circulating in Bosnia and Herzegovina, and a certain extent of confusion about why this has occurred.255 It therefore seems appropriate to relate the circumstances of this incident, not least because it potentially has consequences for which decisions each of the ethnicallyelected Members of the Presidency can veto. In the version of the BH Constitution that was signed by the Parties in Paris on 14 December 1995, Article V (2) (c ) says: “The Presidency shall endeavour to adopt all Presidency Decisions (i.e., those concerning matters arising under Article III (1) (a)-(e)) by consensus. Such decisions may, subject to paragraph (d) below, nevertheless be adopted by two Members when all efforts to reach consensus have failed.” (Emphasis added).

The significance seemed to be that the decisions pertaining to the provisions mentioned in the parenthesis were subject to the “vital interest” procedure if consensus failed. Other decisions by the Presidency, for example those pertaining to their own rules of procedure, would by implication seem to be subject to an ordinary two-thirds majority vote. In other words, the Presidency Decisions referred to in the parenthesis were seen as the most important decisions to be made by the Presidency, since these could be vetoed by one of the Members according to the provisions in letter (d).256 The reference in Article V (2) (c), establishing the most important Presidency Decisions, was to Article III (1) (a) - (e). This provision states: “The following matters are the responsibility of the Institutions of Bosnia and Herzegovina: a) Foreign policy. b) Foreign trade policy. c) Customs policy. d) Monetary policy as provided in Article VII.

255 See for example the web site of the Constitutional Court of Bosnia and Herzegovina, <www.ustavnisud.ba/constitution>, which contains a different version of Article V (2) (c) compared to the version of the same Article in the BH Constitution contained in the web site of the Office of the High Representative, <www.ohr.int/dpa>. The annexed version of the Constuitution is the version signed in Paris 14 December 1995, and which can be found at the web-site of the Constitutional Court of Bosnia and Herzegovina. 256 See also Chapter 6 section 4.

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA e) Finances of the institutions and for the international obligations of Bosnia and Herzegovina. f) Immigration, refugee, and asylum policy and regulation. g) International and inter-Entity criminal Law enforcement, including relations with Interpol. h) Establishment and operation of common and international communications facilities. i) Regulation of inter-Entity transportation. j) Air traffic control.”

The term “Institutions of Bosnia and Herzegovina” is not specified, it refers to the common institutions of Bosnia and Herzegovina, as opposed to those of the Entities. Looking at the list, it seems clear that these are areas that must be dealt with by both legislator and government. The Presidency and the Council of Ministers are both part of the Governmental system of Bosnia and Herzegovina, but the Presidency was explicitly given a list of powers, specified in Article V (3) (a) – (i), which states: “The Presidency shall have responsibility for: a) Conducting the foreign policy of Bosnia and Herzegovina. b) Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation. c) Representing Bosnia and Herzegovina in international and European organizations and institutions and seeking membership in such organizations and institutions of which Bosnia and Herzegovina is not a member. d) Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina. e) Executing decisions of the Parliamentary Assembly. f) Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly. g) Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency. h) Coordinating as necessary with international and non-governmental organizations in Bosnia and Herzegovina. i) Performing other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities.”

A few months after the entry into force of the Constitution, some of the European and US lawyers that had been present during the negotiations in Dayton realised that the reference to Article III (1) (a)-(e) was meant to have been a reference to Article V (3) (a)-(e). Towards the end of the rather chaotic negotiations over the Constitution in Dayton, there had been a typing mistake. This was apparent from drafts of the BH Constitution circulated at earlier stages in Dayton,257 but is was also clear from the logic of the Constitution. It made sense to refer to the powers listed in Article V (3) as Presidency Decisions, because this is the provision that lists the powers of the Presidency. It also made sense to refer to letters (a)-(e) as the 257

On file with author.

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CHAPTER 4 important Presidency Decisions, because they were clearly more important than those in (f) – (i). This distinction could not be found in the list in Article III (1) between the letters (a)-(e) and (f) – (j). As a result of this discovery, Carl Bildt, the first High Representative, wrote two letters to the US State Department (in their capacity as host for the Dayton negotiations and in charge of the text). The first letter explains why the typing mistake became a problem: “The list in Article III (1) (a) – (e) which is referred to in Article V (2) (c) is being understood by the parties to be a list of powers belonging to the Presidency. In discussions on the Rules of Procedure with the parties, we have insisted that it must be interpreted in light of the fact that the reference to the list is in a provision dealing with procedural matters, and that it does not give the Presidency additional powers to those listed in Article V (3). The parties do not agree with this interpretation. On the contrary, they want to spell out the powers listed in Article III (1) (a) – (e) in the Interim Rules of Procedure for the Presidency. As the Constitution reads now the list of powers contained in Article III (1) (a) – (e) belongs to both the Presidency and the Council of Ministers. The fact that this ambiguity stems from a drafting mistake has not yet been pointed out to the parties, but as the discussions on the respective roles of the Presidency and the Council of Ministers evolves, it is difficult to see how it can be avoided much longer. The implications of the lack of clarity between the powers of the Presidency and of the Council of Ministers can be very serious in the coming weeks and months. It may hamper the setting up of the Council of Ministers because it is unclear what their competencies will be. It may also lead to conflicts, not only between the two bodies in question, but also between the Entities, as they have quite different views on how much power the Council of Ministers ought to have.”258

In the second letter, addressed to the then US Secretary of State, Warren Christopher, Bildt suggested two possible courses of action: “On both substantive and legal grounds, therefore, I believe that the error should be corrected in the new versions of the Constitution now in preparation. As Annex 4 is part of the General Framework Agreement (GFA) which, itself, is a treaty this error can be corrected by the agreement of the parties that an error has occurred (Article 79 of the Vienna Convention on the Law of Treaties). The parties to the GFA, which approved the original text, must therefore agree to have the text of the BH Constitution corrected. How to obtain their approval is, of course, a political issue. If the attempt to correct the BH Constitution in this manner is deemed inadvisable, another possibility could be envisaged. The suggestion that Article V (2) (c) is incorrectly formulated would seem to be a manner for the Constitutional Court of Bosnia and Herzegovina. Until the Constitutional Court can act, I, as the High Representative, may invoke my authority to impose my interpretation under Articles II (1) (d) and V of Annex 10 to the GFA.

258

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Dated 6 November 1996, on file with author.

FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA I recommend the second course of action.”259

It should be noted that the High Representative had been given final authority to interpret the annex on Civilian implementation, according to Annex 10, Article V. In Article II (1) (d) of the same annex, he was given the mandate to “[f]acilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation”. The suggestion was thus that he would tell the parties that he would use that interpretative power to provisionally adopt the intended understanding of Article V (2) (c) until the Constitutional Court was operating and could decide on the matter. The US State Department, however, did not agree to this approach. In a fax received at the OHR on 4 December 1995, the following comments regarding the “Dayton mistake” were made: “Dear Carl, Secretary Christopher has asked me to reply to your letter of November 22 concerning the Bosnian Constitution. We, as the mediators of the negotiations that resulted in the General Framework Agreement for Peace in Bosnia and Herzegovina and its Annexes, and as witness to those agreements, would like to offer the following points of clarification. I ask that you share this approach with the parties and inform them of our views on this issue. We recognize that we as mediators in charge of the technical production of the Dayton Agreement texts committed a typographical error in Article V(2) of Annex 4 in which the intended agreed reference to Article V (2) (a)-(e) was transcribed as a reference to Article III (1) (a)- (e). A review of U.S. records reveals that the reference to Article III (1) (a)-(e) in this place was made inadvertently in the course of reorganizing the Constitution in the final days of Dayton. In the particular circumstances of this case, where the text constitutes a constitution accepted by the Bosnian parties it seems inappropriate to apply the provisions of Article 79 of the Vienna Convention on the Law of Treaties between states to correct the cross reference error. The better approach would be to direct the attention of the parties to the error in the cross reference and to recommend that future publications of the Constitution be of the text that the parties agreed on rather than of the erroneous literal print. Insofar as copies of the Constitution are published under your auspices, the same rule should apply, as your authority under Articles II (1) (d) and V of Annex 10 is limited to civilian implementation and does not extend to the Bosnian Constitution. Hope this provides some clarification of the matter. Sincerely, John C Kornblum.”260

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Letter from Carl Bildt, dated 22 November 1996, on file with author. Fax on file with author. It may be noted that one of the main “cross-Atlantic” conflicts in Dayton was about the extent of the powers vested in the overseer of the civilian implementation of the Peace Agreement, the High Representative. The Europeans as well as the Russians wanted to make sure the High Representative had sufficient authority to make necessary decisions regarding the civilian implementation. The Americans were concerned that if the High Representative got too much power, things may become difficult for the Commander of the military component, COMIFOR. It was not until the so called Bonn 260

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CHAPTER 4 Even if the course of action suggested by the State Department was not fully satisfactory from a legal point of view, the High Representative subsequently wrote letters261 to the three Members of the Presidency, explaining the error and informing them that in the new versions of the Constitution that were about to be published, the error would be corrected.262 In the versions of the BH Constitution in English and the three BH languages that were printed and distributed by the OHR in 1996, Article V 2 (c) therefore read: “The Presidency shall endeavour to adopt all Presidency Decisions (i.e., those concerning matters arising under Article V (3) (a)-(e)) by consensus.”

There has thus been no legally founded amendment or correction of the BH Constitution back to the intended text. The proper procedure for correcting errors in treaties has not been invoked. The Vienna Convention on the Law of Treaties specifies in Article 79 that the parties to a treaty have to agree on the correction. No attempt was made to get the parties to the Dayton Peace Agreement to meet and make the correction. This must be seen in light of the tremendous difficulties in Dayton in reaching agreement. Any reopening of the texts, even just a small technical correction, might have led to the unravelling of the whole Agreement. No formal decision by the High Representative stating that the provision was to be interpreted in the intended manner pending a decision from the Constitutional Court, was made. Such a procedure might, of course, also have had its legal shortcomings, depending on an interpretation of the provisions on the powers of the High Representative. Yet another option would have been to try to get the Parliamentary Assembly to adopt the corrected version as a constitutional amendment. This seemed only a remote theoretical possibility in 1996. From a legal and formal point of view, it is therefore still the text containing the mistake that is in force. Both versions of the Constitution exist, however, but it is worth noting that the version applied by the Constitutional Court is the intended version.263 In any event, the question of which “list” should be read as containing the areas that are subject to the procedure prescribed for “Presidency Decisions”, probably does not have any bearing on which powers were conferred on the Presidency according to the Constitution. Those powers are clearly set out in Article V 3 (a)-(i). The only question is which decisions the Presidency can make with a two-thirds

meeting of the Peace Implementation Council in December 1997 that the Americans finally agreed to interpret the powers of the High Representative beyond what could be inferred from a strict interpretation of Annex 10, see the Bonn Peace Implementation Conference 1997, final document, para XI., <www.ohr.int>, see also Chapter 9 section 2.4. 261 Letters dated 19 November 1996, from Carl Bildt to the Members of Presidency Izetbegovic, Kraijsnik and Zubak. On file with author. 262 Published by the OHR in the three languages of BH as well as in English in 1997. 263 See the official web-site of the Constitutional Court of BH, www.ustavnisud.ba .

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA majority, and which decisions could be subject to the “vital interest” procedure invoked by one of the Members. 4.9. The Council of Ministers There were many discussions in Dayton regarding the executive body of the common institutions. Again the main trends were clear: the Bosniacs wanted a strong government, preferably with a Prime Minister and a number of cabinet ministers with Ministries which would correspond to the list of responsibilities in Article III, whereas the Serb position was to keep the government as small as possible. It became clear that it would not be possible to agree on the number of Ministries or cabinet ministers during the Dayton negotiations, and the provisions that were accepted in the end were vague and open on these points. It is significant that the provisions on the Council of Ministers are subprovisions under the Article that deals with the Presidency. Its importance is thus symbolically of less weight than that of the Presidency. It is laid down that the Presidency shall nominate the Chair of the Council of Ministers, who is then to be approved by the House of Representatives (Article V (4)). The Chair is to nominate the Foreign Minister and the Foreign Trade Minister, and “other Ministers as may be appropriate”. These two ministers were the only ones that corresponded to what was stated in the Agreed Basic Principles. Thus it was not at all clear whether a Prime Ministerial system would emerge, or whether the Council of Ministers would be merely a “secretariat” for the Presidency. The wording in Article V (4) makes a political development in either of those two directions possible. Following the first elections in Bosnia and Herzegovina and the establishment of the new Presidency, considerable effort was placed in getting the Council of Ministers up and running. After lengthy negotiations and hard political pressure mainly from the OHR and the Contact Group, a Council of Ministers with two co-chairs with a vice chair and three cabinet Ministers with two deputies each, emerged approximately three months after the first elections in September 1996. The mandate of the Council of Ministers is to “have the responsibility for carrying out the policies and decisions of Bosnia and Herzegovina in the fields referred to in Article III (1), (4), and (5) . . .” The list in Article III (1) which in itself only refers to “the institutions of Bosnia and Herzegovina”, is thereby directly linked to the functions of the Council of Ministers. It is not clear, however, what exactly “carrying out the policies and decisions of Bosnia and Herzegovina” means, in particular, whether these politics are determined by the Presidency or the Parliamentary Assembly. The text had to be left unclear on this important point because there was no agreement on what the division of competencies between the different institutions of Bosnia and Herzegovina would be. 4.10. The Constitutional Court Under the Dayton Peace Agreement, the Constitutional Court was, except for the Human Rights Chamber, the only Court on the State level in Bosnia and 83

CHAPTER 4 Herzegovina. It was given wide jurisdiction, both on matters relating to the Constitution itself and on the Entity constitutions, as well as in human rights matters. The Court has exclusive jurisdiction to decide any dispute that arises under the Constitution between 1) the two Entities, 2) an Entity or the Entities and any of the State level institutions, and 3) the State level institutions themselves (Article VI (3)). Two examples of such disputes are mentioned, but it is specified that this list is not exhaustive. The two examples are: whether an Entity’s decision to establish a special parallel relationship with a neighbouring State is consistent with the Constitution, and whether any provision of an Entity constitution or law is inconsistent with the Constitution of Bosnia and Herzegovina. Such disputes may be referred to the Constitutional Court by a member of the Presidency, the Chair of the Council of Ministers, the Chair or Deputy Chair of either of the Chambers of the Parliamentary Assembly or by one-fourth of either Chamber of the Parliamentary Assembly or by one-fourth of either Chamber of the Entity legislators, see Article VI (3) (a). The Constitutional Court was further given appellate jurisdiction over issues “under this Constitution arising out of a judgement of any other court in Bosnia and Herzegovina”. In addition to constitutional matters, the Court was given jurisdiction to decide whether any law on which any court (in either of the two Entities of Bosnia and Herzegovina) had based its decision, was consistent with the Constitution, the European Convention on Human Rights, the laws of Bosnia and Herzegovina as well as general principles of international law (Article VI (3)). Such cases were to be referred to the Constitutional Court by a court of the Entities, Article VI (3) (b). In addition, the Constitutional Court was given the task of reviewing the procedural aspects of objections to the invocation of the “vital interest” procedure in the House of Peoples, cf. Article IV 3 (f). The Court consists of nine judges; four to be selected by the House of Representatives of the Federation and two to be selected by the Assembly of the Republika Srpska, in addition to three “international” judges to be selected by the President of the European Court of Human Rights. Consequently, if the three international judges side with any of the three groups on a matter, they will together constitute a majority. None of the three groups, or the two groups within the Federation together, can establish a majority for their view without the help of the international judges. (See Article VI (1) and VI (1) (a)). For appointment of the international judges after the first five year period, Article VI 1 (d) specifies that the Parliamentary Assembly “may provide by law a different method of selection . . .”. The Constitutional Court was given a potentially important role to play in the building of the new Bosnia and Herzegovina. Firstly, it may interpret the often vague or obscure provisions of the Constitution and “shape” and “develop” them through its practice, both in settling disputes and in deciding on individual cases. Secondly, the Constitutional Court was the only common point of reference for the 84

FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA two court systems of the two Entities (except for the Human Right Chamber). It could become instrumental in harmonising the two Entity legal systems in the long run.264 A major difficulty at the time of entry into force of the Constitution, however, was that as there was no central law enforcement system, there was no way to enforce the decisions of the Constitutional Court, unless they were formally referred back to the Entity courts. 4.11. The Relationship to the International Criminal Tribunal for the Former Yugoslavia (ICTY) Article IX of the Constitution stipulates that no person who is serving a sentence imposed by the International Criminal Tribunal for the Former Yugoslavia (ICTY), and no person who is under indictment by ICTY and who has failed to comply with an order to appear before the Tribunal, may stand as a candidate or hold any appointive, elective or other public office in the territory of Bosnia and Herzegovina. This was a politically sensitive provision that generated a number of heated discussions in Dayton. The Serbs did not want any reference to the Tribunal, which they considered politically biased and incapable of judging in a fair way. The Bosniacs, on the other hand, wanted the prohibition against holding public office, etc. to apply to everyone who had been indicted as well as suspected and even acquitted of having committed war crimes. The argument was that many obviously guilty persons were never going to be indicted by the Tribunal because of capacity problems, etc., and some guilty persons might be acquitted because of lack of evidence.265 The Serbs finally gave up the position that no mention should be made of the ICTY, but insisted that only convicted persons should be sanctioned.266 From a rule of law point of view, it seemed unreasonable to impose sanctions against someone who was only indicted but not sentenced, not to mention the sanctioning of suspects and acquitted persons. The compromise in the end was that the inclusion of suspects and acquitted persons was withdrawn from the Bosniac side, but in addition to convicted persons, indicted persons who had been asked to appear before the

264

In its Partial Decisions U 5/98-I, II, III, VI, the Constitutional Court declared that several provisions of the Entity Constitutions are invalid because of inconsistency with the BH Constitution, see Chapter 6 section 2.1. 265 The minutes from a meeting between Contact Group lawyers and Bosniac constitutional experts, dated 13 November, illustrates this: “Bosnian US advisers raised possibility of excluding from office not only indicted or convicted war criminals but also excluding those individuals against whom there is a strong case but insufficient evidence to bring them to trial, e.g. they may have murdered the witnesses.” On file with author. 266 In a summary from a meeting between Contact Group lawyers and Serb legal experts dated 9 November 1995, the following passage is to be found: “The right to vote and hold office should be denied only to those who have been convicted by the International War Crimes Tribunal and not to those who have only been indicted. X [a Bosnian Serb legal adviser] pointed out that to deny rights to those who have not been convicted by a court would be inconsistent with all legal principles.” On file with author.

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CHAPTER 4 Tribunal and not done so, were to be subject to the sanctions.267 The Serbs reluctantly agreed to this. 4.12. Amendment Procedure The proposed amendment procedure was made relatively simple in comparison to amendment procedures in many other constitutions. Amendments may be adopted by the Parliamentary Assembly, including by a two-thirds majority of those present and voting in the House of Representatives (Article X). The two-thirds majority clause is without qualifications, but the reference to the Parliamentary Assembly as a whole means that the proposal must go through the House of Peoples as well. Both the parties and the negotiators in Dayton realised that there were many potential problems with the Constitution, and there was general agreement that amending it should not be unduly complicated. There were proposals that such amendments should only require a two-third majority of the Parliamentary Assembly as a whole, without any qualifications, but in the end, the “vital interest” clause survived even here, as evidenced by the lack of exceptions from the ordinary House of Peoples procedures. 4.13. Entry into Force Article XII lays down that the Constitution enters into force upon signature of the General Framework Agreement (14 December 1995). From that date, the Constitution of the Socialist Republic of Bosnia and Herzegovina was superseded.268 There were discussions on whether a constitution could enter into force through the signing of a peace agreement or if it needed more legitimacy in the form of parliamentary approvals. All parties, however, were painfully aware of the risk of loosing the frail peace if the Constitution were to be presented as an option to which the respective parliaments could vote no. There was, therefore, broad agreement among both the parties and the negotiators that the Constitution simply had to enter into force together with the rest of the peace agreement; the legitimacy would have to be earned as the Constitution hopefully would prove to be a vehicle for reintegration of the former warring parties.269 267

This wording made it impossible for (among others) the Bosniac Serb leader, Radovan Karadic, to try to be re-elected as a politician in Republika Srpska. 268 According to Yee, the old constitution did not permit the amendment process laid down in the Dayton Peace Agreement, as it required substantial participation by the “Assembly” according to its Article 268(2), see Sienho Yee, ‘The New Constitution of Bosnia and Herzegovina’, Vol. 7, No 2 European Journal of International Law (EJIL) (1996) pp. 177– 178. 269 The minutes of meetings between Contact Group lawyers and the Bosniac delegation, dated 7 November 1995, says the following: “Asked about how the constitution should enter into force, X [a senior Bosniac lawyer] said this could be done through a two-thirds vote by the BH Assembly elected in the 1990 elections. In this vote, members of the Assembly who were indicted war criminals could not participate. X went on, however, to express a ‘personal

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA 5. OVERVIEW OVER THE HUMAN RIGHTS ANNEX (ANNEX 6) In addition to the substantially strong human rights provisions of the BH Constitution, the Dayton Peace Agreement contains an additional agreement on human rights in its Annex 6.270 The substantive provisions regarding which human rights to apply in Bosnia and Herzegovina correspond with the human rights provisions set out in the Constitution. The significance of the Human Rights Annex is that it sets up mechanisms aimed at implementing the human rights provisions. Chapter Two of the Human Rights Annex sets up what is called a Commission on Human Rights. The Commission consists of two parts, the Office of the Human Rights Ombudsman and the Human Rights Chamber. 5.1. The Office of the Human Rights Ombudsman The Ombudsman is to be appointed by the OSCE for five-year, non-renewable periods.271 The mandate of the Ombudsman is to investigate alleged or apparent violations of human rights as provided in the European Convention on Human Rights, or with regard to discrimination on the basis of sex, race, etc., in the enjoyment of the rights provided in a list of 16 human rights and other humanitarian treaties annexed to the Human Rights Agreement.272 The Ombudsman might initiate an investigation on his or her own behalf, or following a request from any Party or person or organisation acting on behalf of alleged victims.273 The Ombudsman shall issue findings and conclusions following the completion of an investigation.274 The Ombudsman may also issue special reports to any organ

view’ that the new BH constitution should actually be ‘imposed’ by the international community. Even though many Bosniacs would regard the constitution as an unjust solution, it would be preferable for the constitution to enter into force upon signature in Dayton, in order to avoid the uncertainties of an Assembly vote.” According to a meeting report dated 13 November, another senior Bosniac adviser “suggested that the best way for the constitution to enter into force would be for it to be ‘imposed’, which meant, he said, that it would take effect upon signature.” Both reports on file with author. 270 For more on the Human Rights Agreement, see for example, Nowak, supra note 6, pp. 186–189. 271 On the Human Rights Ombudsman, see, for example, Donna Gomien, ‘The Human Rights Ombudsperson for Bosnia and Herzegovina’, in G. Alfredsson, J. Grimheden, and B. Ramcharan, and A. de Zayas (eds.), International Human Rights Monitoring Mechanisms, Essays in Honour of Jacob Möller, (Martinus Nijhoff Publishers, the Hague/Boston/London, 2001) pp. 763–770; and J. Simor, ‘Tackling Human Rights Abuses in Bosnia and Herzegovina: The Convention Is up to It, Are Its Institutions?’, Issue 6 European Human Rights Law review (1997) pp. 644–662. 272 See more on the annexed instruments to the Constitution and the Human Rights Annex in Chapter 5 section 5. 273 Annex 6, Chapter Two, Part B, Article V (2). 274 Annex 6, Chapter Two, Part B, Article V (4).

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CHAPTER 4 or official.275 The Ombudsman may initiate proceedings before the Human Rights Chamber based on such reports.276 5.2. The Human Rights Chamber The Human Rights Chamber’s activity was terminated 31 December 2003 following an agreement between the Office of the High Representative and the Contact Group. As the Chamber seems to have been one of the more productive institutions that was set up in the Dayton Agreement, this was seen by many bystanders as an odd step. For the purposes of this study it is nevertheless necessary to refer to many of its decisions, as they are important tools in understanding the Dayton Peace Agreement in general and its human rights provisions in particular. As mentioned above,277 the Human Rights Chamber278 was a human rights court, but during the negotiations, particularly the Serbs did not want it to be called a Court, hence the term “Chamber”. The concept of a human rights court had existed since the Carrington plan, and the Owen-Stoltenberg Peace Plan contained the blueprint for the Human Rights Chamber of the Dayton Peace Agreement.279 The Chamber had fourteen members (judges), four from the Federation, two from Republika Srpska and eight international judges, appointed by the Council of Europe.280 During the negotiations in Dayton, it was foreseen, particularly by the Americans, that the Constitutional Court would not deal with human rights issues, but that the Human Rights Chamber would have this responsibility. The Constitutional Court, however, also ended up with competence to judge in human rights matters to some extent. The Human Rights Chamber was given jurisdiction with regard to the same human rights provisions as the Human Rights Ombudsman; the rights and freedoms laid down in the European Convention on Human Rights and its applicable protocols, and the right to non-discrimination in the enjoyment of the list of rights provided in the annex to the Human Rights Agreement. The Chamber: “shall receive by referral from the Ombudsman on behalf of an applicant, or directly from any Party or person, non-governmental organization, or group of individuals

275

Annex 6, Chapter Two, Part B, Article V (6). Annex 6, Chapter Two, Part B, Article V (7). 277 See above, Chapter 4 section 4.4. 278 For more on the Human Rights Chamber, see for example, Nowak, supra note 6; Peter Neussl, ‘Bosnia and Herzegovina still far from the rule of law/Basic facts and landmark decisions of the Human Rights Chamber’, Human Rights Law Journal (1999) pp. 290–303, Nowak, ‘Individual Complaints Before the Human Rights Commission for Bosnia and Herzegovina’, in G. Alfredsson, J. Grimheden, and B. Ramcharan, and A. de Zayas (eds.), International Human Rights Monitoring Mechanisms, Essays in Honour of Jacob Möller, (Martinus Nijhoff Publishers, the Hague/Boston/London, 2001) pp. 771–795. 279 See for example Szasz, ‘The Protection of Human Rights through the Dayton/Paris Peace Agreement for Bosnia’, supra note 222, p. 310. 280 Annex 6, Chapter Two, Part B, Article VII (1) and (2). 276

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA claiming to be a victim of a violation by any Party or acting on behalf of alleged victims who are deceased or missing . . .”

The Chamber may attempt to facilitate a friendly settlement.281 If this is not attempted, or if such an attempt does not succeed, the Court would issue decisions, based on ordinary court proceedings. The decisions of the Chamber were final and binding.282 Although the BH Constitution contained strong human rights provisions, inter alia the direct applicability and priority over other law of the ECHR, it was clear that the failure to establish a common judiciary on the state level meant that actual implementation of human rights would be extremely difficult. Because there was a certain anticipation that the judiciary would not be on the list of common state competencies, which proved to be correct, the human rights court was introduced early in the negotiations as an important feature of the entire peace settlement. There was a strong sense among the mediators that the lack of a state-level judiciary made the human rights mechanisms, and particularly the Human Rights Chamber, essential for the entire legitimacy of the human rights aspect of the agreement – had these mechanisms not been in place, the human rights protection would have been merely theoretical. It was felt that it would look particularly inconsistent not to have a proper human rights mechanism, precisely because the human rights provisions were so strong and comprehensive (at least on paper). Before the Dayton negotiations, there were discussions pertaining to whether the Human Rights Chamber would be permanent or temporary. It was argued that it should be a temporary tribunal that would be terminated when Bosnia and Herzegovina became Member of the Council of Europe, because, it was argued, then the inhabitants would have access to the European Court of Human Rights. Others argued that the considerable threshold for complaining to the European Court of Human Rights meant that such a proposal would render the human rights protection in Bosnia and Herzegovina very weak, even if there was going to be a judiciary on the State level. As there turned out to be no agreement in Dayton on a common judiciary, it was seen as vital, not only to establish the Human Rights Chamber and Ombudsman, but to include a specific reference to those institutions in the BH Constitution itself. Hence, Article II (1) of the BH Constitution states: “Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms. To that end, there shall be a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 to the General Framework Agreement.” (Emphasis added.)

This constitutional reference to the Human Rights Annex was meant to underline the importance, and the permanent character, of the human rights institutions embodied in the Dayton Peace Agreement. It was recognized in the BH Constitution itself that

281 282

Annex 6, Chapter Two, Part C, Article IX. Annex 6, Chapter Two, Part C, Article XI (3).

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CHAPTER 4 the Human Rights Chamber would be instrumental in contributing to ensuring that the listed and annexed international human rights are protected. 6. CONCLUDING COMMENTS The Dayton Peace Agreement was both the initial peace settlement, which in fact ended the war, and at the same time a comprehensive and permanent constitutional framework for the state of Bosnia and Herzegovina. The reason for this was that the parties wanted to know exactly what scenario they could expect in the future, and also that the international mediators wanted to prevent any attempts for a possible rematch. The peace agreement was thus meant to inspire a willingness to implement it instead of obstructing the process while waiting for “the next round”. It was therefore clear that the peace settlement had to be conceived as a guarantee for the political interests of the three main nationalist groups. At the same time the mediators wanted to allow for a dynamic development in a more democratic direction should the political climate change. These contradictory concerns are reflected throughout the Dayton Peace Agreement. As Misha Glenny observes: “The Dayton documents, which make up a thick book, are complex and contradictory. They have been interpreted both as a blueprint for partition and for the consolidation of a unitary state. The constitution included the most advanced provisions for the protection of human rights anywhere in the world.”283

The fact that the Dayton Peace Agreement had to accommodate both the strong forces for disintegration and the ambitions for a democratic multiethnic state, is reflected in the contradictions within the settlement. The state foreseen in the BH Constitution, is as a point of departure, extremely decentralised. The common state organs were given very little power, while the two Entities were given all the power not explicitly allocated to the state level. The fact that the two Entities carry names related to statehood (Federation and Republic) and the state itself is simply called Bosnia and Herzegovina reflects this, as does the citizenship and passport provisions as well as the composition and functions of the political organs of the state. The right of ethnic veto in the least representative chamber of the Parliamentary Assembly and in the Presidency is perhaps the most prominent illustration of how strong the nationalist forces were during the negotiations. At the same time, as pointed out in the above quotation, the human rights protection laid down both in the BH Constitution itself and in the Human Rights Agreement was comprehensive and comparatively solid, particularly in the field of ethnic discrimination. It is the inherent contradiction between the ethnic requirements and the human rights protection against ethnic discrimination that will be explored in the following 283

Misha Glenny, The Balkans 1804 – 1999 Nationalism, War and the Great Powers, supra note 97, p. 651.

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FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA chapters. In order to do that, it will be necessary to determine the scope and content of the human rights protection that has been incorporated into the BH Constitution (Chapter 5), as well as the actual content of the constitutional provisions on the Parliamentary Assembly and the Presidency (Chapter 6). To what extent the latter provisions might infringe on certain provisions of the former will be discussed in Chapter 7.

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CHAPTER 5. PROTECTION AGAINST ETHNIC DISCRIMINATION IN BOSNIA AND HERZEGOVINA 1. INTRODUCTION As has been mentioned earlier, it was seen as imperative by the international community to include strong human rights provisions in the various draft peace agreements for Bosnia and Herzegovina, not least because of the massive human rights violations that took place during the war.284 It was clear that human rights violations, such as instigation and encouragement of ethnic discrimination and hatred by various public authorities, were among the main reasons for the rapid escalation of the conflict. This chapter will seek to clarify the extent of the human rights protection pertaining to ethnic discrimination that has been laid down in the Dayton Peace Agreement. It will thus seek to describe the structure of the human rights framework as it is laid down in the agreement. In addition, it will try to analyse the actual content and scope of the provisions pertaining to protection against ethnic discrimination, including to what extent the non-discrimination grounds in the human rights instruments are applicable to what may be seen as ethnic discrimination in Bosnia and Herzegovina. As explained above in Chapter 1, one of the aims of this book is to explore possible conflicts in the Dayton Peace Agreement between, on the one hand, human rights provisions protecting against ethnic discrimination with regard to certain political rights, and on the other hand, constitutional provisions which seem to authorise ethnic discrimination. The relevant human rights provisions in this context are therefore provisions on non-discrimination together with provisions ensuring political rights, for example, the right to vote and stand for election regardless of ethnic origin. As many of the relevant human rights provisions in the Dayton Peace Agreement incorporate international human rights standards through referring to them rather than spelling them out in full in the text, this chapter will seek to describe their actual content as well as their legal status in the BH Constitution and the Human Rights Annex. This seems necessary in order to determine the scope of the rules protecting against ethnic discrimination laid down in the Dayton Peace Agreement. 2. HUMAN RIGHTS IN PREVIOUS PEACE PROPOSALS The Vance-Owen Peace Plan contained a Constitutional Framework which stated that the highest level of internationally recognised human rights should be provided

284

See Chapter 1 section 1. 93

CHAPTER 5 for in the Constitution.285 Annex V on Interim Arrangements for Bosnia and Herzegovina contained “Interim arrangements for the protection of human rights”.286 These arrangements were aimed, in particular, at reversing the results of ethnic cleansing through, inter alia, declaring that “All statements or commitments made under duress, particularly those relating to the relinquishment of rights to land and property, are null and void”. A monitoring mechanism in the form of four Human Rights Ombudsmen was to be appointed by the ICFY Co-chairmen. The Owen-Stoltenberg Peace Plan287 had more elaborate provisions on human rights.288 It proposed a Human Rights Court,289 with wide competencies to judge in human rights matters. It also contained a “Constitutional Agreement of the Union of Republics of Bosnia and Herzegovina”, which laid down that all persons within the territory of Bosnia and Herzegovina were entitled to all the rights and freedoms “provided for in the instruments listed in Annex C”. This list consisted of 19 international human rights and humanitarian law instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR) and all the major UN human rights instruments. According to one commentator, the main reason behind the listing of international human rights instruments rather than spelling the relevant human rights out in the texts was to avoid: “over reliance on mere recitations of established rights (i.e., that to life), which, unless explained in detail would necessarily be interpreted in light of previous Yugoslav constitutional instruments not particularly familiar to the negotiators and regarded by them with understandable suspicion in view of current events . . .”.290

3. STRUCTURE OF THE HUMAN RIGHTS PROTECTION IN THE DAYTON PEACE AGREEMENT The human rights framework of the Dayton Peace Agreement is based on the same structure as the draft Owen-Stoltenberg Peace Plan. The BH Constitution, however, also sets out substantive human rights provisions in addition to referring to a list of international human rights and humanitarian instruments. One might divide the rules relating to human rights into substantive and procedural human rights provisions. The substantive rules on human rights are to be 285

UN document S/25221, 2 February 1993, p. 14, para. 8. Also printed in B.G. Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers (Kluwer Law International, 1997) Vol. I, p. 249. 286 UN document S/25221, 2 February 1993, p. 37. 287 The Owen-Stoltenberg Peace Plan has been published in B.G. Ramcharan (ed.), The International Conference on the Former Yugoslavia, Official Papers (Kluwer Law International, 1997) Vol. I, p. 275 ff. 288 The Owen-Stoltenberg Peace Plan, Appendix 1, V. 289 The Owen-Stoltenberg Peace Plan, Appendix 1, Annex B. 290 Paul C. Szasz, ‘The Protection of Human Rights through the Dayton/Paris Peace Agreement for Bosnia’, supra note 222, p. 306.

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PROTECTION AGAINST ETHNIC DISCRIMINATION found primarily in Article II of the BH Constitution, but also in the Preamble and Annex I to the BH Constitution, and not least in Annex 6 to the GFA (Agreement on Human Rights). The GFA Annexes on Refugees and Displaced Persons291 as well as on Elections 292 also contain provisions relevant to human rights protection. The procedural human rights provisions aim at securing implementation of the substantive rules. As mentioned in the previous chapter, the Human Rights Agreement sets up a Human Rights Commission, consisting of a Human Rights Ombudsman and a Human Rights Chamber.293 The Human Rights Ombudsman is given competence to investigate and consider allegations of violations of any of human right contained in the Constitution and the Human Rights Agreement. The Human Rights Chamber is given competence to make inter alia binding decisions in cases of such human rights violations.294 In addition, the Constitutional Court was given competence to judge in cases referred to it by any court in either of the Entities regarding whether the laws on which court decisions were based are compatible with the ECHR or any of the other instruments incorporated through the BH Constitution. The Annex on Refugees and Displaced Persons may also be seen as an instrument for implementing certain human rights, such as the right to compensation for lost property. Furthermore, one may see the annexes on Civilian Implementation,295 on the International Police Task Force,296 as well as the Annex on the Military Aspects of the Peace Agreement,297 as annexes designed to ensure the implementation of human rights in Bosnia and Herzegovina. 3.1. Article II of the Constitution of Bosnia and Herzegovina Article II of the BH Constitution consists of eight sub-provisions. Article II (1) states in general terms that Bosnia and Herzegovina shall ensure the highest level of internationally recognised human rights and fundamental freedoms, and that to that end, a Human Rights Commission is to be established as set out in Annex 6 to the GFA. Article II (2) lays down that the rights and freedoms set forth in the European Convention on Human Rights and its Protocols shall apply directly in Bosnia and Herzegovina and have priority over all other law. This means that all the human rights listed in the European Convention and its additional protocols have been transformed into Bosnian national legislation, and that those rights and freedoms shall prevail in case of conflict with other legislation. 291

Agreement on Refugees and Displaced Persons, Annex 7 to the General Framework Agreement. 292 Agreement on Elections, Annex 3 to the General Framework Agreement. 293 Agreement on Human Rights, Annex 6 to the General Framework Agreement. 294 Agreement on Human Rights, Annex 6, Article VIII (1). 295 Agreement on Civilian Implementation, Annex 10. 296 Agreement on International Police Force, Annex 11. 297 Agreement on the Military Aspects of the Peace Settlement, Annex 1-A.

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CHAPTER 5 Article II (3) states that all persons within the territory of Bosnia and Herzegovina shall enjoy the rights and freedoms referred to in Article II (2), and it then briefly lists some of the most central rights laid down in the ECHR in subletters (a) to (m). The rights contained in the additional protocols are not listed. One might say that this list provides an illustration of the content of some key human rights, but adds little of substance, as the actual rights and freedoms applicable in Bosnia and Herzegovina are laid down in the previous provision (Article II (2)). Article II (4) contains a non-discrimination provision, stating that the rights and freedoms provided for in Article II of the Constitution, or in any of the international agreements listed in Annex I to the Constitution, shall be “secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Article II (5) states that all refugees and displaced persons have the right to freely return to their homes of origin, and to have property, of which they were deprived in the course of the hostilities since 1991, restored, or to have such losses compensated. The provision also lays down that any commitments or statements relating to such property made under duress during that period are null and void. Article II (6) relates to implementation of the human rights provisions. It says that “Bosnia and Herzegovina, and all courts, agencies, governmental organs and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above”. This provision underscores the obligation already laid down in Article II (2). Article II (7) states that Bosnia and Herzegovina shall remain or become party to the international agreements listed in Annex I to the Constitution. This is thus a commitment undertaken by the authorities of Bosnia and Herzegovina to accede to certain instruments of international human rights and humanitarian law. Article II (8) specifies that “all competent authorities in Bosnia and Herzegovina” shall co-operate with and give unrestricted access to: international human rights monitoring mechanisms established for Bosnia and Herzegovina, the monitoring bodies of international human rights treaties, the International Tribunal for the Former Yugoslavia, and any other organisation authorised by the UN Security Council with a mandate concerning human rights or humanitarian law.298 The use of the word “in” instead of “of” before Bosnia and Herzegovina underlines that it is not only the responsibility of the central authorities, but also the responsibility of all competent Entity authorities to comply with this provision.

298

At first, the provision did not have a reference to the International Criminal Tribunal for the Former Yugoslavia because particularly Milosevic opposed this. Hence, the somewhat ambiguous reference to “any other organisation authorised by the UN Security Council with a mandate concerning human rights or humanitarian law”. This was meant to cover the International Criminal Tribunal for the Former Yugoslavia (ICTY). When the explicit reference to the ICTY was eventually agreed upon after all, the reference to “any other organization . . .” nevertheless stayed.

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PROTECTION AGAINST ETHNIC DISCRIMINATION 3.2. Agreement on Human Rights As has been explained above, the substantive human rights that are applicable in Bosnia and Herzegovina were firmly laid down in the BH Constitution. The same rights and freedoms were also laid down in the Human Rights Agreement. The Human Rights Chamber and the Human Rights Ombudsman were given responsibility, as specified above, for: “(a) alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, or (b) alleged or apparent discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex . . .” 299

It might appear confusing that the same human rights and fundamental freedoms have been laid down in two different parts of the Dayton Peace Agreement. As far as the parties to the annexes are concerned, the rights and freedoms laid down in the Human Rights Annex add little to those laid down in the Constitution. The significance of the substantive part of the Human Rights Agreement, however, can be found in the General Framework Agreement, parties of which were the state of Bosnia and Herzegovina together with Croatia and FRY. Those parties “agree to comply fully with the provisions concerning human rights set forth in Chapter One of the Agreement at Annex 6 . . .”.300 The wording thus indicates that Croatia and FRY are committed to secure all the rights listed in the Human Rights Agreement to all persons within their own jurisdictions. This was indeed the intention of the American drafters, but it is uncertain whether the parties to the GFA understood it in this way. Notwithstanding the placement in the Dayton Peace Agreement of the substantive human rights and fundamental freedoms, the Human Rights Chamber has a far-reaching jurisdiction when it comes to discrimination. In its annual report of 1999, the Chamber specified that: “The Chamber has particularly wide jurisdiction to deal with discrimination issues since, under Article II para. 2(b) it can deal with alleged or apparent discrimination arising in the enjoyment not only of the rights and freedoms guaranteed by the European Convention, but also those guaranteed by any of the fifteen other human rights agreements listed in the Appendix to Annex 6. Its jurisdiction in this field is thus considerably wider than that of the European Court of Human Rights since it extends to fields such as employment, access to the public service and social security, which are not covered by the Convention.”301 299

Annex 6, Chapter Two, Part A, Article II (2). General Framework Agreement, Article VII. 301 Human Rights Chamber of Bosnia and Herzegovina, Annual Report, 1999, p. 11. 300

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CHAPTER 5 The appendix with the list of international instruments is identical to the corresponding appendix attached to the BH Constitution, except that it also contains the ECHR, which was not considered necessary in relation to the Constitution, as it incorporates the ECHR and gives it direct applicability. In fact, the clearly higher status of the ECHR and applicable protocols in the sense that they are given priority over all other law, seem to be the only significant difference between the BH Constitution and the Human Rights Agreement when it comes to the actual content of the provisions on human rights and fundamental freedoms. 4. ARTICLE II (2): DIRECT APPLICATION AND PRIORITY OF THE ECHR AND PROTOCOLS At the time of the negotiations of the Dayton Peace Agreement, Bosnia and Herzegovina was not a member of the Council of Europe, and could therefore not become a party to the European Convention on Human Rights.302 For this reason, the procedural parts of the Convention, for instance the right of individuals to complain to the European Court of Human Rights, could not be included in the BH Constitution. In order to give Bosnia and Herzegovina a human rights framework that was up to European standards, it was nevertheless decided to give all substantial rights and freedoms in the European Convention on Human Rights direct application in Bosnia and Herzegovina through Article II (2) which states: “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”

This provision means that every one of the rights and freedoms contained in the ECHR and its applicable Protocols, in the original wording that is used in those instruments, have become a part of the domestic constitutional law of Bosnia and Herzegovina. In addition, the interpretations of those provisions that have been developed through case law from the Convention organs are of significant relevance.303 In order to determine the scope of application of the relevant provisions of the ECHR (through the BH Constitution) in Bosnia and Herzegovina, it is therefore necessary to take relevant case law from the authorities in Strasbourg304 into account. Except from the various mechanisms for general implementation of human rights described above, there are no constitutional rules indicating how this fundamental provision is to be implemented in practice. It is, for example, not 302

See the first preambular para. of the ECHR. On the process of including Bosnia and Herzegovina as a member of the Council of Europe, see Manfred Nowak, ‘Is Bosnia and Herzegovina Ready for Membership in the Council of Europe’, Vol. 20, No. 7–11 Human Rights Law Journal (HRLJ) (30 November 1999). 303 The Convention Organs have until 1998 consisted of a Commission and a Court. After the entry into force of Protocol 11 to the ECHR, the Commission ceased to exist and the Court was reformed. 304 The European Commission and Court of Human Rights.

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PROTECTION AGAINST ETHNIC DISCRIMINATION entirely clear how the “priority rule” is supposed to work or how it is supposed to be interpreted. One question is what the term “all other law” is meant to cover. Another question is how the priority rule is to be applied in relation to human rights other than those contained in the ECHR and Protocols. A third question is which Protocols are meant to be covered by the wording. These questions will be discussed in the following section. 4.1. Interpretation of the Term “All Other Law” Article II (2) gives the rights and freedoms contained in the ECHR and its Protocols priority over all other law. In case of conflict between one of these rights and a national Bosnian rule, the former will prevail. The wording “all other law” indicates that the provision covers legislation on both the Entity as well as on the State level. This clearly includes the Entity Constitutions. One question is whether the reference to “all other law” also pertains to the BH Constitution itself. If so, it would constitute a threshold against amending the BH Constitution in any way contrary to the ECHR. This seems to be the intention of the Constitution in any case, seeing that Article X (2) on amendment states that “No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution, or alter the present paragraph”. Apart from this limitation, the Parliamentary Assembly may amend the BH Constitution freely. If the reference to “all other law” actually includes the BH Constitution, the logical consequence is that any constitutional provisions that are conflicting with any of the rights or freedoms laid down in the ECHR and applicable protocols could be considered overruled. This specific question has not been subject to extensive discussions in theory. It appears that those who have touched upon it assume that the term “all other law” does tend to include the BH Constitution in the term. Nowak states that: “By virtue of Article II (2) of Annex 4, it shall apply directly in BH and shall have priority over all other law, i.e. it has been fully incorporated into the domestic legal order on a level equally to or even above the Constitution.”305

Yee notes that: “The new Constitution does not directly address the hierarchical status of treaties except that it provides for the direct application in Bosnia and Herzegovina of the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and for the supremacy of these rights and freedoms over all other law and, as such, apparently over even other provisions of the New Constitution.”306

305

Nowak, ‘Individual Complaints Before the Human Rights Commission for Bosnia and Herzegovina’, in G. Alfredsson, J. Grimheden, and B. Ramcharan, and A. de Zayas (eds.), International Human Rights Monitoring Mechanisms, Essays in Honour of Jacob Möller, (Martinus Nijhoff Publishers, the Hague/Boston/London, 2001) pp. 783–784. 306 Yee, supra note 268, p. 184.

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CHAPTER 5 Looking at the wording of Article II (2), this interpretation appears to be correct. The term “all other law” seems, from a purely linguistic point of view, to be meant to cover literally all other law, which necessarily includes constitutional law. It might be argued that it is unlikely that it was the intention of the parties to make the human rights protection regime stronger than, and potentially prevailing over, other constitutional provisions. It may be noted, however, that this was certainly the very clear intention of the Contact Group mediators. This is why the wording is so unambiguous on this point. As it is the ordinary understanding of the term that is the basis for interpretation of treaties,307 the alleged intention (or nonintention) of the parties should not be a decisive factor. The wording of the priority rule specifies that the rights and freedoms laid down in the ECHR and its Protocols shall have priority above all other law, and thus it is safe to conclude that these rights and freedoms do have a superior constitutional status in the legal system of Bosnia and Herzegovina. 4.2. The Relationship between ECHR and Potentially “Higher Standards” in Other Instruments From the wording of the BH Constitution, it is not entirely clear what the relationship is between Article II (1) and Article II (2). The former provides for the “highest level of internationally recognized human rights and fundamental freedoms”, whereas the latter provides for the priority of the rights and freedoms laid down in the ECHR. What then, if in a specific case, the “highest level” is not to be found in the ECHR, but in another human rights instrument? Michael O’Flaherty raises this issue in connection with the question of whether the absolute prohibition against the death penalty contained in the Second Optional Protocol to the ICCPR would prevail over the partial ban on death penalty that is contained in Protocol 6 to the ECHR.308 His view is that in such a case it is the “highest standard” which should apply, even if the “highest standard” is contained in other instruments than the ECHR. This question was dealt with by the Human Rights Chamber in a decision from 5 September 1997. Here, the Chamber noted that because the “highest standard” – in this case the absolute prohibition on death penalty in the Second Optional Protocol to the ICCPR – was made applicable in Bosnia and Herzegovina through Article II (4) of the BH Constitution and Article 1 of the Human Rights Agreement, it would have to be applied.309 307

Article 31 of the Vienna Convention on the Law of Treaties. M. O’Flaherty, ‘Human Rights in the General Framework Agreement for Peace in Bosnia and Herzegovina’, in G. Alfredsson, J. Grimheden, and B. Ramcharan, and A. de Zayas (eds.), International Human Rights Monitoring Mechanisms, Essays in Honour of Jacob Möller, (Martinus Nijhoff Publishers, the Hague/Boston/London, 2001) p. 754, but see also Slye, supra note 251, p. 462. 309 Damjanovic against the Federation of Bosnia and Herzegovina, case no.CH/96/30, 5 September 1997, The Human Rights Chamber of Bosnia and Herzegovina (HRC), para. 37. See also Nowak, supra note 6, pp. 180–181. 308

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PROTECTION AGAINST ETHNIC DISCRIMINATION This would also seem to follow from the provisions of the ECHR itself. Article 53 prescribes that: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.”

Technically, Bosnia and Herzegovina did not become Party to the instruments listed in Annex 1 to the BH Constitution, but according to the BH Constitution, these instruments were “ to be applied in Bosnia and Herzegovina”.310 It would therefore seem to be the only reasonable interpretation that the “highest standard” should apply, even if it is not contained in the ECHR or its Protocols. 4.3. Which Protocols are Covered? Article II (2) states that the rights and freedoms set forth in the ECHR “and it’s Protocols” shall apply directly in Bosnia and Herzegovina. One question that arises from this wording is which of the protocols are meant to be covered. It might be argued that only the protocols that were in force at the time when the Constitution entered into force were meant to be included. The list of international instruments that constitute Annex 1 to the BH Constitution, however, contained instruments that had been adopted, but not entered into force, such as the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the European Charter for Regional and Minority Languages and the Framework Convention for the Protection of National Minorities. One might therefore assume that those protocols that had been adopted at the time the Constitution entered into force could be considered covered by the wording of Article II (2). The relevant Protocols that were adopted at the time of the entry into force of the BH Constitution were the first, fourth, sixth, seventh and eleventh311 protocols to the European Convention of Human Rights. It is doubtful if the meaning was that also future Protocols, that had not been adopted or even negotiated, should be covered by the wording in Article II (2). It seems that if non-existent protocols were meant to be included, explicit language to that effect would have been required.312

310

Annex 1 to the Annex 4 of the GFA. Protocol 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, was adopted on 11 May 1994 and entered into force on 1 November 1998. Although this protocol reformed the monitoring system of the ECHR and thus was not directly relevant to Bosnia at that time, it should be assumed that protocol 11 was included in the reference in Article II (2) for the reasons stated above. 312 This would at least seem to follow from general principles of treaty interpretation, as reflected in Article 31 (1) of the Vienna Convention on the Law of Treaties, which states that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. 311

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CHAPTER 5 4.4. Non-discrimination Protection in the ECHR The rights and freedoms laid down in the ECHR and Protocols have superior status in the BH Constitution. It therefore seems important to determine the scope of the discrimination protection contained in the ECHR and its protocols. The human rights provisions on non-discrimination that are contained in other applicable instruments, particularly the ICCPR (Articles 2, 25 and 26) and the ICERD (Articles 1 and 5) will be discussed below, under Chapter 5.5. The fundamental principle of the ECHR is that the rights and freedoms apply equally to every person. All rights and freedoms included in Section I of the Convention and in applicable Protocols apply to every person within the jurisdiction of the States Parties, according to Article 1 of the Convention. Implicitly, this may be seen as an overreaching non-discrimination rule. Article 14 of the ECHR prescribes an explicit prohibition against discrimination. It states that the “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Applicable rights and freedoms set forth in the relevant protocols shall be secured on the same grounds. There is no definition of the term “discrimination” itself in the European Convention on Human Rights. Practice from the European Court (and Commission) of Human Rights, however, has sought to identify what constitutes discrimination in terms of the Convention. The concept of discrimination was dealt with in one of the early judgements of the European Court of Human Rights, in the Belgian Linguistic Case,313 and still represents the “core of the Convention meaning of discrimination”.314 The applicant had claimed that, based on the French version of the text (“sans distinction accune”), every distinction based on the listed criteria was prohibited under the Convention. The Court stated that the results of such an interpretation would be “absurd”,315 and referred to principles extracted from the legal practice of a large number of democratic states, saying that “the principle of equality of treatment is violated if the distinction has no reasonable and objective justification”. It went on to say that it was not enough that the differentiation pursued a legitimate aim: “Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised”.316

313

Belgian Linguistic Cases, ECHR, Judgement of 23 July 1968, Series A 6. See P.van Dijk and G.J.H van Hoof, Theory and Practice of the European Convention on Human Rights, (Kluwer International Law, the Hague/London/Boston, Third Edition, 1998) pp. 722–723, and D.J.Harris, M. O’Boyle, C. Warbrick, Law of the European Convention on Human Rights (Butterworths, London/Dublin/Edinburgh, 1995) p. 475. 315 Belgian Linguistic Cases, ECHR, p. 34, para. 10. 316 Ibid.. 314

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PROTECTION AGAINST ETHNIC DISCRIMINATION Hence, discrimination contrary to Article 14 would be differential treatment of similar cases without reasonable and objective justification.317 And even if there were such justification, it would still be a violation if the effects of the discrimination were out of proportion in relation to the aim sought by the state in question. Article 14 of the ECHR is an accessory non-discrimination clause. It states that the “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, [etc.] . . .”. It therefore does not protect against discrimination in areas that fall outside the rights established by the Convention. Article 14 will thus only be violated in conjunction with one of the other substantive provisions of the Convention or relevant protocols. But there need not have been a violation of one of the other rights of the Convention. It is enough that it is established that the alleged discrimination falls within the scope or ambit of one of the other Articles of the Convention.318 The organs in Strasbourg have found that there can be a violation of Article 14 even when there is no breach of another provision, as long as the discrimination still falls within the ambit of one of the relevant provisions in the Convention. In fact, case law from Strasbourg shows that if it has been established that one of the other substantive rights has been violated, the Court has often found it unnecessary to state that a violation of Article 14 has occurred.319 4.5. Discrimination in the Exercise of Political Rights under the ECHR and Article 3 of Protocol 1 As mentioned above, the form of discrimination that will be subject to analysis in this book is ethnic discrimination with regard to political rights, especially the equal right to vote and be elected for all public offices. Because of its accessory character, Article 14 can only protect against ethnic discrimination if there are such political rights laid down elsewhere in the ECHR or its applicable protocols. There are no rights of this type specified in Section I of the ECHR. Article 3 of Protocol 1 to the ECHR, however, lays down the obligation of State Parties to hold “free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. This provision is the only substantive provision in the ECHR and its applicable protocols that has been formulated as an obligation on States rather than as a right 317

One example is that making distinctions on the basis of, for example, sex has been regarded as justifiable by the European Court of Human Rights, see Rasmussen v. Denmark, Judgement of 28 November 1984, ECHR, Series A 87, where different time limits for contesting the paternity of a child for husbands and wives were considered justifiable. 318 For examples see P. van Dijk and G.J.H van Hoof, surpa note 315, pp. 712–713 and D.J. Harris, M. O’Boyle, C. Warbrick, supra note 314, pp. 265–266. 319 This was the case in for example Dudgeon v. the United Kingdom, Judgement 22 October 1981, ECHR, Series A 45, para. 67.

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CHAPTER 5 for individuals. The European Court on Human Rights, however, has made it clear that this wording does not signify that the provision does not contain individual rights.320 The Court has also accepted substantial variations in the national election systems.321 Even if the concept of “free and fair elections” is not a unitary concept, the duty of States to hold free and fair elections thus translates into an individual right to take part in such elections. Moreover, Article 14 ensures that this political right must be secured without discrimination based on, for example, ethnicity. It therefore seems reasonable to suggest that the ECHR in general protects against ethnic discrimination in the exercise of voting rights and the right to stand for election. This question will be dealt with in more detail in Chapter 7. 5. ARTICLE II (4): NON-DISCRIMINATION IN OTHER INSTRUMENTS Article II (4) of the Constitution of Bosnia and Herzegovina states that the rights and freedoms provided for in “this Article or in the international agreements listed in Annex 1 to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. The rights and freedoms referred to in this Article encompass the rights and freedoms contained in the ECHR and applicable protocols, as well as the rights of refugees and displaced persons to return to their homes of origin, and to compensation, according to Article II (5). Furthermore, Article II (4) refers to the “international agreements listed in Annex 1”. The text of Annex 1 is as follows: “Annex 1: Additional Human Rights Agreements to be Applied in Bosnia and Herzegovina 1. 2. 3. 4. 5. 6. 7. 8. 9.

320 321

1948 Convention on the Prevention and Punishment of the Crime of Genocide 1949 Geneva Conventions I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I–II thereto 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto 1957 Convention on the Nationality of Married Women 1961 Convention on the Reduction of Statelessness 1965 International Convention on the Elimination of All Forms of Racial Discrimination 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto 1966 Covenant of Economic, Social and Cultural Rights 1979 Convention on the Elimination of All Forms of Discrimination Against Women

See below under Chapter 7 section 2. See below under Chapter 7 section 2.

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PROTECTION AGAINST ETHNIC DISCRIMINATION 10. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 11. 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 12. 1989 Convention on the Rights of the Child 13. 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 14. 1992 European Charter for Regional or Minority Languages 15. 1994 Framework Convention for the Protection of National Minorities.”

As mentioned above, Article II (4) states that the rights and freedoms contained in the above-mentioned instruments shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race etc. It thus clearly “imports” a discrimination prohibition into the relevant instruments. Most of these already contain such discrimination prohibitions, and one might therefore ask what the significance of this non-discrimination provision really is. Are the rights and freedoms listed in the instruments of the annex given a legal status that makes them directly applicable in Bosnia, or does the provision assume the pre-existence of those rights, and thus only determines that the exercise of them must take place without discrimination? The difference in wording between Article II (2) and (4) seems noteworthy in this respect. Article II (2) states that the rights and freedoms of the ECHR and protocols “shall apply directly in Bosnia and Herzegovina”. Article II (4) says that the rights and freedoms listed in “this Article or . . . in Annex 1 shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as race, color, [etc.] . . .”. One could argue that if the meaning had been to make the latter rights and freedoms directly applicable in Bosnian law, the wording ought to have been similar to the wording in Article II (2), in the sense that it should have been specified that the listed rights were to be made applicable in Bosnia and Herzegovina. A narrow interpretation would therefore result in the reference to “the rights and freedoms provided for in this Article or in the international agreements listed in Annex I”, having little impact since a discrimination clause already exists with regard to the ECHR, and the general rights in the annexed instruments are not covered by the provision. Such an interpretation would mean that the only added value of Article II (4) would be a non-discrimination rule with regard to refugees and displaced persons, because they are protected by “this Article” in Article II (5). Such a restrictive approach would hardly be in line with the thinking in Dayton, where the sole reason for adding a separate discrimination clause was the somewhat limited scope of the accessory discrimination clause in Article 14 of the ECHR. Since ethnic discrimination was one of the driving forces of the war in the first place, it was felt that it was necessary to include a non-discrimination regime that was stronger than the regime laid down in the ECHR. Moreover, Bosnia and Herzegovina was already party to the ICCPR,322 and thus bound by its non322

Bosnia and Herzegovina became party to the ICCPR on 6 March 1992, see Status of Ratifications of the Principal International Human Rights Treaties, as of 2 November 2003,

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CHAPTER 5 discrimination rules, even if they had not been “translated” into national legislation before the entry into force of the Dayton Peace Agreement. Another reason for using the technique of referencing lists of international instruments instead of spelling out their content was, as described above, to avoid local Bosnian interpretations of the content of the rights. This was a way to secure that international standards would remain subject to international human rights law as interpreted by international organs. If the non-discrimination provision is to be given any meaning, one must therefore assume that the rights in the listed instruments are protected in general, or that they are at least protected in a non-discrimination context. The most expansive approach, to assume that the rights apply in general, would have to be based on a literal interpretation of the wording in Article II (4) which states that the rights and freedoms listed in Annex 1 “shall be secured to all persons in Bosnia and Herzegovina . . .”. This approach would mean that all the rights listed in the annexed instruments apply in Bosnia and Herzegovina, and that in the exercise of them, no one may be discriminated against on a racial basis. One might argue that there is little point in securing non-discrimination regarding the exercise of certain rights if these rights are not protected in the first place. If, for example, a person is being discriminated against on a racial basis regarding the right to health,323 the discrimination protection cannot be activated unless the right to health exists. A more limited approach would be to say that the rights and freedoms listed in the annexed instruments apply only in a non-discrimination context. This would imply that a person may not be entitled, under national legislation, to exercise the rights in question in general, but that they would be “activated” in cases of racial or other discrimination as mentioned in Article II (4). A person may not have the right to claim that his or her right to health was violated because access to hospital care was denied, but if the denial were made on a racial basis, then it would be in contradiction with this provision of the BH Constitution. The issue of how to interpret the reference to the right to non-discrimination in Article II (4) has been dealt with by both the Human Rights Chamber and the Constitutional Court. The Human Rights Chamber adopted the broader interpretation regarding this question. In the Damjanovic case, the Chamber held that: “It is provided in Article II paragraph 4, which is headed ‘Non-discrimination’, that the rights and freedoms provided for in the other human rights agreements ‘shall be secured to all persons . . . without discrimination’. In the Chamber’s view this provision includes both an obligation to secure the rights in question to all persons and an obligation to do so without discrimination. It is one aspect of the general obligation under Article II, paragraph 1 of the Constitution to ‘secure the highest level of internationally recognized human rights . . .’. This interpretation is confirmed by Article I of the Annex 6 Agreement . . . where the general obligation Office of the United Nations High Commissioner for Human Rights, <www.unhchr.ch/pdf/ report.pdf>. 323 Article 12 of the International Covenant on Economic, Social and Cultural Rights.

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PROTECTION AGAINST ETHNIC DISCRIMINATION referred to is stated as including the obligation to secure the rights and freedoms guaranteed by all the agreements listed.”324 (Emphasis added).

It seems that the Constitutional Court of Bosnia and Herzegovina has also adopted the broader interpretation regarding the applicability of the listed instruments in the Annex. In its Partial Decision III, with regard to the status of “Constituent Peoples” in the two Entity Constitutions, the Court said that respect for the inherent dignity of the human person was “a generally recognized principle to be derived from the list of international instruments in Annex I to the Constitution of BiH . . . – in particular according to Article 15 of the Framework Convention on the Protection of National Minorities which is incorporated into the Constitution through Annex I – . . .” (Emphasis added).325 In the same decision, the Court said that “Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination has to be applied in BiH according to Annex 1 of the Constitution . . .”.326 It would thus seem that both the Human Rights Chamber as well as the Constitutional Court find that the annexed instruments apply in their entirety. It furthermore seems safe to assume that Article II (4) of the BH Constitution as well as Article I of the Human Rights Agreement secure protection against racial or other discrimination in the exercise of the rights contained in the annexed instruments. The rights and freedoms of the ECHR and Protocols have priority over all other law, whereas the rights and freedoms contained in Article II (4), (including the rights to non-discrimination in exercising the rights in the annexed instruments) are at the same level as the other provisions of the Constitution. The prohibition against eliminating or diminishing any of the human rights provisions of the Constitution, however, which is laid down in Article X (2), implies that the human rights provisions have a stronger position than the rest of the provisions of the Constitution. 5.1. Non-discrimination in the Human Rights Agreement The parties to the Human Rights Agreement327 state in Article I of that annex that they “shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of

324 325

Damjanovic against the Federation of Bosnia and Herzegovina, HRC, para. 37. Constituent Peoples case, U/58-III, Constitutional Court of Bosnia and Herzegovina, para.

55. 326

Constituent Peoples case, U/58-III, Constitutional Court of Bosnia and Herzegovina, para. 105, see also para. 114. 327 The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska.

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CHAPTER 5 Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex”328 (Emphasis added).

This provision thus does not distinguish between the rights and freedoms contained in the ECHR and the rights and freedoms contained in the instruments in the Appendix, as does the Constitution. Apart from the priority rule regarding the ECHR and its protocols, however, there was no intention of establishing a different scope of protection between the Constitution and the Human Rights Annex. The significance of the above-mentioned provision was, as previously explained, its relation to Article 5 in the GFA. It seems that most of the case law of the Human Rights Chamber, with regard to alleged ethnic discrimination, has been discussed in view of Article I (14) of the Human Rights Agreement. This provision states that the parties shall secure the highest level of internationally recognized standards of human rights and that these shall include: “The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in the Annex to this Constitution secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

This provision thus extends well beyond the scope of Article 14 of the ECHR, and this fact seems to be the main rationale behind the Chamber’s practice of reviewing alleged ethnic discrimination against this more far-reaching provision, rather than relying on Article 14. The Human Rights Chamber has found ethnic discrimination contrary to this provision in a number of cases. Many of these cases have been related to property issues.329 In the Pletilic and others case from 1999, the Human Rights Chamber discussed Article II (2) (b) of the Human Rights Agreement in relation to continued application of the old Republika Srpska property legislation, and found that this constituted “discrimination against the applicants in relation to their right to respect for their homes, to peaceful enjoyment of their possessions and of access to court”.330 328

The Appendix to the Human Rights Annex consists of the same instruments as Annex 1 to the Constitution with the addition of the ECHR and Protocols, which is not mentioned in Annex 1 to the Constitution because of its position in the text of the Constitution itself. 329 See for example Basic et. al. against Republika Srpska, case no.CH/98/752, 827, 828, 847, 848, 1102, 1104, 1114, 1117, 1119, 1120, 1121, 1125, 1128, 1129, dated 10 December 1999, HRC ; Pletilic et. al. against The Republika Srpska, case no. CH/98/659, 734, 750, 751, 753, 824, 825, 826, 1100, 1101, 1103, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1116, dated 10 September 1999, HRC; Pletilic against the Republika Srpska, case no. CH/98/777, dated 8 October 1999, HRC; Dizdarevic et.al. against the Republika Srpska, case no. CH/98/1124, 1126,1127,1130,1131,1132,1133, 1134, 1135, 1136, 1139, 1141, 1144, 1145, 1146, 1147, 1148, 1149, 1150 , 1151, 1153, dated 9 June 2000, HRC. 330 Pletilic et. al. against The Republika Srpska, HRC, para. 207.

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PROTECTION AGAINST ETHNIC DISCRIMINATION The Human Rights Chamber has also found discrimination related to the violation of Article I (14) in cases that would certainly not be covered by the nondiscrimination provision of the ECHR, namely with regard to discrimination in connection with the right to work. In the case of Zahirovic against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, the applicant claimed he had been discriminated against on the basis of his ethnic origin. The Chamber found that he had “been discriminated against in the enjoyment of his rights to work, and to just and favourable conditions of work, as defined in Article 6 and 7 of the ICESCR . . .”.331 The Human Rights Chamber has also in more recent decisions found that the right to work in ICESCR, as well as the right to work without discrimination as laid down in the ICERD (Article 5), have been violated.332 Likewise, the Human Rights Chamber has discussed the non-discrimination provision in the Human Rights Agreement in connection with human rights abuses including harassment,333 the right to privacy,334 and the right to liberty and security of person.335 The conclusion so far is thus that both Article II (4) of the BH Constitution as well as Article I of the Human Rights Agreement (Annex 6) protect against discrimination based on sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, in the exercise of any of the rights laid down in the instruments contained in Annex 1 to the Constitution and Annex 1 to the Human Rights Annex. As this book pertains to possible discrimination on an ethnic basis with regard to the constitutional system, two of the above listed instruments contained in Annex 1 to the BH Constitution are of particular interest because they contain specific political rights, namely the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR).

331

Zahirovic against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, case no. CH/97/67, dated 8 July 1999, HRC, para. 132. 332 Pogarcic against the Federation of Bosnia and Herzegovina, case no.CH/98/1018, dated 6 April 2001, and Mitrovic against the Federation of Bosnia and Herzegovina, case no.CH/98/948, dated 6 September 2002, HRC. 333 Odobasic against the Republika Srpska, case no.CH/98/1786, dated 5 November 1999, HRC. 334 Mahmutovic against the Republika Srpska, case no.CH/98/892, dated 8 October 1999, HRC . 335 Marceta against the Federation of Bosnia and Herzegovina, case no.CH/97/41, dated 6 April 1998 and Momani against the Federation of Bosnia and Herzegovina, case no.CH/98/946, dated 5 November 1999, HRC.

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CHAPTER 5 5.2. ICCPR Bosnia and Herzegovina became party to the International Covenant on Civil and Political Rights (ICCPR) by succession on 6 March 1992.336 In addition, it was made applicable in Bosnia through Article II (4) of the BH Constitution and Article II (2) (b) of the Human Rights Agreement as described under points 5.5 and 5.5.1 above. The point of departure for this discussion is therefore that the rights and freedoms contained in the ICCPR are fully applicable for persons under the jurisdiction of Bosnia and Herzegovina. Of immediate interest for the subject matter of this study are Articles 2 (1), 25 and 26. 5.2.1. Accessory Non-discrimination Clause Article 2 (1) of the ICCPR obliges States Parties to guarantee that all the rights in the Covenant will be ensured to all individuals under their jurisdiction “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. This article is of a sweeping character; it must be considered when interpreting any of the other substantive articles in the Covenant. The provision is thus an accessory nondiscrimination clause, similar to Article 14 of the ECHR. It is the rights laid down in the Covenant that shall be afforded to everyone without distinction, not other rights. Nowak specifies the meaning of “accessory character” regarding Article 2 of the ICCPR: “This means that a violation of Article 2 can occur only in conjunction with the concrete exercise (but not necessarily violation) of one of the substantive rights ensured by the Covenant.”337

For example, certain restrictions on the freedom of expression do not necessarily constitute a violation of Article 19 of the ICCPR, but such restrictions applied only to women would almost certainly be a breach of Article 2 in conjunction with Article 19. 5.2.2. General Non-discrimination Clause Article 26 of the ICCPR states that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

336

See Office of the United Nations High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, as of 2 November 2003, available on the web-site of the High Commissioner for Human Rights; <www.unhchr.ch/pdf/ report.pdf> . 337 See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (Kehl am Rehin; Strasbourg; Arlington, N.P.Engel, 1993) p. 28.

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PROTECTION AGAINST ETHNIC DISCRIMINATION Unlike Article 2 (1), this prohibition against discrimination is not linked to the other rights and freedoms listed in the ICCPR. It prohibits discrimination in general. The way in which Article 26 is worded stems from a long and complicated history of political negotiations in the UN before the adoption of the Covenant.338 The first sentence carries (at least) two meanings; first, there is the postulate that all persons are equal before the law, but secondly, there is the more positive affirmation that all persons are entitled to equal protection of the law. The first part merely states that existing legislation must be applied in the same way to all persons subject to it,339 and is thus directed not at the content of the legislation, but only at its enforcement. The strict positivist, Kelsen, was, according to Frede Castberg, , of the opinion that unreasonable and even idiotic distinctions between people could be made relevant by law without conflicting with the idea of equality. Castberg, however, was of the opinion that this observation is “purely formal”, and he goes on to say that: “everywhere a law which for instance imposed special taxes on persons with long arms or short legs, red hair or big ears, would be regarded as unjust and unwarrantable, irrespective of whether the law was applied in accordance with its content.”340

The second part of the provision in Article 26, which secures equal protection of the law, is directed at the national legislature, which through this provision assumes an obligation not only to refrain from enacting discriminatory laws, but also to prohibit discrimination. The next sentence of the Article underscores and specifies the previous point. It goes on to say: “In this respect the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination . . .” According to Nowak, the “. . . right to equal protection of the law, the prohibition of discrimination and the right to protection against discrimination in Art. 26 form a unit. They have to do with an obligation on States parties to ensure substantive equality by way of legislation.”341 There is no definition of the term “discrimination” in the ICCPR. The Human Rights Committee,342 however, has interpreted the term in a manner quite similar to the way it has been interpreted by the authorities in Strasbourg. In a communication from 1984, the Human Rights Committee held that:

338

Ibid.., p. 462 f.f. Ibid.., p. 466. 340 Frede Castberg, ‘Natural Law and Human Rights’, Vol I (1)Les Droits de l’homme/Human Rights: Revue de Droit International et Comparé/Journal of International and Comparative Law (March 1968) p. 20. 341 Nowak, supra note 337, p. 469. 342 The monitoring committee (treaty body) set up in part IV of the ICCPR, which inter alia may consider individual complaints pursuant to the provisions of the Optional Protocol (OP 1) to the ICCPR. 339

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CHAPTER 5 “A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Art. 26.”343

This view has also been stated by the Human Rights Committee in its General Comment no 18 of 1989, where the Committee observed that: “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”344

Nowak sums up the Committee’s practice regarding “discrimination” in terms of Article 26 in the following way: “The decisive question, which is ultimately subject to resolution only on a case-bycase basis by weighing all relevant circumstances, is whether a specific distinction between various persons or groups of persons is to be considered discriminatory. This is the case only when the parties concerned find themselves in a comparable situation and when the distinction is based on unreasonable and subjective criteria. For a more specific answer to this question, it will also be necessary to draw upon the principle of proportionality, although one is ultimately reliant on certain subjective value judgements.”345

Ramcharan mentions a memorandum from the Division of Human Rights of the UN Secretariat that describes “discrimination” in the following way: “discrimination includes any conduct based on a distinction made on grounds of natural or social categories, which have no relation either to individual capacities or merits, or to concrete behaviour of the individual person”.346

The question is therefore which criteria may be seen as objective and justifiable under which circumstances. The list of non-discrimination criteria in Article 26 of the ICCPR is almost identical to the list in Article 14 of the ECHR. The only difference is that the term “association with a national minority” does not appear in Article 26 of the ICCPR. The explanation for this is probably that Article 27 of the ICCPR pertains to people belonging to ethnic, religious or linguistic minorities and that the term “association with a national minority” did not seem necessary. Article 26 of the ICCPR is an autonomous, non-discrimination rule, which applies in Bosnia through the Constitution and the Human Rights Annex. It clearly makes it illegal to discriminate between people because of their racial or other origin unless such discrimination can be justified according to the criteria described above. 343

Broeks and Zwaan-de Vries v. Netherlands, case no. 172 and 182/1984, Human Rights Committee, para. 12–15, see Nowak, supra note 337, p. 470. 344 CCPR General Comment 18, Non-discrimination, UN Doc. CCPR/C/21/Rev.1/Add.1, thirty-seventh session, 10/11/89. 345 Nowak, supra note 337, pp. 473–474. 346 B.G. Ramcharan, ‘Equality and non-discrimination’, in Louis Henkin (ed.) The International Bill of Human Rights, The Covenant of Civil and Political Rights (Colombia University Press, New York, 1981) p. 259.

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PROTECTION AGAINST ETHNIC DISCRIMINATION 5.2.3. Political Rights in the ICCPR Article 25 of the ICCPR concerns political rights of citizens of States Parties. It has the following wording: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.”

In its General Comment 25, the Human Rights Committee states that: “Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on consent of the people and in conformity with the principles of the Covenant.”347

Article 25 applies only to citizens of the State Party, whereas the reminder of the rights and freedoms of the ICCPR pertain to everyone within a State Party’s jurisdiction. As the provision states, however, none of the distinctions listed in Article 2 must be used in order to discriminate between citizens. This already follows from the accessory discrimination prohibition in Article 2 (1), but is repeated explicitly in Article 25.348 Moreover, the enjoyment of the rights in Article 25 shall take place without “unreasonable restrictions”. The Human Rights Committee mentions as examples that it may be reasonable to “require a higher age for election or appointment to particular offices than for exercising the right to vote . . .”, and also that “mental incapacity may be a ground for denying a person the right to vote or to hold office”.349 The right specified in Article 25 (a) is the “right to take part in the conduct of public affairs, directly or through freely chosen representatives”. In General Comment 25,350 the term “public affairs” is said to cover “all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels”. The right to vote and to be elected is set out in Article 25 (b). These rights form a substantive part of the right to take part in public affairs. General Comment 25 states that

347

CCPR General Comment 25, The rights to participate in public affairs, voting rights and the right of equal access to public service, UN Doc. CCPR/C/21/Rev.1/Add.7, fifty-seventh session, 12/07/96, para. 1. 348 See also, CCPR General Comment 25, Ibid.., para. 3. 349 CCPR General Comment 25, supra note 347, para. 4. 350 CCPR General Comment 25, supra note 347, para. 5.

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CHAPTER 5 “Paragraph b of Article 25 sets out specific provisions dealing with the right of citizens to take part in the conduct of public affairs as voters or as candidates for election.”351

Article 25 (c) lays down the right of citizens to have “access, on general terms of equality, to public service”. The general meaning of this provision is that citizens have the right to have access to positions in public service. According to Nowak, “It is manifestly clear from the travaux preparatoires that this provision was intended to prevent privileged groups from monopolizing public service; on the other hand, however, the States Parties were not to be precluded from placing conditions on access to public service, such as minimum age, standard of education, integrity or special qualifications.”352

The rights laid down in Article 25 will be subject to further discussion in Chapter 7.3 in connection with the evaluation of whether the Bosnian constitutional provisions that are based on ethnic differentiation are inconsistent with this human right standard. 5.3. ICERD As indicated above, the rights and freedoms contained in inter alia the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) were made part of the system of human rights protection contained in the Dayton Peace Agreement. In order to determine the scope and content of the discrimination protection with regard to the political rights discussed in this book, it is therefore necessary to look into the scope and content of the discrimination protection regarding such political rights laid down in the ICERD. 5.3.1. Definition of Racial Discrimination The ICERD is the only international instrument applicable in Bosnia and Herzegovina that contains an actual definition of the term “racial discrimination”. This definition pertains to all acts classified as racial discrimination contrary to the provisions of the ICERD. It is therefore necessary to consider this definition as it has a bearing on the provisions of the Convention that will be discussed later. “Racial discrimination” is defined in Article 1 (1) as: “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

The somewhat complex wording of Article 1 (1) indicates that racial discrimination has to consist of an act or omission that amounts to “a distinction, exclusion, 351 352

CCPR General Comment 25, supra note 347, para. 9. Nowak, supra note 337, p. 450.

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PROTECTION AGAINST ETHNIC DISCRIMINATION restriction or preference”. Because of the use of the connective “or” it is clear that the list consists of alternatives, rather than cumulative conditions. The act or omission has to be based on certain criteria, namely “race, colour, descent, or national or ethnic origin”. The list thus differs from the list in the ECHR as well as from the list in Article II (4) of the BH Constitution. While the latter provisions contain an all-encompassing list of non-discrimination grounds, such as sex, religion, language, property, etc., the focus of ICERD is on race. The list in Article 1 (1) thus gives a broad interpretation of the term “race” as it also includes colour, descent, as well as national or ethnic origin. The terms “descent” and “ethnic origin” do not appear in Article 14 of the ECHR or in the relevant nondiscrimination provisions in the Dayton Peace Agreement. The act or omission must, in order to fall within the scope of the definition, lead to certain consequences. These are described as “nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political economic, social, cultural or any other field of public life”. It may not have been the intention of the drafters to limit the scope of the Convention only to “public life”, even if the wording of Article 1.1. points in this direction.353 Looking at the other provisions of the instrument, it seems clear that the prohibition against racial discrimination extends to several fields of what may be described as “private life”, for example, according to Article 5, the right to marry, to inherit, to own property, and to have access to “any place intended for use by the general public”, including privately owned establishments like hotels, transport, cafes, etc. The act or omission must have the above-mentioned “purpose or effect” in order to be covered by the definition. The word “or” suggests that purpose and effect are alternative rather than cumulative conditions. The act or omission therefore does not have to produce any of the listed consequences, it is sufficient that the perpetrator had this as a purpose or motivation. On the other hand, the act or omission does not necessarily have to be racially motivated, it is sufficient that its effect constitutes racial discrimination.354 This point has been underlined by the CERD (Committee for the Elimination of All Forms of Racial Discrimination) in its General Recommendation XIV, where it states: “A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms”.355 Article 1 (2) states that the Convention shall not apply to “distinctions, exclusions, restrictions or preferences” between citizens and non-citizens. This 353

See for example Theodor Meron, ‘The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination’, Vol. 79, No. 2 American Journal of International Law (AJIL) (1985) p. 291. 354 If applied directly to a criminal offence by a court of law this rule might entail certain difficulties in countries where penal laws require both objective and subjective (purpose or motivation) criteria in order to assert guilt. 355 CERD General Recommendation 14, Definition of Discrimination (Art.1, par.1), UN Doc. A/48/18, Forty-second session, 19/3/93, para. 1.

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CHAPTER 5 implies that citizenship or lack of citizenship alone is a criterion on which the basis of differentiation may occur. The other provisions still make it prohibited to discriminate among non-citizens because of race, colour etc. Article 1 (3) makes it clear that the ICERD may not be “interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality”.356 Article 1 (4) makes it clear that “special measures”, for example “affirmative action”, directed towards certain groups, are allowed if the aim is to better enable these groups to enjoy or exercise their human rights. A condition is that the special measures shall end when they have served their purpose. 5.3.2. The Rights Catalogue Article 5 of the ICERD lays down the principle of equality before the law both in its negative form, as a prohibition against discrimination, and positively, as a guarantee for everyone to equality before the law. It states that the parties to the Convention: “undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights . . .”

Article 5 contains a catalogue of both civil and political rights as well as economic, social and cultural rights for everyone “without distinction as to race, colour, national or ethnic origin”. This catalogue corresponds, to a large extent, with rights and freedoms laid down in other human rights instruments. 5.3.3. Political Rights in ICERD The rights mentioned in Article 5, subparagraph (c) are of particular interest with regard to the subject of this book: “Political rights, in particular the rights to participate in elections – to vote and stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.”

Such rights shall, according to Article 5, be granted to everyone regardless of “race, colour, or national or ethnic origin”. 356

According to McKean “[i]t is unfortunate that the restrictions upon aliens were not made more selective. While it may be reasonable to prevent aliens from exercising certain rights (e.g. the franchise, or ownership of certain natural resources) there seems no reason why a non-citizen should be liable to be prevented from exercising e.g. freedoms of thought, conscience and religion (Article 5 (d) (vii)), freedoms of opinion and expression (Article 5 (d) (ix)), or the rights to equal access to public places (Article 5 (f)). Yet, unless it can be demonstrated that he is being discriminated against on racial grounds rather than lack of citizenship, there is no redress under the Convention”., Warwick McKean, Equality and Discrimination under International Law, (Clarendon Press, Oxford, 1985) p. 158.

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PROTECTION AGAINST ETHNIC DISCRIMINATION The question is whether this is a list of independent rights, or if it is just a form of discrimination protection that presumes the pre-existence of these rights. In its General Recommendation 20, the Committee for the Elimination of All Forms of Racial Discrimination (CERD) stated that Article 5: “does not of itself create civil, political, economic, social or cultural rights, but assumes the existence of these rights. The Convention obliges States to prohibit and eliminate racial discrimination in the enjoyment of such human rights”.357 (Emphasis added.)

The political rights mentioned in Article 5 of the ICERD are thus not independent rights that have been incorporated into Bosnian legislation through Article II (4) of the Constitution. Only the prohibition of any racial discrimination regarding the enjoyment of these rights has become part of the BH Constitution and the Human Rights Agreement as a consequence of incorporating the ICERD. Article 5 specifies that “everyone” is entitled to the listed rights without discrimination. Notwithstanding this term, differentiation made on the basis of citizenship, nationality or naturalisation is permitted according to Article 1 (2) and (3) of the ICERD as mentioned above. The provision for differentiation between citizens and non-citizens pertains to all the rights listed in Article 5, including the political rights described above. Differentiation on the basis of citizenship will not be dealt with in this book. Furthermore, these provisions of the ICERD will be subject to further discussions in Chapter 7, when assessing whether the ethnic exclusion of “others” in the BH Constitution is consistent with human rights. 5.4. Other Instruments Applicable in Bosnia and Herzegovina As was mentioned above, the list of instruments to be applied in Bosnia and Herzegovina consists of 15 international humanitarian and human rights law instruments in addition to the direct applicability of the ECHR.358 Many of these instruments contain non-discrimination provisions, but they do not pertain specifically to political rights. For the purpose of discussing possible ethnic discrimination in connection with political rights, however, the selection of the above-discussed provisions of the ECHR, ICERD and the ICCPR should suffice. These are clearly the most important instruments of those that are applicable, when it comes to both political rights as well as non-discrimination rights.

357

CERD General Recommendation 20, Non-discriminatory implementation of rights and freedoms (Art.5), UN. Doc. A/51/18, forty-eight session, 15/03/1996, para. 1. 358 In the appendix to the Human Rights Annex there are 16 because the ECHR is included in that list.

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CHAPTER 5 5.5. The Non-discrimination Grounds In Bosnia and Herzegovina, discriminatory acts as well as atrocities were carried out by representatives of ethnic or national groups and directed towards members of other ethnic or national groups. “Ethnic cleansing” has been conceived as physical removal, deportation, threatening, maiming, torturing or killing of members of one ethnic group by (normally) members of another ethnic group, when the motivation for such acts has been the victims’ ethnicity. For the purposes of this book, it therefore seems important to try to clarify the content of the terms “ethnic” and “ethnicity”, and to determine to what extent the main ethnic groups involved in the conflicts in Bosnia and Herzegovina are covered by the non-discrimination provisions of the applicable instruments. The provisions in the ECHR and the ICCPR do not refer to the term “ethnic” or “ethnicity”, but the term “ethnic origin” is listed as a non-permissible discriminatory ground in the ICERD. In Article 1 (1) of the ICERD, discrimination due to ethnic origin is classified as “racial discrimination”.359 The term “ethnic origin” itself, however, is not defined, as are none of the other criteria. The Committee on the Eliminating of Racial Discrimination (CERD) has not dealt with this aspect of the definition in any of its General Recommendations. There does not seem to have been much discussion on the definitions of these terms in the legal literature.360 The lists of impermissible discrimination grounds in Article 14 of the ECHR and Articles 2 (1) and 26 of the ICCPR are non-exhaustive, as indicated by the words “on any ground such as” prior to the lists. The list in Article 14 of the ECHR encompasses: sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The lists in Articles 2(1) and 26 in the ICCPR are identical to this, except for the reference to “association with a national minority”.361 The list in the ICERD encompasses race, colour, descent, national and ethnic origin. This list is exhaustive, and all the non-discrimination grounds may qualify as a basis for “racial discrimination”. The criteria “sex”, “birth”,362 ”property”, “social origin” and “political or other opinion” are normally not factors in determining whether ethnicity or racial 359

ICERD, Article 1 (1) says: “In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin . . .”. 360 Schwelb wrote in 1966 that “For the practical purposes of the interpretation of the Convention of 1965 the three terms ‘descent’, ‘national origin’ and ‘ethnic origin’ among them cover distinctions both on the ground of present or previous ‘nationality’ in the ethnographical sense . . .”, Egon Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’, Vol.15 International and Comparative Law Quarterly (1966) p. 1007. 361 See below under 5.5.5.7. 362 According to Nowak, the term “birth” in the definition of discrimination in the ICCPR is only meant to cover the issue of legitimate versus illegitimate birth; Nowak, supra note 337,

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PROTECTION AGAINST ETHNIC DISCRIMINATION background has been a cause for discrimination. Hence, the following discussion will include the criteria in the above-mentioned non-discrimination provisions that may be relevant for “ethnic discrimination”, namely “race”, “colour”, “language”, “religion”, “national origin”, ethnic origin”, “descent”, “association with a national minority” and “other status”. 5.5.1. Race The term “race” entails the somewhat vague notion that people can be categorised on the basis of their exterior features and other inherited characteristics. The natural scientist Carl von Linne in his work “Systema Naturae” (1758), was one of the first scientists to establish what he thought was a link between exterior features and inner qualities.363 Race theories were well received in Europe in the period from late 18th century well into the 20th century as they served as justification for the slave trade and colonialism, as well as for discrimination and persecution of groups such as Jews and Gypsies. Different “races” were attributed different characteristics, based on the belief that light-skinned peoples, in most respects, were superior to dark skinned peoples. The end of the Second World War marked the beginning of the discrediting of race theories in general. Politically, there were clearly strong reasons to dispose of theories based on racial superiority, but also on a scientific basis these theories were abandoned. It became evident that genetic differences were not linked to “racial” characteristics.364 The term “race” is nevertheless used in legal instruments such as the international human rights instruments. One cannot treat the term as non-existent, in spite of its dubious connotations. In this respect, Thomas Hylland Eriksen has observed: “Concepts of race can nevertheless be important to the extent that they inform people’s actions; at this level, race exists as a cultural construct, whether it has a ‘biological’ reality or not. Racism, obviously, builds on the assumption that personality is somehow linked with hereditary characteristics which differ systematically between ‘races’, and in this way race may assume sociological importance even if it has no ‘objective’ existence.”365

p. 52. See also Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception (Martinus Nijhoff Publishers, The Hague, Boston, London, 1998) p. 645. 363 Asbjørn Eide, Study on the achievements made and obstacles encountered during the Decades to Combat Racism and Racial Discrimination, UN Doc. E/CN.4/Sub.2/1989, p. 49. 364 According to Encyclopædia Britannica: “Many problems arise when attempting to separate races on a non-genetic basis. While one racial group may differ significantly from another in its adaptation to the environment, individuals within the same racial group often differ widely among themselves.”, (Encyclopædia Britannica, 1987, Fifteenth Edition) R – p. 876. 365 Thomas Hylland Eriksen, Ethnicity and Nationalism, Anthropological Perspectives (Pluto Press, London/Sterling, Virginia, 1993) pp. 4–5.

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CHAPTER 5 Sara Fredman concurs with this view: “Racism is, therefore, not about objective characteristics, but about relationships of domination and subordination, about hatred of the ‘Other’ in defence of ‘Self’’, perpetrated and apparently legitimated through images of the ‘Other’ as inferior, abhorrent, even sub-human.”366

Although the term “ethnic origin” or “ethnicity” is wider than the term “race” in normal usage, it seems apparent that the term “ethnic origin” or “ethnicity” has taken over much of the general usage of the term “race”,367 following the discredit in the post war era of the race concept. This is for example assumed by Capotorti,368 when he explains why Article 27 of the ICCPR makes use of the term ethnic rather than racial: “In the context of Article 27 of the Covenant, the substitution of the term ‘ethnic minorities’ for the term ‘racial minorities’ and the omission of any reference to ‘national’ minorities would seem to reflect a wish to use the broadest expression and to imply that racial and national minorities should therefore be regarded as included in the category of ethnic minorities.”

This understanding of the term “ethnic” would lead to the assumption that the term “race” must be understood in a wider sense than its original content. The point is that even if it seems absurd to talk about the Croat, Serb or Muslim “race”, such groups can be subject to racial discrimination. 5.5.2. Colour The term “colour” has not been subject to much discussion in the literature.369 It seems clear that it refers to skin colour, and not, for example, hair colour. Whether it has any meaning that goes beyond the descriptive is unclear. Its obvious function seems to be prevention of possible circumventions of the discrimination prohibition (one could imagine claims that a person was not subject to discrimination because of his or her association with a specific “race”, but only because he/she was a “darkskinned person”). Skin colour is hardly a significant factor when deciding the ethnicity of a person from the Former Yugoslavia. 366

Sandra Fredman, ‘Combating Racism with Human Rights: The Right to Equality’, in Sandra Fredman (ed.) Discrimination and Human Rights: The Case of Racism (Oxford University Press, 2001) p. 10. 367 During the negotiations of Article 2 of the International Covenant on Civil and Political Rights (ICCPR) there was, according to Nowak, a proposal by Chile to replace the words “race” and “colour” with the term “ethnic origin” because “the meaning of the former was considered imprecise and unscientific”. Nowak continues: “However, the motion was defeated by a clear majority, since race and colour were more easily understood in their general usage.” Nowak, supra note 337, p. 46. 368 Francesco Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (United Nations Publication, Sales no. E.91.XIV.2) p. 34, para. 201. 369 Nowak treats it together with “race” in his discussions on ICCPR Article 2, Nowak, supra note 337, p. 46.

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PROTECTION AGAINST ETHNIC DISCRIMINATION 5.5.3. Language Language may not normally be used as a reason for discrimination, but the prohibition against discrimination on the basis of language is not absolute. In the Belgian Linguistic Case, the European Court of Human Rights allowed the state to partly continue a practice whereby one linguistic minority was left with fewer options in the education system than those belonging to the linguistic majority in specific areas.370 There are other examples of justifiable and reasonable discrimination because of language. It seems, for example, reasonable to allow for the requirement of certain language skills in certain jobs. Such differentiation must, however, as was discussed above, be reasonable, objective and proportionate. Language is a part of every person’s cultural identity and therefore closely related to the term ethnicity. This notwithstanding, two or more ethnic groups may, of course, share the same language. In Bosnia and Herzegovina, before the war, people generally spoke the same language, known as Serbo-Croatian, although with different local variations and regional dialects. Since 1991, this situation has changed because it has been seen as important by the new states to develop national languages. A number of terms have therefore been exchanged to more Croat, or Bosniac or Serb terms, and what were basically different dialects before the war are now becoming national languages with their own characteristics. Language has, therefore, been a rather uncertain factor by which to establish a person’s ethnicity in Bosnia and Herzegovina. Depending on the concrete circumstances, it seems likely that differential treatment on account of language in a Bosnian context today, easily could amount to unlawful ethnic discrimination. 5.5.4. Religion As is the case with language, religion may, in some instances, be one of the factors by which a person’s or a group’s ethnicity is decided. Religious belonging in this respect may amount to little more than a form of cultural identity, as atheism would not normally create any doubt about which ethnic group a person belongs to in Bosnia and Herzegovina. The three main groups, however, are clearly connected with one religion each; the Serbs are generally Orthodox, the Croats are generally Roman Catholic and the Bosniacs are generally Muslims.371 The term religion will of course also cover aspects related to confessional issues on a personal level. Persons who are persecuted or discriminated against solely on account of their personal religious convictions are to be protected under the nondiscrimination clauses. Such personal belief may or may not be connected to what is the actual person’s ethnic origin. It may be justified to allow differential treatment because of religion in certain cases, for example with regard to specific jobs in religious communities, etc. 370

Belgian Linguistic Cases, ECHR. See for example Malcolm, supra note 97, for an overview and historic perspective of the main religions within Bosnia and Herzegovina ; and Burg and Shoup, supra note 97. 371

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CHAPTER 5 One may therefore assume that “religion” in the terms of the ECHR and the ICCPR, covers a wide variety of concepts, ranging from categorisation of people based on cultural features, to the personal and confessional aspects of belonging to a specific religion. In a Bosnia and Herzegovina context, religion is often one of the few seemingly “objective” criteria that suggests a person’s ethnicity. Thus, in Bosnia and Herzegovina, discrimination based on ones religious belonging could practically be synonymous with “ethnic” discrimination. 5.5.5. National Origin National origin is listed as a non-permissible discrimination ground in ECHR and ICCPR. This term is related to the concept of nationality, which again is linked to the concept of citizenship. “National origin”, however, covers a wider scope than citizenship. For example, one may refer to ethnic or indigenous groups as “nations”, e.g. “the Cree Nation”, members of which would have US or Canadian citizenship, or “the Sami Nation”, who would normally be citizens of one of the Nordic countries or Russia. The term “national origin” seems to be overlapping, to a great extent, with the ordinary understanding of the term “ethnicity”. The members of a nation see themselves as distinct from other nations and share a belief that they have common ancestors or origins. The term “nation”, however, suggests a closer link to nation states. Indeed, a large number of states have a majority population that consider themselves as state nationals, for example Swedes in Sweden, Germans in Germany, Japanese in Japan etc. The term “national” may therefore indicate aspirations to create national states, which is not so clearly the case with the term “ethnicity”. In a Yugoslav context, it is clear that several of the ethnic groups aspire to be “nations”, for example the Serb, Macedonian, Montenegrin, Slovene, Croat or Muslim nations, whose members (through self classification) were spread out in several Republics, and now are basically spread out in several States.372 Inside of Bosnia and Herzegovina the Bosniac, Croat and Serb national groups together constitute the main part of the total population. The question is whether the “other” groups in Bosnia may be classified as national groups. The answer is clearly “yes” for groups such as Bulgarians or Romanians. It is more doubtful when it comes to groups such as Jews or Gypsies. The term “national origin” is therefore not entirely equivalent to “ethnicity”. 5.5.6. Ethnic Origin and Descent The term “descent” was, according to McKean, included in the ICERD, for the first time in a human rights instrument, possibly for the purpose of covering the concept

372

In Article 2 of the Constitution of the Socialist Federal Republic of Yugoslavia of 1974, Bosnia and Herzegovina, Croatia, Macedonia, Slovenia, Montenegro and Serbia were listed as Socialist Republics.

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PROTECTION AGAINST ETHNIC DISCRIMINATION of “caste”.373 The meaning of the term would otherwise seem to relate to heritage or even family background. The term “ethnic origin” was included in the list of non-discrimination criteria in the ICERD in order to make it clear that “race” and “racial discrimination” were not only to be regarded in the narrow sense of pre-war race theories. As mentioned earlier, discrimination because of “ethnic origin” is classified as racial discrimination in Article 1 of the ICERD. “Ethnicity” may be seen to cover a very wide range of aspects such as language, culture, skin colour, community, descent, religion, etc. Thornberry makes the following observation: “The etymological root of ‘ethnic’ is the Greek ethnos or ‘nation’. The Concise Oxford English Dictionary defines ‘ethnic’ as ‘pertaining to race’. These roots and definitions do not result in any ability to distinguish between ‘race’, ‘ethnic group’, and ‘nation’ – the suggestion is rather that they are synonymous.”374

As there is no precise legal definition of “ethnicity”, one might look to other disciplines in order to understand its content better. It seems to be generally accepted by anthropologists that ethnicity does not primarily describe characteristics of one group, but rather the relationship between groups. The social anthropologist Hylland Eriksen writes that: “For ethnicity to come about, the groups must have a minimum of contact with each other, and they must entertain ideas of each other as being culturally different from themselves . . . Ethnicity is an aspect of social relationship between agents who consider themselves as culturally distinctive from members of other groups with whom they have a minimum of regular interaction.”375

“Ethnicity” is thus not a precise term. In the political context of the Balkan wars in the 1990s, ethnicity was often used synonymously with nationality or national identity. Such national groups seemed to be defined according to nationality in a wide sense, because the different Yugoslav groups generally had Yugoslav citizenship before the dissolution. Some of the groups were linked to one or another of the six republics of the SFRY. These groups, which were called “nations” (narod) in the Yugoslav Constitution of 1974,376 were the Serbs, Croats, Slovenes, Macedonians, Montenegrins and Muslims. In addition there were groups that had no such direct link to one of the republics, who were called “nationalities” (narodnosti)

373

W. McKean, Equality and Discrimination under International Law, (Clarendon Press, Oxford, 1985) p. 156. 374 Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1992) p. 159. 375 Hylland Eriksen, supra note 365, pp. 11–12. 376 Article 1 of the Constitution of the Socialist Federal Republic of Yugoslavia of 1974, Part One.

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CHAPTER 5 such as Kosovo Albanians, Albanians, Bulgarians, Hungarians, Gypsies, Jews, Turks, etc., as well as those who preferred to define themselves as Yugoslavs.377 In a Balkan context, it can be difficult to find objective characteristics that constitute distinctions between groups, but still the subjective sense of belonging to a specific ethnic or national group is very strong among most people. The apparent difference between the three main groups in Bosnia and Herzegovina is, as mentioned above, their religious affiliations. Under the former SFRY system, until 1991, a person’s ethnic or national membership was decided solely by that person, him- or herself, through a system of self-classification. Thus, no “objective” criteria, such as knowledge of a certain language or belonging to a specific religion were required to be classified as belonging to a certain group. There was also no requirement of acceptance by other members of the national or ethnic group in question. The understanding of “ethnicity” as a flexible and somewhat relative term may be helpful in order to describe “ethnic discrimination” in a context where characteristics such as skin colour, other exterior features, language or sometimes even religion are not decisive elements when determining a person’s ethnic origin. 5.5.7. Association with a National Minority The term “association with national minority” appears only among the nondiscrimination grounds in the ECHR and not in the ICCPR. The latter, however, contains a specific provision pertaining to the rights of members of “ethnic, religious or linguistic minorities”.378 The term “minority” has not been defined in a legal sense, but a commonly used definition has been suggested by Capotorti, where a minority is described as a: “group numerically inferior to the rest of the population of a State, in a nondominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language”.379

The concept of “national minority” could be seen to have a more limited scope than the term “minority”. Some writers have understood it to mean members of minority groups within one state who have their co-nationals in another state. For example, Eide states that:

377

In its answer to a UN questionnaire in 1993, the Government of Yugoslavia referred to the composition of the population of the FRY (Serbia and Montenegro) in a list that contains the following categories, described as “groups”: Serbs, Montenegrins, Albanians, Hungarians, Yugoslavs, Muslims, Romanies, Croats, Slovaks, Macedonians, Romanians, Bulgarians, Ruthenians, Vlachs, Turks, Slovenians, Regional affiliation, Others, Undeclared, Unknown. UN Doc. E/CN.4/Sub.2/1993/34/Add.3. 378 Article 27 of the ICCPR. 379 Capotorti, supra note 368, p. 96, para. 568.

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PROTECTION AGAINST ETHNIC DISCRIMINATION “one of the demands of the so-called national minorities is their right to maintain contact with members of the same ethnic group living in neighbouring states.”380

Other writers, however, seem to think that the difference between “minority” and “national minority” is not necessarily of a substantive nature. Athanasia S. Åkermark states that: “At the regional level it may be noted that the Council of Europe has shown preference for the term “national” minorities (See Article 14 of the European Convention on Human Rights and Fundamental Freedoms), allowing a discussion on which of the terms “ethnic” or “national” is widest in scope.”381

Maria (Kristiansen) Lundberg observes that: “the term ‘minority’ is not used in international human rights instruments without a qualifying formula. The terms ‘ethnic’, ‘national’, ‘linguistic’, and ‘religious’ are added to the word ‘minority’”.382

In his Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities from 1977, Capotorti refers to the Committee of Governmental Experts of the Council of Europe, which considered a draft additional protocol on the rights of “persons belonging to national minorities” in 1973.383 The committee considered the definition of the term “national minority” and some of the committee’s observations are referenced in Capotorti’s report: “In most cases a ‘national minority’ would also constitute an ethnic, linguistic or religious minority. On the other hand there are clearly certain ethnic linguistic or religious minorities which do not constitute ‘national minorities’. An additional consideration is that there are also certain linguistic minorities whose languages are recognized as national languages. These different factors illustrate further the difficulty of finding any generally accepted definition of the term ‘national minorities’ . . .”384

In 1995, when the Council of Europe adopted the Framework Convention on National Minorities, there was no attempt to lay down a definition of the term “national minority”. The term, however, is generally understood to encompass minority groups that have a long-standing history in the territory they inhabit. Many “new” national minorities have come into existence with the dissolution of federal states like the Soviet Union or Czechoslovakia. As earlier federal republics have become sovereign states, their local minorities have become national minorities or 380

Asbjørn Eide, ‘Minority Protection and World Order’, in Alan Philips and Alan Rosas (eds.), Universal Minority Rights, (Åbo Akademi University Institute for Human Rights, Minority Rights Group (International), Turku/Åbo and London, 1995) p. 95. 381 Athanasia Spiliopoulou Åkermark, Justifications of Minority Protection in International Law, (Iustisius Forlag, Uppsala 1997) p. 91. 382 Maria Lundberg (Kristiansen), Special Measures for the Protection of Minorities (Thése présentée à l’Université de Genéve, Thése No 556, 1997) p. 46. 383 Capotorti, supra note 368, para. 51. 384 Ibid..

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CHAPTER 5 majorities. This was also the case in the Former Yugoslavia. Groups like the Serbs or Croats, that were in relative minority in, for example, Bosnia and Herzegovina, were not national minorities in the SFRY. It might be argued that the state succession resulting in the Republic of Bosnia and Herzegovina in 1992 in fact made these groups, which were numerically smaller than the Muslims, into “national minorities”. Under the constitutional system prior to the independence of Bosnia, however, all three groups were considered “nations”, and had equal political status. The Bosnian Croats and Serbs would therefore not want to assume status as national minorities; they wanted to continue to be on an equal footing with the Bosniacs. 5.5.8. Other Status The lists of non-permissible discrimination grounds in Article 14 of the ECHR and Article 2 (1) and 26 in the ICCPR contain a “catch all” category at the end of the list, namely “other status”. Its function seems to be to capture discrimination on grounds that are not specifically mentioned in the list, but which are nevertheless unreasonable and unjust. The Court (and Commission) in Strasbourg have come up with a long list of categories under “other status”, including sexual orientation, marital status, illegitimacy, membership of a trade union, military status and imprisonment.385 The Human Rights Committee has found that nationality (in the sense of citizenship) could be classified as “other status” according to Article 2 (1) of the ICCPR.386 In this context, it is worth noting that the new Protocol, No. 12, to the ECHR, which expands the protection against discrimination, does not expand the list of nonpermissible discrimination grounds. The explanatory report to Protocol No. 12 of the ECHR states that the reason why the list of discrimination grounds in the new protocol was not expanded beyond the wording of Article 14 was not because the drafters were unaware of the importance of “new” discrimination grounds (for example physical or mental disability, sexual orientation or age), but because it was not considered necessary in light of the established scope of the term “other status”. In addition, it was held that it might create confusion and that “inclusion of any particular ground might give rise to unwarranted au contrario interpretations as regards discrimination based on grounds not so included”.387 5.6. The Human Rights Chamber and the Non-discrimination Criteria The Human Rights Chamber, which was established in Article II (1) of the BH Constitution through a reference to Annex 6 on the Human Rights Commission, was

385

See for example Harris, O’ Boyle, Warbrick, supra note 314, p. 470. Gueye et al. v. France, case no.196/1985, Human Rights Committee, para. 9.4, 9.5 and 10. 387 Commentary on the Provisions of the Protocol, Council of Europe (<www.coe.int>) para. 20. 386

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PROTECTION AGAINST ETHNIC DISCRIMINATION the main human rights implementing mechanism set up in the Dayton Peace Agreement.388 As explained earlier, the Chamber was terminated in 2003.389 The Human Rights Chamber of Bosnia and Herzegovina has, on many occasions, interpreted the non-discrimination protection that was laid down in the BH Constitution and in Annex 6.390 In the case of Hermas against the Federation of Bosnia and Herzegovina, the applicant, who was of Bosniac descent, had been arrested (on 10 February 1996) and held in detention for six months by Croat authorities, with the purpose of exchanging him for Croat prisoners.391 The Human Rights Chamber found that there had been violations of both Article 3 of the ECHR (on inhuman and degrading treatment) as well as on Article 4 (on forced labour) and Article 5 (on liberty and security of person). The applicant also claimed that he had been subject to discrimination contrary to Article 14 of the Convention in conjunction with the above-mentioned articles. The Chamber established that although the European Court on Human Rights had found that it was not necessary to discuss violation of Article 14 when there has been a violation of any of the other rights, it nevertheless was appropriate to discuss the discrimination prohibition: “However, in deciding whether to examine a question of discrimination under Article 14 the Chamber must take into account that, as confirmed by Article II § 2 (b) of Annex 6, the prohibition of discrimination is a central objective of the Dayton Agreement to which the Chamber must attach particular importance.” (Emphasis added)392

The Chamber found that the applicant had been detained for “no better reason than to exchange him against other prisoners”. This was found by the Chamber to constitute a differential treatment based on the applicant’s “religion” or “national origin”.393 The Chamber then went on to discuss, consistent with the practice from the European Court of Human Rights, whether there was an “objective and reasonable justification” for the difference in treatment. The Chamber could not find that this was the case, with regard to Article 5, 4 or 3. The Chamber thus found that Article 14 had been violated in conjunction with all the other violations.

388

See Manfred Nowak, ‘The Human Rights Chamber for Bosnia and Herzegovina adopts its first judgements’, Vol. 18 No. 5–8 Human Rights Law Journal, (HRLJ) (28 November 1997) pp. 174–178. 389 See above, Chapter 4 section 5.2. 390 For more on the case law pertaining to discrimination by the Human Rights Chamber, see Peter Neussl, ‘Bosnia and Herzegovina still far from the rule of law: Basic facts and landmark decisions of the Human Rights Chamber’, Vol. 20 No. 7–11 Human Rights Law Journal (HRLJ) (30 November 1999) pp. 290–302. 391 Hermas against the Federation of BH, case no.CH/97/45, 18 February 1998, HRC. 392 Ibid.., para. 82. 393 Ibid.., para. 89.

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CHAPTER 5 In another decision concerning detention for the sole purpose of prisoner exchange, delivered two months after the Hermas decision, Article 14 was not mentioned.394 It may be noted that it was only in the beginning of its functioning that the Chamber relied on Article 14 of the ECHR, it has since adopted a broader basis for its decisions on ethnic discrimination through applying also the non-discrimination provisions of the other relevant international human rights instruments which are applicable in Bosnia and Herzegovina. In the case law pertaining to alleged discrimination based on ethnicity, it is clearly the term “national origin” which has been used most frequently when establishing unlawful discrimination. It seems that most of the cases pertain to persons who belong to one of the three “constituent peoples”. In the Marceta case, the applicant, who was arrested and accused of war crimes in the Federation of BH, was of Serb origin.395 The chamber found that he had been discriminated against on the ground of his national origin. In the Odobasic case, the applicant was of Bosniac origin, and arrested and subject to harassment in Republika Srpska. Again, the Chamber found this to be because of his national origin.396 In two cases concerning property ownership, where respectively 15 and 21 applicants, all of Bosniac descent, complained about inter alia the property legislation in Republika Srpska, the Chamber concluded that the unlawful discrimination had taken place because of their national origin.397 The same was the case in the Pletilic case, where the Chamber used the term “Serb origin”.398 In the Hermas case, a person of Bosniac origin, but with an additional Jordanian citizenship, had been arrested by local Croat authorities in the Federation for the purpose of prisoner exchange.399 Here the Chamber found that he had been subject to discrimination because of his religion and national origin. Also in the Momani case, the Chamber found the two applicants, who had been subject to the same human rights abuses as Hermas, had been discriminated against on the basis of their religion and national origin.400 It is worth mentioning that these two applicants were of, respectively, Arab and Palestinian descent, but also citizens of Bosnia and Herzegovina. In the Pogarcic case, a man of Croat origin had been discriminated against with respect to his right to work.401 In this case, the Chamber found that the basis for the discrimination was his national and ethnic origin. Also in the Mitrovic case, the

394

Cegar against the Federation of BH, Case no. CH//96/21, 20 February 1998, HRC. Marceta against the Federation of BH, supra note 335, para. 65. 396 Odobasic against the Republika Srpska, supra 333, para. 135. 397 Basic et.al. against the Republika Srpska, supra note 329, para. 177 and 179, and Dizdarevic et.al. against the Republika Srpska, supra note 329, para. 182 and 189. 398 Pletilic against the Republika Srpska, supra note 329, para. 111. 399 Hermas against the Federation of BH, supra note 391, para. 89. 400 Momani against the Federation of BH, supra note 335, para. 130. 401 Pogarcic against the Federation of BH, supra note 332, para. 68. 395

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PROTECTION AGAINST ETHNIC DISCRIMINATION Chamber found that the applicant had been discriminated against (again with respect to the right to work) because of his national and ethnic origin.402 In one case relating to property issues and the property legislation in Republika Sprska, twenty applicants were of Bosniac origin, and one was of Serb origin.403 In this case, the Chamber found that the applicants of Bosniac origin had been discriminated against on the basis of their national origin, whereas the applicant who was of Serb origin and married to a Bosniac, was found to have been discriminated against on the basis of her association with a national minority. It is not clear what the Chamber meant by this classification of the Serb applicant. One interpretation could be that even though she belonged to the majority population of Republika Srpska, she was married to a Bosniac, and persons of such marriages constitute a very small minority indeed. Another interpretation would be to consider Bosniacs in general as a national minority in the Republika Srpska, and consider persons who were married to them as being “associated” through marriage. In the more recent decisions of the Human Rights Chamber in this area,404 the term “national and ethnic origin” has been applied to describe the discrimination grounds. This seems to be a fully suitable term in order to capture the discrimination between the different groups in Bosnia and Herzegovina. 5.7. Concluding Comments This chapter has tried to delineate the scope and content of the protection against ethnic discrimination that is laid down in the Dayton Peace Agreement. Thus, the scope and content of the key international human rights standards on nondiscrimination have also been described, as it is these standards that have been made applicable through the BH Constitution and the Agreement on Human Rights. One of the questions asked in the introduction to this chapter was whether the general terms “race” or “ethnicity”, as laid down in the provisions on nondiscrimination in the applicable instruments which have been discussed here, apply to what is normally considered “ethnic discrimination” in the context of ethnic conflict in Bosnia and Herzegovina (and elsewhere in the Balkans). In summing up the discussions on the content of the various discrimination criteria in the relevant lists, and taking the case law of the Human Rights Chamber into account, the question must be answered positively. Discrimination because of one’s collective identity as Serb, Croat, Bosniac, or indeed because of other national and group identities, may normally be categorised as racial or ethnic discrimination, if the requirements for discrimination otherwise are fulfilled.

402

Mitrovic against the Federation of BH, supra note 332, para. 56. Pletilic et.al. against the Republika Srpska, supra note 329, para. 207. 404 See above footnotes on Pogarcic and Mitrovic cases. 403

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CHAPTER 5 6. PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW When looking at the extent of the human rights protection laid down in the Dayton Peace Agreement through inclusion of various international instruments, it is also necessary to be aware of the international standards related to human rights protection that do not necessarily follow from positive law, but from customary standards that are applicable for all states, no matter what they have agreed to be a party to. Such international standards, and specifically peremptory norms of international law, apply in Bosnia and Herzegovina irrespective of what the Dayton Peace Agreement says. A peremptory norm of international law is defined as “a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted . . .”405 Because states may not depart from peremptory norms, it is of interest to find out to what extent the principle of nondiscrimination belongs to this body of law. The parts of the Dayton Peace Agreement that possibly depart from such a principle must be considered in light of this. 6.1. Background The traditional point of departure in international law was that there was no hierarchy between binding rules, irrespective of whether they were to be classified as treaty law or international customary law. During the second half of the previous century, this understanding changed, primarily with the emergence of theories regarding peremptory norms of international law. This development was taken into consideration during the drafting of the rules of the Vienna Convention on the Law of Treaties. The International Law Commission (ILC) wrote in its commentary to the draft Article (then Article 50, in the final text Article 53) on peremptory norms of international law: “The view that in the last analysis there is no rule of international law from which States cannot at their own free will contract out has become increasingly difficult to sustain, although some jurists deny the existence of any rules of jus cogens in international law, since in their view even the most general rules still fall short of being universal . . . Accordingly, the Commission concluded that in codifying the law of treaties it must start from the basis that today there are certain rules from which States are not competent to derogate at all by treaty arrangement, and which may be changed only by another rule of the same character.”406

The full text of Article 53 is: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a 405

Vienna Convention on the Law of Treaties, Article 53. Yearbook of the International Law Commission (YBILC) (18th session, 1966) Vol. II, p. 177. Also quoted in Sir Arthur Watts, supra note 17, part II, page 741.

406

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PROTECTION AGAINST ETHNIC DISCRIMINATION peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

The concept of peremptory norms of international law or jus cogens thus appeared for the first time as positive international law in the Vienna Convention on the Law of Treaties of 1969. In its commentary to Article 50 (later 53) in the “Final Draft Articles” of the Vienna Convention, the International Law Commission made it clear that the Commission proposed the codification of an already existing rule, and used the prohibition against the use of force laid down in the UN Charter as early as 1945 as an example of an already existing peremptory norm: “The Commission pointed out that the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.”407

At the time, when the ILC was deliberating on the Vienna Convention, only one state, Luxembourg, questioned the existence of the concept of jus cogens as a part of international law.408 During the negotiations of the Vienna Convention, several states were sceptical about including such a provision, chiefly because it did not specify which rules actually fell into this category.409 During the Vienna Conference (1968–69) where the final negotiations of the text of the treaty were conducted, eight states voted against the inclusion of Article 50 (later 53), and seven abstained.410 At the time of the adoption of the treaty, it may have seemed a considerable problem that sixteen states expressed their scepticism about the rule of jus cogens during the negotiations, and that eight of them actually voted against the inclusion of the provision altogether. It seemed that, at the time of its adoption, the concept of peremptory norms of international law as laid down in the Vienna Convention was, paradoxically enough, not accepted by the “international community of States as a whole”. The treaty was later adhered to by many of its critics, but it is worth noting that less than half of today’s UN Member States are party to the Vienna Convention

407

Yearbook of the International Law Commission, Ibid.., p. 247. Also quoted in Sir Arthur Watts, supra note 17, p. 741. 408 Yearbook of the International Law Commission (YBILC) (18th session, 1966) Vol. II, p. 23. 409 This was inter alia raised by the UK delegation, see Ibid.., p. 21. See also Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status (Finnish Lawyers’ Publishing Company, Helsinki 1988) pp. 166–184. 410 Those voting against were Australia, Belgium, France, Lichtenstein, Luxembourg, Monaco, Switzerland and Turkey. Those abstaining were Japan, Malaysia, New Zealand, Norway, Portugal, South Africa and the United Kingdom, see United Nations Conference on the law of Treaties (UNCLT), Official Records, First Session 1968 and Second Session 1969, UN Doc. A/CONF.39/11 (1968) and A/CONF.39/11/Add.1 (1969). See also Hannikainen, supra note 409, pp. 166–174.

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CHAPTER 5 on the Law of Treaties.411 On the other hand, it has been assumed by the ICJ, as well as by many publicists, that peremptory norms of international law do exist, not only as positive law in the Vienna Convention, but self-evidently also as international customary law.412 6.2. The Jus Cogens Requirements To determine with certainty which norms may be classified as peremptory norms of international law is not an easy task. The International Law Commission had mentioned that in addition to the prohibition against the use of force, the slave trade, piracy and genocide as well as treaties violating human rights were all possible examples in their discussions, but decided against including any examples into the text of the Article, chiefly for fear of creating “misunderstandings as to the position concerning other cases not mentioned in the Article.”413 The second sentence of Article 53, which gives the description of a peremptory norm of international law, is somewhat circular. It basically states that a peremptory norm is a peremptory norm. The provision, however, sets out strict requirements for categorization of any rule as being jus cogens. First of all, the norm must be of “general international law”. The requirement is that it is “general” as opposed to “particular”, which implies that the rule is of standard-setting rather than contractual character. That a norm is of “general international” character signifies furthermore that at least a majority of states are bound by it. Hannikainen concludes that: “For a norm to be part of ‘general international law’ appears to imply that at least a great majority of States accept obligation under it. It does not appear that ‘general international law’ requires acceptance by all States.”414

Secondly, the norms must be “accepted and recognized by the international community of States as a whole . . .”. Hannikainen explains the meaning of this phrase by quoting the Chairman of the Drafting Committee of the Vienna Conference on the Law of treaties: “By inserting the words ‘as a whole’ in Article 50 the Drafting Committee had wished to stress that there was no question of requiring a rule to be accepted and recognized as peremptory by all States. It would be enough if a very large majority did so; that would mean that, if one State in isolation refused to accept the peremptory character of a rule, or if that State was supported by a very small

411

Presently 90 States are party to the Vienna Convention on the Law of Treaties, see the UN Treaty Database, to be found on the following web-site: . 412 See for example North Sea Continental Shelf cases, Judgment of 20 February 1969, ICJ Reports 1969, para. 97–98, and Brownlie, supra note 54, pp 488–489. 413 Yearbook of the International Law Commission (YBILC) (18th session, 1966) Vol. II, p. 248. Also quoted in Sir Arthur Watts, supra note 17, part II, p. 742. 414 Hannikainen, Peremptory Norms (Jus Cogens) in International Law, supra note 409, p. 209.

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PROTECTION AGAINST ETHNIC DISCRIMINATION number of States, the acceptance and recognition of the peremptory character of the rule by the international community as a whole would not be affected.”415

This means that even if individual States deliberately violate or dispute the prohibition, it does not imply that a possible peremptory quality of the prohibition is undermined. One example of a norm that seemed to be accepted by the “international community as a whole”, was the prohibition against apartheid, which most commentators consider a peremptory norm.416 The fact that South Africa objected to this view did not alter the character of the rule. Thirdly, a peremptory norm must be accepted as a norm from which no derogation is permitted. It is not enough to establish that there is general agreement among states that such a rule exists, and that they are bound by it. It must also be clear that each of the states that constitute “the international community as a whole” regards the norm as non-derogable in all circumstances. This requirement of ‘double acceptance’ makes the threshold for claiming jus cogens character for any norm very high. If it is established that the three above-mentioned criteria are fulfilled, a peremptory norm may be claimed to exist. The existence of such a rule carries several implications. According to Article 53, it “can be modified only by a subsequent norm of general international law having the same character”. The implication of this is that peremptory norms are superior to ordinary treaty law. One may not depart from such rules through the conclusion of treaties. 417 6.2.1. Prohibition Against Ethnic Discrimination as a Jus Cogens Rule? The obligation to promote non-discrimination is laid down in the Charter of the United Nations as one of the obligations from which States cannot depart through other treaties.418 It is laid down as one of the purposes of the UN in Article 1 (3). 415

Ibid.., p. 210. See for example Ian D. Seiderman, Hierarchy in International Law: The Human Rights Dimension, (Intersentia – Hart, Antwerpen – Groningen – Oxford, 2001) p. 53, and Hannikainen, supra note 409, pp. 482–489, and McKean, supra note 373, p. 283. 417 The provision should be read in conjunction with Article 64 which provides: “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” Article 64 has no retroactive effect, but it makes a conflicting treaty void as from the time of the emergence of the new peremptory norm. The ILC wrote in its commentary: “The words ‘becomes void and terminates’ make it quite clear, the Commission considered, that the emergence of a new rule of jus cogens is not to have retroactive effects on the validity of the treaty. The invalidity is to attach only as from the time of the establishment of the new rule of jus cogens.”, Watts, supra note 17, p. 743. The sum of these two provisions is that treaty law which conflicts with existing peremptory norms of international law is void and thus are not binding on its parties and can not be given effect. 418 The UN Member States undertake, through Article 56 and Article 55, to work for the achievement of human rights without distinction as to race, sex, language or religion. Article 103 of the Charter states that obligations of Member States under the Charter shall prevail if they conflict with other international obligations. 416

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CHAPTER 5 McKean writes that at a Conference in 1966, there was agreement among the leading writers on international law that: “the most important provisions of the Charter and particularly those contained in Articles 1 and 2 were peremptory norms of general international law binding on members and non-members alike . . . Clearly the protection of human rights is one of the main purposes of the Charter under Article 1 (3), and Articles 55, 56 and 76 (c) certainly purport to create legal rights and duties. It would appear, therefore, that the protection of human rights can be considered to possess a jus cogens character . . .”.419

There have been statements from the ICJ to the same effect. In the Barcelona Traction case, the ICJ included as an example of erga omnes obligations420 an obligation to refrain from racial discrimination.421 In the South West Africa cases, Judge Tanaka (in his dissenting opinion) said: “If we can introduce in the international field a category of law, namely jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to jus dispositivum, capable of being changed by way of agreement between states, surely the law concerning the protection of human rights may be considered to belong to the jus cogens.”422

Legal writers tend to take similar views. Brownlie states that the least controversial examples of jus cogens include the use of force, genocide, the principle of racial non-discrimination, crimes against humanity, and the rules prohibiting slave trade and piracy.423 McKean concludes that, “There are thus sound reasons for accepting that the principles of equality and non-discrimination, in view of their nature as fundamental constituents of the international law of human rights, are part of jus cogens”.424 These statements indicate that one might, in general terms, conclude that the obligation to protect human rights, including protection from racial discrimination, may be classified as jus cogens rules. The scope of such a non-discrimination rule, however, is far from clear. At the far end of the scale there is genocide,425 an example of ethnic discrimination which there can be no doubt belongs in the category of crimes prohibited according to peremptory norms. At the other end there are certain forms of discrimination, which may be permissible under special circumstances. According to, for example, Article 4 of the ICCPR, states may in 419

McKean, supra note 373, pp. 279–280. On the distinction between an erga omnes obligation and a jus cogens rule, see below under Chapter 8 section 3.5.1. 421 Case concerning the Barcelona Traction, Light and Power company, (Barcelona Traction Case) Judgment of 5 February 1970, ICJ reports, 1970, p. 32, para. 34. 422 South-West Africa cases, Judgment of 18 July 1966, ICJ reports 1966, p. 298. 423 Brownlie, supra note 54, pp. 88–89. 424 McKean, supra note 373, p. 283. 425 Article 2 of the Genocide Convention uses the terms ”national, ethnical, racial or religious groups”. 420

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PROTECTION AGAINST ETHNIC DISCRIMINATION times of public emergency derogate from their obligations “under the present Covenant”. Measures to derogate may not, however, “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.426 This means that it may be permissible to discriminate on the basis of, for example, national origin in times of public emergencies. Hannikainen uses as an example that a: “belligerent State has within its citizens a national minority, whose origin was in the enemy state, and that national minority manifests disloyalty to the State of their citizenship, or even engages in action in support of the enemy state, it may be reasonable for the belligerent State to take temporary discriminatory measures against all the adult members of that national minority.”427

He specifies, however that: “It seems clear that discrimination on the basis of ‘race’ in the narrow sense, which includes colour, is inadmissible in all circumstances.”

In order to decide to what extent ethnic discrimination is prohibited by a peremptory norm of international law, it is necessary to look at the requirements of Article 53 of the Vienna Convention on the Law of Treaties. First of all, the prohibition must be a norm of “general international law”. Here the test must be the same as when deciding whether the prohibition is a part of international customary law, according to Article 38 (1) (b) of the ICJ Statute. It seems uncontroversial to submit that this requirement is fulfilled; there is a widespread practice among states not to engage in ethnic discrimination, as well as to consider ethnic discrimination unlawful (opinio juris). The occurrence of violations of the rule does not alter this. A prohibition against ethnic or racial discrimination figures prominently in most human rights instruments, and could for this reason also be considered an expression of state practice together with opinio juris, and thus deemed to have status of general customary law on this basis. Secondly, the peremptory norm must be “accepted and recognized by the international community of States as a whole . . .”, and it must be accepted as a norm from which no derogation is permitted. It is not enough to establish that there is general agreement among states that ethnic or racial discrimination is prohibited. It must be evident that “the international community of States as a whole” regards the prohibition against ethnic discrimination as non-derogable in all circumstances. Because of the potential possibility to derogate from the non-discrimination rule, at least as far as the “national origin” category is concerned,428 it may be hard to confirm this assumption.429 Although it is clearly prohibited to discriminate on racial or ethnic grounds in general, there may be situations in which such discrimination would seem justified. 426

Article 4 (1), ICCPR. Hannikainen, supra note 409, p. 476. 428 See below under Chapter 8 section 2.4.3. 429 The issue of possible derogation from non-discrimination rules will be discussed in more detail in Chapter 8 of this book. 427

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CHAPTER 5 6.3. Concluding Comments On the basis of the previous section, there may not be sufficient basis for claiming the existence of a comprehensive non-discrimination rule, from which there is universal acceptance that no derogation is permitted. One might see the nondiscrimination rule as encompassing a number of specific prohibitions, and that each of these must be defined in order to determine whether the non-derogation requirements are applicable or not. Some cases of ethnic discrimination, such as genocide, apartheid and ethnic cleansing, clearly fall within the scope of jus cogens, whereas others, such as, for example, internment of potential enemy nationals in a situation of emergency, probably do not.430 It seems clear that if the Dayton Peace Agreement, and its provisions on ethnic discrimination, were contrary to a peremptory norm of international law, then the discriminatory provisions in the Dayton Peace Agreement would, according to the provision in Article 53 of the Vienna Convention on the Law of Treaties, be void. The assumed scope of a peremptory discrimination prohibition will thus depend on the conclusions from the discussions below on whether derogation from the nondiscrimination rules could be permissible in certain circumstances.

430

See Chapter 8.

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CHAPTER 6. ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION 1. INTRODUCTION Having sought to describe (in Chapter 5) to what extent ethnic discrimination is prohibited under the provisions of the Dayton Peace Agreement, the next step will be to look at the provisions in the BH Constitution that may conflict with such prohibitions. Article IV on the Parliamentary Assembly and Article V on the Presidency in the BH Constitution both set out provisions that prescribe differentiation based on ethnicity. These rules have already been briefly introduced in Chapter 4, but will be subject to a more detailed discussion in this chapter. Before going into a discussion on the above-mentioned constitutional provisions however, it seems necessary to take a closer look at the term “constituent peoples”, as its possible implications seem to be closely connected to a notion of special rights or privileges for certain groups of peoples. It was the notion of such special rights that led to the inclusion of certain constitutional provisions allowing for different treatment based on ethnicity. 2. CONSTITUENT PEOPLES The concept of “constituent peoples” had already been used in the Vance-Owen Peace Plan,431 where paragraph 1 in the Constitutional Framework specified that “Bosnia and Herzegovina shall be a decentralised State, the Constitution shall recognize three constituent peoples . . .”.432 Which three peoples were not explicitly stated, but it was clear that these were the Muslims, Serbs and Croats, who had been the “nations” in Bosnia since the 1974 Constitution of the Socialist Republic of Bosnia and Herzegovina. In the Owen-Stoltenberg Peace Plan, there were references to both “constituent republics” as well as “constituent peoples”.433 Article 1 of its Constitutional Agreement of the Union of Republics of Bosnia and Herzegovina states that “The Union of Republics of Bosnia and Herzegovina is composed of three Constituent Republics and encompasses three constituent peoples: the Muslims, Serbs and Croats, as well as a group of other peoples”.434 The term “constituent peoples” did not surface in the Agreed Basic Principles,435 and in Dayton the Contact Group drafters tried to keep it out of the text 431

Printed in Ramcharan, supra note 99, Volume 1, p. 250. Signed on 30 January 1993 by the three parties as a basis for further negotiations on a final Peace Plan. The Vance-Owen Plan failed in May the same year, following a vote in the Bosnian Serb National Assembly, see above Chapter 3 section 5.3.1. 433 This Peace Plan was negotiated in September 1993. Initially all three parties agreed to it, but the agreement from the Muslim side was withdrawn, see above, Chapter 3 section 5.3.2. 434 Ramcharan, supra note 99, Volume 1, p. 290. 435 See Chapter 3 section 5.8. 432

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CHAPTER 6 because of its unclear content and dubious implications. The draft that was presented to the parties two weeks into the negotiations, on November 14, did not contain the term.436 The following rounds of discussions with the parties, however, made it clear that using the term could not be avoided.437 It was agreed to place the reference to constituent peoples in the preamble. The last preambular paragraph of the BH Constitution thus reads: “Bosniacs, Croats and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows:”

The meaning of this text is not at all clear. First, the implication of the parenthesis is ambiguous. Second, it is not clear whether “along with Others” means that “others” is also a constituent people. Third, the reference “and citizens of Bosnia and Herzegovina” is confusing. It could be taken to mean that the constituent peoples and others are not citizens. The text was modelled after Article 1 (1) of the Federation Constitution,438 which referred to “Bosniacs and Croats (along with Others)”, as constituent peoples of the Federation.439 As was the case in the previous peace proposals, it was the clear understanding of the three parties in Dayton that only they (Bosniacs,440 Croats and Serbs) fell within the category “constituent peoples”. The reference to “Others” had been included in the Federation Constitution (as it was in Dayton) in order to mitigate the impression that other groups were not recognised under the constitution. The reference to citizens of Bosnia and Herzegovina was likewise an attempt to soften the effect of the reference to constituent peoples. Even if it is undisputed that the Bosniacs, Croats and Serbs are the three constituent peoples, it is not clear what the legal implications are. The term 436

On file with author. In a Dayton meeting report to Carl Bildt dated 6 November 1995, the Croat negotiator was reported to have made the following point: “On the constitution, X [a Croat negotiator] said that Croatia will insist that the agreement recognize that Bosnia and Herzegovina contains three constituent peoples, who must be treated equally.” In another meeting report from a meeting with Serb negotiators, dated 8 November, the following was stressed by a Serb constitutional expert: “The concept of ‘constituent peoples’ is a reality in Bosnia and should be included in the constitution. The concept means that nothing can be decided without the agreement of the ‘constituent peoples’. In effect, X [the Serb lawyer] acknowledged, it would establish a rule of consensus. At its heart, the concept means that no ‘constituent people’ can even be considered a ‘national minority’.” Both reports on file with author. 438 The Constitution of the Federation of Bosnia and Herzegovina, Official Gazette of the Federation of Bosnia and Herzegovina, 1/94, 13/97, available on the web-site of the Office of the High Representative, <www.ohr.int/const/bih-fed>. 439 This article has since been amended by the “Decision” of the High Representative (see Chapter 9 section 2.4) dated 19 April 2002: Decision on Constitutional Amendments in the Federation, Amendment XXVIII. 440 The term “Muslim” was exchanged for the term “Bosniac” between the Owen-Stoltenberg plan (1993) and the Washington Agreement (1994), see Chapter 3 section 5. 437

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION “constituent peoples” does not appear anywhere else in the BH Constitution. The term was part of the Yugoslav constitutional terminology, and appeared in the SFRY Constitution of 1974 in the form of the term “nation” (narod) as opposed to “nationality” (narodnosti).441 Nation/narod was considered to be the so-called constituent nations, of which there were six in the Former Yugoslavia: Slovenes, Croats, Serbs, Muslims, Macedonians and Montenegrins. Each of these groups had one national “home” republic, with the exception from Bosnia and Herzegovina which had Muslims, Croats and Serbs as narod or constituent peoples. The introduction of Muslims as a “nation” in Bosnia and Herzegovina was done just before the 1971 census in order to moderate increasing nationalist tensions between Serbs and Croats in Bosnia.442 Nationality/narodnosti were groups that did not have their national origin in any of the six republics. These were Yugoslavs,443 Hungarians, Albanians, Romanies, Slovaks, Romanians, Bulgarians, Ruthenians, Vlachs, Turks, Gypsies, etc. Articles 1, 3 and 4 of the Constitution of the Socialist Federal Republic of Yugoslavia of 1974 specifie that “working people, citizens, nations and nationalities” have equal rights under the SFRY Constitution. Article 245 states that: “The nations and nationalities of the Socialist Federal Republic of Yugoslavia shall have equal rights.”

It thus appears that the constituent peoples were not granted additional rights in a legal sense under this constitution. The symbolic value of the distinction between nation/narod and nationality/narodnosti, was however not insignificant, particularly in light of the disintegration of the SFRY and the subsequent wars.444 2.1. The “Constituent Peoples” Decision from the BH Constitutional Court In the period from January to August 2000, the Constitutional Court of Bosnia and Herzegovina made four partial decisions as a response to a request claiming that several provisions of both Entity Constitutions were unconstitutional.445 The request was from the Bosniac Member of the Presidency, Alija Izetbegovic. During its initial deliberations on admissibility, the Court referred to Article VI (3) (a) of the BH Constitution which says that: “Disputes may be referred only by a Member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the 441

Article 1 of the Constitution of the Socialist Federal Republic of Yugoslavia, 1974. Malcolm, supra note 97, pp. 198–199. 443 A number of people in the SFRY chose to be classified as Yugoslavs without any further ethnic labelling. 444 According to Article 1 of both of the two Covenants from 1966 (ICCPR and ICESCR), all peoples have the right of self determination. One might thus claim that the groups who were determined as nations had this right according to international law. There is no reference, however, to such a specific right for the nations in the 1974 SFRY Constitution. 445 Constituent Peoples case, U/58-I, II, III and IV, BH Constitutional Court. 442

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CHAPTER 6 Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of either chamber of an Entity.” (Emphasis added).

The Court found that the request was admissible, but it did not discuss the meaning of the term “dispute” in this context. The admission of the case, however, must mean that a unilateral request by a Member of the Presidency regarding possible conflicting constitutional norms has been considered by the Court to fall within the term “dispute”. The applicant claimed that a number of provisions of both the Federation Constitution as well as the Constitution of the Republika Srpska were incompatible with the BH Constitution. The third partial decision by the Constitutional Court was about the respective Constitutions’ provisions regarding constituent peoples.446 The contested language in the RS Constitution was found in its Preamble and in Article 1. The Preamble referred to the right of the Serb People to self-determination, the respect for their struggle for freedom and State independence, and the will and determination to link their State with other States of the Serb people.447 Article 1 specified that the Republika Srpska is a State of the Serb people and of all its citizens.448 Article I.1 (1) of the Federation Constitution referred only to Bosniacs and Croats as constituent peoples of the Federation.449 The applicant held that the above-mentioned provisions of the two Entity constitutions were not in conformity with the last Preambular provision of the BH Constitution which specifies that Bosniacs, Croats and Serbs are constituent Peoples in the whole territory of Bosnia and Herzegovnia. The above-mentioned provisions in the Entity constitutions implied that the respective constituent groups were constituent only in the relevant Entity, in other words, that the Bosniacs and Croats were constituent peoples only in the Federation and the Serbs only in Republika Srpska. The applicant also argued that it was not in conformity with the BH Constitution to call Republika Srpska a national state of only Serb people, or to call it a state “in its full capacity”, since it is called an Entity in Article I (3) of the BH Constitution. The Constitutional Court concluded that the contested provisions were indeed incompatible with the BH Constitution, and that both Entity Constitutions would have to be amended to the effect that all three peoples would be recognised as constituent in both Entities.450 446

Constituent Peoples case, U/58- III, dated 30 June and 1 July 2000, BH Constitutional Court. 447 As amended in Amendments XXVI and LIV, see Constituent Peoples case, U/58- III, BH Constitutional Court, para. 8. 448 The Constitution of Republika Srpska, Article 1, as amended by Amendment XLIV, still seems to have the same wording (according to the version of the RS Constitution available on the web-site of the Office of the High Representative (<www.ohr.int/const/rs/>) per December 2003. 449 The Constitution of the Federation of BH, Article I. 1(1) as amended by Amendment III. 450 Constituent Peoples case, U/58- III, BH Constitutional Court, para. 98 and 140.

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION During their deliberations of this question, the Constitutional Court discussed the meaning of the term “constituent peoples” in general: “However vague the language of the Preamble of the Constitution of BiH may be because of this lack of a definition of the status of Bosniacs, Croats, and Serbs as constituent peoples, it clearly designates all of them as constituent peoples, i.e. as peoples. Moreover, Article II.4 of the Constitution prohibits discrimination on any ground such as, inter alia, association with a national minority and presupposes thereby the existence of groups conceived as national minorities. Taken in connection with Article I of the Constitution, the text of the Constitution of BiH thus clearly distinguishes constituent peoples from national minorities with the intention to affirm the continuity of Bosnia and Herzegovina as a democratic multinational state which remained, by the way, undisputed by the parties.”451 (Emphasis added).

From this inference that constituent peoples were not the same as national minorities, the Court moved on to express what the implications of classification as constituent people were: “Even if constituent peoples are, in actual fact, in a majority or minority position in the Entities, the express recognition of Bosniacs, Croats and Serbs as constituent peoples by the Constitution of BiH can only have the meaning that none of them is constitutionally recognized as a majority, or, in other words, that they enjoy equality as groups.”452

And the Court further elaborated:453 “In conclusion, the constitutional principle of collective equality of constituent peoples following from the designation of Bosniacs, Croats and Serbs as constituent peoples prohibits any special privilege for one or two of theses peoples, any domination in governmental structures or any ethnic homogenisation through segregation based on territorial separation.” (Emphasis added).454

According to the Constitutional Court, it thus seems that the term constituent peoples, in the context of the Dayton Peace Agreement, implies that the classification as a constituent people involves certain rights on a collective basis, and that it carries the implication of equality between the constituent peoples in the exercise of these rights. It seems that under the previous legal regime of the SFRY, the term did not carry very precise legal implications, but there appears to have been a long standing tradition under the Tito regime of ensuring that there were enough 451

Constituent Peoples case, U/58- III, BH Constitutional Court, para. 52–53. Constituent Peoples case, U/58- III, BH Constitutional Court, para. 59. 453 Constituent Peoples case, U/58- III, BH Constitutional Court, para. 60. 454 In a dissenting opinion, Judge Hans Danelius, who disagreed with the majority regarding the reasoning but not the result, in his discussion of the disputed provision of the RS Constitution also infers that the classification as constituent peoples has clear implications: “However, unlike the Serbs, the Bosniacs and Croats are not referred to as peoples but as citizens, which means that from a constitutional point of view they are not placed on an equal level with the Serbs.”, Constituent Peoples case, U/58- III, Addendum 1. 452

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CHAPTER 6 ethnic checks and balances to avoid serious dissatisfaction from any of the constituent groups. 2.2. The Decision on Amendment of the Entity Constitutions by the High Representative The decisions by the Constitutional Court on the issue of the status of Constituent Peoples in the Entity Constitutions were transformed into decisions by the High Representative amending both Entity Constitutions.455 The effect of those amendments was that Bosniacs, Croats and Serbs became constituent peoples in both Entities, as opposed to the previous arrangement where only Bosniacs and Croats were considered constituent peoples in the Federation and only Serbs were considered the constituent people of the Republika Srpska. Thus, the Entity Constitutions were brought into line with the BH Constitution, which says that the three peoples are the constituent peoples of Bosnia and Herzegovina. The decision of the Constitutional Court and the subsequent amendments of the Entity Constitutions, however, did not have any impact on the ethnically-based provisions in the BH Constitution itself. The ethnicity requirements pertaining to the House of Peoples of BH and the BH Presidency have not been changed, irrespective of the amendments of the Entity Constitutions.456 3. THE HOUSE OF PEOPLES AND THE HOUSE OF REPRESENTATIVES As described in Chapter 4, the Parliamentary Assembly in Bosnia and Herzegovina consists of two chambers or “houses”, the House of Representatives and the House of Peoples. Article IV (2) provides that: “The House of Representatives shall comprise 42 Members, two-thirds to be elected from the territory of the Federation, one-third from the territory of the Republika Srpska.”457

Taking into account the ethnic demographic situation in Bosnia and Herzegovina after the entry into force of the Dayton Peace Agreement, it was likely that a majority of Bosniacs would be elected to the House of Representatives from the territory of the Federation. From the territory of Republika Srpska, there would be an overwhelming majority of Serbs, but they would still comprise only one-third of the BH House of Representatives, according to the above-quoted one-third rule in Article IV (2). The Croats and the Serbs were therefore anxious to find mechanisms that would ensure their “constitutional equality” in the decision-making process. 455

Decisions of the High Representative, imposing constitutional amendments to the Constitutions of the Federation of Bosnia and Herzegovina and the Republika Srpska, on 19 April 2002, 23 May 2002, 7 October 2002 and 2 April 2003, available on the web-site of the Office of the High Representative, <www.ohr.int/decisions>. 456 See Chapter 7 section 1 on the Election law of Bosnia and Herzegovina. 457 BH Constitution, Article IV (2).

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION Thus, the House of Peoples was introduced. The outline of a parliamentary assembly, with two-thirds from the federation and one-third from the Republika Srpska, had been introduced in the Agreed Basic Principles.458 In Dayton, the Contact Group mediators had introduced a draft Constitution that contained the onechamber model, but the parties did not accept this.459 As the title indicates, the House of Peoples consists of “peoples”, namely five Delegates from each of the three constituent peoples. Article IV (1) specifies: “The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs)”.460

It is thus specified that the persons selected to this institution must fulfil certain ethnic requirements. “Others”, in the meaning of persons who do not belong to any of the three constituent peoples, cannot be selected. Bosniacs and Croats registered in Republika Srpska, and Serbs registered in the Federation, cannot be selected either.461 The three “peoples” which were given the special privileges of a final right to veto decisions of the Parliamentary Assembly were the three parties to the conflict in Bosnia and Herzegovina. It is self evident that only those groups that have been parties to the war can actually “deliver” peace. One of the senior American lawyers present in the Dayton negotiations thus describes the House of Peoples in the following way: “the three nationalist party representatives scrutinized political arrangements very carefully to protect themselves. For example, until late in the negotiations, the Dayton Agreement provided for a simple unicameral legislature with some ethnic voting provisions. Croat and Serb negotiators finally balked, insisting on a second house (the ‘House of Peoples’). This house would embody Bosnia’s division among the three groups and, more practically, would be selected by a means susceptible to control by the nationalist parties. It was in fact the ‘House of the HDZ (Croat), SDS (Serb), and SDA (Bosniac) Parties.’”462

There are no provisions in the Dayton Peace Agreement regarding the determination of a person’s ethnicity. It was assumed that the traditional Yugoslav “self classification” would suffice, and as the Contact Group drafters wanted to weaken the ethnicity aspect as much as possible, there were no attempts to elaborate on procedures for establishing a person’s ethnicity.

458

Agreed Basic Principles, 26 September 1996, para. 6.1. Copies of the early draft constitutions on file with author. 460 Article IV (1) of the BH Constitution. 461 See Chapter 6 section 5.2. 462 O’Brien, supra note 194, p. 27. 459

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CHAPTER 6 3.1. The Parliaments of the Entities and the Selection Process It is specified in Article IV (1) that the Croat and Bosniac Delegates to the House of Peoples shall be selected by their respective ethnic Delegates of the House of Peoples of the Federation, and that the Serb Delegates shall be selected by the National Assembly of Republika Sprska. The text reads as follows: “The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska.”

The legislature of the Federation of Bosnia and Herzegovina463 consists of two chambers: there is one House of Representatives, with 140 directly elected representatives from the whole territory of the Federation, and one House of Peoples, with 30 Bosniacs and 30 Croats, as well as a smaller number of “Others” to be determined according to a specific ratio based on the ethnic composition in the Cantons.464 The National Assembly of Republika Srpska465 consists of 83 “deputies”,466 and does not have separate chambers or houses. There are no formal rules regarding the deputies’ ethnic origin. 3.1.1. Constitutional Discrimination of Serbs? It is thus the Bosniac Delegates of the House of Peoples of the Federation that select the five Bosniac Delegates to the BH House of Peoples, and the Croat Delegates of the House of Peoples of the Federation that select the Croat Delegates to the BH House of Peoples. This rule was supported particularly by the Croat delegation in Dayton, in order to ensure that the Croat parliamentarians of the Federation House of Peoples had full control over the selection process. Had the provision not specified this, there would have been the “risk” that perhaps more Bosniac-friendly or less “patriotic” Croats could be chosen by a majority of all delegates of the Federation House of Peoples. It was, however, not considered necessary by the Serb delegation at Dayton to specify that the Serb Delegates were to be selected by Serb representatives of the National Assembly of the Republika Srpska; it was not envisaged that this body would include (other than perhaps small minorities of) non-Serbs in the foreseeable future. This difference in wording leaves open to interpretation whether the rules regarding the selection process are intended to be identical for the three groups or 463

The Constitution of the Federation of BH was a part of the Washington Agreement from 1994, see above under Chapter 3 section 5.5. 464 Constitution of the Federation of BH, Article IV. A. 2 (6) and (8) and Article V 2 (5). 465 The National Assembly of the Republika Srpska was established under the Constitution of the Republika Srpska (the RS Constitution), adopted in 1992 (Official Gazette of Republika Srpska, 21/92), and subject to a number of amendments since. 466 Article 71 of the RS Constitution.

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION not. There seems to be no reasonable explanation for a differentiation between the three groups, particularly in the light of the possible meaning of the term “constituent” as constitutional equality. Nevertheless, the BH Constitutional Court has stated that this provision is to be taken literally in the sense that since it is not specified that the Serb Delegates to the BH House of Peoples must be selected by Serbs, also non-Serb members of the National Assembly of the RS can take part in this selection.467 The Constitutional Court observed that the Constitution provided for the “striking difference that the Serbs shall be selected by the National Assembly as such without any differentiation along ethnic lines”. And it went on to say: “This provision therefore includes a constitutional guarantee that the non-Serb members of the National Assembly have the same right as Serb Members to participate in the selection of the five Serb Delegates to the House of Peoples of BH. Hence there is no strict uniform model of ethnic representation underlying these provisions of the BiH Constitution. Had this been the intent of the framers of the Constitution, they would not have regulated these selection processes differently.”468 (Emphasis added)

The Constitutional Court did not elaborate on the basis for the assumption regarding the “intent of the framers of the Constitution”. Given the circumstances under which the BH Constitution was made, it may seem somewhat farfetched to assume that there was an intent to set up radically different rules for the three groups regarding one of the key provisions on constitutional equality. The specification of the selection rules for the Bosniacs and Croats was made because they shared a legislature, and it would otherwise not be possible to ensure that the Croats, who would be in minority in that legislature, had the same influence over the selection to the House of Peoples as the Bosniacs had. The Serbs did not pursue the matter because it was seen as unnecessary to specify that deputies to the Republika Srpska National Assembly would be of Serb ethnic origin. The Constitutional Court itself stated that the notion “constituent peoples” implies constitutional equality for the peoples in question, and that: “the constitutional principle of collective equality of constituent peoples following from the designation of Bosniacs, Croats and Serbs as constituent peoples prohibits any special privilege for one or two of theses peoples, any domination in governmental structures or any ethnic homogenisation through segregation based on territorial separation.”469 (Emphasis added.)

The right for the respective constituent peoples to be in charge of the selection of their Delegates to the House of Peoples seems to be exactly the kind of privilege that the three groups would see as a result of being regarded as constituent. The fact remains, however, that the wording of Article IV (1) (a) clearly allows for the interpretation made by the Constitutional Court, and it follows from Article VI (3) 467

Constituent Peoples case, U/58- III, BH Constitutional Court, para. 66. Constituent Peoples case, U/58- III, BH Constitutional Court, para. 66. 469 Constituent Peoples case, U/58- III, BH Constitutional Court, para. 59 and 60. 468

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CHAPTER 6 that the Constitutional Court has “exclusive jurisdiction to decide any dispute that arises under this Constitution”. It also follows from the ordinary rules on treaty interpretation that it is the ordinary meaning of the text that shall be taken into account.470 The above-mentioned interpretation of Article IV (1) (a) by the Constitutional Court is therefore indicative of how this provision should be understood. Seen in light of the efforts by the Constitutional Court to interpret the Constitution in a manner which is as consistent as possible with international human rights standards it is not surprising that they would take this opportunity to effectively diminish one of the “ethnically” based rules, even if this is at the expense of equality between the three constituent peoples. To allow for participation by nonSerbs in the selection of the Serb Delegates to the House of Peoples is, seen from this perspective, a step in the right direction. 3.2. Competencies of the Parliamentary Assembly The text of Article IV (4) reads as follows: “The Parliamentary Assembly shall have responsibility for: (a) Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution. (b) Deciding upon the sources and amounts of revenues for the operations of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina. (c) Approving a budget for the institutions of Bosnia and Herzegovina. (d) Deciding whether to consent to the ratification of treaties. (e) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.”

Article IV (3) (c) specifies that “All legislation shall require the approval of both chambers.”

There are no provisions for decision-making by the two chambers jointly, so the rule must be taken to mean that approval must be given separately by each chamber in each case. Nothing is said about the requirements for making other decisions than the legislative ones (e.g. those mentioned in Article IV (4) (b-e)). As both chambers together constitute the Parliamentary Assembly, however, it must be assumed that also both chambers must make the non-legislative decisions, even if this is not specified. The functions of the House of Peoples are thus, as a point of departure, identical to the functions of the House of Representatives: both chambers must approve all decisions, legislative or other, to be made by the Parliamentary Assembly.

470

Article 31 of the Vienna Convention on the Law of Treaties. (It was therefore not necessary to assume anything about the intention of the drafters.).

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION 3.2.1. The Decision Making Process The quorum rule for the House of Peoples is that: “Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb Delegates are present”.471

For the House of Representatives the requirement is simply that: “[A] majority of all members elected to the House of Representatives shall comprise a quorum”.472

Article IV (3) (d) reads: “All decisions in both chambers shall be by majority of those present and voting. The Delegates and Members shall make their best efforts to see that the majority includes at least one-third of the votes of Delegates or Members from the territory of each Entity. If a majority vote does not include one-third of the votes of Delegates or Members from the territory of each Entity, the Chair and Deputy Chairs shall meet as a commission and attempt to obtain approval within three days of the vote. If those efforts fail, decisions shall be taken by a majority of those present and voting, provided that the dissenting votes do not include two-thirds or more of the Delegates or Members elected from each Entity.”

It is thus specified that, subject to these quorum rules, all decisions in both chambers “shall be by majority of those present and voting”. If a majority vote, however, in either chamber does not include at least one-third of the votes of Delegates or Members from the territory of each Entity, a commission shall be set up in order to “attempt to obtain approval within three days of the vote”. If this fails, the decision shall be taken by a majority of those present and voting (in either chamber), but “provided that the dissenting votes do not include two-thirds or more of the Delegates or Members elected from either Entity”. For the House of Representatives this rule means that, provided that all 42 Members are present and voting, 5 of the Serb Members and 10 of the Bosniac and Croat Members must be included in a majority vote in order for it to be considered valid on the first attempt. If there are less than 14 Members from Republika Srpska and 28 from the Federation present and voting, it is one-third of those present and voting from each Entity that are to be counted. If the first attempt to attain approval for a proposal does not succeed, and the ad-hoc commission is not able to attain sufficient approval for the inclusion of the necessary votes from each Entity, the next vote will require that there is a majority vote in favour of the proposal, and that the dissenting votes must not include more than 10 votes from Republika Srpska, or more than 19 votes from the Federation. These figures are not subject to how many Members are present and voting. If fewer Members are present, the requirement is still that it takes more than two-thirds/one-third of the “votes of the Members elected from either Entity” to defeat a proposal. 471 472

Article IV (1) (b) of the BH Constitution. Article IV (2) (b) of the BH Constitution.

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CHAPTER 6 The same rules apply to the House of Peoples. Provided that all 15 Delegates are present and voting, 2 Serbs and 4 Bosniacs and or Croats must be in favour of the proposal in order for it to be approved by the House of Peoples. Irrespective of how many Delegates are present and voting, no more than 4 Serbs and 7 Bosniacs and or Croats could be among the dissenting votes in the next round. This provision makes it possible for a majority from each Entity to reject proposals, and it also ensures that at least a minority from each Entity is in favour of a proposal in order for it to be adopted. It will thus not be possible for the Federation to pursue its Entity interests at the expense of Republika Srpska by using its nominal majority of votes. Since, however, this voting procedure is based on majorities of the Entities and not of the constituent peoples, it would be possible for decisions to be made against the votes of the entire Croat (or even Bosniac) groups of the two chambers, depending of how numerous they were (in the House of Representatives) and how many were present and voting. This system for decision-making as set out in Article IV (3) (d) is therefore not designed to ensure “constitutional equality” among the three constituent peoples. 3.2.2. “Ethnic Veto” on Parliamentary Decisions The concept of a decision-making mechanism that would ensure “constitutional equality” or guarantees against being outvoted as an ethnic group was subject to long and difficult discussions during the negotiations at Dayton. The Contact Group drafters tried at first to avoid it all together, arguing that no such mechanism for the Parliamentary Assembly was foreseen in the Agreed Basic Principles. When this did not succeed, they tried to introduce “deadlock-breaking mechanisms” in order to overcome any possible effects of an “ethnic veto”. The results are to be found in Article IV (3) (e–f). Article IV (3) (e) states: “A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat or Serb peoples by a majority of, as appropriate, the Bosniac, Croat or Serb Delegates selected in accordance with paragraph 1 (a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, Croat and of the Serb Delegates present and voting.”

There is no guidance in the Constitution as to what should be defined as “destructive of a vital interest”. Both “destructive” and “vital interest” suggest that there should be a rather high threshold before the provision can be invoked. In practice the determination of this question is left to the ethnic groups themselves. The text in the Agreed Basic Principles regarding the decision making process of the Presidency suggests that the parties did not see the threshold for invoking the vital interest procedure as particularly high. It states that if “one-third of the members disagree with a decision taken by the other members and declare the decision to be destructive of a vital interest . . .” (Emphasis added).

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION This wording could be taken to mean that disagreeing with a decision is enough to declare it destructive of a vital interest.473 If, however, there was to be a dispute regarding the content of the term, it would be within the competence of the Constitutional Court to determine its scope.474 The provision refers to the “Bosniac, Croat or Serb Delegates selected in accordance with paragraph 1 (a) above”, which are the Delegates of the House of Peoples. A majority of each of these five member groups constitutes three or more Delegates, which is sufficient in order to declare a proposed decision of the Parliamentary Assembly destructive of that group’s “vital interests”. If a proposed parliamentary decision is subject to such a declaration (veto), a majority of those present and voting from each of the ethnic groups in the House of Peoples must vote in favour of it in order for it to be passed. If such a qualified majority vote from the House of Peoples cannot be obtained, the proposed parliamentary decision is not adopted. If one ethnic group invokes this “vital interest procedure”, however, the other groups are free to make objections. Article IV (3) (f) thus provides: “When a majority of the Bosniac, the Croat or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity.”

The required majority for making the objection is a majority of the selected Delegates, in other words, three or more. (Since the required quorum for the House of Peoples is that three of each ethnic group must be present, there is no way that any less than three Delegates from each group can make valid decisions.) If such a majority of three or more (of either of the two groups which were not responsible for declaring the proposed decision destructive of that groups vital interests) makes such an objection, a Joint Commission established by the Chair of the House of Peoples shall “resolve the issue”. What this means is not entirely clear. The issue to be resolved could be either the invocation of the “vital interest procedure”, or it could be the objection to the invocation of the “vital interest procedure”. It would seem likely that the “issue” to be resolved is the invocation of the “vital interest procedure” as this is the act that triggered the objection. Resolving the issue would presumably be to seek out a political solution which allows for the disputed proposal to be approved by the House of Peoples. 473

There is a definition of “vital interest” in Article 4 of the Agreement on the Implementation of the Constituent People’s Decision of the Constitutional Court of Bosnia and Herzegovina, adopted by the Federation of BH and the Republika Srpska on 27 March 2002, after heavy political pressure from the Office of the High Representative and the Contact Group Countries. The definition of “vital interest” is extremely wide, and the Agreement thus basically imports the system of ethnic veto into the two Entity Constitutions. 474 Article VI (3) (a).

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CHAPTER 6 The Constitutional Court shall then, provided that the Joint Commission does not succeed in its efforts to “resolve the issue”, review the matter “for procedural regularity”. This wording suggests that all the Constitutional Court can do in these situations is to confirm whether the correct procedures, according to Article IV (3), have been followed. There were several attempts at Dayton to introduce the Constitutional Court as a possible “deadlock-breaker”, but none of the proposals to that effect were accepted by the parties.475 Ultimately, they did not want any mechanism that could overturn an “ethnic veto”. The decision-making process, not only in the House of Peoples, but also in the Parliamentary Assembly as such, is thus hampered by the risk that each ethnic group, represented by no more than three of its Delegates, may paralyse the adoption of most decisions, legislative or other. The only requirement is that they claim that the proposed decision is destructive to their people’s vital interests.476 4. THE PRESIDENCY Article V specifies that: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.”

This rule has several implications. First and foremost, it sets out ethnic requirements; the three Members have to be of the specified ethnic origin. People of other origins than those of the three constituent peoples cannot run for Presidency in Bosnia and Herzegovina. Secondly, the rule ties ethnicity to territory: non-Serbs from Republika Srpska may not run for Presidency, and non-Bosniacs or non-Croats in the Federation may not run for Presidency. Furthermore, people in the Federation cannot vote for a Serb presidential candidate, and people in Republika Srpska cannot vote for Croat or Bosniac presidential candidates. As is the case for the Delegates to the House of Peoples of the Federation and of Bosnia and Herzegovina, there are no rules in the Constitution pertaining to how a persons’ ethnicity is determined.

475

From the minutes of a Dayton meeting between Contact Group lawyers and the Serb delegation, dated 13 November, the following passage is illustrative: “Using constitutional court as a deadlock breaking mechanism is unacceptable. Would embroil court in political issues.” On file with author. See also footnote 249. 476 By looking at the rather extensive list of legislative “Decisions” for BH which have been made by the High Representative since the imposition of the so-called “Bonn-powers”, it is quite obvious that the decision-making system in the Parliamentary Assembly does not work as it was intended. The Decisions are available at the web-site of the Office of the High Representative, <www.ohr.int/decisions>.

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION 4.1. Competencies of the Presidency The competencies of the Presidency are laid down in Article V (3). The provision states: “The Presidency shall have responsibility for: (a) Conducting the foreign policy of Bosnia and Herzegovina. (b) Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation. (c) Representing Bosnia and Herzegovina in international and European organizations and institutions and seeking membership in such organizations and institutions of which Bosnia and Herzegovina is not a member. (d) Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina. (e) Executing decisions of the Parliamentary Assembly. (f) Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly. (g) Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency. (h) Coordinating as necessary with international and non-governmental organizations in Bosnia and Herzegovina. (i) Performing other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities.”

In addition to the above mentioned list of competencies, Article V (4) specifies that the Presidency shall nominate the Chair of the Council of Ministers. This Chair shall then subsequently appoint the rest of the Ministers of the cabinet. The Members of the Presidency shall also be members of a Standing Committee on Military Matters, and it is specified that each of them shall have civilian command over armed forces.477 4.2. The Decision-making Process The contour of the decision-making process of the Presidency had already been outlined in the Agreed Basic Principles.478 Here the main rule was that decisions would be taken by a two-thirds majority vote, but that if one-third of the members: “disagree with a decision taken by the other members and declare the decision to be destructive of a vital interest of the entity or entities from which the dissenting members were elected, the matter will be referred immediately to the appropriate entity/entities parliament.” (Emphasis added.)

It is worth noting that constituent peoples were not mentioned; the vital interest procedure was tied to the Entities instead. The text suggests the possibility of the 477 478

Article V (5) of the BH Constitution. Agreed Basic Principles, New York, 26 September 1995, para. 6.2.

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CHAPTER 6 dissenting members (one-third or more of the members) being from more than one Entity, which again would imply that there would have to be more than two Entities. This may have been the hope particularly of the Croats, but was not at all within the US or the Contact Group plans. On the contrary, it was seen as essential that the Federation between the Bosniacs and Croats was upheld, firstly, to keep the number of negotiating parties as low as possible, secondly, because the territorial percentage between the two Entities had already been agreed,479 and a new round of bids for territory by the three groups would have unravelled the whole process. A third reason for rejecting a three Entity model was that the Dayton Peace Agreement otherwise would have been very similar to the Owen-Stoltenberg Peace Plan, which had been rejected two years earlier, chiefly because of criticism claiming its solution rewarded ethnic cleansing. At Dayton, the decision-making process for the Presidency was set up in a different way than envisaged in the Agreed Basic Principles. Emphasis was placed on a consensus rule instead of the two-thirds majority rule. According to Article V (2) (c), “The Presidency shall endeavor to adopt all Presidency Decisions (i.e., those concerning matters arising under Article V III (1) (a)-(e)) by consensus. Such decisions may, subject to paragraph (d) below, nevertheless be adopted when all efforts to reach consensus have failed.”

As was described above 4.4.8.1 (The Dayton Mistake), the cross-reference to Article III (1) (a)-(e) was due to a typing mistake towards the end of the Dayton negotiations. The reference should have been to Article V (3) (a)-(e), which refers to the above mentioned list of the presidential powers. This erroneous cross-reference led to the interpretation by the parties that the areas described in Article III (1) (a)(e) were competencies of the Presidency.480 This interpretation, however, could not survive. It seemed reasonably clear that Article V (2), which pertained to Presidency procedures, could not confer additional powers on the Presidency, especially as there was an explicit provision dealing with the powers of the Presidency in Article V (3). The effect of the wrong cross-reference therefore seems to be that whenever the Presidency makes a decision, one of its Members may invoke the vital interest procedure if the decision falls within the areas listed in Article III (1) (a)-(e), which is quite a different list than that of Article V (3) (a)-(e). Notwithstanding the “Dayton mistake”, the above-mentioned provision (Article V (2) (c)) is far from clear. Although it only mentions Presidency Decisions as those referred to in the parenthesis, it seems clear that the Presidency must be able to make decisions on a number of other matters which are not mentioned in the provision, such as procedural decisions. This could be taken to mean that the intention was that

479

The Agreed Basic Principles decided on the allocation of 51 per cent of the territory to the Federation of BH and 49 per cent to the Republika Srpska, Agreed Basic Principles, Geneva, 8 September 1995, see also above under Chapter 3 section 5.4. 480 See Chapter 4 section 4.8.1.

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION the Presidency can make two types of decisions, namely Presidency Decisions (which are those specified in the parenthesis), and other decisions. This was, however, not the intended meaning in Dayton. “Presidency Decisions” was meant to be the term for all decisions to be made by the Presidency. This may be inferred from the text in the Agreed Basic Principles,481 where the main rule was that all Presidency Decisions were to be taken by a two-thirds majority, but subject to a “vital interest” procedure. Moreover, it would be odd to name decisions made by the Presidency something other than Presidency Decisions. And, this was indeed not done. There is no mention of any other decisions than the Presidency Decisions. The intention at Dayton was to make a decision-making process that would, as a point of departure, emphasise the importance of the consensus rule, but which would allow for decisions being made on the basis of a two-thirds majority among the Members, subject to an “ethnic veto” in special cases. The special cases were those mentioned in the parenthesis. In a legal opinion written by Paul C. Szasz to the Office of the High Representative482 on the matter of the above mentioned “Dayton mistake”,483 the following observations were made regarding the first sentence of Article V (2) (c): “The effect of this [parenthetical] phrase is puzzling. It appears to be an explanation of the words “all Presidency Decisions” appearing immediately prior to it, which suggests that there cannot be any such Decisions that are not encompassed by that phrase (otherwise the word ‘all’ is misleading). However, whether one takes the list in Art. III (1) (a)-(c) (the ‘actual’ list) or that in Art. V (3) (a)-(c) (the ‘intended’ list),484 it is clear that neither encompasses all possible Presidency Decisions. This suggests that the first sentence really means: ‘The Presidency shall endeavour to adopt all Presidency Decisions concerning matters arising under Art._____ by consensus.’”

It is further clear from the second sentence in Article V (2) (c) that those Presidency Decisions that are mentioned in the parenthesis may be subject to the “vital interest” procedure that is outlined in Article V (2) (d). As regards other Presidency Decisions, they seem to be subject to an ordinary two-thirds majority rule. In the above mentioned legal opinion, Szasz observes: “Then, presumably all Presidency Decisions not included in the list are not subject to the consensus requirement. Such decisions would include those taken under Art. V (3) (f)-(i), V (4) (chapeau), V (5) (b) (first sentence), VII (2), or for that matter, those taken under other Annexes, such as Annex 6, Art. IV.2 (last sentence).

481

Agreed Basic Principles, New York, 26 September 1995, para. 6.2. Dated 19 November 1996. On file with author. 483 See Chapter 4 section 4.8.1 on the typing mistake in Dayton regarding Article V (2) (c) of the BH Constitution. 484 See Chapter 4 section 4.8.1 on the cross reference to Article III (1) (a)-(e) instead of to Article V (3) (a)-(e), in the parenthesis in Article V (2) (c). 482

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CHAPTER 6 If that does not appear to be the intended meaning, i.e. if really all Presidency Decisions are normally to be taken by consensus, then the parenthetical phrase loses all meaning, as it would neither limit nor explain the words preceding it.”

Whether there is a requirement for the Presidency to endeavour to reach consensus regarding all or just some of the Presidency Decisions is hardly of critical importance, because if efforts to make decisions through consensus fail, two Members of the Presidency can outvote the third. If, however, the adopted decision pertains to the provisions listed in the parenthesis (Article III (1) (a)-(c)), the dissenting Member of the Presidency “may declare that decision to be destructive of a vital interest of the Entity from the territory from which he was elected”. The disputed decision shall then be referred to the respective Entity Legislature (to the National Assembly of the Republika Srpska if the declaration was made by the Serb Member, to the Bosniac Delegates of the House of Peoples of the Federation if the declaration was made by the Bosniac Member, and to the Croat Delegates of the House of Peoples of the Federation if the declaration was made by the Croat Member). If the declaration is confirmed by two-thirds of the total number of the respective ethnic delegates of the Entity Legislatures within ten days of the referral, the challenged Presidency Decision shall not take effect. Thus the possibility of paralysing the work through an “ethnic veto” was provided in the procedures for the Presidency as well as for the House of Peoples. 5. CONSEQUENCES OF THE CONSTITUTIONAL PROVISIONS ON ETHNICITY In order to determine if the provisions described in this chapter are incompatible with specific human rights provisions, it is necessary to look at the consequences of these constitutional rules. This will be discussed below. 5.1. Exclusion of “Others” It seems unquestionable that the BH Constitution sets up a system that works to the disadvantage of people who do not belong to any of the three constituent peoples. “Others” cannot run for the Presidency in Bosnia and Herzegovina, nor can they be selected to the House of Peoples of Bosnia and Herzegovina. In addition, they have, according to the rules of the BH Constitution, no way of influencing the choice of which Delegates are to be selected to the House of Peoples, with one exception, i.e. Article IV (1) (a) which does not specify that the five Serbs representing the House of Peoples have to be selected by Serb deputies of the National Assembly of the Republika Srpska; one may therefore infer485 that also non-Serbs can take part in the selection of the Serb Delegates to the House of Peoples. In the Federation, nonCroats or non-Bosniacs may not, according to this rule of the BH Constitution, take part in the selection of Delegates to the House of Peoples of Bosnia and Herzegovina. As Article IV (1) (a) states, the selection shall be done by “the Croat 485

Constituent Peoples case, U/58- III, BH Constitutional Court, para. 66.

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION and Bosniac Delegates to the House of Peoples of the Federation”.486 As Zoran Pajic notes: “the preamble of the constitution defines Bosniacs, Croats, and Serbs as ‘constituent peoples’ of Bosnia and Herzegovina, while ‘Others’ and ‘citizens’ are mentioned only in passing. Thus the preamble takes away state sovereignty from the citizens and transfers it to three ethnic groups . . . A serious bi-product of this arrangement is largely ignored. Namely, all ‘Others’ who do not belong to any of the three constitutionally recognized ethnic groups are left in limbo, wondering about their status in this clearly designed ethnic country.”487 In the “Agreement on the Implementation of the Constituent Peoples’ Decision of the Constitutional Court”,488 the Federation of BH and the Republika Srpska agreed to set up a system in each Entity which would allow for all three constituent peoples to take part in the legislature of both Entities (see its Article 3 concerning a Council of Peoples in Republika Srpska and the restructuring of the House of Peoples in the Federation of BH). The wording of the BH Constitution itself, however, has not been changed on this point. The subsequent Decisions by the High Representative concerning the Entity Constitutions have likewise altered the composition of the House of Peoples in the Federation, but again, none of the provisions in the Dayton Peace Agreement have been amended. The present analysis will primarily pertain to the constitutional system that was provided for in this agreement.

This exclusion of “others” from political participation seems to be of considerable significance because of the fundamental powers vested in the institutions to which they have no access. It is the constituent peoples that have the power to block decisions both in the Presidency and the Parliamentary Assembly. No matter how many “others” that may be elected to the House of Representatives and no matter how much political power they may gain in that body, there will always be the risk of an ethnic veto from the House of Peoples that can effectively stop legislative and other proposals from being passed. According to the 1991 census, there were 7.6 per cent “others” in Bosnia and Herzegovina before the war started.489 No post-war census has been conducted, but it is generally assumed that this figure has been reduced. The Constitutional Court has, on the basis of estimates made by UNHCR and IMG assumed that there were 2.38 per cent “others” in Bosnia and Herzegovina in 1997.490 Whether this figure is entirely correct today is hardly of the essence. The main point seems to be that the constitutional system provides for the exclusion of a certain number of citizens from participation in central democratic processes and organs. This group includes those who, for various reasons, such as intermarriage, mixed parenthood, political 486

Agreement on the Implementation of the Constituent Peoples’ Decision of the Constitutional Court of Bosnia and Herzegovina, dated 27 March 2002. 487 Pajic, supra note 36, pp. 134–135. 488 Decision on Constitutional Amendments in the Federation, Office of the High Representative, 19 April 2002. 489 See official Bosnia and Herzegovina web-site: <www.fbihvlada.gov.ba>. 490 Constituent Peoples case, U/58- III, BH Constitutional Court, para. 129 and 86.

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CHAPTER 6 convictions or a wish to simply be a Bosnian national, refuse to be labelled as Bosniac, Croat or Serb. The BH Constitutional Court discussed the exclusion of “others” in the “Constituent Peoples” case.491 Since the case concerned the Entity Constitutions and not the BH Constitution, the provisions regarding “others” in the latter instrument were not discussed. The Court, however, found no violation of the ICERD regarding the provisions of the Federation legislature, as this body has a reserved number of seats for “others”, as well as for Bosniacs and Croats. The Court said that: “Insofar as there is a bicameral parliamentary structure with the first chamber based on universal suffrage without any ethnic distinctions and the second Chamber, the House of Peoples, providing also for the representation and participation of others, there is prima facie no such system of total exclusion from the right to stand as a candidate.”

Conversely, it could thus be argued that, when in the similar constitutional system of Bosnia and Herzegovina, there is in fact a total exclusion of “others”, both from the right to stand as a candidate and from participating in the selection process. This would indicate that, according to the arguments of the Constitutional Court, such an exclusion may well create problems regarding inter alia the provisions of the ICERD. It is also worth noting that when the Constitutional Court, in the same decision, discussed the Federation executive and judicial organs, it found that the exclusion of “others” from these organs in fact constituted a breach of inter alia the provisions of the ICERD: “Political rights, in particular voting rights including the right to stand as a candidate, are fundamental rights insofar as they go to the heart of a democratic, responsible government required by the provisions of the Preamble, paragraph 3, and Article I.2 of the Constitution of BiH and the respective provisions of the European Convention on Human Rights and the other international instruments referred to in Annex I to the Constitution of BiH. A system of total exclusion of persons on the ground of national or ethnic origin from representation and participation in executive and judicial bodies gravely infringes such fundamental rights and can therefore never be upheld. Hence, a provision reserving a certain public office in the executive or judiciary exclusively for a Bosniac or Croat without the possibility for “others” to be elected or granting veto-power to one or the two of these peoples only seriously violate Article 5 of the Racial Discrimination Convention and the constitutional principle of constitutional equality of the constituent peoples.”492

Even if this argument pertains to executive and judicial bodies, and not explicitly to legislative bodies, it would seem to carry even more weight regarding a legislature than regarding government and judiciary. Total exclusion from legislative bodies would appear to infringe particularly on the political rights mentioned by the Constitutional Court in the above quotation. 491 492

Constituent Peoples case, U/58- III, BH Constitutional Court, para. 118 and 116. Constituent Peoples case, U/58- III, BH Constitutional Court, para. 116.

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION The reference to “others” in the above-mentioned argument by the Constitutional Court seems to pertain both to “others” (as people not belonging to any of the three constituent peoples) as well as to Serbs. One may therefore infer that the Constitutional Court finds ethnic discrimination in both of these instances unacceptable, even if the discrimination of Serbs in the Federation were to be “balanced” by a similar discrimination of Bosniacs and Croats in Republika Srpska. 5.2. Exclusion of Constituent Peoples in the “Wrong” Entity The previously described constitutional rules regarding the House of Peoples and the Presidency not only exclude “others” from taking part in the selection process or being candidates for the House of Peoples and the Presidency, they also exclude people who belong to one of the three constituent peoples if they are registered to vote in the “wrong” Entity. According to the system set up in the BH Constitution, a Serb cannot participate in the selection of a Croat or Bosniac representative to the House of Peoples, even if she or he is a member of the Federation Parliamentary Assembly. Likewise, a Croat cannot participate in the selection of a Bosniac and a Bosniac cannot participate in the selection of a Croat. In Republika Srpska, on the other hand, it has been established by the Constitutional Court that the BH Constitution allow for the participation of non-Serbs in the selection of Serb representatives to the BH House of Peoples,493 provided of course that they are deputies to the National Assembly of Republika Srpska. The rules concerning the House of Peoples and the Presidency pertain not only to territory, but also to ethnic classification. There is a systematic pattern of territorial requirements mixed with ethnic requirements, which in fact leaves quite a large number of citizens unable to participate fully in the normal election process. The Venice Commission observes in its Opinion on the Electoral Law of Bosnia and Herzegovina that: “No Serb from the Federation and no Croat or Bosniac from the RS may sit in the House of Peoples, which is a chamber with full legislative powers. A significant part of the population of BiH therefore does not seem to have a right to be elected to the House of Peoples.”494

Regarding the Presidency, only candidates of the prescribed ethnic origin from the corresponding Entity can be candidates and run for Presidential elections. The Serb Member of the Presidency must be directly elected from the territory of the Republika Srpska, and the Bosniac and Croat Members must be directly elected from the territory of the Federation.495

493

Constituent Peoples case, U/58- III, BH Constitutional Court, para. 66. Opinion on the Electoral Law of Bosnia and Herzegovina, Doc. no. CDL-INF (2001) 21, European Commission for Democracy through Law, Adopted at its 48th Plenary Meeting, Venice 19–20 October 2001, para. 20. 495 Article V, first sentence of the BH Constitution. 494

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CHAPTER 6 This also implies that a Serb who lives in the Federation cannot vote for a Serb candidate for the BH Presidency and aBosniacs or Croats living in Republika Srpska cannot vote for either of the Bosnia and Herzegovina presidential candidates from the Federation. This system may force people to consider other aspects than ethnicity when deciding who to vote for in the national presidential elections. On the other hand, the system hardly seems to be a motivating factor when considering returning to an Entity where one would belong to the minority constituent people. In the following, the term “others” will encompass both persons not belonging to any of the three constituent peoples at all, as well as of persons belonging to one of the three constituent peoples, but not living in the “appropriate” Entity. Both categories are clearly, according to the rules of the BH Constitution, disadvantaged because of their ethnicity. It seems clear that the Constitutional Court has assumed this meaning of the term in its partial decision on constituent peoples in the following quotation where “others” clearly include both Serbs and persons not belonging to any of the three constituent peoples: “Hence, a provision reserving a certain public office in the executive or judiciary exclusively for a Bosniac or Croat without the possibility for “others” to be elected or granting veto-power to one or the two of these peoples only seriously violates Article 5 of the Racial Discrimination Convention and the constitutional principle of constitutional equality of the constituent peoples.”496

One of the main aims of the Dayton Peace Agreement was to facilitate the return of ethnic minorities to their former homes of origin. Substantial efforts have been put into encouraging Bosniacs and Croats to return to their former homes in Republika Srpska, and Serbs to return to the Federation. It is indeed a paradox that the more successful this reintegration policy becomes, the fewer people will be entitled to full political participation, according to the BH Constitution. The BH Constitutional Court laid down an important marker when it declared that all three constituent peoples were constituent in the entire territory of Bosnia and Herzegovina, and not only in “their” respective Entities.497 The consequence of this decision was that certain provisions in both Entity Constitutions were declared unconstitutional with regard to the BH Constitution,498 and that these provisions were to “cease to be valid from the date of the publication in the Official Gazette of Bosnia and Herzegovina”.499 The provisions in question had designated Bosniacs and Croats as the only constituent peoples of the Federation, and the Serbs as the only constituent people of the Republika Srpska. The Constitutional Court, however, did not draw any conclusions with regard to any of the provisions in the BH Constitution itself, even though the constitutional provisions on the House of Peoples and the Presidency of BH clearly undermine the aspirations of ensuring the three constituent peoples, and “others”, equal rights in 496

Constituent Peoples case, U/58- III, BH Constitutional Court, para. 116. Constituent Peoples case, U/58- III, BH Constitutional Court, para. 125. 498 Constituent Peoples case, U/58- III, BH Constitutional Court, para. 98 and 140. 499 Constituent Peoples case, U/58- III, BH Constitutional Court, introduction, page 1. 497

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ETHNIC DIFFERENTIATION RULES IN THE BH CONSTITUTION both Entities. The most obvious reason for this silence is presumably that the applicant had not asked the Constitutional Court to consider any of the provisions in the BH Constitution. Another reason could be that the Constitutional Court does not consider itself competent to make interpretations that might undermine parts of the Constitution. It might seem problematic for the Constitutional Court, whose mandate is to “uphold this Constitution”,500 to openly disapprove of any of its provisions. To “uphold”, however, must necessarily entail interpretations of the Constitution itself. There is a fine line between making interpretations on the one hand and altering the Constitution on the other hand. Through declaring the ethnicity requirements unconstitutional, the Constitutional Court could be said to interpret the “ethnic” constitutional provisions in a strict manner to the advantage of the constitutional provisions on human rights. The issue of which bodies might make decisions or recommendations regarding the interpretation of human rights versus ethnic requirements will be discussed in more detail below in Chapter 9. 6. CONCLUDING COMMENTS In this chapter, it has been shown that some of the provisions of the BH Constitution provide for certain privileges for the three groups of persons that can be categorised as “constituent peoples” of Bosnia and Herzegovina. The fact that such privileges or special political rights are directly linked to a person’s ethnicity is undisputed. This leaves the persons who, for different reasons, cannot or do not want to, be subject to this categorisation, with less political influence in the general political system of Bosnia and Herzegovina because they have weaker political rights as compared to those who fall into the category of “constituent peoples”. The constitutional rules that require a specific ethnicity for the holding of, or running for certain public offices, and the right to select political representatives, may be claimed to violate human rights that pertain to the right to not be discriminated against on the basis of ethnicity. The next chapter will discuss to what extent this differentiation between persons on account of their ethnicity may be claimed to be in conflict with specific human rights standards.

500

Article VI (3) first sentence of the BH Constitution.

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CHAPTER 7. THE SCOPE OF CONFLICT BETWEEN THE NON-DISCRIMINATION RULES AND THE RULES AUTHORISING ETHNIC DIFFERENTIATION 1. INTRODUCTION It was established in Chapter 5 that the Dayton Peace Agreement lays down a solid framework for protection against ethnic discrimination through the incorporation of several international human rights instruments into the BH Constitution and the Human Rights Agreement. It was furthermore established in Chapter 6 that there are several constitutional rules that prescribe differentiation on the basis of ethnicity. Only persons belonging to the three constituent peoples (Bosniacs, Croats and Serbs) may run for the Presidency or hold office in the vetoing chamber of the Parliamentary Assembly, and even persons belonging to these three groups may not stand for election for any of these offices if they live in the “wrong” Entity. These constitutional rules have been implemented through the relevant election legislation of Bosnia and Herzegovina. According to Article I (2) of the BH Constitution, “Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections”. How this rule was intended to be implemented was not elaborated on in the Constitution itself, but more detailed provisions regulating the first elections to be held in Bosnia and Herzegovina after the entry into force of the Dayton Peace Agreement were laid down in Annex 3 to the GFA (Agreement on elections). Article I (1) of this annex specified that: “The Parties shall ensure that conditions exist for the organization of free and fair elections, in particular a politically neutral environment; shall protect and enforce the right to vote in secret without fear or intimidation; shall ensure freedom of expression and of the press; shall allow and encourage freedom of association (including of political parties); and shall ensure freedom of movement.”

More detailed rules on conducting elections, taken from Paragraphs 7 and 8 of the so-called Copenhagen document, specifying some of the requirements for fair and free elections, were also laid down as part of the obligations under this annex.501 The Agreement on Elections set up a Provisional Election Commission with a mandate to adopt electoral rules and regulations and to organise the first elections after the entry into force of the Dayton Peace Agreement.502 Following the first elections, the Parties were to establish a Permanent Election Commission.503 It was

501

Document of the Second Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (CSCE), Copenhagen, 1980. 502 These elections took place in September 1996. 503 Article V of the Agreement on Elections (Annex 3 to the GFA). 161

CHAPTER 7 specified that it would be the responsibility of the Parliamentary Assembly to adopt an election law.504 This was done, after a lengthy process, on 23 August 2001.505 This new election law was drafted on the basis of the BH Constitution, and is thus not contrary to any of the above-mentioned constitutional provisions on ethnic criteria. The provisions in the Election law on election of the Presidency reiterate that the members of the Presidency to be elected from the Federation must be one Bosniac (Bosniak) and one Croat, and the member to be elected from Republika Srpska must be a Serb.506 The provision on the election of delegates to the House of Peoples of Bosnia and Herzegovina says that: “Until the final regulation of the procedure for the election of the delegates to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, their election shall be conducted in accordance with the Constitution of Bosnia and Herzegovina.”507

The Venice Commission, which had been asked by the Office of the High Representative to evaluate the draft election law, concluded as follows: “The Commission finds that for the most part, the Election Law provides an acceptable legal framework for holding democratic elections in BiH. However, some questions are raised by the constitutional and legislative provisions governing elections to the Presidency and the House of Peoples of BiH. As a consequence, the Commission finds as follows: . . . -the provisions of the Election law governing elections to the Presidency and the House of Peoples of BiH raise questions as to their compatibility with international standards. Any deviations from the principle of equal right to vote and stand for elections are however due to explicit rules in the text of the Constitution. Curing such deviations would require amendments to the Constitution which will then have to be reflected in the electoral law.”508 (Emphasis added).

This statement implies that when questions may be raised about the election law’s compatibility with international standards, the same questions may be raised with regard to the BH Constitution itself. The constitutional provisions on ethnicity will, in this chapter, be reviewed against the requirements of Article 3 of Protocol 1 to the ECHR as Article II (2) of the BH Constitution and the Human Rights Agreement 504

Article V (1) (a) of the BH Constitution. Official Gazette of Bosnia and Herzegovina, 23/01. 506 Article 8.1 of the Election Law of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 23/01. 507 Article 18.16 and 9.1 of the Election Law of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 23/01 (It is worth mentioning that in the version of the election law currently to be found on the website of the Office of the High Representative (December 2003), <www.ohr.int>, Article 18.16 of the election law is missing, even though its Article 9.1 still refers to it.). 508 European Commission for Democracy through Law, Strasbourg 24 October 2001, CDLINF (2001) 12, Opinion on the Election Law of Bosnia and Herzegovina, Adopted by the Venice Commission at its 48th Plenary Meeting (Venice, 19–20 October 2001), para. 30. 505

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION incorporate the rights and freedoms in the ECHR and applicable protocols. Furthermore, the same constitutional provisions will be reviewed in light of Article 25 of the ICCPR, as well as Article 5 of the ICERD, since Article II (4) of the BH Constitution and the Human Rights Agreement incorporates inter alia the ICCPR and the ICERD.509 The questions that will be discussed in the following chapter are thus to what extent the relevant constitutional provisions may conflict with the relevant international standards. 2. ECHR: ARTICLE 3 OF PROTOCOL 1 Article 3 of the First Protocol to the ECHR states that: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the people in the choice of the legislature.”

As mentioned in Chapter 5,510 this provision is the only substantive provision in the ECHR and its protocols that has been formulated as an obligation on States rather than as a right for individuals. The Commission and Court in Strasbourg, however, have established that this wording does not imply that individuals do not have rights according to this provision. In its first judgement on Article 3 of Protocol 1, the case of Mathieu-Mohin and Clerfayt versus Belgium dated 28 January 1987,511 the Court held that: “Where nearly all the other substantive clauses in the Convention and Protocols Nos. 1, 4, 5 and 7 (P1, P4, P6, P7) use the words ‘Everyone has the right’ or “’No one shall’, Article 3 (P1-3) uses the phrase ‘The High Contracting Parties undertake’. It has sometimes been inferred from this that the Article (P1-3) does not give rise to individual rights and freedoms ‘directly secured to anyone’ within the jurisdiction of these parties . . . but solely to obligations between States . . . Such a restrictive interpretation does not stand up to scrutiny. According to its Preamble, Protocol No.1 (P1) ensures ‘the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention’; furthermore, Article 5 of the Protocol (P1-5) provides: ‘as between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 (P1-1, P1-2, P1-3, P1-4) . . . shall be regarded as additional Articles to the Convention’, all of those provisions – including Article 25 (art. 25) ‘shall apply accordingly.’ . . . Accordingly – and those appearing before the Court were agreed on this point – the inter-state colouring of the wording of Article 3 (P1-3) does not reflect any difference of substance from the other substantive clauses in the Convention and Protocols.”512 (Emphasis added)

509

See Chapter 5 for a discussion on the status of the international instruments in the BH Constitution. 510 Chapter 5 section 4.5. 511 Mathieu-Mohin and Clerfayt v. Belgium, Judgement of 2 March 1987, ECHR, Series A 113. 512 Mathieu-Mohin and Clerfayt v. Belgium, ECHR, paras. 48–50.

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CHAPTER 7 The duty of States to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” thus translates into individual rights to take part in such elections. The Commission and Court have accepted great variations in the individual election systems of the Member States. The conditions laid down in the provision must be seen as minimum requirements. These imply that, in free elections, the voters must not be subject to any kind of pressure as to who they should vote for, that elections must be held at reasonable intervals, which presumably also means that they must be held at regular intervals, and furthermore that the secrecy regarding the casting of ballots must be secured. The word “choice” indicates that there must be a real choice, in the sense that it must be possible to establish political parties. Usage of the term “choice of the legislature” seems to suggest that the legislative power must be vested in the body that is established as a result of the free elections. The individual right to take part in free elections means that everyone has the right to vote under these conditions, and that everyone has the right to stand for election and to be elected. This was stated by the European Commission for Human Rights in 1975, where it specified that Article 3 of Protocol 1 recognises universal suffrage, and that “Article 3 guarantees, in principle, the right to vote and the right to stand for election to the legislature”.513 (Emphasis added) These rights may, however, be subject to certain restrictions; all states have requirements regarding age, as they have requirements regarding citizenship or other criteria for the right to vote and to stand for election. Such restrictions normally fall within the states’ “margin of appreciation” and are thus not inconsistent with the Convention. In the above-mentioned Matheiu-Mohin and Clerfayt case, the Court stated that the rights laid down in Article 3 were “not absolute”, that there was “room for implied limitations” and that the states “have a wide margin of appreciation in this sphere”.514 The question is thus whether the provisions in the BH Constitution that form the basis for the electoral system may be found to be within Bosnia’s “margin of appreciation”. This will be discussed below with a particular focus on the role of the House of Peoples and the ethnic requirements for eligibility for this institution. 2.1. The Second Chamber The fact that a national legislature is bicameral is not unusual, and hardly contested. A number of states have bicameral systems, and not necessarily with direct election 513

W, X, Y and Z v Belgium, Appeals 6745 and 6746/74, Yearbook XVIII (1975), p. 236 (244) as referred in van Dijk and van Hoof, supra note 314, p. 659. 514 Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 52. See also Gitonas and others v. Greece, Judgement of 1 July 1997, Reports 1997-IV, para. 39; Selim Sadak and others v. Turkey, Judgement of 11 June 2002, unreported (REF00003634), para. 31; Labita v. Italy, Judgement of 6 April 2000, Reports 2000–IV, para. 201, Ahmed and others v. the United Kingdom, Judgement of 2 September 1998, Reports 1998–VI, para. 75.

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION of the members of the second chamber.515 In, for example, Austria, France, Germany, India, Ireland, the Netherlands, Russia and South Africa, the second chambers of the legislature are indirectly elected. In Canada and the UK, the members of the upper houses are appointed. In Australia, Belgium, the Czech Republic, Italy, Japan, Mexico, Poland, Switzerland and the USA, the second chambers of the national legislature are directly elected.516 As a general rule the second (upper) chambers seems to have less power than the first (lower) chambers. In a study from 1997517 it was calculated that of the fiftyeight second chambers that existed in 1996, only two – those in the US and in Bosnia and Herzegovina – had greater powers than the first chambers. Fifteen second chambers had roughly equal powers, and forty-one had less power than the first chambers. The same study found that of the second chambers that were subject to indirect election, only two – Russia and Bosnia and Herzegovina – had greater or equal powers compared to the lower chambers. In other words, only Bosnia and Herzegovina had a second chamber subject to indirect election and with greater powers than the first and directly-elected chamber. These figures show that the political and democratic legitimacy of second chamber are important factors in most constitutional systems, and this implies that the powers of a second chamber must be seen in connection with the way in which their representatives are selected. As noted by Arend Lijphart in his book “Democracies”,518 “Second chambers that are not directly elected lack the democratic legitimacy, and hence the real political influence, that popular election confers”.

This point may also be valid when assessing a constitutional system in light of Article 3 of Protocol 1. It would appear that the more power vested in a parliamentary body, the more reason there is to make it subject to popular vote, in order to fulfil the requirement in Article 3 relating to the “choice of the legislature”. The Court, however, made it clear in the Mathieu-Mohin judgement that: “Article 3 (P1-3) applies only to the election of the ‘legislature’, or at least one of its chambers if it has two or more. . . The word ‘legislature’ does not necessarily mean

515

Paragraph 7.2 of the CSCE Copenhagen Document (Attached to the Agreement on Elections, Annex 3 to the GFA) asserts that states must “permit all seats in at least one chamber of the national legislature to be freely contested in popular vote”.(Emphasis added). The fact that only one of the chambers of the national legislature is subject to popular vote is therefore not in itself in violation of this guideline. 516 Meg Russel, Reforming the House of Lords/Lessons from Overseas (Oxford University Press, 2000) pp. 26–28. 517 J. Coakley, and M. Laver, Options for the Future of Seanad Eireann, in The All-Party Oirechtas Committee on the Constitution, Second Progress Report: (1997) Seanad Eireann. Dublin: Government of Ireland, as referred by Meg Russel, supra note 516, p. 33. 518 Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-one Centuries (New Haven, Yale University Press, 1984) p. 97.

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CHAPTER 7 only the national parliament, however; it has to be interpreted in light of the constitutional structure of the State in question.”519

The Court thus builds on the assumption that Article 3 of Protocol 1 does not require that second (or third) chambers of legislatures be subject to election. It is enough that one of the chambers is elected. Furthermore, the Court underlines that one has to take the constitutional structure of the state in question into account when assessing whether the requirements of Article 3 are fulfilled. It may be noted that in a concurring opinion, one of the Judges expressed reservations on this point and said that in his opinion, if a legislature had two or more chambers, then it should be required that: “the majority of the membership of the legislature is elected and that the chamber or chambers whose members are not elected does or do not have greater powers than the chamber that is freely elected by secret ballot.”520

The result of this interpretation, had it been adopted by the majority, would have been that the fact that the House of Peoples is not elected and at the same time has greater powers than the elected chamber (the House of Representatives), could have been inconsistent with Article 3 of Protocol 1. But as the majority of judges on the case chose not to endorse this specification, such a result cannot be inferred. Even if the Court has accepted a wide margin of appreciation in this sphere,521 it has also pointed out that it is relevant to assess the functions given to a legislative body. In the case of Matthews v the United Kingdom, the applicant claimed that the European Parliament should be considered a “legislature” in Gibraltar, and that his rights according to Article 3 were violated as he did not have the right to vote for this legislature. The Court said that it must “have regard, not solely to the strictly legislative powers which a body has, but also to that body’s role in the overall legislative process.”522 (Emphasis added). This statement, if applied generally, could be taken to support the claim that it might be problematic that the House of Peoples in the Bosnian legislature has the power to veto any decision from the Parliamentary Assembly. The body that has the power to block the adoption of any laws or regulations clearly plays a significant role in the “overall legislative process”. With regard to such a body, it should therefore be especially important to secure “the principle of equality of treatment of all citizens in the exercise of their right to vote and stand for election”.523 Based on the somewhat scarce case law from Strasbourg pertaining specifically to second chambers, it appears that it cannot be firmly established that it is a 519

Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 53. Mathieu-Mohin and Clerfayt v. Belgium, Concurring opinion by Judge Pinheiro Fainha, ECHR, para. 3. 521 Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 52, Gitonas and others v. Greece, ECHR, para. 39. 522 Matthews v. the United Kingdom, Judgement of 18 February 1999, unreported, REF00001927, ECHR, para. 49. 523 Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 54. 520

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION violation of Article 3 of Protocol 1 in itself that the House of Peoples in Bosnia and Herzegovina is an indirectly-selected second chamber with vetoing legislative powers. There is however, clearly a case for arguing that the role of the House of Peoples in the overall legislation process contributes to the possible conclusion that there is an inconsistency between the requirements of Article 3 of Protocol 1 and the rules on the House of Peoples in the BH Constitution. 2.2. The Exclusion Criteria The next question is whether the electoral rules in Bosnia and Herzegovina may be assumed to “ensure the free expression of the opinion of the people in the choice of the legislature” (Article 3 of Protocol 1).524 The Court and Commission in Strasbourg have dealt with several cases pertaining to Article 3 of Protocol 1.525 As mentioned above, the first judgement by the Court pertaining to this provision was the Mathieu-Mohin and Clerfayt case where the issue was whether an election law in Belgium was in violation of Article 3 of Protocol 1 in conjunction with Article 14. The Act prescribed that candidates that took their oath in French became members of the French language group in the House of Representatives or in the Senate, and it entitled them to sit on the French Community Council. Conversely, candidates who took their oath in Dutch, became members of the Dutch language groups of the above-mentioned constitutional organs and would be entitled to sit on the Flemish Community Council. In other words, someone who took his or her oath in French would automatically be placed in the French Council and someone who took the oath in Dutch would automatically be placed in the Flemish Council. It was up to each individual representative to choose which language he or she wanted to use for the oath. Candidates were not under any obligation to state in advance which language group they would join. The applicant claimed that this system, in fact, prevented French speaking electors from appointing French-speaking representatives to the Flemish Council. The Court found that these rules were not in violation of Article 3 of Protocol 1 alone or in conjunction with Article 14, even if language is listed as one of the criteria which must not be used as grounds for discrimination. The Court stated that the rights in Article 3 of Protocol 1 were not absolute, that States have a wide margin of appreciation, and that: “For the purposes of Article 3 of Protocol no.1 (P1-3), any electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in 524

The wording of Article 3 makes clear that only the Parliamentary Assembly and not the Presidency may be considered under this provision, as the term legislature hardly includes heads of states. 525 See for example Mathieu-Mohin and Clerfayt v. Belgium, Gitonas and others v. Greece, Ahmed and others v. the United Kingdom, Matthews v. the United Kingdom, Labita v. Italy, Sadak and others v. Turkey, and Podkolzina v. Latvia, Judgement of 9 April 2002, unreported, REF 00003548.

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CHAPTER 7 the context of another, at least so long as the chosen system provides for conditions which will ensure the ‘free expression of the opinion of the people in the choice of the legislature.’”526

The Court said that the margin of appreciation became wider as the system in Belgium at the time, was incomplete and provisional.527 It may be noted that the Bosnian Constitution is not temporary or provisional. The Court has said on several occasions that even if states do have a wide margin of appreciation, it: “has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.”528

Although there has not been a judgement to this effect, it is assumed that, for example, denying women the right to vote and to stand for election for the legislature would be in violation of Article 3 of Protocol 1.529 It has not been seen as inconsistent with the provision to deny for example prisoners or criminal offenders this right.530 The Court also accepted temporary loss of voting rights for certain governmental officials, the purpose being to limit the involvement of certain categories of officials in political activities.531 The question of denying anyone voting rights because of his or her ethnicity has never come up before the Strasbourg organs. It could, however, be argued that this kind of exclusion is exactly the kind of condition that would be depriving the rights in question of their “effectiveness”. The Court has emphasised that: “According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by an effective political ‘democracy’. Since it enshrines a characteristic principle of democracy, Article 3 of Protocol no.1 is accordingly of prime importance in the Convention system.”532

In light of this overall perspective of the rights enshrined in Article 3 of Protocol 1 as prerequisites for the exercise of the other rights and freedoms contained in the ECHR and Protocols, together with Article 14, which explicitly ensures the same rights without discrimination on such grounds as ethnicity, it seems highly unlikely that the Court in Strasbourg would accept an electoral system which excludes 526

Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 54. Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 57. 528 Mathieu-Mohin and Clerfayt v. Belgium, ECHR, para. 52, Gitonas and others v. Greece, ECHR, para. 39, Ahmed and others v. the United Kingdom, ECHR, para. 75 and Labita v. Italy, ECHR, para. 201. 529 See Karl Josef Partsch, Die Rechte und Freiheiten der europãischen Menschenrechtskonvention (Berlin, 1966) p. 245. 530 See Labita v. Italy, ECHR, para. 203. 531 See Ahmed and others v. the United Kingdom, ECHR, para. 75, and Gitonas and others v. Greece, ECHR, para. 41. 532 See Mathieu-Mohin v. Belgium, ECHR, para. 47. 527

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION candidates, because of their ethnicity, from voting and standing for election for the vetoing chamber of the legislature of the state. It is worth noting that the European Court of Human Rights held in a case from 1996 that: “very weighty reasons would have to be put forward before the Court could regard a difference based exclusively on the ground of nationality as compatible with the Convention.”533

This argument would clearly apply with equal strength to the use of ethnicity as a criterion. In the Mathieu-Mohin and Clerfayt case, the applicants felt discriminated against because of the specific implications of the choice of language, which is one of the criteria listed in Article 14.534 The Court, however, found that the actual limitations in the exercise of the electoral rights on the basis of language were not: “a disproportionate limitation such as would thwart ‘the free expression of the opinion of the people in the choice of the legislature’”.535

It went on to state that: “The French speaking electors in the district of Halle-Vilvoorde enjoy the right to vote and the right to stand for election on the same legal footing as the Dutch speaking electors. They are in no way deprived of these rights by the mere fact that they must vote either for candidates who will take their oath in French and will accordingly join the French language group in the House of Representatives or the Senate and sit on the French Community Council or else for candidates who will take the oath in Dutch and so belong to the Dutch-language group in the House of Representatives or the Senate and sit on the Flemish Council.”536

Thus, the candidates’ choice of which language group he or she wanted to belong to did not affect the overall political power of that group on a national level. In Bosnia and Herzegovina, on the other hand, “others” are not allowed participation in alternative organs similar to those from which they have been excluded. Furthermore, in the above-mentioned case regarding Belgium, the candidates could freely choose the language they wanted to use. In Bosnia and Herzegovina, the persons who are excluded from the House of Peoples cannot choose to alter the exclusion criteria. Their ethnicity is something they are born with, which cannot be easily changed. There are thus significant differences between the two systems for eligibility criteria. The fact that the Court found that the provisions of the Belgian Election law were within the states’ margin of appreciation does not mean that the 533

Gaysusuz v. Austria, Judgement of 16 September 1996, Reports 1996-IV, ECHR, para. 42. Article 14 of the ECHR secures everyone the rights and freedoms set forth in the Convention or applicable protocols “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status”. It was argued above in Chapter 5 that “ethnic belonging” in the sense of belonging or not belonging to what is conceived as “ethnic groups” in Bosnia and Herzegovina is clearly within the scope of the list in Article 14. 535 Mathieu-Mohin v. Belgium, ECHR, para 52. 536 Mathieu-Mohin v. Belgium, ECHR, para 57. 534

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CHAPTER 7 Bosnian system would fall in this category. On the contrary, the Court emphasised that Article 3 essentially implies: “the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.”537 (Emphasis added)

In Bosnia and Herzegovina, citizens who fall into the category of “others” are not treated equally with the rest of the citizens regarding the right to stand for election and the right to be selected to the House of Peoples. There is thus no such “equality of treatment of all citizens” as required by the Court. As the conclusion so far seems to be that the ethnically-based electoral criteria were inconsistent with the requirements of Article 3 of Protocol 1 together with Article 14, a question that needs to be raised is whether the ethnic requirements nevertheless could be justified because they were “imposed in pursuit of a legitimate aim”; and that the “means employed” were not “disproportionate”.538 First of all it might be difficult to state exactly what the aim of the imposition of the ethnic rules was. From a narrow perspective it might be said that the aim was to secure a political balance between the three constituent peoples, particularly through the right to veto decisions from the Parliamentary Assembly. From a broader perspective, however, one could say that the aim of the ethnic requirements in the BH Constitution was to reach a settlement in order to stop the war and to secure peace in the foreseeable future. In the Mathieu-Mohin and Clerfayt case, the Court considered the aim of the linguistic requirements in the election legislation as follows: “The aim is to defuse the language disputes in the country by establishing more stable and decentralised organisational structures.”539

One might therefore say that in a sense it is the overall aim of general political stability that is underscored, the defusing of language conflicts being a possible vehicle for reaching that aim. It seems relatively obvious that peace and stability also were the overall aims of the ethnic-balancing system in the BH Constitution, both on a short term and a long term basis. The fact that a constitutional system which underscored the ethnic divisions in this manner was not exactly an ideal vehicle for long term peace does not alter the fact that the aim of the provisions in question clearly was to contribute to reaching a peace agreement as well as implementing it. But even if the aim were to be considered legitimate, the measures should not be disproportionate.540 In the case of Sadak and others v. Turkey, the Court stated that:

537

Mathieu-Mohin v. Belgium, ECHR, para. 54. Matheiu-Mohin v. Belgium, ECHR, para. 57. 539 Matheiu-Mohin v. Belgium, ECHR para. 57. 540 Matheiu-Mohin v. Belgium, ECHR, para. 52. 538

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION “. . . supposing that the measure in question pursued one or more legitimate aims, as the Government maintained, the Court considers that it was not proportionate to those aims for the reasons outlined below.”541

The case pertained to the permanent dissolution of a political party, and the fact that its previous MPs were not allowed to engage in further political activities so that they could not fulfil their mandate. These measures, even if the aim might have been legitimate, were seen as disproportionate: The Court made it clear that “the extreme harshness of the measure in question” was an important factor.542 It might well be argued that the “measures” in the BH Constitution, namely to deny “others” even the right to stand for election or to be elected, are equally harsh, or even harsher. As described above, the people that constitute “others” in Bosnia and Herzegovina are largely excluded from voting for, and completely excluded from being selected to, the House of Peoples. The body they are excluded from has the power to veto legislative and other decisions made by the Parliamentary Assembly. The reason for this exclusion is their ethnic background. On this background, it is therefore maintained that the ethnic requirements in the BH Constitution may be deemed to pursue a legitimate aim, but that the measures, vis-à-vis the “others” who are subject to exclusion because they do not belong to the “right” ethnic group, are disproportionate. Thus the conclusion of this discussion is that to deny persons the right to participate on equal footing in the vetoing chamber of the state legislature because of their ethnic origin, should be seen as contrary to Article 3 of Protocol 1 to the ECHR in conjunction with Article 14. 3. ICCPR: ARTICLE 25 Article 25 of the ICCPR lays down political rights for the citizens of Bosnia and Herzegovina.543 In addition to being applicable in Bosnia and Herzegovina through Articles II (4) of the BH Constitution and I (14) of the Human Rights Agreement, the ICCPR had, through succession, been in force in Bosnia and Herzegovina since March 1992. The wording of Article 25 is as follows: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.” 541

Sadak and others v. Turkey, ECHR, para. 35. Sadak and others v. Turkey, ECHR, para. 38. 543 Chapter 5 section 5.2.3. 542

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CHAPTER 7 The provision thus differs from ECHR Article 3 of Protocol 1 in several ways. Its general scope is considerably broader. First of all, it includes the right to “take part in the conduct of public affairs” (litra (a)). Secondly, it regulates the right to vote and to stand for election and lays down certain requirements for elections (litra (b)). Thirdly, it lays down the right to access to “public service” (litra (c)). In the following, it is especially the two first-mentioned provisions that will be discussed with a view to determining the consistency of the constitutional arrangements in Bosnia and Herzegovina with these standards. 3.1. The Right to Take Part in the Conduct of Public Affairs Article 25 (a) prescribes the right to “take part in the conduct of public affairs” without any of the “distinctions mentioned in Article 2 and without unreasonable restrictions”. According to the Human Rights Committee, “The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular in the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels.”544

The provision does not require a specific political system. The Human Rights Committee assumes that exercising the right to take part in public affairs is conducted “through freely chosen representatives”, and that it is implicit in Article 25 that “those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power”.545 The right to take part in public affairs thus translates into a requirement for a certain degree of democracy, but says nothing of how such a system should be organised. Nowak notes that: “In a parliamentary democracy based on separation of powers, the term ‘conduct of public affairs’ is mainly limited to the election of the legislative authority in conjunction with the commitment on the executive authority to observe parliamentary laws.”546

He observes that even having heads of state determined through monarchic succession, as the case is in many European states, does not violate the principle of the right to participation in public affairs. If the head of state, however, has the competence to exercise public affairs “largely autonomously and independent of the legislative authority” it seems necessary that such an office is subject to election by the people.547 The constitutional system of Bosnia and Herzegovina is a parliamentary democracy based on the separation of powers. The head of state 544

CCPR General Comment 25, The rights to participate in public affairs, voting rights and the right of equal access to public service, para. 5. 545 Ibid.., para. 7. 546 Nowak, supra note 337, p. 441. 547 Ibid..

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION (Presidency) has an executive function, and its competencies are not independent of the legislature. Furthermore the Presidency is subject to direct elections. The system as such is therefore hardly in violation of Article 25 (a). What constitutes the problem is the exclusion of “others” from taking part in parts of this constitutional system, which will be discussed below in light of the more specific provision pertaining to the right to vote and be elected in Article 25 (b). 3.2. The Right to Vote and to Stand for Election Article 25 (b) regulates, in more detail, part of what is encompassed in Article 25 (a) on the right to take part in public affairs. It specifies that citizens have the right to vote and to be elected, and that this right should be exercised at genuine and periodic elections, which must be by universal and equal suffrage, and by secret ballot. These rights must guarantee the free expression of the will of the electors. The scope of this provision is not, as is the case with the corresponding provision in the ECHR, limited to the “legislature” of the state. Article 25 (b) does not stipulate which organs must be subject to elections, and as mentioned above, it follows from Article 25 (a) that it must lie within the states’ own competence to determine its constitutional system. The provision ensures that those organs that are subject to election within each constitutional system must be elected according to the standards set in Article 25 (b). This entails that for the sake of the present discussion, the test of whether this provision is complied with must be applied both to the Parliamentary Assembly as well as the Presidency of Bosnia and Herzegovina. 3.2.1. The Parliamentary Assembly As explained in Chapters 4 and 6, the second chamber in the Parliamentary Assembly of Bosnia and Herzegovina, the House of Peoples, is not subject to direct election by the voters. Its delegates are, according to the provisions of the BH Constitution, selected by certain groups in the Parliamentary Assemblies of the two Entities. The requirement for being selected is that the Delegates must be of a specific ethnicity. The Bosniac Delegates in the House of Peoples in the Federation shall select the ethnic Bosniac Delegates to the House of Peoples of Bosnia and Herzegovina, the Croat Delegates to the House of Peoples in the Federation shall select the Croat Delegates to the House of Peoples of Bosnia and Herzegovina, and the National Assembly in Republika Srpska shall select the Serb Delegates to the House of Peoples of Bosnia and Herzegovina.548 With this system citizens are unable to vote for the Delegates to the House of Peoples, because these Delegates are actually not up for popular election at all. Therefore, citizens are also unable to run for election for these offices. Two main questions arise in connection with this system: firstly, whether it is acceptable to have a such a constitutional system with a second chamber which is indirectly selected or appointed; secondly, if such a second chamber is considered acceptable,

548

Article IV (1) (a) of the BH Constitution.

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CHAPTER 7 whether it is still within the limits of Article 25 to use ethnicity as a criteria for the selection to this chamber. The Second Chamber As was discussed above concerning Article 3 of Protocol 1 to the ECHR, many states have constitutional systems with second (upper) chambers that are not necessarily subject to election.549 The system with one directly elected and one indirectly selected or appointed chamber is, as is the case with the ECHR, hardly inconsistent with Article 25 (b) in itself. Article 25 does not address the issue of how constitutional systems should be arranged. Furthermore, the issue does not seem to have been addressed by the Human Rights Committee, either in its General Comment on Article 25 or in its jurisprudence. Nowak writes that: “In a parliamentary bicameral system, at least the chamber with the main legislative authority must be elected.”550

The basis for this inference must be the wording of Article 25 (b) itself, which requires that the right to vote and be to elected shall guarantee “the free expression of the will of the electors”. The will of the electors must be expressed through elected bodies, which in some way or another have the decisive power in a constitutional system. As was also noted above, Bosnia and Herzegovina seems to be the only state that has an indirectly selected second chamber which has wider competencies than the first (lower) chamber. It therefore might be argued that the BH Constitution does not fulfil the requirements of Article 25 (b) because the legislative chamber that has overall power to veto any of the parliamentary decisions is not subject to general elections, neither directly nor indirectly, as significant parts of the population of the country are ineligible to sit in this body because of their ethnicity. It can be alleged that the “free expression of the will of the electors” does not materialise into a competent constitutional body that carries the legitimacy of the general population of the state. As was the case with Article 3 of Protocol 1 to the ECHR, however, there is no jurisprudence to substantiate a firm conclusion on this point. Nevertheless, it is not unlikely that the Human Rights Committee, if presented with this case through an individual complaint, would find that “the free expression of the will of the people” has not been sufficiently secured through the constitutional system of Bosnia and Herzegovina because the second chamber is both indirectly selected and has greater powers than the first chamber. The Exclusion Criteria It is thus established that the fact that the vetoing chamber of the legislature is not open to general elections might constitute a problem in itself. The question on whether the ethnic criteria for the selection to this chamber are consistent with Article 25, however, must nevertheless also be raised. Furthermore, it is important to 549 550

Chapter 7 section 2.1. Nowak, supra note 337, p. 443.

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION this discussion to mention the fact that this chamber has the vetoing power in the legislature. As was explained in Chapter 7, second chambers whose members have been selected or appointed on the basis of criteria that may be seen as undemocratic, have been accepted as legitimate within various states’ constitutional systems. One famous example is the House of Lords in the United Kingdom, whose members are not democratically elected. Such second (upper) chambers generally have distinctly less power than the first (lower) chambers of the legislature. Because the House of Peoples in Bosnia and Herzegovina has the power to veto all parliamentary decisions,551 the criteria for membership is of greater significance than if it had had equal or less powers as the other chamber of the legislature. Article 25 (b) secures the right to vote and to be elected “without any of the distinctions mentioned in Article 2”. This already follows from the accessory discrimination prohibition in Article 2 (1) of the ICCPR itself, which says: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

The rights to vote and to be elected without “any of the distinctions mentioned in Article 2” are thus explicitly set out in Article 25. It is assumed that ethnic discrimination in the form that is provided for in the BH Constitution is covered by the criteria listed in Article 2. As Nowak has stated regardingthe discrimination prohibition in Article 25: “Certain restrictions may, however, be deemed unreasonable in any event. This particularly applies to restrictions that conflict with the prohibition of discrimination in Art. 2 (1), to which reference was again made in Art. 25’s introductory passage. In exercising ones right to vote or be elected, one’s plebiscitary-democratic suffrage or one’s right of equal access to public service, no citizen may be hindered or restricted in law or in fact for reason of his (her) race, colour, language, religion, birth, political or other opinion, national or social origin, sex, property or other status. The exclusion of women, blacks, members of ethnic, linguistic or religious minorities, beggars or other persons of lower social standing from certain elected offices or from active participation in elections and public referenda is thus to be deemed a violation of Art. 25.”

It would therefore seem that the point of departure is that the constitutional rules excluding certain citizens because of their ethnicity, are contrary to the wording of Article 25 of the ICCPR. As has been noted before, however, differentiation on the basis of the non-discrimination criteria can be deemed to be proportionate, justifiable and legitimate in certain circumstances. The question of whether ethnicity can be a criterion for eligibility was touched upon, but not actually elaborated on, in a case before the Human Rights Committee 551

Article IV (3) (e) of the BH Constitution.

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CHAPTER 7 in 2000.552 The applicants (Gillot et al.) claimed that they were unjustly excluded from taking part in referenda in New Caledonia, and that part of the motivation for this was their ethnic belonging. The eligibility criteria for participation in the referenda were various forms of connections with New Caledonia, particularly requirements of a certain period of time of residence in the territory before the relevant referendum, combined with the birth of the person concerned or his/her parents in the territory. The applicants claimed that the effect of these requirements amounted to ethnic discrimination, because “French citizens resident in New Caledonia who originate in metropolitan France . . . as well as Polyneians, Wallisians, Futunians and Asians . . . represent a significant proportion of the 7.67 per cent of Caledonian electors deprived of the right to vote”.553 The Committee recalled its earlier decisions in relation to Article 25 and noted that “the right to vote is not an absolute right and that restrictions may be imposed on it provided they are not discriminatory or unreasonable”.554 The Committee went on to state that: “not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant.”555

The Committee considered that the eligibility criteria laid down in New Caledonia were based on objective elements for differentiating between residents, such as their relationship to the territory and the cut-off points for length of residence, “whatever their ethnic origin or national extraction”.556 The Committee therefore found that the eligibility requirements: “did not have the purpose or effect of establishing different rights for different ethnic groups or groups distinguished by their national extraction.”,557

and that: “the criteria for the determination of the electorates for the referendums of 1998 and 2014 or thereafter are not discriminatory, but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant.”558

In this case, the Committee thus found that ethnicity was not a criterion for eligibility, and therefore there was no need to discuss whether such a criterion would have been legitimate. There is nothing, however, that indicates that the Committee would accept ethnicity as an eligibility criterion. On the contrary, it seems quite likely from the above citations that the Committee did not find any violation of Article 25 because the eligibility criteria could not be characterised as being based on ethnicity or national extraction. 552

Gillot et al v. France, Human Rights Committee, case no. 932/2000. Ibid.., para 3.5. 554 Ibid., para. 12.2. 555 Ibid., para. 13.5. 556 Ibid., para 13.9. 557 Ibid., para. 13.11. 558 Ibid., para. 13.18. 553

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION In its general Comment 25 on Article 25, the Human Rights Committee has stated several times that the criteria for eligibility must be reasonable, justifiable and objective.559 The Committee states that: “The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote.”560

and that: “Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation.”561

Here, the Committee mentions “descent”, but not “ethnicity” or “race”. In the introduction to Article 25 as a whole, however, the Committee states that: “No distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

As was the case with the discussion pertaining to Article 3 of Protocol 1 of the ECHR, the aspects of legitimacy and proportionality must, however, also be considered with regard to Article 25 of the ICCPR. It would seem inevitable that the two discussions must be relatively similar. As was the case with Article 3 of Protocol 1, the aim with the ethnic requirements of the constitutional system of Bosnia and Herzegovina would probably have to be considered legitimate in light of the fact that it was a basic component of a peace settlement.562 But as was also the case in the above discussion, it is doubtful if the requirements in Bosnia and Herzegovina could be accepted as proportionate and reasonable. In the Gillon-case, the Committee emphasised that the criteria for voting rights at the referenda in New Caledonia did “not have a disproportionate effect . . . particularly since their nonparticipation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum”563 (Emphasis added.). In the case of Bosnia and Herzegovina, the consequences for “others” are obvious because they are excluded from the political process pertaining to the decisive chamber of the legislature. In the case of Debreczeny v. Netherlands,564 the applicant claimed that his rights under Article 25 had been violated because he could not run for local elections while he held office as a police officer in the municipality. Here the 559

CCPR General Comment 25, The rights to participate in public affairs, voting rights and the right of equal access to public service, paras. 10, 14, 15. 560 CCPR General Comment 25, The rights to participate in public affairs, voting rights and the right of equal access to public service, para. 10. 561 CCPR General Comment 25, The rights to participate in public affairs, voting rights and the right of equal access to public service, para. 15. 562 See discussion under section 2.2 above in this Chapter. 563 Gillon et.al. v. France, supra note 552, para. 14.5. 564 Debreeczeny v. the Netherlands, Human Rights Committee, case no. 500/1992.

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CHAPTER 7 Committee found that the applicant had not been subject to a violation of Article 25, and that it was reasonable that there was a law attempting to avoid conflicts of interest. In both of these cases, the applicants could have chosen to change the circumstances that made them unable to vote or ineligible. The applicants in New Caledonia could make sure their residence time fulfilled the legal demands, and the applicant in the Netherlands could terminate his employment in the police force. In the case of the eligibility criteria for the House of Peoples in Bosnia and Herzegovina, those who lack the “correct” ethnicity cannot alter these criteria on their own. One might therefore say that the consequences are manifestly severe for those persons, both because they do not have the right to vote for or run for election for any position within the house of Peoples, and because they cannot, on their own free will, alter their circumstances in order to obtain these rights. 3.2.2. The Presidency As mentioned above, the rights in Article 25 are not limited to the legislature, but pertain to all elected organs in a state. In Bosnia and Herzegovina, this includes the Presidency. The rules in the BH Constitution provide for direct election of the Presidency.565 The three Members must be of ethnic Bosniac, Croat and Serb origin, and the Bosniac and Croat Members must be elected from the Federation, whereas the Serb Member must be elected from Republika Srpska. The consequences of these rules are that not every citizen in Bosnia can run for Presidency membership. The Serbs and the “others” residing in the Federation cannot run for the Presidency, and the Bosniacs and Croats and “others” residing in the Republika Srpska cannot run for this office. The role of the Presidency of Bosnia and Herzegovina in the constitutional system is that of a head of state. It does not have wider or equal powers compared with the Parliamentary Assembly. Since the Presidency is subject to direct elections, however, one must assume that the election rules apply. There are no indications in the text that the requirements do not need to be fulfilled if there are other institutions in the constitutional system that have greater powers. Article 25 (b) clearly states that every citizen has the right to “vote and to be elected” without any of the “distinctions mentioned in Article 2”, and as noted above, this must apply to all constitutional bodies that are subject to elections. It seems clear that the discussion on the ethnic criteria as exclusion grounds for the right to run for Presidency would be rather parallel to the same discussion pertaining to the House of Peoples. The point of departure is that ethnicity is not acceptable as grounds for exclusion according to the wording of Article 25 (b), and the question is therefore whether there are specific reasons why this exclusion nevertheless might be considered justified, objective and proportionate. There are no indications in the jurisprudence or General Comments of the Human Rights Committee that imply that this would be the case. Since exclusion on ethnic grounds was not considered justifiable with regard to the House of Peoples, it seems to be 565

See Chapter 6 section 4 for more on the procedural rules pertaining to the Presidency.

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION hard to find any reason why this conclusion should not pertain to the Presidency as well. The point is that it is generally unacceptable to base exclusion on ethnicity. 3.3. ICERD Article 5 As discussed in Chapter 5, ICERD Article 1(1) defines “racial discrimination” as: “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.566

It would therefore seem that the exclusion of citizens based on ethnicity is to be considered “racial discrimination” according to this provision, because it could be held that such treatment is indeed a “distinction or exclusion” which impairs the “exercise on an equal footing”, of “human rights in the political field of public life”. Article 1 (4) however, makes it clear that “special measures” towards certain groups are allowed if the aim is to better enable these groups to enjoy or exercise their human rights. A condition is that the special measures shall end when they have served their purpose. It seems evident that this provision would not allow for discrimination against minority groups by granting majority groups exclusive rights to participation in parts of the political system. This is also the view of the BH Constitutional Court. In its discussion on the provisions of the Federation Constitution which excluded “others” from certain offices, the Court discussed Article 1 (4) of the ICERD: “These institutional mechanisms cannot be seen as an “exemption” in the sense of Article 1 paragraph 4 of the Racial Discrimination Convention insofar as they favour the two constituent peoples who form “the majority” of the population. Nor are they necessary for these two peoples in order to achieve full or “effective” equality in the sense of Article 1 paragraph 4 of the Racial Discrimination Convention.”567

Article 5 of the ICERD lays down the principle of equality before the law. Of particular interest are the rights mentioned in Article 5, subparagraph (c): “Political rights, in particular the rights to participate in elections – to vote and stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.”

Such rights shall, according to Article 5, be granted to everyone regardless of “race, colour, or national or ethnic origin”. Article 5 of the ICERD, however, does not grant the political rights in question as such; it only grants that, to the extent these

566 567

Chapter 5 section 5.3. Constituent Peoples case, U/58- III, BH Constitutional Court, para. 116.

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CHAPTER 7 rights exist, they shall be exercised without racial discrimination. This has been noted by the CERD-committee,568 in its General Recommendation no. 20: “Article 5 of the Convention, apart from requiring a guarantee that the exercise of human rights shall be free from racial discrimination, does not itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights.”569

One might therefore assume that to the extent the constitutional arrangements in Bosnia and Herzegovina are inconsistent with the provisions of the ICCPR and the ECHR, because of unreasonable and disproportionate differentiation based on ethnicity, they would also be inconsistent with the provisions of the ICERD.570 4. DEROGATION The question of derogation as a possible justification for the ethnic requirement rules will be subject to a separate discussion in the next chapter, even though both the ECHR and the ICCPR contain provisions that under certain circumstances allow for derogation from the provisions that have been discussed above. This approach has been chosen in order to underline the fact that the issues discussed in the present chapter (on whether ethnic requirements as laid down in the BH Constitution are compatible with the above mentioned international standards) have been discussed on the basis of the current political situation in Bosnia and Herzegovina. Derogation from human rights standards requires that there is a state of emergency, threatening the life of the nation. Therefore, it seems more relevant to discuss derogation in light of the situation as it was during the negotiations and conclusion of the Dayton Peace Agreement. 5. CONCLUDING COMMENTS In this chapter, it has been held that the constitutional rules demanding a specific ethnicity for the holding of, and running for, certain political positions in Bosnia and Herzegovina should be considered inconsistent with certain requirements laid down in the core human rights instruments that are incorporated into the BH Constitution. Even if the political rights in question are not absolute, and the monitoring bodies have accepted a wide margin of appreciation regarding how states parties organise their political systems, the exclusion of “others” from taking part in the selection of Delegates to the House of Peoples, from holding the position of a Delegate to the House of Peoples, or from running for and holding the position of members of the Presidency of Bosnia and Herzegovina, should be seen as inconsistent with the right 568

Committee for the Elimination of All Forms of Racial Discrimination. CERD General Recommendation 20, Non-discriminatory implementation of rights and freedoms (Art.5), para. 1. 570 There seems to be no jurisprudence from the CERD that pertains to the political rights mentioned in Article 5. 569

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NON-DISCRIMINATION AND ETHNIC DIFFERENTIATION to participate “in the choice of the legislature” or to “vote and be elected at genuine periodic elections which shall be by universal and equal suffrage . . .”.571 In other words, the ethnic privileges in the constitutional system amount to discrimination based on ethnicity. This seems to be a widely held opinion, for example Slye makes the following observation: “The House of Peoples institutionalizes at the constitutional level a strong relationship between ethnicity and citizenship, which results in discrimination based on ethnicity. The fact that a citizen of one of the Entities may be unable to become a member of a legislative body solely because of his or her ethnicity violates international prohibitions against discrimination and may also violate the right to governmental participation.”572

One might therefore assert that there are conflicts between the constitutional human rights provisions that secure the right to vote and stand for election without discrimination based on ethnicity and the constitutional provisions providing for ethnic exclusion. It would appear that the two sets of rules cannot actually be implemented at the same time. From this, it can be inferred that there are conflicts between norms within the BH Constitution itself, as both sets of provisions are laid down in the BH Constitution. It might also be noted that the same inconsistencies obviously exist between the BH Constitution and the relevant human rights instruments. Having arrived at this conclusion, which pertains to the legal situation in Bosnia and Herzegovina as it is today, it seems important to pursue the issue of whether within the limits of international law, there might have been justifications for arriving at such a system of ethnically-based exclusion at the time of the negotiations of the Dayton Peace Agreement. In other words, it seems necessary to assess the special legal regimes that could be applicable in such critical situations as peace negotiations often are. This issue will be discussed in the next chapter.

571 572

Article 3 of Protocol 1 to the ECHR and Article 25 (b) of the ICCPR. Slye, supra note 251, p. 465.

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CHAPTER 8. POSSIBLE JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES 1. INTRODUCTION In the previous chapters it has been argued that the constitutional provisions relating to the right to hold office and to stand for election for certain offices for those persons in Bosnia and Herzegovina defined as “others”, conflict with international standards on protection against ethnic discrimination – which are also an integral part of the BH Constitution.573 Implementation of one set of rules (the ethnic differentiation in the constitutional system) precludes implementation – at the same time – of the other set of rules (the right not to be discriminated against because of ethnicity), and vice versa. The de-facto situation from the entry into force of the Dayton Peace Agreement in 1995 has been that the constitutional system with its ethnically based exclusion of others has prevailed at the expense of the right to nondiscrimination. This conclusion has been drawn in light of the actual constitutional situation in Bosnia and Herzegovina as it appears to be today. The very special circumstances pertaining to the negotiations and conclusion of the Dayton Peace Agreement have not been given much consideration so far in this book. It is, however, relatively clear that those circumstances were of such a character that they might be characterised as constituting a crisis or emergency situation. There is, thus, clearly a difference between the situation in Bosnia and Herzegovina as it is today and the situation as it was in the autumn of 1995, a difference which should be reflected in the discussions on the possible justification for the questionable provisions on ethnic requirements. While the previous chapters conclude that the ethnic differentiation is not justifiable under the main rules on discrimination in the relevant human rights instruments, this chapter will look at the special rules that apply in emergency situations, and assess whether such rules could have been applicable during the peace negotiations in the autumn of 1995. The question of whether the ethnic requirements in the BH Constitution could be defended as special emergency measures could also have been discussed in the previous chapter in conjunction with the discussions on Article 3 of Protocol 1 to the ECHR and Article 25 and 5 of the ICCPR and the ICERD respectively. The intention behind placing this discussion in a separate chapter, however, is to emphasize the problems relating specifically to the conclusion of peace settlements, because such situations often are characterised by the fact that the situation is extremely volatile. One might argue that the international legal regimes allowing for emergency measures should be applicable in such extreme situations, provided that the conditions are fulfilled and that the relevant emergency measures are likely to bring about the termination of violence. 573

See Chapters 6 and 7. 183

CHAPTER 8 This chapter will thus seek to determine whether the conditions for claiming an emergency situation as a justification for the ethnic differentiation rules in the BH Constitution were fulfilled at the time of the adoption of the Dayton Peace Agreement. If such an emergency situation could be said to exist at that time, this situation could have been used as an argument for claiming that the ethnic requirements were justified under special emergency provisions in international law. The relevant international law in this case would be the international human rights regime, which provides for a possibility for states to derogate from some of their human rights obligations in times of emergencies or war,574 and general customary international law, which provides for the possible preclusion of wrongfulness of an otherwise unlawful act through the institute of necessity.575 Since derogation, or necessity based on emergency, was never suggested by anyone as a justification for any of the rules in the Dayton Peace Agreement, this discussion is somewhat hypothetical as regards Bosnia and Herzegovina.576 It seems important, however, to discuss to what extent a state’s human rights obligations, particularly when it comes to protection against ethnic differentiation, might be modified in a situation where there is an emergency. For the purpose of such a discussion, it seems that the circumstances around the Dayton Peace Agreement represents an illustrative example. The following discussion will thus hopefully be generally relevant to situations where difficult peace negotiations with ethnic implications are taking place. 2. DEROGATION The right for states to derogate in emergencies reflects an attempt to reconcile individual and public interests. One must assume that if the right of derogation had not been made explicit in human rights treaties, states would have derogated in emergencies anyway, and the possibilities to prevent possible abuse of power in such situations would have been minimal.577 The right to derogate under the ECHR 574

Article 15 of the ECHR and Article 4 of ICCPR. The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth session, Supplement no.10, UN Doc. A/56/10, Article 25. Also reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) p. 66. 576 The question of derogation was never considered at the time of negotiations or entry into force of the Dayton Agreement, primarily for political reasons. The BH Constitution was not conceived as violating human rights by any of the parties to the Dayton Peace Agreement. Some of the western politicians and diplomats who had been involved in the negotiations knew that the ethnic privileges were highly doubtful from a human rights perspective, but the tendency was rather to play this aspect down than to highlight it. Bringing up the issue of derogation as a justification for the constitutional system would, in all likelihood, have been counter-productive in terms of reaching an agreement at all. 577 See Joan Fitzpatrick, ‘Human Rights in Crisis/The international System for Protecting Rights During States of Emergency’, Volume 19 Procedural Aspects of International Law 575

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES and the ICCPR thus represents a possibility for international supervision of the implementation of individual rights in times of crisis when such rights are most at risk. There is thus a distinction between the extent of human rights obligations a state normally has, and the more limited obligations that may be the result of derogation in an emergency situation. Article 3 of Protocol 1 to the ECHR, Article 25 of the ICCPR and Article 5 of the ICERD were all discussed within the framework of the normal scope of application for those provisions (in the previous chapter), and were thus discussed without any references to the derogation regime. Even if the constitutional rules on ethnic requirements constituted a deviation from the abovementioned human rights provisions under normal circumstances, this would not necessarily be the case if the conditions for derogation were fulfilled. What might seem as unjustified and disproportionate in peace-time might seem reasonable in a situation of war or other emergency. The whole rationale behind the derogation regimes is that states should be allowed to take measures in order to protect the security of the state, but at the same time be subject to clear limitations regarding which situations that might generate such measures and what kind of measures that are allowed. Nowak notes that: “International law is thus faced with the task of finding a middle course between recognition of the legitimate right of sovereign States to defend their constitutional, democratic order and the prevention of misuse of the right of emergency merely to maintain de facto positions of power.”578

During the negotiations in Dayton, Bosnia and Herzegovina was not party to the ECHR and could, for that reason, not derogate from any of its provisions. After the entry into force of the Dayton Peace Agreement, only the rights and freedoms contained in the ECHR and its protocols were made applicable in Bosnia and Herzegovina, not the right of Bosnia and Herzegovina to derogate from any of these. The reference to the rights and freedoms of the ECHR implicitly expressed the obvious fact that the procedural provisions pertaining to the various mechanisms, inter alia to the right of individual complaint, were not part of the BH Constitution. Bosnia and Herzegovina was, on the other hand, a party to the ICCPR, and could therefore in theory have used its right of derogation under this instrument.579 In practice however, the fact that during the negotiations in Dayton there was a transition from the war time Bosniac government to the new triple-ethnic system Series (University of Pennsylvania Press, Philadelphia, 1994) p. 9 (which sets out a table based on the International Law Association’s study on State of Emergency, defining six different types of states of emergencies, four of which are considered not real emergency situations, but rather various degrees of abuse of power by state authorities). 578 Nowak, supra note 337, p. 74. 579 Bosnia and Herzegovina had become party to the ICCPR in 1992 (as well as the ICERD in 1993) on the basis of succession to treaties to which the SFRY had been a party. See Office of the United Nations High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, as of 2 November 2003, available on the web-site of the High Commissioner for Human Rights; <www.unhchr.ch/pdf/report.pdf>.

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CHAPTER 8 developed in Dayton meant that a proclamation of derogation by the Bosniac wartime government (which, following the entry into force of the Dayton Peace Agreement, was merely a care-taker government) would have been extremely politically contentious. It is entirely possible that such a move in itself could have ruined the negotiations. Having made it clear that Bosnia and Herzegovina could not have claimed derogation under the provisions of the ECHR, and did not claim derogation under the provisions of the ICCPR, the derogation regimes in those two instruments will nevertheless be discussed under the hypothesis that the rules could have been used as arguments for parts of the content of the Dayton Peace Agreement. The two instruments will be subject to the discussion of whether derogation could have been used in order to secure the conclusion of a peace agreement which was not entirely consistent with its own human rights requirements. The reason for selecting those two instruments, leaving out other instruments that also contain provisions on derogation,580 is that they are both fundamental in the Bosnian context. The ECHR was given a particularly prominent place in the BH Constitution and in the human rights arrangements of the Dayton Peace Agreement, and the ICCPR was already applicable at the time of the peace negotiations. The provisions on ethnic discrimination in both instruments are central in the discussions of this book. Another reason for discussing both of the above-mentioned derogation regimes is that they seem to differ somewhat, particularly on one point, namely on the right to derogate from prohibition against ethnic (and other) discrimination.581 The wording of the two provisions is as follows: Article 15 of the ECHR: “1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself on this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and on the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”

Article 4 of the ICCPR: “1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present 580

Article 27 of the American Convention on Human Rights (ACHR) and the Article 30 of the European Social Charter also set out derogation regimes. 581 See below under Chapter 8 section 2.4.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”

The various requirements of these provisions will be discussed in the following chapter, with a view to assessing whether they could have been considered fulfilled during the Dayton negotiations. The relevant elements to be discussed in this connection are: Firstly, whether the situation during the Dayton peace negotiations could be considered as a state of emergency. Secondly, whether the ethnic requirements in the BH Constitution could be considered to be emergency “measures” within the meaning of the legal instruments. Thirdly, whether the “measures” were to be considered to fall in the category of non-derogable rights, and as such non-permissible, particularly with a view to the specific provisions on ethnic discrimination. Fourthly, whether the derogation measures would be consistent with other parts of Bosnia and Herzegovina’s international law obligations. Fifthly, whether the measures could be considered to be “strictly required by the exigencies of the situation”, hereunder the question of duration of the measures. The latter discussion thus pertains to the question of to what extent emergency measures in 1995 could still be justified today. 2.1. State of Emergency The first criterion that must be fulfilled in order to use the right to derogate is that there is a situation of emergency that threatens the life of the nation. Article 15 (1) of the ECHR contains the following wording: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures . . .” (Emphasis added).

Article 4 (1) of the ICCPR sets up similar requirements: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed . . .”

The term “war” is not mentioned in Article 4 of the ICCPR, but there is no doubt that war would be covered by the wider terminology which is used. It is worth noting that not only situations of internal or external violence or unrest may be

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CHAPTER 8 reasons for declaring public emergencies, but that natural disasters and other extreme situations may also be reasons for declaring an emergency.582 According to available information from the Council of Europe, only Turkey and the United Kingdom have notified the Secretary General of public emergencies and derogations from specific provisions in the ECHR.583 In addition, the Greek military regime of 1967 derogated from several human rights, but without following the proper procedures for keeping the Council of Europe informed.584 According to available information from the United Nations, 21 states parties to the ICCPR have made notifications on derogation because of public emergencies.585 The majority of cases of derogation under the two instruments have been due to domestic unrest through violence against state authorities by dissident groups or movements. It seems that there are no cases of states having resorted to derogation during peace negotiations following a war. The Court and Commission in Strasbourg have dealt with the issue of defining the term “public emergency threatening the life of the nation” in several cases. In the Lawless case, both the Commission and the Court agreed on the following definition: “an exceptional situation or crisis of emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state is composed.”586

The Strasbourg organs have also used this definition in later cases. The Commission elaborated on this definition in its report on the Greek Case, and set up the following four criteria for considering a situation to be a public emergency: “1) It must be actual and imminent. 2) Its effects must involve the whole nation. 3) The continuance of the organised life of the community must be threatened. 4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.”587 582

The Human Rights Committee notes in its General Comment 29 that instances such as “a natural catastrophe, a mass demonstration including instances of violence, or a major industrial accident . . .” may be classified as emergencies. CCPR General Comment 29, States of emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, Seventy-second session 31/08/2001, para. 5. 583 List of declarations made with respect to treaty no. 005, Convention for the Protection of Human Rights and Fundamental Freedoms (Complete chronology available on the web-site of the Council of Europe (08/10/02), . 584 The European Commission of Human Rights, Yearbook XII (1969), Report of 5 November 1969, paras. 78–81, pp. 41–43. 585 United Nations Treaty Collection (As of 5 February 2002), Declarations and Reservations – Notifications under Article 4 (3) of the Covenant (Derogations), available on the web-site of the UN High Commissioner for Human Rights, <www.unhchr.ch/html.meny3/b/treaty5 _asp.htm>. 586 Case of Lawless v. Ireland, Judgement of 26 May 1993, Series A 3, ECHR, para. 28.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES The Human Rights Committee seems to have taken the same definition into account when dealing with cases of derogation. In its General Comment 29 on Article 4, the Committee states that in order to invoke derogation “the situation must amount to a public emergency which threatens the life of the nation . . .”.588 The European Court of Human Rights has, on several occasions, accepted that states must have wide margins of appreciation when determining whether there is a basis for declaring a state of emergency. In the case of Ireland versus the United Kingdom, the Court stated that: “It falls in the first place to each Contracting State, with its responsibility for the ‘life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency”.589

In the Brannigan and McBride case, this argument was elaborated further: “By reason of the direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it.”

The Court, however, did not confer the entire responsibility for such decisions to the states: “Nevertheless, Contracting Parties do not enjoy an unlimited power in this respect . . . The domestic margin of appreciation is thus accompanied by a European supervision.”590

Only in the Greek case did the Commission actually state that the substantive requirements for declaring a state of emergency had not been met (the procedural requirements had not been met either).591 In the other cases pertaining to Article 15, the Court has accepted the determination of an emergency situation by the national authorities.592 The Human Rights Committee has, in several cases, refused to accept a general reference to an emergency as sufficient basis for derogating from specific rights. In the Landinelli Silva v. Uruguay case, the Committee came to the conclusion that the

587

The European Commission for Human Rights, Yearbook XII (1969), Report of 5 November 1969, p. 72, para. 153. 588 CCPR General Comment 29, States of emergency (Article 4), para. 2. 589 Ireland v. the United Kingdom, Judgement of 18 January 1978, Series A 25, ECHR, para. 207. 590 Brannigan and McBride v. the United Kingdom, Judgement 26 May 1993, Series A 258– B, ECHR, para. 43. 591 The European Commission for Human Rights, Yearbook XII (1969), Report of 5 November 1969, p. 76, para. 165 and p. 100, para. 207. 592 Brannigan and McBride v. the United Kingdom, supra note 590, para. 43; Aksoy v. Turkey, Judgement of 18 December 1996, ECHR, Reports 1996 – VI, para. 68.

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CHAPTER 8 requirements under Article 4 had not been met.593 This was also the result in the case of Salgar de Montejo v. Colombia, where the Committee said that: “In the specific context of the present communication there is no information to show that Article 14 (5) was derogated from in accordance with Article 4 of the Covenant; therefore the Committee is of the view that the State party, by merely invoking the existence of a state of siege, cannot evade the obligations which it has undertaken by ratifying the Covenant . . . the State party concerned is duty bound, when it invokes Article 4 (l) of the covenant in proceedings under the Optional Protocol, to give a sufficiently detailed account of the relevant facts to show that a situation of the kind described in Article 4 (l) of the Covenant exists in the country concerned.”594

The Human Rights Committee did not, however, in these cases, discuss the factual situation in the country concerned, and whether it was of such a nature that derogation would be justified, it simply concluded that the requirements according to Article 4 of the Covenant had not been met. It may be worth noting that Article 4 (1) of the ICCPR sets up an additional requirement to those mentioned in the ECHR, in that it demands that the state of public emergency must be officially proclaimed in the state in question. Article 4 (1) says: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed . . .” (Emphasis added). The Human Rights Committee has stated that this “requirement is essential for the maintenance of the principles of legality and the rule of law at times when they are most needed”.595 According to the wording of Article 15 of the ECHR, States Parties that exercise the right to derogation are only required to inform the Secretary-General of the Council of Europe of the measures taken and the reasons therefore. This requirement implies that it shall be brought to the attention of all the Member States of the Council of Europe. The Commission, however, has interpreted Article 15 as containing the additional requirement of public proclamation by the state party concerned. In the Cyprus versus Turkey case the Commission explicitly stated that: “. . . Article 15 requires some formal and public act of derogation, such as a declaration of martial law or state of emergency, and that, where no such act has been proclaimed by the High Contracting Party concerned, although it was not in the circumstances prevented from doing so, Art. 15 cannot apply.”596

Judge Macdonald seemed to disagree with the above quotation from the Commission when he wrote in an Article in 1998: “As the Court said in the Lawless case, Article 15 does not require an official declaration of a state of emergency. This is different than Article 4 of the Civil and 593

Landinelli v. Uruguay, Human Rights Committee, case no 34/1978, paras. 6–8. Salgar de Montejo v. Colombia, Human Rights Committee, case no. 67/1979, para. 10.3. 595 CCPR General Comment 29, States of emergency (article 4), para 2. 596 Report of 10 July 1976, Cyprus v. Turkey (not officially published), para. 526, as referred in van Dijk, P./van Hoof, G.J.H, supra note 314, p. 743. 594

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES Political Covenant, which requires that the emergency be officially declared in order to avoid de facto states of emergency.”597

Neither the authorities in Strasbourg, nor the Human Rights Committee have suggested what the consequences of not fulfilling the demand of public proclamation should be. However, as the present discussion only involves the substantive, and not the procedural aspects of the right to derogate, additional questions relating to public proclamation and duty to inform the depositories of the treaties will not be pursued any further here. 2.1.1. Was there a State of Emergency in Bosnia and Herzegovina? In order to determine whether the derogation regime could have been used as a justification for the constitutional system in the Dayton Peace Agreement, one must determine if the situation in Bosnia and Herzegovina during the Dayton negotiations would qualify as a “war or other public emergency threatening the life of the nation”. War qualifies as a reason for derogation in all circumstances. It is seldom difficult to determine the existence of war, be it international or civil. In Bosnia and Herzegovina there had been war from 1992 to the autumn of 1995. At the time of the negotiations, however, there was a cease-fire in effect, and thus not an ongoing war. But, as is specified in the derogation provisions, the situation does not have to reach the threshold of war, it is sufficient that there is an emergency. In the autumn of 1995, the situation in Bosnia and Herzegovina was extremely volatile even though there was a cease-fire. The question is whether this situation could have justified derogation. Article 15 requires that there is a public emergency that is “threatening the life of the nation”. It seems that one key word here is “threat”. The purpose of the right to derogate is to use extraordinary measures in order to prevent the collapse of the state authorities. That means that the threat does not have to materialise before the measures are invoked, it is sufficient that the threat fulfils the above-mentioned requirements set up by the authorities in Strasbourg and Geneva. In Bosnia and Herzegovina, the threat was real and imminent. If negotiations failed, the war would resume. If the war resumed, this would certainly threaten the life of the nation because it would weaken or destroy whatever feeble state organs were in existence at that time. The wide margin of appreciation for states with regard to the actual determination of whether there exists a situation of emergency means that it is highly unlikely that the Strasbourg Court or the Human Rights Committee would have concluded that the situation in Bosnia and Herzegovina did not qualify as an emergency situation, had the question ever arisen. There was clearly a situation of “war or other public emergency threatening the life of the nation” in the period from when the war ceased until the Peace Agreement was in effect.

597

R. St. J. Macdonald, ‘Derogations under Article 15 of the European Convention of Human Rights’, 36 Colombia Journal of Transnational Law (1998) p. 225.

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CHAPTER 8 2.2. Were the Ethnic Requirements Measures? The term measures in Article 15 of the ECHR and Article 4 of the ICCPR must mean specific measures taken in connection with the public emergency. The wording of Article 15 specifies that the “. . . High Contracting Parties may take measures derogating from its obligations . . .” (Emphasis added). General state conduct, which happens to result in human rights violations thus cannot be seen as measures in this context. The question is whether the rules in the BH Constitution pertaining to the ethnic privileges for the three constituent peoples could constitute measures in accordance with this requirement. Given the hypothetical character of the derogation discussion in this context, it is of course clear that no measures were knowingly taken in order to remedy an emergency situation during the Dayton negotiations. Given the very sensitive nature of those negotiations, however, one might well claim that the provision for ethnic requirements with regard to the right to hold office and stand for election to the Presidency and for the House of Peoples of Bosnia and Herzegovina combined with the equally important right of veto for the three constituent peoples, were in fact the elements which made the constitutional part of the peace agreement achievable.598 One might also argue that had it not been for that part of the constitutional system, the negotiations probably would have failed, and war would have resumed.599 These were the very rules that have been alleged as being incompatible with human rights standards, but they were also the rules that had made an agreement possible. For the purposes of the further discussion, they will be seen as constituting the measures that might or might not be permissible under the assumed derogation regime. 2.3. Which Rights May Not Be Derogated from? Under the assumptions that the situation in Bosnia and Herzegovina could have constituted a state of emergency under the ECHR and the ICCPR, and that the provisions pertaining to the ethnic privileges could have qualified as measures, the next question is whether these measures would have been permissible under the derogation regimes in the ECHR or the ICCPR. Hence, it will first be necessary to determine whether the measures in question were in conflict with any of the nonderogable rights in either of the two instruments. Second, one must consider whether the measures were in conflict with the general non-discrimination provisions in the 598

A Bosnian Croat proposal for a constitutional framework dated 1 November 1995, which was given to the mediators in Dayton, contained clear provisions on ethnic requirements for parliamentary participation, and the Bosnian Serb comments to the Contact Group proposal dated 15 November, stresses the same point. Both documents on file with author. 599 In a letter to one of the American mediators, Roberts Owen, the leader of the Bosnian Serb delegation, Momcilo Krajisnik, emphasised the outstanding importance of inter alia the “method of decision making in common institutions” and he continued: “let me remind you that this war began precisely because of the Muslim-Croat attempt to decide our fate through an in-built majority.” (Note to Roberts Owen, with copies to the other members of the Contact Group, dated 15 November 1995, on file with author).

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES two instruments, in a derogation context. (The question of whether the measures were strictly required by the exigencies of the situation will be dealt with below under 8.2.6). According to ECHR Article 15 (2), no derogation may be made from the following rights: Article 2 on the right to life, except in respect of deaths resulting from lawful acts of war, Article 3 on the prohibition of torture and other cruel, degrading or inhuman treatment or punishment, Article 4 (1) on the prohibition against slavery and servitude, and Article 7 on the prohibition against lack of legal basis for punishment including retroactive legislation. Article 2 is limited through the text of the provision itself as it permits the death penalty where this is provided by law, and also deaths resulting from the use of force in order to prevent unlawful violence.600 The list of non-derogable rights in Article 4 of the ICCPR is somewhat longer. Article 4 (2) specifies: “No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.” Article 6 concerns the right to life, Article 7 the prohibition against torture and other cruel, inhuman or degrading treatment or punishment, Article 8 (1 and 2) prohibits slavery and servitude, Article 11 prohibits imprisonment on the grounds of inability to fulfil a contractual obligation, Article 15 contains a prohibition against the lack of a legal basis for punishment including retroactive legislation, Article 16 is the right of everyone to recognition as a person before the law, and Article 18 is the right of freedom of thought, conscience and religion. Some of the above-mentioned rights in the ICCPR were included as non-derogable because, as the Human Rights Committee observes: “it can never become necessary to derogate from these rights during a state of emergency (e.g. Articles 11 and 18).”601 It seems clear that the measures consisting of ethnic privileges in the BH Constitution cannot be claimed to be in contradiction with any of the abovementioned non-derogable rights. The derogable rights contained in these instruments may, however, be subject to derogation only if all of the requirements for derogation are fulfilled. These derogable rights and freedoms include the rights contained in the ECHR and the ICCPR that were discussed in Chapter 5, specifically protecting against ethnic discrimination. Article 14 of the ECHR and Article 3 of Protocol 1 to the ECHR, as well as Articles 2, 25 or 26 of the ICCPR, are not included in the list of no-derogable rights. The right to discriminate against persons because of their ethnicity in situations of emergency, however, is nevertheless subject to certain limitations, both through an explicit reference in Article 4 (1) of the ICCPR as well as through the general provisions of the ECHR.

600

Protocol 6 to the ECHR concerning the abolition of the death penalty, however, does not only prohibit the death penalty, but also makes this a non-derogable obligation in its Article 3. If a state wants to retain its possibility to resort to capital punishment in times of war or emergencies, this must be specified in the legislation of the state and communicated to the Secretary General of the Council of Europe (Article 2 of Protocol 6). 601 CCPR General Comment 29, States of emergency (article 4), para. 11.

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CHAPTER 8 2.4. Discriminatory Measures Notwithstanding the fact that the non-discrimination articles in the two instruments are not listed among the non-derogable rights, there are restrictions on the state parties’ right to take measures involving ethnic differentiation during emergencies. First of all, the “ordinary” discrimination protection that follows from the general provisions in the two instruments may be applicable to a certain extent in derogation situations. Secondly, there are also specific rules pertaining to discrimination during derogation. In order to find out whether the measures consisting of ethnic requirements in the BH Constitution would have been acceptable in a situation of actual derogation, it seems necessary to clarify the scope of the non-discrimination regime pertaining to derogation in the ICCPR, and the scope of the corresponding provisions in the ECHR, as well as the relationship between these two regimes. 2.4.1. Ethnic Discrimination and Derogation in the ICCPR Article 4 (1) contains a specific limitation regarding discriminatory derogation measures taken in states of emergency, and provides that in emergency situations states may: “[t]ake measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (Emphasis added).

The Human Rights Committee has noted that even if the non-discrimination provisions of the ICCPR (Articles 2, 3, 25 and 26) were not included in the list of non-derogable rights, : “[t]here are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of Article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.”602

One key question in the understanding of this provision is thus how to interpret the terms “discrimination” or “non-discrimination”. It is clear that in well-established human rights law terminology, discrimination is by definition prohibited. If the word “discrimination” is used it always indicates that the act or omission in question is unlawful. Under a derogation regime, however, the point is that otherwise unlawful acts might be considered lawful, because of the emergency character of the situation. Certain acts or omissions that would have been considered as unlawful discrimination in normal circumstances, may be considered lawful in an emergency situation. It may be a matter of terminology rather than substance whether one says that discrimination may be allowed under derogation (if the requirements are 602

CCPR General Comment 29, States of emergency (article 4), para. 8.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES otherwise fulfilled), or that discriminatory measures will be seen as lawful differentiation. In keeping with the above mentioned terminology, however, the better view is probably that such acts or omissions do not amount to discrimination, but should be considered as lawful differentiation. The point is that the proportionality assessment, which is always a part of the assessment of the discrimination prohibition, will be different during an emergency than it would have been under normal circumstances. The fact remains, therefore, that an act that would be considered unlawful discrimination in an ordinary situation, for example, the internment of a specific national group, would not necessarily be considered unlawful in an emergency situation. It is significant that the list of non-discrimination criteria in Article 4 of the ICCPR (race, colour, sex, language, religion or social origin) is shorter than the list of non-discrimination criteria in Articles 2 and 26, which in addition to the above criteria, also include political or other opinion, national origin, property, birth or other status. One interpretation of the non-discrimination clause in Article 4 (1) is therefore that states cannot, under any circumstances, take measures that discriminate against persons solely because of their race, colour, sex, language, religion or social origin. Conversely, it seems to be permissible (if the other requirements for derogation are met) for states to take measures that may discriminate against persons because of their political or other opinion, national origin, property, birth or other status. This is also how the Human Rights Committee may be understood when they note that “[t]here are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances.”603 In other words, certain elements of the right to nondiscrimination can in fact be subject to derogation. The use of the term discrimination only about acts or omissions that are unlawful in all circumstances might thus blur the fact that there is a significant difference, with regard to the scope of the right to non-discrimination, between a normal situation and an emergency situation.604 It is not self evident, however, that the criteria mentioned in Articles 2 and 26 and not in Article 4 (1) (political or other opinion, national origin, property, birth or other status) are lawful grounds of distinction in all emergency situations. Article 4 (1) does not in itself say anything about which discrimination criteria states might use; it only specifies which discrimination criteria that may not be used. Even if Article 2 of the ICCPR is not listed as a non-derogable right, it still is an accessory non-discrimination clause which obliges states parties to ensure all the rights and freedoms laid down in the Covenant to everyone within their territories and jurisdiction without discrimination on any ground. This duty does not necessarily become non-existent because a state must resort to derogation. The nondiscrimination clause in Article 2 obliges each state party to respect and ensure to all 603

CCPR General Comment 29, States of emergency (article 4), para. 8. In keeping with the established terminology, the relevant discussions in this book will nevertheless seek to use the term “discrimination” only if it is also unlawful, be it in an emergency situation or not. 604

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CHAPTER 8 individuals “the rights recognized in the present Covenant, without distinction of any kind, such as race, colour etc”. One might therefore also claim that it pertains to the derogation clause. Admittedly, Article 4 limits rather than ensures rights and freedoms, but it could still be argued that the non-discrimination regime should apply.605 When determining emergency measures, states should therefore as a point of departure avoid differential treatment of groups covered by all of the criteria in Article 2. There is no automatic right to take measures that make distinctions between persons because of their political or other opinion, national origin, property, birth or other status. Nevertheless, the significance of the list of non-discrimination criteria from which states may never derogate must be that states, in special circumstances, can derogate from those non-discrimination criteria not listed in Article 4 (1). One test of permissibility of such measures would be the assessment of whether the measure in question was strictly required by the exigencies of the situation. It thus seems that states can, if it is strictly required, take measures which differentiate because of political or other opinion, national origin, property, birth or other status, but never measures that discriminate solely because of race, colour, sex, language, religion or social origin. This is a minimum standard that cannot be disregarded, no matter how serious a situation is. The content of the term strictly required by the exigencies of the situation will be subject to further discussions below under 8.2.6. 2.4.2. Ethnic Discrimination and Derogation in the ECHR If comparing the two derogation provisions in the two relevant human rights instruments, Article 15 of the ECHR seems to allow for a more extensive derogation regime than the one contained in the ICCPR. As mentioned above, the list of rights from which no derogation is permitted is longer in the Covenant, and in addition, its derogation regime is explicitly limited through a non-discrimination clause in Article 4 (1). The difference between the two regimes that is of special interest in this context, is the prohibition against ethnic and other forms of discrimination which is laid down in Article 4 (1) of the ICCPR, but which is not specified in Article 15 of the ECHR. As mentioned above, it must be assumed that the list of non-derogable discrimination criteria in Article 4 (1) of the Covenant serves the purpose of implicitly allowing for, provided that the other conditions for derogation are fulfilled, differentiation on the basis of the criteria: political or other opinion, national origin, property, birth or other status. The explicitly prohibited discrimination grounds in Article 4 (1) of the ICCPR are race, colour, sex, language, religion or social origin. According to the wording of Article 15 (1) of the ECHR there are no such explicit limitations to the states’ right to take measures based on e.g. race, colour etc., when derogating from the provisions of the Convention. 605

See below under 8.2.4.2. on the applicability of Article 14 of the ECHR to the derogation regime in that Convention.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES It has been assumed, however, by the Court in Strasbourg, that the derogation regime itself is subject to the accessory non-discrimination provision of the ECHR (Article 14). Article 14 of the ECHR states that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As the derogation regime constitutes the denial of rights and freedoms rather than securing the enjoyment of them, the applicability of this provision to the derogation clause has been questioned. The first case in which this seems to have been an issue was the Engel case from 1976.606 The case concerned the use of detention and the scope of Article 5 (1) of the ECHR. Here, one of the questions raised was whether military rank could qualify as a non-discrimination ground because of the terms such as or other status in Article 14, of the ECHR. If this were the case, the applicants claimed, Article 5, taken together with Article 14, would be violated because detention practices differed with military rank. Since Article 5 allows for deprivation of liberty, the question was whether Article 14 would apply, given that it only refers to enjoyment of rights and freedoms. The Court stated that: “[a] distinction that concerns the manner of execution of a penalty or measure occasioning deprivation of liberty does not on that account fall outside the ambit of Article 14 (art.14), for such a distinction cannot but have repercussions upon the way in which the ‘enjoyment’ of the right enshrined in Article 5 para. 1 (art. 5–1) is ‘secured’.”607

Two years later, in the Ireland v. the United Kingdom case,608 the same argument was made with regard to the derogation regime itself. Here, the United Kingdom had derogated from Article 5. The Court found that the detention practices in Northern Ireland between 1971 and 1975 were not in violation of Article 5 of the Convention. The applicant Government claimed that there was a breech of Article 5 taken together with Article 14, as the emergency measures were used to a much greater extent against the IRA suspects than against supposed Loyalist terrorists. The Court considered a number of aspects, among others the difference in frequency and danger between the republican and the loyalist acts of terror, and came to the conclusion that there had been no breech of Article 14. The point of relevance in this case is the fact that Article 14 was considered by the Court. It was because of the merits of the case and not because Article 14 was not applicable to the derogation regime that the Court did not find a violation: “On the basis of the data before it, and bearing in mind the limits on its powers of review, the Court cannot affirm that, during the period under consideration, the

606

Engel and others v. the Netherlands, Judgment of 8 June 1976, Series A 22, ECHR. Engel and others v. the Netherlands, supra note 606, para. 72. 608 Ireland v. the United Kingdom, supra note 589. 607

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CHAPTER 8 United Kingdom violated Article 14 taken together with Article 5 (art. 14 + 5), by employing the emergency powers against the IRA alone.”609

In a separate opinion, Judge Matscher argued that there had, in fact, been a breech of Article 14 in this case. His line of argument followed the position of principle from the above mentioned Engel case. He also noted that his argument did: “underlie the reasoning of the majority of the Court in the present case, namely that discrimination can also exist as regards restrictions – in themselves legitimate – on the rights guaranteed by the Convention. To put it another way, the wording of Article 14 (art. 14) – ‘enjoyment of the rights and freedoms set forth in [the] Convention’ – must be given a broader conceptual scope so as to include therein, over and above enjoyment in the strict sense, the way which the rights and liberties in question may have been restricted”.610

It is, however, worth noting that in another separate opinion in the same judgement, Judge Fitzmaurice argued (against the majority) that Article 14 was not applicable to the derogation regime: “The point is that in the present case, the alleged discrimination relates not to the way in which a right provided for by the Convention is accorded . . . but to the way in which it is denied. At first sight this may seem to be only a case of the two sides of the same coin. But is this so? It seems a curious proposition that because one class of persons is deprived of liberty in a manner prima facie contrary to Article 5 (art. 5), therefore any or all other classes, if in a comparable situation, must also be. . . Can it ever be discriminatory in the normal sense of the term to wrong or inflict a disability on some people, but not on others even if they deserve it?”611

It seems that the answer to judge Fitzmaurice’s concerns could be that if there is, for example, ethnic discrimination in the denial of rights (for example with regard to the denial of liberty through of imposition of detention), then those who are placed in detention more often because of their ethnicity should be released, rather than subjecting others, of different ethnicities, to detention, too. Article 14 admittedly forbids discrimination with regard to the enjoyment of rights. The point is that all of the rights and freedoms may be either enjoyed or denied. The failure to secure the enjoyment of the right to liberty, or freedom from torture, or freedom of expression, is the denial of these rights. In the case of Brannigan and McBride v. the United Kingdom in 1993,612 the issue was touched upon again, not in the judgement itself, for it had not been claimed by the applicants that Article 14 had been violated, but in a concurring opinion by the judges Matscher and Morenilla. The two judges agreed with the majority that there had been no violation of Article 5 and that the requirements of Article 15 regarding derogation had been met by the United Kingdom. They then went on to elaborate on the similarity in effect between reservations to the 609

Ireland v. the United Kingdom, supra note 589, para 229. Ireland v. the United Kingdom, Separate Opinion of judge Matscher, para. 2. 611 Ireland v. the United Kingdom, Separate Opinion of judge Fitzmaurice, para. 45. 612 Brannigan and McBride v. the United Kingdom, supra note 590. 610

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES Convention and derogations under Article 15. In that connection, they noted that the application of Article 14 would necessarily be very different under the two approaches: “whereas Article 14 (art. 14) cannot be invoked in relation to a provision which is the subject of a reservation, it remains applicable in respect of a substantive provision of the Convention, notwithstanding the fact that the latter is subject to a derogation.” (Emphasis added).

Summing up the somewhat scarce case law from the European Court of Human Rights on this specific point, it seems that there is a clear understanding by some judges, challenged only by one judge and thus implicitly accepted by the majority in the three above-mentioned cases, that Article 14 is, in principle, applicable also to the derogation clause, even if it allows for the deprivation of rights rather than granting them. This could appear to add up to the rather surprising result that the protection against discriminatory measures under the ECHR would seem stronger than the comparable regime in ICCPR. The list of non-discrimination criteria in Article 14 of the ECHR consists of : “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” whereas the list in Article 4 (1) only contains “race, colour, sex, language, religion or social origin”. Unlike the list of absolute minimum non-discrimination grounds in Article 4 (1) of the ICCPR, however, the qualification that requires “measures derogating from [its] obligations under this Convention” must be “strictly required by the exigencies of the situation” also pertains to the applicability of Article 14. This follows from the fact that there is no explicit reference in Article 15 itself to the nondiscrimination regime. It must therefore be inferred that Article 14 applies to the entire derogation clause, which includes the requirement that all derogation measures must be strictly required by the exigencies of the situation.613 It is therefore this requirement that is the real test as to whether Article 15 has been violated or not. In summing up, it seems that the right of states to derogate from the provisions of the ECHR contains no absolute limitations with regard to specific discrimination criteria, as is the case with the limitation in Article 4 (1) of the ICCPR. Normally, according to the above-mentioned case law from the European Court of Human Rights, Article 14 applies to the derogation measures. Should it be clear, however, that it was strictly required by the exigencies of the situation to take measures that might discriminate against someone contrary to Article 14, then it appears to be allowed, provided that the other requirements in Article 15 are fulfilled. 2.4.3. The Non-discrimination Criteria It should be clarified whether certain measures taken against persons because of their race, colour etc. would be permitted according to the regime in ECHR (Article 613

See below, under 8.2.6.

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CHAPTER 8 15 together with Article 14 which would allow for distinctions on all grounds if it were considered strictly required etc.), but not according to the ICCPR (which prohibits discrimination solely because of race, colour etc., even if it otherwise were considered to be strictly required etc.). In order to answer this question, it is necessary to determine what is the content of the non-discrimination criteria. One might claim that it is hard to imagine a situation in which it would be strictly required to take measures making distinctions solely on the basis of, for example, skin colour. The same might be said to apply to the criteria of sex, religion and language. The term race is somewhat more ambiguous. To clarify the content of the relevant terms in the context of emergency measures, it is necessary to look at the reasoning behind the right to derogate. Not all of the non-discrimination criteria mentioned in ECHR Article 14 and ICCPR Article 2 and 26 and 4 (1) are relevant in relation to this book. Chapter 5 on the human rights protection in the Dayton Peace Agreement did not contain discussions on the criteria of sex, political or other opinion, property and birth, as they were not seen as directly relevant in relation to the present discussion on ethnic discrimination. The same delimitation applies here. The non-discrimination criteria, which will be subject to further discussions, are thus: race, colour, language, religion, national origin and other status. The substantive differences between those non-discrimination criteria that never, under any circumstances, can justify discriminatory measures, and those that can justify such measures, are not necessarily easily defined. According to the provision in Article 4 (1) of the ICCPR, the criteria of race, colour, language and religion may not be invoked as reason for discriminatory measures, whereas national origin and other status may. It is worth noting that the lists of nondiscrimination criteria in Article 14 of the ECHR and Article 2 and 26 of the ICCPR begin with the words “such as” and end with the open ended category “other status”, thus indicating that the lists of non-discrimination criteria in these provisions are not exhaustive. Words to this effect are not included in Article 4 (1) and it thus seems clear that the list here is meant to be exhaustive. As mentioned above, it has not been unusual to take discriminatory measures against persons of specific nationalities in certain situations. Nowak for example, notes that “in times of war, nationals of enemy states are often discriminated against”.614 During the drafting of the Covenant, the Commission on Human Rights first voted in favour of adding the general non-discrimination clause (then Article 20) to the list of non-derogable rights.615 According to Fitzpatrick, “Objections were immediately raised that disparate treatment of enemy aliens would be necessary during wartime, and the decision was reversed the following day”.616 Hence, the text of Article 4 (1) was deliberately redrafted, so it would allow for specific measures 614

Nowak, supra note 337, p. 86. Summary Records of the Sixth Session of the Commission on Human Rights, UN. Doc. E/CN.4/SR.195, 1950, paras. 142–43. 616 Fitzpatrick, supra note 577, p. 62. See also Jamie Oraá, Human Rights in States of Emergency in International Law (Clarendon Press, Oxford, 1992) p. 173. 615

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES on the basis of e.g. national origin during emergencies. It thus seems clear that the absolute prohibition against measures discriminating against someone solely because of their race, colour, language and religion was not meant, on these grounds, to protect persons with special connections to enemy states. Such persons were meant to be covered by the term “national origin” or “other status” in the general discrimination prohibitions, and thus persons belonging to these categories were not necessarily meant to be protected against such measures in emergencies. The terms national origin and other status are not very precise. National origin is clearly wider than nationality, which often is considered synonymous with citizenship.617 Nationality is not listed as one of the non-discrimination grounds, but it (in the sense of citizenship) was considered as “other status” and thus prohibited as a basis for discrimination under ICCPR Article 2 in the case of Guye et al. v. France.618 The terms national origin and other status clearly cover not only non-citizens of the state in which the emergency occurs, but also persons who have become citizens – but who might originally have been citizens of an enemy state, or whose parents had such citizenship. During the Second World War, there was wide-ranging internment of supposed “enemy aliens” in Great Britain, France, Canada and the United States. In the US, over 100,000 people of Japanese origin, many of whom were US citizens, were interned in camps for several years.619 Both citizens and noncitizens, were thus categorised as “potential enemy aliens”. How far a state can go with regard to intrusive measures against such groups is uncertain. The US internment of persons of Japanese origin during the Second World War has been widely criticised. Oraá notes that the “Special Commission set up by the US Congress concluded that the measures of detention, exclusion and internment were not justified by military necessity but were the consequence of racial prejudice, war hysteria, and failure of political leadership.” He then quotes from the report of the Special Commission: “Widespread ignorance of Japanese Americans contributed to a policy conceived in haste and executed in an atmosphere of fear and anger at Japan. A grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed and detained by the US during World War II.”620 617

See for example Johannes M. M. Chan, ‘The Right to Nationality as a Human Right, The Current Trend Towards Recognition’, Vol. 12, No. 1–2 Human Rights Law Journal, where the author treats the term nationality as equal with citizenship. See also Nowak on Article 25 where, although he states that there are certain differences between the terms nationality and citizenship, nevertheless concludes that “[t]he requirement of citizenship is satisfied by nationality”. Nowak, supra note 337, p. 445. 618 Gueye et al. v. France, supra note 386. 619 See for example Svensson-McCarthy supra note 362, p. 675–682. 620 Oraá, supra note 616, p. 177, makes reference to the report Personal Justice Denied: Report of the Commission on Wartime Relocation and Internment of Civilians (Washington, 1982), p. 18.

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CHAPTER 8 Similar criticism has been directed towards the United Kingdom, Australia, Canada and to some extent France for their internment practices during the Second Word War.621 Notwithstanding this criticism, however, a majority of states clearly wanted to retain the possibility of taking restrictive measures against “potential enemy aliens”, thus arguing for the shorter list of non-derogable discrimination grounds in Article 4 (1) which does not include national origin. During the negotiations of the text of the ICCPR, the line of argument from several countries was that: “reference to the various grounds for non-discrimination set forth in Article 2, paragraph 2, of the Universal Declaration of Human Rights would not be appropriate, since legitimate restriction might in some case be imposed on certain categories mentioned therein”.622

It is thus clear that a state may subject its own citizens as well as non-citizens to certain restrictive measures under the heading national origin or other status, provided of course that the other requirements for emergency measures are fulfilled. The “security net” in Article 4 (1) thus lies not necessarily in the non-discrimination grounds themselves, but in the requirement that the measures must be strictly required by the exigencies of the situation. In order to determine whether the ethnic criteria that were used in the BH Constitution could be classified as measures that are prohibited under Article 4 (1) of the ICCPR, it is necessary to revisit the discussion on how the ethnic groups in Bosnia and Herzegovina should be classified. In Chapter 5, the question was whether the terms Bosniac, Serb, and Croat would be covered by the nondiscrimination criteria listed in Article 14 of the ECHR, and Article 2 and 26 of the ICCPR. The answer to this question was affirmative. Having discussed the different non-discrimination criteria, it was held that these groups must be placed somewhere within the scope of the terms race, colour, national origin, and religion, even if the words ethnicity or ethnic origin do not appear in the text of those two instruments.623 The question that must be dealt with in the present context is more difficult: are the terms Bosniac, Croat, Serb or others to be considered as covered by the nonderogable categories of race, colour, language and religion, or should they be considered as covered by the terms national origin or other status, and therefore permissible as grounds for differential treatment under derogation in emergencies? It seems clear that both national origin and other status are terms that are broad enough to cover the ethnic groups in Bosnia and Herzegovina. The question is whether the terms race, colour, language and religion together or separately would also cover these groups. As was discussed in Chapter 5, one does not normally speak of a Serb, Croat, or Bosniac “race”. The concepts of race and colour, however, must be interpreted in 621

See Svensson-McCarthy, supra note 362, pp. 669–681. Reference in M.J. Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights, (Martinus Nijhoff Publishers, 1987) p. 90. UN Doc. E/CN.4/SR.330. 623 See Chapter 5. 622

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES light of the time that has passed since these terms were first adopted as descriptive features of victims of racial discrimination. It is clear that the terms ethnicity or ethnic origin have taken over much of the traditional usage of the term race. It is also clear that from an international law point of view, the term “racial discrimination” has, in the ICERD, been defined as discrimination on the grounds of race, colour, descent, ethnic or national origin.624 According to Boyle and Baldaccini, “The definition is thus not limited to objective physical characteristics. It also captures subjective as well as socio-economic variables connected with racism. The definition is thus capable of addressing past, present and future expressions of racism: be it white supremacism, casteism, ethno-nationalism or what is called neoracism . . .”625

As has been asserted above, in Chapter 5, the terms “race” and “ethnic origin” are normally considered as comparable categories. The question which must be asked here is whether the concept of “potential enemy alien” could justify the placement of the categories Bosniacs, Croats and Serbs only under the heading national origin (and not under the headings race, colour, language or religion), and thus, as a point of departure, allow for the differential measures. According to the ordinary meaning of the text of Article 4 (1) seen in context with the other provisions of the Covenant, states cannot take discriminatory measures solely because of race, but it seems that they are allowed to take such measures on account of, for example, national origin. In other words, the same measure, for example internment or surveillance, would be unlawful discrimination if applied to a group because of its race or colour, but not necessarily if applied to a group because of its national origin. This does not make it very clear exactly what groups the states may take the measure against, because of the unclear content of the categories. In order to address this question one must therefore look at the rationale behind the derogation rule and then try to determine the content of the relevant terms (race and national origin) in this context. It seems clear that in a situation of war, threat of war or other emergencies, the states involved – if they chose to derogate – may do so with a view to take measures which might seem discriminatory for potential enemy aliens. The reasoning behind this rule is that there is a legitimate need for states to protect themselves against possible enemy assault, espionage etc. within their own borders. The reason why the negotiators of the ICCPR left national origin and other status out of the list of nonderogable discrimination grounds was that they wanted to allow for the possibility of resorting to restrictive measures against specific persons because of their possible status as potential enemy aliens. As Svensson-McCarthy states:

624

Article 1 of the ICERD. Kevin Boyle, and Annelise Baldaccini, ‘A Critical Evaluation of International Human Rights Approaches to Racism’, in Sandra Fredman (ed.), Discrimination and Human Rights (Oxford University Press, 2001) p. 152. 625

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CHAPTER 8 “At the end of the 1940’s, and in the beginning of the 1950’s, (when the negotiations of the ICCPR were conducted)626 public opinion had probably not yet seized the full scope of the injustice committed in several countries during the Second World War through the internment of Japanese and other aliens or citizens of foreign descent.”627

The problem is to determine when a differential measure is taken because of a person’s “race, colour” etc., and when it is taken because of the person’s “national origin”. When women and children of Japanese origin, many of whom were US citizens, were indiscriminately detained in internment camps in the US during the Second World War, it could, following the above terminology, be claimed that this was because of their race and not because of their national origin. One might respond, however, that it was not the East Asian origin per se, but their presumed connection to a specific state (which was an enemy state) that led to the measures. People of Chinese origin were, for example, not subject to such measures. It would therefore seem reasonable to distinguish between the concepts of race and national origin so as to recognise that the term race in this context is far less specific than the term national origin, which, in this connection, must be understood to mean a relationship to a specific state or belligerent group. The situation in Bosnia and Herzegovina in 1995 was such that many people from the three groups in question without a doubt considered each other as not only potential, but real enemies. It had been a war between “nations” (or constituent peoples) both in the form of civil war and war between states. The three “nations” were, as was shown in Chapter 6, synonymous with the three constituent peoples (Bosniacs, Croats and Serbs). There can be little doubt that during the Dayton negotiations, the three groups were regarding each other as enemies. Even the Croats and Bosniacs, who had agreed to establish the Federation in 1994 and thus were not formally at war, were still at least potential enemies. If the Dayton negotiations failed, there would be little hope for the continued existence of the Federation. The question is therefore whether, under these circumstances, it would be consistent with human rights law to allow for measures that involved differentiation based on the labels “Bosniac”, “Croat” and “Serb”. In other words, should these three categories be classified as race or as national origin? Each of the three groups was highly suspicious of the other two and assumed that they would undermine the peace agreement and interpret it to their own advantage and to the detriment of the two others. (This of course was the very reason for the “measures” involving the ethnic privileges in the House of Peoples and the Presidency.) There would seem to be valid reasons for accepting that the three groups could regard each other as possible enemy aliens. Hence it might be acceptable to classify the constituent peoples as national origin rather than race, so that it would be legitimate to take measures against each other on this basis.

626 627

Author’s insertion. Svensson-McCarthy, supra note 362, p. 646.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES This conclusion, however, does not seem to be equally reasonable when it comes to the “others”, e.g. those who are excluded from certain forms of political participation because of the fact that they do not belong to any of the three constituent peoples. It must be maintained that discrimination on the grounds that a person does not belong to a specific race or ethnic origin must be treated equal to that of being discriminated against because of belonging to a specific race or ethnic origin. It is a matter of terminology rather than substance to be discriminated against because of being black, as opposed to being not white, or as the case may be, because of being non-constituent (for example Jewish) as opposed to constituent (Bosniac, Croat or Serb). The “others” did not come from potential or real enemy states. There was no specific reason for their exclusion; it was more of a “collateral damage” resulting from the compromise struck in the peace agreement. It would therefore, in this context, not seem appropriate to classify the others as belonging to the national origin category. The reasoning behind the different treatment of these persons was not that they were potential enemy aliens, but rather that they were not in this category. It is because they do not belong to any of the three constituent peoples that they are left out. One should therefore, in this connection, assume that others are covered by the term race rather than national origin. It is their lack of a specific ethnic identity that makes them subject to the differential measures. It will therefore be maintained that the exclusion of others should be seen as different treatment because of race. 2.4.4. The Term Solely The next requirement that must be fulfilled in order for the measures to be impermissible according to ICCPR Article 4 (1) is that the different treatment against the others must be measures taken solely because of their race. The use of the term solely underlines that it is not the inadvertent discriminatory effects of possible measures that are prohibited, only intentional discrimination. According to Nowak, it became clear from this choice of terminology that: “when emergency measures primarily affect members of a certain race or a certain ethnic, religious or linguistic minority due to e.g., their geographically limited scope of application, they are permissible as long as they do not intentionally aim at these population groups.”628

It is not entirely obvious what it means to intentionally aim measures at specific groups. Again, it seems necessary to look at the rationale behind the rule: one must assume that the purpose of the derogation rule is to protect against measures which single out specific groups because of their group belonging or ethnic identity. For example, the internment of all gypsies in a country because it was considered that gypsies were generally a danger to the state as a group, would seem to be a measure taken solely because of race. Another prominent example is of course the genocide 628

Nowak, supra note 337, p. 86. See also Rosalyn Higgins, ‘Derogation under Human Rights Treaties’, 48 British Yearbook of International Law (1976–1977) p. 287.

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CHAPTER 8 against the Jews. What seems to be a reasonable assumption is that the drafters of the ICCPR meant that the derogation regime should never be used as a pretext for invoking discriminatory measures against the groups mentioned in Article 4 (1). Oraá refers to the debate in the Commission on Human Rights regarding the wording of the derogation text, and quotes the UK representative on the importance of including the word solely: “during an emergency a State would impose restrictions on a certain national group which at the same time happened to be a racial group; that word would make it impossible for the group to claim that it had been persecuted solely on racial grounds.”629

Oraá also notes that when it comes to the non-permissible discrimination grounds in the derogation clause; “what it prohibits is derogating measures based solely on those discrimination grounds, but it allows derogating measures establishing certain differences of treatment even on racial, ethnic, or religious grounds, when reasonably justified and deemed to be necessary to overcome the emergency.”630

Seen in the above perspective, it seems unlikely that the exclusion of others in the BH Constitution would be classified as discrimination solely on the basis of race. The fact that others are treated differently is an unfortunate, but not an intended, result of the “ethnic balancing” system. The others were never targeted because of their ethnicity, or for that matter, because of their lack of ethnicity. There was no intention of targeting them as a group because of their ethnicity, or because of their lack of a specific ethnicity. It thus seems that this requirement of solely is not fulfilled, and the measures taken in the Dayton Peace Agreement resulting in ethnic differentiation, would not, on this particular basis, have been inconsistent with the derogation regime. 2.5. The Consistency Requirement All parties to the ECHR, except for Moldova, are also parties to the ICCPR.631 The more extensive protection against certain forms of discrimination provided by the ICCPR thus applies to all parties to the ECHR. Both Article 4 (1) of the ICCPR and Article 15 (1) of the ECHR contain the requirement that if a state party takes derogation measures they must not be inconsistent with its other obligations under international law. This provision expresses an unexceptional observation that also 629

Oraá, supra note 616, p. 174, which contains a reference to UN Doc. E/CN.4/L.139 and UN Doc. E/CN.4/SR.330. 630 Oraá, supra note 616, page 189. 631 See Status of Ratifications of the Principal International Human Rights Treaties, as of 2 November 2003, Office of the United Nations High Commissioner for Human Rights, available at web-site: <www.unhchr.ch/pdf/report.pdf>, and Council of Europe, Chart of signatures and ratifications of a treaty, ETS no:005, Status as of 29/11/03, available at website: .

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES follows from ordinary treaty law; a state cannot refrain from fulfilling obligations under treaty A by referring to provisions in treaty B. In other words, if a state has an international obligation that specifically makes it impermissible to derogate from specific rights, the inability to derogate follows primarily from that obligation, and not from the reference to “other obligations under international law” in the two mentioned instruments.632 Because of the explicit prohibition against taking measures that may violate other international obligations, however, such violations would in fact also appear to be violations, not only of the first treaty (A), but also of the obligations under the mentioned human rights instruments (B). It is, however, unlikely that the European Court of Human Rights or the Human Rights Committee would aspire to determine violations of obligations other than the treaties subject to their respective supervision. In the Brannigan and McBride versus the United Kingdom case, the applicants claimed that the Government had not fulfilled its obligation to officially proclaim a state of public emergency according to Article 4 (1) of the ICCPR. The Court, which did not find a breech of the requirements laid down in the ECHR Article 15 (1), stated in respect of this claim: “The Court notes that it is not its role to seek to define authoritatively the meaning of the terms ‘officially proclaimed’ in Article 4 of the Covenant.”633

It seems obvious that this statement by the Court expresses the general rule that the requirement of consistency cannot mean that the monitoring bodies of the treaties which do contain derogation clauses have the competence to determine possible violations of treaties other than those that they are established under. Oraá specifies that: “The condition sine qua non for the application of the principle of consistency is precisely that there must be a derogation from the State’s obligations under one of the three human rights treaties under consideration. Therefore there is an important limitation ratione materie upon the application of the principle: those other international obligations that have arisen from treaties or from general international 632

The principle that other international obligations must be respected is also expressed in Article 53 of the ECHR and Article 5 (2) of the ICCPR. Article 5 (2) of the Covenant reads: “There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.” According to Nowak, “there is no practical difference between the two provisions [Article 53 of the ECHR and Article 5 (2) of the ICCPR]. In both cases, States Parties are obligated not to restrict human rights that are guaranteed by domestic law or domestically applicable norms of international law (treaty law, customary international law) on the pretext that those rights are not ensured by the Covenant (or the ECHR) or are ensured to a lesser extent. In either case the individual may rely on the norm more favourable to his of her legal status.” Nowak, supra note 337, p. 101. The point with these provisions is to avoid abuse of other international obligations under the pretext of adhering to the provisions of the ECHR and/or ICCPR. 633 Brannigan and McBride v. the United Kingdom, supra note 590, para. 72.

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CHAPTER 8 law, and which contain obligations not covered by the three treaties, cannot be implemented by the machinery of implementation of the latter treaties.”634

Furthermore, it may be difficult to determine the scope of a state’s “other obligations under international law”. Most human rights treaties, as well as other treaties, do not contain provisions on derogation during emergencies. This does not necessarily mean that non-fulfilment of such treaties is impermissible in all situations. Each treaty obligation must be analysed in light of the characteristics of the rights in question, their relationship to other conventional rules, as well as the customary law regime. One important issue in this connection is the relationship between the ICCPR and the ICERD when it comes to derogation measures based on ethnic criteria. There are no provisions allowing for derogation from the rights contained in the ICERD. The issue of emergencies is not dealt with in the treaty. One might therefore ask whether states which are party to both the ICCPR and the ICERD, in effect are barred from invoking derogation measures which involve ethnic differentiation, for example, restrictive measures directed against groups of people because of their national origin, which, while being seemingly impermissible under ICERD, could be permissible according to Article 4 (1) of the ICCPR. Firstly, it must be determined whether there are in fact discrepancies between the minimum rights guaranteed by the ICERD and the minimum rights guaranteed in the field of racial discrimination by the ICCPR in a derogation situation. As was mentioned in Chapter 5,635 Article 5, subparagraph (c) of the ICERD states that irrespective of “race, colour, or national or ethnic origin”, everyone shall be granted: “political rights, in particular the rights to participate in elections – to vote and stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.”

It has been argued that it is precisely the lack of the right for others to participate fully in the election system that constitutes the human rights problem in the BH Constitution. There is no requirement in the ICERD that the differential measures must be directed “solely” against an ethnic group in order for it to be nonpermissible. It thus seems clear that the general protection laid down in the ICERD goes further than the minimum protection afforded to ethnic or racial groups during emergencies by the ICCPR and the ECHR. This is, of course, mainly due to the fact that there are no provisions for derogations in emergencies in the ICERD. The question then is whether states, through acceding to the ICERD, have relinquished their right under the ICCPR to take derogation measures which for example target people because of their national origin. The two instruments were

634 635

Oraá, supra note 616, p. 191. Chapter 5 section 5.3.3.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES negotiated during the same time period,636 and it does not seem that this specific question was raised at the time. However, even if the wording of the definition of racial discrimination in Article 1 in the ICERD does not contain an explicit reference to a proportionality assessment, such an assessment must nevertheless be inferred. The CERD states in its General recommendation 14 that: “a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate . . .”637

One would assume that restrictive measures against a specific group because of its national origin could be deemed to be legitimate if there were a war or state of emergency, and that this would thus not constitute discrimination contrary to the ICERD. 2.5.1. A Customary Right to Derogation? Neither the concept of state of emergency nor that of emergency measures (deviating from civil rights) are new phenomena.638 One would assume that any past or present centralised form of state with a minimum of democratic rights accorded to its citizens, would also have access to some form of de facto or de jure crisis management. This right to derogate would have to be subject to the limitations that lie in the corresponding customary or conventional non-derogable rights afforded to individuals. According to Oraá it is likely that: “some of the principles and norms established in the derogation clause, but not all, could be deemed to constitute emerging norms of customary law.”

Human rights obligations are, as a point of departure, applicable in all situations. As has been mentioned above, the ICCPR, the ECHR and the ACHR are the only three general human rights treaties that provide for derogation in emergency situations. All of the other general human rights treaties, including the ICESCR,639 the ICERD, the CEDAW,640 the CAT641 and the CRC642 do not contain such provisions. The CAT, however, contains a specific provision saying that:

636

The ICCPR was adopted 16 December 1966, and the ICERD was adopted 21 December 1965. 637 CERD General Recommendation 14, Definition of Discrimination (Art.1, par.1), para. 2. 638 See on the history of states of emergency, A. M. Singhvi, ‘The Law of Emergency Powers: A Comparative Study, Ph.D Thesis, Cambridge 1986, pp. 1–18. 639 International Covenant on Economic, Social and Cultural Rights. 640 Convention on the Elimination of All Forms of Discrimination Against Women. 641 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. 642 Convention on the Rights of the Child.

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CHAPTER 8 “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”643

There are different views as to whether the lack of provision for derogation in many human rights treaties means that derogation is never allowed, or that it may be allowed under circumstances similar to those that might justify derogation under the three above mentioned instruments. An “Analytical Report of the Secretary-General on Minimum Humanitarian Standards” appears to be of the view that derogation is precluded with regard to the above-mentioned instruments. Referring to the consistency requirement in Articles 15 of the ECHR and 4 of the ICCPR, the report states: “Second, derogations must not be inconsistent with a State’s other obligations under international law. Some human rights treaties, including the International Covenant on Economic Social and Cultural Rights, the Convention Against Torture, The Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women contain no derogation clauses, and many States that have ratified the ICCPR are also parties to these treaties.”644

As noted above, however, even if derogation as such is not allowed, all of the discrimination protection rights must be seen to contain a proportionality element, which means that in a situation where derogation from, for example, the ICCPR would have been allowed, the scope for what may be deemed to be legitimate differential treatment is likely to expand. It is worth noting that, for example, the African Charter on Human and Peoples Rights, (unlike the ECHR, the ICCPR and the ACHR), does not contain any provisions on derogation during emergencies. One reason for this could be the fact that the African Charter contains not only civil and political rights, but also economic, social and cultural rights and collective rights such as the controversial right to development. Oraá observes in this regard: “As can be easily understood, the task of deciding which of the rights in the [African] Charter could be deemed non-derogable in emergencies is a very difficult one, especially so because of the lack of precedents found in other treaties dealing with economic and social rights.”645

The lack of a specific derogation regime for the parties to the ACHR makes the question of proportionality assessments, highly relevant. It seems virtually impossible to have absolutely no access to emergency measures, and at the same 643

Article 2 (2) of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 644 Minimum humanitarian standards: Analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21, Report of the SubCommission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/1998/87, 5 January 1998, para. 55. 645 Oraá, supra note 616, p. 209.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES time it seems far too liberal to assume that the parties to the treaty may derogate from all the rights under this treaty in emergencies. Oraá notes that Zimbabwe, “which is a party to the African Charter, but not to the Covenant, declared a state of emergency on 22 July 1987 and took measures derogating from the right to trial without undue delay . . .”646 According to Oraá, it will be the task of the African Commission of Human Rights to resolve the unclear situation pertaining to the right for states to derogate in emergencies “according to the principles of general international law”.647 The obvious point of departure is of course that the obligations laid down in a treaty shall be fulfilled. In situations of emergencies, however, one will have to assess the scope of the possible right of derogation based on general international law principles including customary international law. This was done by the ILO Special Commission in the so-called Greek and Polish cases from 1971 and 1984. In both cases, state authorities had claimed a state of emergency as justification for deviating from inter alia ILO convention No. 87 on the Freedom of Association and Protection of the Right to Organize (1948). In the Greek case the Special Commission stated that: “The position of pleas of emergency or necessity in international custom may be said to correspond essentially, within the peculiar framework of the international community, to the place given to pleas of force majeure or legitimate self-defence in national systems of law.”648

In the Polish case, the Commission stated that: “the plea of emergency to justify restrictions on the civil liberties that are essential to the proper exercise of trade union rights can be advanced before an international authority only in circumstances of extreme gravity constituting a case of force majeure and provided that any measures affecting the application of Convention are limited in scope and in duration to what is strictly necessary to deal with the situation in question.”649

The Commission thus assumed that there is a possibility to derogate under customary law, but that this is subject to the strict criteria implied in the above statement, namely that there must be an exceptional threat (extreme gravity) and that 646

Ibid., p. 210. Ibid., p. 201 648 ILO, Report of the Commission Appointed under Article 26 of the Constitution of the ILO to Examine the Complaints concerning the Observance by Greece of the Freedom of Association Conventions, ILO Official Bulletin, 54, Special Supplement, No.2 (1971) para. 110, as referred in Oraá, supra note 616, p. 224 and Svensson-McCarthy, supra note 362, p. 343. 649 ILO, Report of the Commission Appointed under Article 26 of the Constitution of the ILO to Examine the Complaints concerning the Observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.96), ILO Official Bulletin, 57 (1984) Special Supplement, Ser. B page 126–127, as referred in Oraá, supra note 616, p. 225 and Svensson-McCarthy, supra note 362, p. 346. 647

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CHAPTER 8 the measures must be strictly required by the exigencies of the situation (limited in scope and in duration to what is strictly necessary in order to deal with the situation). It thus seems that the ILO Special Commission found that there is a certain, limited possibility for states to derogate from human rights under customary law. A question that might be asked in this connection is whether a party to a treaty which regulates derogation is excluded from retaining a possible customary right of derogation. Could a party to the ICCPR avoid the procedural requirements of proclaiming publicly a state of emergency and reporting to the depositary of the treaty by referring to its customary right to derogation, which does not contain these requirements? In other words, does the customary right of derogation exist in parallel to the treaty regimes, or does it only exist for situations where the derogating state is not a party to a treaty allowing for derogation? This issue was discussed by the ICJ in the Nicaragua case.650 The Court stated that: “There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bounds by these rules both on the level of treaty law and on that of customary international law, these norms retain a separate existence. This is so from their standpoint of applicability.”

This must mean that a customary right of derogation does not alleviate a state from its conventional duties to report and proclaim a public emergency. There is not a free choice as to whether one wants to apply the customary or the conventional rule. A state that is bound by the derogation regimes laid down in the ICCPR or the ECHR must adhere to the requirements contained in those two instruments. Bosnia and Herzegovina could therefore not rely on a customary right to derogation from the provisions protecting against ethnic discrimination in the ICCPR as a justification for the ethnic requirements in the BH Constitution. 2.6. Strictly Required by the Exigencies of the Situation Both ECHR and ICCPR require that the measures taken under their respective Articles 15 and 4 must be “strictly required by the exigencies of the situation”. In order to determine whether a discriminatory measure was “strictly required etc.”, one must first determine if the reasons for the state of emergency were relevant to the nature of the proposed measures. Natural disasters, for example, would hardly justify discriminatory measures against persons of specific nationalities or of specific political opinions. Secondly, the measures employed must be assessed on the basis of whether they are apt to remedy or prevent the emergency situation. It seems evident that in times of war or emergencies which involve potential enemy states, there can be a need to

650

Nicaragua v. the United States of America, supra note 12, para. 178.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES adopt special measures against nationals of such states.651 But even in such a situation, not all measures directed against nationals of such nations would be “strictly required”. None of the cases from the European Court of Human Rights or the Human Rights Committee have involved assessment of discriminatory measures directed against specific groups. In the Ireland versus the United Kingdom case, the applicant Government claimed that there had been a breech of the discrimination prohibition in Article 14, but this was because the derogation measures were claimed to have been applied in a discriminatory manner, not because they were directed against any specific group (the derogation from Article 5 was applicable to everyone).652 It seems that most of the cases before the European Court (and Commission) of Human Rights involve derogation from ECHR Article 5 on detention. In the “Lawless” case, the Court assessed the legislation in force in Northern Ireland, and came to the conclusion that it had been “a measure strictly required by the exigencies of the situation” because otherwise maintaining legal order would not have been possible.653 Also in the Brannigan and McBride case, where the disputed derogation measure was infringing on Article 5, permitting a somewhat longer period in detention than was normally allowed, the Court came to the conclusion that the derogation measures had been “strictly required by the exigencies of the situation”. The judges based their assessment of this question on detailed information provided by the Government about the situation and the legislative measures they thought necessary: “The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art.5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crimes rendered derogation inevitable. Accordingly, the power of extended detention without judicial control and the derogation of December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response.”654

The Court noted that its role was not to determine which specific measures would be most appropriate in emergencies, only whether the Government had exceeded its margin of appreciation. In the assessment of whether the measures had been strictly required by the exigencies of the situation, the Court also underlined that the measures the Government had taken were permissible because of the “limited scope of the derogation and the reasons advanced in support of it, as well as the basic safeguards against abuse . . .”655 Among other things, the detainees had an: 651

See also Chapter 5 section 6.2.1. on the possible justification for internment of persons based on their “national origin”. 652 Ireland v. the United Kingdom, supra note 589, paras. 225–232. 653 Lawless v. Ireland, Judgement of 26 May 1993, Series A 3, paras. 31–37. 654 Brannigan and McBride v. the United Kingdom, supra note 590, para. 51. 655 Brannigan and McBride v. the United Kingdom, supra note 590, para. 66.

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CHAPTER 8 “absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest . . . It [was] also not disputed that the detainees [were] entitled to inform a relative or friend about their detention and have access to a doctor”656

In the Aksoy versus Turkey case, the applicant had been held in detention for a period of “at least fourteen days without being brought before a judge or other officer.”657 During that period he had been subjected to torture. Here, the Court did not accept the Government’s claim that this derogation from Article 5 was a measure strictly required by the exigencies of the situation. It held that the Government: “had not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.”658

The condition that measures taken under derogation shall be strictly required by the exigencies of the situation, constitutes a principle of proportionality which implies that there must be a concrete assessment in each case of derogation of what the concrete situation demands in terms of human rights deviations. Such measures must be apt to reduce or prevent the crisis in question. In a situation of imminent war for instance, there may be a need for surveillance or for restrictions on public rallies, which might violate the individual right of privacy or the right to freedom of expression, while in situations of natural disasters, for example, there would be no need for these types of restrictions. Both the limitations applicable to the discrimination prohibitions in Article 14 of the ECHR and Article 26 of the ICCPR, as well as the requirements applicable during emergencies (in Article 4 (1) of the ICCPR) are based on a proportionality assessment. Oraá writes about this question that: “[t]he test of the principle of proportionality (the main condition of derogation of Article 15) is very similar to the test used by the European organs in the application of Article 14 . . . Therefore the application of the same test to the same facts although under two different headings (first under the principle of nondiscrimination and later under the derogation clause), cannot give different results.”659

Assuming that the ethnic requirements in the BH Constitution were regarded as measures, and that they were not in violation of the non-discrimination prohibition in Article 4 (1) of the ICCPR, one must thus ask if they were “strictly required by the exigencies of the situation”. The question that needs to be clarified is whether it would have been possible to reach a settlement in Dayton without including the ethnic privileges in the BH Constitution. In other words, could the constitutional 656

Brannigan and McBride v. the United Kingdom, supra note 590, para. 64. Aksoy v. Turkey, supra note 592, para. 77. 658 Aksoy v. Turkey, supra note 592, para. 78. 659 Oraá, supra note 616, p. 181. 657

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES arrangements have been drafted in a manner not infringing on the right to protection against ethnic discrimination? It has been alleged is this book that including the ethnic privileges was an absolute condition for the parties to reach agreement on the Constitution, and that the Constitution was essential to the agreement on the whole peace settlement. It would seem that in following the logic of the responsible politicians, both from the parties and from the Contact Group, the ethnic privileges were necessary in order to prevent the resumption of war. The ethnic privileges in the BH Constitution could therefore, as a point of departure, qualify as being “strictly required by the exigencies of the situation”. Assuming that Bosnia could have proclaimed a public emergency and exercised her right to derogate from certain human rights, one question, however, is whether this right to derogation extended beyond the time of entry into force of the Dayton Peace Agreement, and if so, how long the emergency could reasonably be said to last. It might be argued that the situation remained volatile with regard to the possibility of outbreaks of hostilities for a long time after the entry into force of the agreement. On the other hand it should not be forgotten that the Dayton Peace Agreement came with a military element. The recognition of the fact that the situation was so volatile led to the establishment inside of Bosnia of the IFOR (Implementation Force) counting 30,000 international troops stationed throughout the country.660 IFOR’s mandate was to “establish a durable cessation of hostilities” and, to that end, “take such action as required, including the use of necessary force, to ensure compliance with this Annex (the military annex) and to ensure its own protection . . .”.661 It was recognised that the implementation of the civilian part of the peace agreement would not be possible without such a robust military presence. Thus it might be argued that as soon as the IFOR troops were in place in Bosnia and Herzegovina, the actual danger of hostilities breaking out was not very great. One might therefore question the necessity for a potential continued state of emergency as justification for derogation from human rights, after the IFOR became operational. On the other hand, one might argue that the fact that such a substantial military presence was seen as necessary in order to prevent outbreak of hostilities was exactly proof that there was in fact a state of emergency. Could it reasonably be argued that the emergency has lasted for as long as an international military presence was required? If that is the case, it could be claimed that there is still an emergency in Bosnia and Herzegovina. Notwithstanding the above discussion, one important aspect of determining whether a measure was strictly required etc., is the character and duration of the emergency measure itself. A derogation measure can logically only last until it is no longer strictly required by the exigencies of the situation, and therefore, as a consequence, it should be temporary. For the purposes of this book there is therefore 660

See S/RES/1031 (1995). Article I (2) (a) and (b) of Annex 1 A (Agreement on the Military Aspects of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, and S/RES/1031 (1995) operative para. 17. 661

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CHAPTER 8 no need to conclude on the factual question of whether there is still an emergency situation in Bosnia and Herzegovina. The question that needs to be addressed is rather whether it would at all have been justifiable, within the derogation framework, to impose emergency measures in the form of permanent constitutional provisions. As mentioned above, one would assume that the very nature of derogation measures must imply that they are temporary and provisional, aiming at being terminated as soon as the emergency is over. This must be inferred from the term “strictly required by the exigencies of the situation”. As Oraá observes: “The state of emergency is an institution ‘essentially transitory in nature’; in other words, it cannot be established for an indefinite or prolonged period of time.”662 Both the authorities in Strasbourg as well as the Human Rights Committee build on the above assumption. Measures that have been accepted as justified derogation measures have generally been in the form of special emergency laws. The Human Rights Committee has in its General Comment 29663 stated that the requirement that measures must be strictly required by the exigencies of the situation “relates to the duration, geographical coverage and material scope of the state of emergency” (Emphasis added).664 In, for example, the case of Aksoy v. Turkey the description of the emergency measure, in the form of an emergency law, was as follows: “The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency.” (Emphasis added.)665

The legislation itself was not questioned, but the practice of detaining prisoners for long periods without any access to a judge was.666 There is, however, nothing in the Dayton Peace Agreement that in any way can be interpreted as if the ethnic requirements in the BH Constitution are temporary. The claim during the negotiations was in fact, from both the parties and the leading mediators in Dayton, that these permanent constitutional measures were necessary in order to reach an agreement (an thus prevent continued war). The general perception was that unless the constitutional arrangements were made permanent, none of the parties would make any effort to implement them, but rather position themselves and wait for the next “round”. This was the political “reality” to which the mediators had to relate.667 The argument for imposing the questionable provisions as

662

Oraá, supra note 616, p. 237. CCPR General Comment 29, States of emergency (article 4), para. 4. 664 Ibid.. 665 Aksoy v. Turkey, supra note 592, para. 32. 666 Aksoy v. Turkey, supra note 592, para. 78. 667 In retrospect, one might note that in spite of the permanent character of the constitutional provisions, the parties have not given the impression of being eager to implement the BH Constitution or the rest of the Dayton Peace Agreement. 663

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES permanent constitutional provisions was therefore related to the risk of encountering difficulties in the implementation, and not to the actual risk for resumed war. On this basis therefore, it seems that the requirement that the “measures” had to be “strictly required by the exigencies of the situation” could not be alleged fulfilled in the case of the ethnic privileges in the BH Constitution. It appears that although the argument could be made that the measures involving ethnic discrimination in the BH Constitution would have been possible to defend as derogation measures in an emergency, it is difficult to maintain that the permanent nature of the measures could have been accepted, because of the requirement that the measures must be strictly required by the exigencies of the situation, which means that they must be terminated as soon as the emergency is over. The problem was therefore not necessarily the measures themselves, but rather the fact that they were laid down as constitutional provisions and not transitional rules of some kind. 3. NECESSITY 3.1. Introduction The previous discussions in this chapter on derogation led to the conclusion that the ethnic requirements excluding “others” in Bosnia and Herzegovina could have been legitimate as “measures” under the ICCPR derogation regime, but only temporarily. The question that will be addressed in the following is whether Bosnia could have claimed other forms of legal justification for the ethnic differentiation. Most publicists agree, as a point of departure, that the derogation regime in ICCPR and the other relevant treaties are exhaustive, in other words, that states of emergency or even war cannot justify deviations from human rights beyond what is already permitted. Meron writes: “The language of the Covenant prohibits any derogation not explicitly permitted by Article 4, thus excluding invocation of the customary law exception of state of necessity . . . [Emphasis added].Anything not expressly included among the already very broad freedoms which Article 4 grants to states parties is inherently incompatible with the primary goal of the Covenant, which is to ensure respect for human rights.”668

This argument, however, does not seem to cover the cases where states (or non-state entities) are not party to the relevant human rights treaties. It therefore seems to be of interest to look into the absolute limitations international law lays down with regard to how far a state may go in interpreting its customary human rights obligations restrictively, or “derogating” from them, in an emergency situation. In this connection, it should be noted that the difference between those two options is insignificant when looking at the factual situation. Whether restrictive measures infringing on, for example, the right to freedom of speech, is seen as a result of a 668

Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press, Oxford, 1989) p. 218.

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CHAPTER 8 proportionality assessment in light of an emergency situation, or as a deviation from the right to free speech, is merely theoretical. The point with an emergency regime is to allow certain things which are not allowed under normal circumstances, and to draw the absolute bottom line when it comes to what is unlawful in all situations, emergencies or not. The following will therefore first elaborate briefly on the content of the customary human rights obligations that all states (and possibly some non-state entities)669 have, before going into the specific features of the customary international law rules on circumstances precluding wrongfulness of otherwise unlawful acts or omissions. It is particularly the institute of necessity, and how this institute could be considered applicable in the case of Bosnia and Herzegovina, that will be subject to discussions. 3.2. Customary Human Rights Obligations The duty of states to respect and ensure human rights is based on customary as well as conventional rules.670 The ICJ has, on several occasions, taken this point of departure when dealing with human rights obligations, conventional or customary. In a much quoted dictum from the Barcelona Traction case from 1970, the ICJ stated that: “. . . [erga omnes] obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from principles and rules concerning basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character.”671

Another example is the ICJ Advisory Opinion on the “Legal Consequences for States of the Continued Presence of South Africa in Namibia”, in which it was stated that: “Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinctions to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which

669

This book will not discuss the subject of human rights obligations of non-state entities. All UN Member States have pledged to take joint and separate action for the achievement of “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”, as laid down in Articles 56 and 55 of the UN Charter. 671 Barcelona Traction Case, supra note 421, paras. 33, 34. 670

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.”672 (Emphasis added.)

Today, it seems uncontroversial to state that core human rights obligations are a central part of international customary law. The requirements of existing state practice along with opinio juirs in Article 38 (1) (c) of the ICJ statute seem to be fulfilled regarding most human rights. Oraá writes that there is no doubt that some of the provisions contained in the Universal Declaration of Human Rights “can be deemed to constitute customary law or general principles of law”. He further states: “The further approval in 1966 of the two Covenants also had the effect of rendering the definition of rights listed in the Universal Declaration more exact. However, the problem remains of ascertaining precisely which standards have already become customary law.”673

Meron, in spite of saying that “only an overconfident observer would attempt to identify all the customary norms stated in the Political Covenant”, nevertheless ventures on to assume that a number of rights are of a customary nature.674 These rights include, according to Meron (in addition to the hard core of customary law such as prohibition against genocide, slavery, torture, murder and disappearances, prolonged arbitrary detention, systematic racial discrimination) the right of self determination, humane treatment of detainees, prohibition against retroactive penal measures as well as “the core of a number of due process guarantees stated in Article 14 of the Covenant”.675 The Human Rights Committee has, in its General Comment on Article 4, expressed the view that certain rights that are not listed as nonderogable in Article 4, nevertheless cannot be subject to lawful derogation under Article 4. These rights include the right for detainees to humane treatment, the prohibition against taking hostages, abductions or unacknowledged detention, certain minority rights, deportation or forcible population transfer, and war propaganda or advocacy of racial hatred.676 The exact content of such a list over customary human rights may be subject to discussion, but there can be little doubt that human rights, to a large extent, have attained status as customary law. It thus seems clear that no state can rely on not being party to human rights conventions as a basis for derogating freely from human rights.

672

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, p. 57, para. 131. 673 Oraá, supra note 616, p. 215. 674 Meron, supra note 668, pp. 95–97. 675 Meron, supra note 668, p. 96. 676 CCPR General Comment 29, States of emergency (Article 4), para. 13 (a)–(e).

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CHAPTER 8 3.3. Customary Basis for Necessity The origin of the customary right for states to derogate in emergencies seems to lie in the well known legal institutions of necessity or force majeure.677 Oraà observes in this regard that “the only way in which States can justify their non-compliance with customary norms on human rights in emergencies would be by pleading force majeure, self defence or state of necessity”.678 These general principles, which apply both in national legal systems as well as in international law, have been reflected in a number of specific international law instruments. They materialise in the derogation clauses in the three above-mentioned human rights instruments and in humanitarian law instruments. As noted above, it seems that it is a matter of syntax rather than of substance whether an act or omission which results in differential treatment because of ethnicity is labelled as an otherwise unlawful act which is justified by the emergency situation, or as lawful differentiation because of a proportionality assessment of the non-discrimination clause in light of the emergency situation. Fitzpatrick notes that: “The principle of proportionality embodied in the derogation clauses has its roots in the principle of necessity, which also forms one of the key pillars of international humanitarian law.”679

It seems that the historic concept of necessity was linked to that of self preservation. Roman Boed writes on the subject of necessity: “when a threat to self-preservation arose, it was considered justified to take any steps necessary to preserve ones own existence, even if such steps would have been unlawful had they been taken in the absence of a threat to self preservation. Writing in the seventeenth century, Hugo Grotius observed that many nations recognized the right to self-preservation in their internal law . . . For Grotius, widely considered the ‘father of international law’, this principle was equally applicable to inter-state relations.”680

The modern doctrine of necessity has moved from this notion of a right to self preservation to that of an excuse for breaches of international law obligations for the sake of essential interests of the state. Hence, two differences have developed. Firstly, the requirement of self preservation has been lowered to a requirement of essential interest of the state. The very existence of the state does not have to be at stake. Secondly, invoking necessity is no longer a right, but merely an excuse or 677

ILO, Report of the Commission Appointed under Article 26 of the Constitution of the ILO to Examine the Complaints concerning the Observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.96), ILO Official Bulletin, 57 (1984) Special Supplement, Ser. B pp. 126–127, as referred in Oraá, supra note 616, p. 225 and Svensson-McCarthy, supra note 362, p. 346. 678 Oraá, supra note 616, p. 220. 679 Fitzpatrick, supra note 577, p. 60. 680 Roman Boed, ‘State of Necessity as a Justification for Internationally Wrongful Conduct’, Vol. 3:1 Yale Human Rights and Development Law Journal (2000) pp. 4–5.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES justification for an act or omission which would otherwise be unlawful. Judge Ago, who was the Special Rapporteur for the Draft Articles for the ILC from 1963 – 1979, in his addendum to the eighth report on State responsibility, “The internationally wrongful act of the State: Source of international Responsibility”,681 rejected strongly the idea of a right of necessity for states: “the idea of a subjective right of necessity, which may have been marginally acceptable in times when the science of law had not yet refined its concepts, is absolute nonsense today.”682

The problem with looking at necessity as a right and not an excuse was apparently that it would be more susceptible to abuse. For example, Schwartzenberger was critical to the concept of a right to self-preservation: “If self-preservation was an absolute and overriding right, the rest of international law would become optional, and its observance would depend on a self denying ordinance, revocable at will by each state, not to invoke this formidable superright.”683

Against the reluctance to regard the invocation of, for example, necessity as a right, one might argue that the specific requirements pertaining to the invocation of necessity seem to be of greater importance than whether it is viewed as a right or as an excuse. In practice, it seems to amount to the same thing. If the requirements are fulfilled, the wrongfulness of an otherwise wrongful breech of an international obligation is precluded. The acting state cannot be held responsible. Some of the customary law principles relevant to necessity have been reflected or codified in the Vienna Convention on the Law of Treaties. In Section 3, on the termination and suspension of the operation of treaties, one provision which would seem to be of relevance is Article 62 concerning fundamental change of circumstances. This provision reflects a principle of customary law, as well as a general principle of law, based on the doctrine of rebus sic stantibus (the principle that all agreements are concluded with the implied condition that they are binding only as long as there are no major changes in circumstances).684 In the 1999 Report of the ILC, it was noted that the Special Rapporteur (James Crawford): “observed that a state of necessity, as defined in Article 33 [now 25], could be invoked only in extreme cases and to that extent it was comparable to the notion of a “fundamental change of circumstances” in the law of treaties.”685

681

Yearbook of the International Law Commission, (YBILC) Vol. II, 1980, UN. Doc. A/CN.4/318/Add.5-7, p. 18, para. 9. 682 Yearbook of the International Law Commission, (YBILC) Vol. II, 1980, p. 18, para 9. 683 Georg Schwartzenberger, ‘The Fundamental Principles of International Law’, Vol. 1 Recueil Des Cours (1955) p. 344. 684 Definition in B. A. Garner, H. Campbell, Black’s Law Dictionary (West Publishing Comp., 2000) seventh edition, p. 1274. 685 Report of the International Law Commission on the work of its fifty-first session, 3 May– 23 July 1999, Chapter V, UN Doc. A/54/10 and Corr. 1&2, para. 374.

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CHAPTER 8 The ICJ has, on several occasions, confirmed that Article 62 on a fundamental change of circumstances reflects international customary law.686 Another rule in the Vienna Convention on the Law of Treaties which is relevant to the concept of necessity is Article 61 regarding the impossibility of performing a treaty obligation. This rule in the Vienna Convention enables a state to terminate or suspend a treaty obligation due to impossibility to perform. Such impossibility may be a result of force majeure. One recent expression of international customary law in the area of necessity is Article 25 of the Draft Articles on State Responsibility, elaborated by the International Law Commission in the period from 1956 until the final draft was presented to the General Assembly in 2001.687 The following discussions will evolve around the wording of this provision, which, in spite of not being a binding treaty provision, nevertheless captures what must largely be assumed to be binding customary law, based on inter alia decisions by the ICJ. 3.4. Circumstances Precluding Wrongfulness in the Draft Articles on State Responsibility The main purpose of the Draft Articles on State Responsibility is to regulate the consequences for states of breeching international obligations. But in order to do that, it is necessary to define what an internationally wrongful act is, and which circumstances might preclude the wrongfulness of an otherwise unlawful act. The Draft Articles on State Responsibility are structured in the following way: Part One of the Draft Articles on State Responsibility seeks to define the scope of an “Internationally Wrongful Act of a State”. The Draft Articles establish international responsibility for internationally wrongful acts (Draft Article 1). Internationally wrongful acts are defined as an act or omission which constitutes a breach of an international obligation of the state (Draft Article 3). There are provisions on how such acts may be attributed to a state (Draft chapter II), on how a breach of an international obligation is to be defined (Chapter III), on responsibility of a state in connection with the act of another state (Chapter IV), and on circumstances precluding wrongfulness of acts (Chapter V). Part Two of the Draft Articles seeks to define the “Content of the International Responsibility of a State”, in particular, the legal consequences of internationally wrongful acts, and the forms of reparation for injury that are available to the injured party.688 Part Three of the 686

Case concerning Gabcikovo-Nagymaros project (Hungary/Slovakia), Judgement of 25 September 1997, No. 92, ICJ Reports 1997, paras. 46, 99 and 104, in which the Court referred to a number of judgements and advisory opinions based on this assumption, in addition to restating it in this specific case. 687 The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth session, UN Doc. A/56/10, Chapter IV, p. 194 ff. 688 The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, draft Articles 28 to 39.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES Draft Articles pertains to the “Implementation of the International Responsibility of a State.689 The ILC considers the Draft Articles on circumstances precluding the wrongfulness as codification of generally accepted international customary law. In the commentary, it is noted that “Chapter V sets out the circumstances precluding wrongfulness presently recognized under general international law”.690 Chapter V of the Draft Articles on State Responsibility contains six provisions on circumstances precluding the wrongfulness of otherwise unlawful international acts. The six circumstances are consent (Article 20), self-defence (Article 21), countermeasures (Article 22), force majeure (Article 23), distress (Article 24), and necessity (Article 25). The six provisions are not formulated as rights for states to ignore their international obligations in certain circumstances, but as “a justification or excuse for non-performance while the circumstances in question subsist”.691 For the purposes of this discussion, it will not be necessary to look into the other circumstances dealt with in Chapter V of the Draft Articles. Consent only precludes the wrongfulness of an act or omission in the relationship between two states; the state that performs the wrongful act and the state that gives its consent. It does not seem relevant with regard to the problem at hand. Self-defence may preclude the wrongfulness of an act if the act constitutes a measure of self-defence exercised “in conformity with the Charter of the United Nations”. The commentary to this Article, however, stresses that: “As to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct”.692 In any event, it seems clear that self-defence within the meaning of the UN Charter did not apply to the situation that existed during the peace negotiations in Dayton. Likewise, countermeasures are hardly relevant in this context. Force majeure as a justification for not fulfilling obligations is limited to situations where there has been “an occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation”.693 The requirement that fulfilling an obligation must be “materially impossible” does not seem to match the situation pertaining to the elaboration of the Dayton Peace Agreement. Distress as a justification for an otherwise unlawful act or omission can only be invoked if the “author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”.694 Hence, this justification for unlawfulness is also not applicable to the situation at hand.

689

The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, draft Articles 42 to 54. 690 Crawford, supra note 575, p. 162. 691 Ibid., p. 160. 692 Ibid., p. 166. 693 Article 23 of the Draft Articles on State Responsibility, supra note 687. 694 Article 24 of the Draft Articles on State Responsibility, supra note 687.

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CHAPTER 8 It is the concept of necessity that needs to be explored further in this context. The concept of necessity as defined in the Draft Articles is, as mentioned above, close to the original customary concept of necessity. In the following section, this concept will be explored with a view to finding out whether one might claim necessity as a possible justification for departing from human rights in a situation of emergency, particularly in situations when such human rights infringements seem to be the only option available in order to secure the conclusion of a peace treaty. 3.5. Article 25 of the Draft Articles on State Responsibility Article 25 of the Draft Articles on State responsibility reads: “Necessity 1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only means for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State contributed to the situation of necessity.”

As mentioned above, the ILC has considered necessity (as justification for internationally unlawful acts) as an institute based in customary law. In the commentary to Article 25, it is noted that: “There is substantial authority in support of the existence of necessity as a circumstance precluding wrongfulness. It has been invoked by States and has been dealt with by a number of international tribunals.”695

The commentary then goes on to describe a number of such instances, starting with an Anglo-Portuguese dispute of 1832696 and the famous Caroline incident of 1837,697 695

Crawford, supra note 575, p. 179. A. D. McNair (ed.), International Law Opinions (Cambridge University Press, 1956) vol. II, p. 232, as referred in Crawford, supra note 575, p. 179. 697 British and Foreign State Papers, vol.29 and 30, as referred in Crawford, supra note 575, p. 179. 696

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES and ending with the recent Fisheries Jurisdiction case from 1998.698 The commentary sums up this practice: “On balance, State practice and judicial decisions support the view that necessity may constitute a circumstance precluding wrongfulness under certain very limited conditions, and this view is embodied in Article 25. The cases show that necessity has been invoked to preclude the wrongfulness of acts contrary to a broad range of obligations, whether customary or conventional in origin. It has been invoked to protect a wide range of interests, including safeguarding the environment, preserving the very existence of the State and its people in time of public emergency, or ensuring the safety of a civilian population.”699

In the Gabcikovo-Nagymaros case, the ICJ clearly supports this interpretation: “The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis.”700

Article 25 sets up strict requirements for necessity to be invoked. It was deliberately given the negative form (“Necessity may not be invoked…”) by the ILC: “in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception – and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness . . .”701

The first criterion laid down in Article 25 is that the unlawful act must have been the “only means for the State to safeguard an essential interest against a grave and imminent peril”. The commentary to the Draft Articles on State Responsibility specifies that the plea for necessity “is excluded if there are other (otherwise lawful) means available, even if they may be more costly or less convenient”.702 The requirement that the act must have been the only means is thus stricter than those of the derogation provisions, which specifiy that the measure must be “strictly required etc.”, but contain no specific requirement that it must be the only measure available. The question of whether the discriminatory measures in the BH Constitution were the only means of reaching an agreement depends on a factual assessment of the situation in Dayton in November 1995. It is of course possible to imagine other ways of resolving the conflict than the one that was finally agreed upon in Dayton. As was mentioned in Chapter 4, however, both the US as well as the European mediators in Dayton initially tried to avoid the inclusion of the ethnic provisions in the constitutional system. Two of the three parties, however, insisted, as an absolute 698

Fisheries and Jurisdiction (Spain v. Canada), Judgement of 4 December 1998, ICJ Reports 1998, as referred in Crawford, supra note 575, p. 182. 699 Crawford, supra note 575, p. 183. 700 Gabcikovo-Nagymaros case, ICJ Reports 1997, para. 51. 701 Yearbook of the International Law Commission (YBILC) 1980, Vol. II, Part 2, para. 51. 702 Crawford, supra note 575, p. 184.

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CHAPTER 8 condition for reaching a settlement, that they be included. The question therefore is whether the negotiations would have broken down over this particular question? Was the ethnically-based constitutional system the only means of reaching a peace agreement? It seems impossible to give a “correct” answer to this question, as any answer necessarily must contain elements of speculation. Having said that, the extremely high tension between the parties to the conflict in Bosnia and Herzegovina, and their strong reluctance to share any political responsibility or to cooperate towards any common goals, would seem to support the assumption that was made at the time, namely that it was impossible to reach an agreement without the ethnic discrimination elements contained in the constitution.703 The level of trust was so low that the ethnic provisions were seen as an indispensable safety net. On the other hand, the alternative was not really tested. Exceedingly heavy political pressure was placed on the parties in connection with the negotiations concerning the map. The parties were never told that they could forget an agreement altogether unless they agreed to eliminate the ethnic provisions. In this author’s opinion, however, that would have been an impossible risk to take. Politically and morally, the international community could not have lived with another failed peace agreement because of its dislike for ethnically-based solutions. The choice between continued war and a peace with a certain extent of ethnic differentiation was not even a difficult one. Therefore it will be assumed that the requirement that the otherwise unlawful act (ethnic discrimination) must be the only means available, was fulfilled in this case. The next requirement in Article 25 is that the act of necessity must have been the only means to safeguard “an essential interest of the state”. As was mentioned above, this requirement was stricter in historic times, in that it had to be the very existence of the State that was at stake. According to the ILC the concept of necessity has changed in modern times so that it is accepted that “an essential interest of the State” is enough to preclude wrongfulness. This was also confirmed by the ICJ, inter alia in the Gabcikovo-Nagymaros case, in which the Court noted that the condition that “an essential interest of the State” must be threatened, reflects customary international law.704 The Court went on to assert that it had: “[n]o difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region affected by the Gabcikovo-Nagymaros project related to an “essential interest” of that State, within the meaning given to that

703

This may be illustrated through reference to the minutes from various meetings during the Dayton negotiations, where the mediators tried to avoid the provisions allowing for ethnic veto through various proposals on “deadlock breaking mechanisms”, in other words, to have procedures, for example, within the competencies of the Constitutional Court to resolve situations involving ethnic veto and thereby the potential paralyzing of the Parliamentary Assembly and the Presidency. These attempts were invariably rejected by the Croat and Serb negotiators. See footnotes 249 and 437. 704 Gabcikovo-Nagymaros case, ICJ Reports 1997, para. 51–52.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES expression in Article [then] 33 of the Draft of the International Law Commission.”705

Another example is the so-called Torrey Canyon case from 1967, in which British authorities bombed a shipwreck outside its territorial waters in order to avoid oil pollution of large parts of the English coastline.706 This was clearly not a danger to the existence of the state, but was still accepted as precluding wrongfulness because an essential interest of the State was at stake. It seems clear that an essential interest of the State can be a range of interests. The commentary notes that it: “has been invoked to protect a wide variety of interests, including safeguarding the environment, preserving the very existence of the State and its people in times of public emergency, or ensuring the life of the civilian population . . . The extent to which a given interest is ‘essential’ depends on the circumstances, and cannot be prejudged.”707

If one accepts that the inclusion of the ethnic privileges in the BH Constitution were the only means to avoid continued war, then there cannot be any doubt that an essential interest of the State was at stake. In fact, under the assumption that the risk for continued war was imminent unless the peace agreement was accepted, the very existence of the State was at stake. Article 25 of the Draft Articles on State Responsibility also requires that there must be a “grave and imminent peril” in order to be able to claim necessity as a ground for precluding wrongfulness. The term grave and imminent peril was discussed in the Gabcikovo-Nagymaros case: “The word ‘peril’ certainly evokes the idea of ‘risk’; that is precisely what distinguishes ‘peril’ from material damage. But a state of necessity could not exist without a ‘peril’ duly established at the relevant point in time; the mere apprehension of a possible ‘peril’ could not suffice in that respect. It could moreover hardly be otherwise, when the ‘peril’ constituting the state of necessity has at the same time to be ‘grave’ and ‘imminent’. ‘Imminence’ is synonymous with ‘immediacy’ or ‘proximity’ and goes far beyond the concept of ‘possibility’. As the International Law Commission emphasized in its commentary, the ‘extremely grave and imminent’ peril must ‘have been a threat at the actual time’ (Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p.49, para 33).”708

Applied to the situation in Bosnia and Herzegovina in November 1995, again it seems that there is little doubt that the peril or risk was both grave and imminent. Unless the three parties had agreed to a peace settlement in Dayton, the war would clearly have resumed in Bosnia, and it would have resumed immediately.

705

Gabcikovo-Nagymaros case, ICJ Reports 1997, para. 53. The “Torrey Canyon”, Cmnd.3246 (London, Her Majesty’s Stationary Office, 1967), reference found in Crawford, supra note 575, note 411, p. 181. 707 Crawford, supra note 575, p. 183. 708 Gabcikovo-Nagymaros case, ICJ Reports 1997, para. 54. 706

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CHAPTER 8 3.5.1. The Balancing Requirement In addition to the requirements in Draft Article 25 that the act of necessity “is the only means for the State to safeguard an essential interest against a grave and imminent peril”, there is an additional requirement that the act: “does not seriously impair an essential interest of the State or States towards which the obligations exists, or of the international community as a whole.”709

The first part of this provision seeks to balance the interests between 1) the State that claims necessity, and 2) the State or States that may suffer as a result. Necessity cannot be invoked by a State in order to defend its essential interests if this leads to the impairment of an essential interest of other States. The last part of the provision, however, pertains to an “essential interest of the international community as a whole”. This wording was added by the International Law Commission in the latest Draft that was adopted in 2001, following a proposal by the Special Rapporteur, James Crawford. The amendment by the Special Rapporteur to the necessity provision was thus described in the Report of the ILC: “He had, however, also proposed an alteration to Article [then] 33 to cope with situations in which the balance of interests was not merely bilateral but concerned compliance with an erga omnes obligation.”710

The previous version of the provision on necessity, Article 33 of the 1996 draft, did not contain any reference to erga omnes obligations; it simply sought to balance the interests of two states against each other. This approach had been subject to much debate, both inside and outside of the ILC. As part of the background for the amendment of the provision on necessity, James Crawford, in his introduction to the Commentary on the Draft Articles on State Responsibility, refers to the extensive debate pertaining to the former Draft Article 19 on international crimes.711 The provision on international crimes (Article 19) raised many complex questions, both of a political and of a legal nature, and at its 1998 session, the ILC agreed that: “draft Article 19 would be put to one side for the time being while the Commission proceeded to consider other aspects of Part 1; (b) consideration should be given to whether the systematic development in the draft Articles of key notions such as 709

Draft Article 25 (1) (b). Report of the International Law Commission on the work of its fifty-first session 3 May– 23 July 1999, Chapter V, UN Doc. A/54/10 and Corr. 1&2, para. 379. 711 Crawford, supra note 575, pp. 16–43. On the debate pertaining to Draft Article 19, see also: Seiderman, supra note 416, pp. 147–186, James Crawford, ‘Revising the Draft Articles on State Responsibility’, Vol. 10, No. 2 European Journal of International Law (EIJL) (1999) pp. 435–460, Georges Abi-Saab, ‘The Uses of Article 19’, Vol 10, No.2 European Journal of International Law (EJIL) (1999) pp. 339–351, Giorgio Gaja, ‘Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?’, Vol 10, No.2 European Journal of International Law (EJIL) (1999) pp. 365–370, James Crawford, Pierre Bodeau, Jacqueline Peel, ‘The ILC’s Draft Articles on State Responsibility: Toward a Completion of a Second reading’, Vol. 94, No. 4 American Journal of International Law (AJIL) (2000) pp. 660–674. 710

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES obligations (erga omnes), peremptory norms (jus cogens) and a possible category of the most serious breaches of international obligation could be sufficient to resolve the issues raise by Article 19 . . .”712

Two years later, in 2000, the International Law Commission: “…returned to these questions, seeking to address the issues by reference to the notion of ‘serious breaches of obligations towards the international community as a whole’. Broadly the elements of the compromise were as follows. First, the concept of international crimes of States would be deleted, and with it Article [19]. On the other hand, within the framework of Part Two, certain special consequences would be specified as applicable to a serious breach of an obligation owed to the international community as a whole . . . In addition, within the framework of invocation of responsibility, it would be recognized that every State is entitled to invoke responsibility for breaches of obligations to the international community as a whole, irrespective of its seriousness. Thus issues of invocation would be separated from those concerning substantive consequences, even though a single concept of obligations to the international community as a whole (erga omnes) would be used for both.”713

The result of the above-mentioned compromise was consequently that this “international crime” was removed from the text as a concept; in the present draft there is no reference to “any distinction between ‘delictual’ and ‘criminal’ responsibility”.714 The possibility to address the issue of international crimes under the regime of State Responsibility however, was retained through the various provisions referring to obligations erga omnes as well as those referring to peremptory norms of international law.715 The ILC adopted the amended version (including the reference to essential interests of the international community as a whole) of the necessity provision as Article 25 at its fifty-third session in August 2001. In the Commentary to the Draft Articles on State Responsibility the balancing requirement in Article 25 (1) (b) was briefly commented on: “(17) The second condition for invoking necessity, set out in paragraph (1) (b), is that the conduct in question must not seriously impair an essential interest of the other State or States concerned, or of the international community as a whole. In other words, the interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests, whether these are individual or collective.”716

As was pointed out above, the ILC itself considered the term “obligation towards the international community as a whole” as synonymous with the term “obligations erga

712

Crawford, supra note 575, p. 27. Ibid.., p. 36. 714 Crawford/Bodeau/Peel, supra note 711, p. 672. 715 See Articles 25, 26, 33 40, 41, 42, 48 and 50 of the Draft Articles on State responsibility 716 Crawford, supra note 575, p. 184. 713

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CHAPTER 8 omnes”.717 The literal meaning of obligations erga omnes is obligations owed to all, and the concept is often attributed to a statement by the ICJ in the well-known Barcelona Traction Case from 1970.718 The case pertained to the question of whether Belgium, on behalf of a Canadian company (Barcelona Traction, light and power company) and its Belgian shareholders, had legal standing to bring action against Spain for illegal activities. The Court made the following general statement about obligations erga omnes: “In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”719

This statement has contributed to the widespread perception that the term erga omnes is primarily of procedural interest – if an obligation is erga omnes, it means that all states have a legal interest in pursuing the matter, regardless of any connection to the concrete case. It would mean that if state A violates an obligation erga omnes, any other state can, regardless of any treaty regime which includes state A, pursue such a case before international mechanisms, subject of course to the procedural restrictions that exist in international law.720 As Meron says: “Erga omnes status is a consequence, not a cause, of a right’s fundamental character. The erga omnes criterion is therefore unhelpful to the conceptually difficult and politically contentious process of characterizing rights as fundamental.”721

This point is made clear in Article 25 of the Draft Articles; an obligation towards the international community as a whole entails that each member of this community has a right to claim that the obligation has been fulfilled. The term “international community as a whole” includes all states, but clearly goes somewhat beyond just states. One could for example assume that inter-governmental as well as nongovernmental organisations are members of the international community as a whole. The ICL commented as follows on the use of the term “international community as a whole” in the Commentary: (18) As a matter of terminology, it is sufficient to use the term ‘international community as a whole’ rather than ‘international community of States as a whole’, 717

Report of the International Law Commission on the work of its fifty-first session 3 May – 23 July 1999, Chapter V, UN Doc. A/54/10 and Corr. 1&2, para. 379. 718 Barcelona Traction Case, supra note 421, para. 33. 719 Ibid.., para. 32. 720 The erga omnes character of an obligation only has an impact on the issue of standing, not on issues pertaining to jurisdiction; For example only states can be parties to a case under the jurisdiction of the ICJ, see the Statute of the International Court of Justice, Article 34. See also Seiderman, supra note 416, p. 135. 721 Meron, supra note 668, p. 192.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES which is used in the specific context of Article 53 of the Vienna Convention on the Law of Treaties. The insertion of the word ‘States’ in Article 53 of the Vienna Convention was intended to stress the paramountcy that States have over the making of international law, including especially the establishing of norms of peremptory character. On the other hand the International Court [of Justice] used the phrase ‘international community as a whole’ in the Barcelona Traction case, and it is frequently used in treaties and other international instruments in the same sense as in Article 25 (1) (b).”722

As the term erga omnes obligations primarily has a procedural meaning, it does not, as pointed out by Meron,723 solve the problem of defining which rights may be counted as corresponding to obligations erga omnes. The above mentioned obiter dictum from the Barcelona Traction Case lists some of the rights which might be placed in this category: “34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character. Obligations the performance of which is the subject of diplomatic protection are not of the same category.”724

This “list” is not very precise as it is not clear what “the basic rights of the human person” means. Meron, among others, has pointed to the ambiguity of this reference: “For example, are ‘basic rights of the human person’, which give rise to obligations erga omnes, synonymous with human rights tout court, or are the former limited to those rights which are intimately associated with the human person and human dignity and are generally accepted legal norms, such as the prohibition from slavery and racial discrimination? Moreover, the distinction between ‘basic rights of the human person’ and ‘ordinary’ human rights is not self-evident.”725

Even if it seems difficult to make a precise list of obligations that would be erga omnes, it seems likely that such a list would be longer than the similarly indefinable list of jus cogens rights. Meron writes about this question: “The examples of basic human rights mentioned by the Court, protection from slavery and racial discrimination, may well reflect the Court’s conception of jus cogens norms which it did not explicitly articulate. Erga omnes rights are not necessarily identical with jus cogens rights, however; despite a degree of overlap, the latter set of rights is narrower than the former.”726

722

Crawford, supra note 577, p. 184–185. Meron, supra note 668, p 192. 724 Barcelona Traction case, supra note 421, para. 34. 725 Meron, supra note 668, p. 192. 726 Ibid.., p. 194. 723

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CHAPTER 8 If erga omnes obligations were literally obligations owed to all states, then one might assume that it would consist of all general customary law. This notion is clearly not supported by the ICJ, which explicitly stated that international rules pertaining to diplomatic protection were not included in this category of norms, even if such rules no doubt can be said to be codified customary law. Some writers have tried to explain the concept of erga omnes obligations through visualising a system of international law where certain obligations are not simply based on inter-state reciprocity concerns, but have a more normative than contractual character. According to, for example, Byers: “international law has usually been understood as a multitude of bilateral relationships between those entities which have international legal personality, i.e. predominantly states . . . If all rules of international law are composed of bilateral legal relationships, an erga omnes rule might be considered to involve a series of identical bilateral relationships between every possible pair of states. Such an explanation, however, fails to satisfy because a violation of the bilateral relationship between two states would not give other States any right to make a legal claim. The obligations between the violating State and those other States would remain fulfilled.”727

In other words, violations of ordinary customary rules would not give all states a right to a legal claim. Such violations would generate a legal claim only for the state that has been injured by the violation. Erga omnes rules thus must have a more limited scope than customary international law in general. The question then is what kind of international rules are there that all states have an interest in to the extent that they may seek to prosecute violations of which they have not been victims. The significance of, for example, human rights obligations is that they are not obligations whose fulfilment is of primary interest to the other parties to the treaty, but rather to the individuals living within the jurisdiction of the obligated state. The traditional element of reciprocity is thus not a fundamental rationale behind the fulfilment of human rights obligations. The rationale is the conception of a broader normative system that goes beyond the traditional concept of bilateral relations in international law. For example, Provost has made the following point: “The concept of obligations erga omnes has generated much debate in international law, and there is no consensus yet as to its definition or its relation to concepts such as jus cogens and international crimes. Reciprocity is alien to such obligations because they are grounded not in an exchange of rights and duties but in an adherence to a normative system.”728 (Emphasis added.)

Also Seiderman is of the opinion that “[t]o accept the law of human rights as a fundamental component of international law is necessarily to accept some form of

727

Michael Byers, ‘The Relationship Between Jus Cogens and Erga Omnes Rules’, Vol. 66 Nordic Journal of International Law, (1997) p. 231. 728 René Provost, ‘Reciprocity in Human Rights and Humanitarian Law’, 65 The British Yearbook of International Law (BYBIL) (1995) p. 386.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES normative system”.729 So the concept of obligations owed to all will only apply to those norms that cannot be “bilateralised”, e.g. those obligations that states will adhere to without having expectations of reciprocal fulfilment by other states as their primary reason. Seiderman argues for this view: “erga omnes obligations are those which cannot be reduced to mere bilateral performance or are inherently integral and an erga omnes violation creates an injury to all states . . . all human rights obligations, or at least those that bind states as a part of customary law or multilateral treaty, necessarily are erga omnes . . . Under such circumstances, it does not particularly matter whether any of the norms that give rise to erga omnes concern the international community with any greater intensity than any other norm. This conclusion is in sharp contradistinction to that reached in regard to jus cogens, which requires that a discrete, if difficult to determine, value be accorded to a norm, to be determined partially in reference to its non-derogable character.”730

Without determining exactly which rights may be considered as corresponding to obligations erga omnes, it thus may be assumed that they have a wider range than the rights following from peremptory norms. The question which must be asked next is whether the measures allowing for ethnic differentiation in the BH Constitution were of a character that violated basic human rights to such an extent that it led to the impairment “of an essential interest of the international community as a whole”. It has been argued above that many human rights obligations, and not just those which have the status of peremptory norms, can be said to be categorised as obligations erga omnes. As has been pointed out, the ICJ listed “basic rights of the human person” as well as prohibition against “racial discrimination” as rights corresponding to obligations erga omnes.731 It would therefore, as a point of departure, seem likely that the discriminatory measures in the BH Constitution ought to be prohibited pursuant to the fact that they are inconsistent with obligations erga omnes. It seems apparent that the discriminatory measures in question as a point of departure are in conflict with human rights treaties as well as customary rules on non-discrimination. Clearly the prohibition against racial discrimination is of an erga omnes character. Article 25 (1) (b) of the Draft Articles on necessity, however, refers to the impairment of an essential interest of the international community as a whole. This formulation refers to an essential interest in the singular form. Notwithstanding that the international community had a considerable interest in avoiding ethnic discrimination, however, the international community also had an essential interest in terminating a devastating war. It seems that the assessment of what is to be considered an essential interest of the international community as a whole cannot be 729

Seiderman, supra note 416, p. 127. Ibid.., p. 129. 731 Barcelona Traction case, supra note 421, para. 34. 730

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CHAPTER 8 done in a vacuum. There will, in many cases, be several conflicting interests of the international community, of which more than one at any given time may be classified as essential. Clearly it is an essential interest of the international community that all states respect and ensure human rights pertaining to nondiscrimination. It is, however also clearly an essential interest of the international community to end or prevent violence and wars. One might therefore maintain that the formulation “essential interest of the international community as a whole” may necessitate the difficult task of weighing commendable interests against each other. The case has been made that there was a choice between, on the one hand, pursuing a peace agreement with a less discriminatory content at the risk of continued war, and on the other hand the acceptance of the exclusion provisions, with a lesser risk for continued war. The question is then whether it is possible to determine whether the obligation to adhere fully to rules on non-discrimination or the obligation to prevent the use of force, should be given priority. The issue pertains to the question of a possible hierarchy among international legal norms. It seems, as was discussed above, non-controversial to claim that peremptory norms of international law are superior in the sense that they will render conflicting treaties void. This follows from the wording in Article 53 and 64 of the Vienna Convention on the Law of Treaties. If one takes the two above-mentioned obligations, the obligation to adhere to rules on non-discrimination or the obligation to prevent the use of force, it therefore seems relevant to determine the possible peremptory status of these.732 The obligation to refrain from and prevent the use of force has been characterised by the ILC as a “conspicuous example of a rule in international law having the character of jus cogens”.733 The question of whether racial discrimination in the sense of the discrimination against others in the BH Constitution is in violation with a peremptory norm of international law depends on whether it would constitute a norm which the international community of states as a whole agree cannot be departed from under any circumstance. This has been discussed earlier in this book.734 Although the

732

Article 26 in Chapter V of the Draft Articles on State Responsibility states that: “Nothing in this Chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.” One might claim that this provision is stating the obvious, namely that various forms of emergencies can never be an excuse for violating norms of a peremptory character. This follows directly from the above-mentioned criteria in Article 53 of the Vienna Convention on the Law of Treaties. The ILC recognised this, but decided nevertheless to include this general provision because it saw it as “desirable to make it clear that the circumstances precluding wrongfulness in Chapter V of Part One do not authorize or excuse any derogation from a peremptory norm of general international law. For example, a State taking countermeasures may not derogate from such a norm; for example, genocide cannot justify counter-genocide. The plea of necessity likewise cannot excuse the breech of a peremptory norm.”, Crawford, supra note 575, p. 188. 733 Yearbook of the International Law Commission (YBILC) (18th session, 1966) Vol. II. Also quoted in Watts, supra note 17, part II, p. 741. 734 See Chapter 5 section 6.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES prohibition against racial discrimination is often mentioned as an example of a peremptory norm, the scope of this prohibition is not clear. Meron writes about this problem: “Even a well established right such as the prohibition of racial discrimination . . . presents difficulties when regarded as jus cogens. Apartheid . . . is easy to characterize because of its governmental nature and systematic administration, as well as its egregious character. Even apart from apartheid, there is little disagreement with the overall prohibition of racial discrimination, but the consensus narrows as one moves from the general principle to specific manifestations of discrimination.”735

It was noted earlier in this chapter that the exclusion of others in the BH Constitution could be accepted as a derogation measure because it was not categorised as discrimination solely on the basis of race. This of course is an indication of a possible non-peremptory character of this rule. The derogation regime in the ICCPR would seem to express a rather consolidated view that there are certain possibilities in times of emergency to differentiate on the basis of criteria such as national origin. To the extent that the derogation regime allows for the differential treatment of others, it can, in all probability, not be classified as violating a rule of peremptory character.736 One might claim that the institute of necessity would be largely inadequate if it could not be invoked in order to prevent war. Even if this would entail the undertaking of internationally wrongful acts in the form of human rights violations, such violations could be justified if even more essential interests of the international community as a whole were at stake. Claiming that necessity may never be invoked in order to derogate from human rights obligations does not take into account the possibility of alternatives to human rights derogations that sometimes exist, alternatives which inevitably entail much more human suffering as a result. In the peace negotiations regarding Bosnia and Herzegovina, there was a strong demand from participants that ethnic differentiation, at the expense of “others”, be included in the agreement as a safety measure. Notwithstanding the human rights violations that were potentially inherent in these provisions, they were accepted as the “price to pay” for peace, both by the parties to the Agreement and by the “international community” represented by the US government together with the Contact Group for the Former Yugoslavia.737 Under these circumstances, it seems that necessity is exactly the kind of justification that could be used as a legal basis for the choice that was made. The wording of Article 25 of the Draft Articles on State Responsibility may fit the situation at hand: necessity could be invoked as a justification for what might be labelled as a human rights violation, because it was the only means for Bosnia and 735

Theodor Meron, ‘A Hierarchy of International Human Rights’, Vol. 80, No.1 American Journal of International Law (AJIL), (1986) pp. 16–17. 736 See the discussion in Chapter 8 section 2.4.4. 737 See Chapter 1 and 4.

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CHAPTER 8 Herzegovina to “safeguard an essential interest against a grave and imminent peril”, and even if it were considered to seriously impair an essential interest of the international community as a whole through allowing ethnic discrimination, the alternative (allowing the continuation of the war) would have impaired the essential interests of the international community to a much larger extent. 3.5.2. The Time Aspect One specific requirement must be fulfilled for the necessity to be considered legitimate: the emergency measures must be terminated as soon as the circumstances precluding wrongfulness no longer exists. Article 27 of the Draft Articles on State Responsibility specifies that: “The invocation of a circumstance precluding the wrongfulness in accordance with this Chapter is without prejudice to: (a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists . . .”

In other words, when the particular circumstance precluding wrongfulness no longer exists, the original obligation resumes. The commentary to the provision states that this provision makes it clear that: “Chapter V has a merely preclusive effect. When and to the extent that a circumstance precluding wrongfulness ceases, or ceases to have its preclusive effect for any reason, the obligation in question (assuming it is still in force) will again have to be complied with, and the State whose earlier non-compliance was excused must act accordingly.”738

This requirement is parallel to the prerequisite in the derogation clauses in ICCPR and ECHR, which limits the derogation to situations “strictly required by the exigencies of the situation”. In other words, when the emergency is over, the derogation measures must terminate. This requirement was discussed above with regard to the derogation regime in the human rights system (Chapter 8.2.6.), and it seems that the arguments here would be more or less the same as under that discussion. Moreover, it seems that the same conclusion is valid here: the fact that the emergency measures constituted permanent constitutional provisions, without any means of terminating them save through constitutional amendments, would seem inconsistent with the requirement that the emergency measures must terminate as soon as the emergency is over. The original human rights obligation to refrain from ethnic differentiation must be deemed to have reappeared from the time the emergency could be said to have ended. As was mentioned above, the question of when the emergency in Bosnia and Herzegovina ended is not easily determined. The point, however, seems to be here, as it was above under the discussion on derogation, that the emergency measures could not be laid down as permanent constitutional provisions, with no mechanism in place to take the possible ending of the emergency into account. 738

Crawford, supra note 575, p. 189.

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JUSTIFICATIONS FOR ETHNIC DIFFERENTIATION IN EMERGENCIES 4. CONCLUDING COMMENTS The question put forth at the outset of this chapter was whether, during the peace negotiations in Dayton, the inclusion of “measures” consisting of ethnic exclusion in the BH Constitution could have been justified on the grounds that they were the only means available to reach an agreement and thereby terminating the war. The chapter has looked at this issue through both the human rights institute of derogation as well as through the customary international law institute of necessity, notwithstanding the fact than none of these institutes was actually invoked or even discussed at the time of the conclusion of the Dayton Peace Agreement. The discussions have therefore been somewhat hypothetical with regard to the situation pertaining to the conclusion of this peace settlement. It seems, however, that through using the situation in Bosnia and Herzegovina as an example, some aspects of how international law treats ethnically-based solutions in peace agreements have been addressed. Both the derogation institute as well as that of necessity seems to preclude permanent solutions of the kind laid down in the BH Constitution as legitimate measures, even in an emergency situation. The measures did not pass the test of being “strictly required by the exigencies of the situation” in the derogation regime. The very same argument was seen to be valid when it came to the potential invocation of the customary rules on necessity. This is inherent in all national as well as international emergency regimes – the emergency measures must end when the emergency ends. One could claim that the measures themselves would have been permissible in order to reach an agreement in Dayton, thus preventing continued war, but that the condition that the emergency measures must end when the emergency ends was not fulfilled. The problem, according to international law, was that the ethnic measures were laid down as permanent constitutional provisions, and not as transitional or provisional rules which would become invalid as soon as the emergency situation were over.

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CHAPTER 9. POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION 1. INTRODUCTION Having found no legal justification for the ethnic exclusion rules in the BH Constitution, neither through the presently applicable human rights provisions (discussed in chapter 7), nor through the emergency provisions that might have been applicable during the peace negotiations (discussed in chapter 8), one must conclude that the Dayton Peace Agreement is not entirely consistent with the requirements of international law. In order to obtain such consistency, the BH Constitution would, in one way or another, have to be adjusted or amended. International law in general, as well as the Dayton Peace Agreement itself, provides several possible ways of adjusting or amending the ethnic requirements in the constitutional system. Some of these will be discussed briefly in the following section. It should be noted, however, that all of the approaches discussed below only point out technical and legal possibilities of resolving the conflict between the contradictory norms. The political issues that may arise in connection with the various options will not be assessed beyond a few very rudimentary remarks. Discussions on resolving problems in the BH Constitution will focus on political, rather than legal considerations. It seems, however, useful to look at the various technical possibilities, in order to facilitate discussions about the issues, and perhaps thereby to prepare the ground for potential adjustments of the constitutional system whenever the time is ripe. 2. THE PRIORITY RULE As has been described in Chapter 5, Article II (2) gives the rights and freedoms contained in the ECHR priority over all other law, including over the Constitution itself.739 The assumption was made in Chapter 5 that when the provision refers to “all other law” it also was meant to include the Constitution.740 This superior status of ECHR was further underlined in Article X (2) of the Constitution, which states that the Parliamentary Assembly can amend the Constitution, as long as the human rights provisions are not eliminated or diminished.741 It has been argued that the ethnically-based constitutional system appears to be in violation of Article 14 of the ECHR in conjunction with Article 3 of Additional

739

Article II (2) of the BH Constitution states: “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.” 740 See Chapter 5 section 4.1. 741 See Article X (2) of the BH Constitution. 239

CHAPTER 9 Protocol 1.742 Article II (2) of the BH Constitution implies that the human rights provisions prohibiting discrimination in the ECHR have priority over the constitutional provisions that authorise discrimination. One would therefore assume that, according to these provisions, the conclusion should be that the discrimination prohibition laid down in the ECHR should prevail. Article II (2), however, only says that the human rights “shall have priority over all other law”. It does not specify any procedures for how the human rights shall prevail. The provision does, for example, not say that rules conflicting with human rights automatically are to be considered null and void as a result. If the intended meaning with the priority rule was to render other rules null and void in case of conflict, then this would have to have been made clear in the text. An interpretation of the wording of the present text, even when seen in “light of the object and purpose” of the treaty, cannot reasonably lead to the conclusion that constitutional or other rules should automatically be rendered null and void in case of an alleged contradiction with a human rights provision. This would lead to a very unpredictable situation regarding the scope and applicability of the Constitution. According to the rules on interpretation of treaties in the Vienna Convention on the Law of Treaties, preparatory work of a treaty can only be used in order to confirm the meaning of a treaty text, or to determine the meaning when the text otherwise “(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.743 In this case, one might claim that the inherent contradiction within the BH Constitution, when it comes to ethnic discrimination, does leave the meaning “ambiguous or obscure”, because everyone seems to be protected against ethnic discrimination and at the same time ethnic discrimination is systematised through the rules on the House of Peoples and the Presidency. It therefore seems worthwhile to shed some light on parts of what might be considered “preparatory work”. It should be pointed out that the Contact Group lawyers present in the Dayton negotiations were fully aware that the constitutional system of ethnic differentiation was most probably conflicting with human rights.744 As has been explained earlier, the ethnic requirements laid down in the Constitution were seen as a necessary part of reaching a peace agreement and ending the war. In Dayton, particularly the Serbs and the Croats were adamant that the ethnically-based rules were a precondition for any agreement.745 But because of the questionable content of the constitutional system, the lawyers of the Contact Group also saw it to be especially important to add the priority rule in the human rights section of the BH Constitution. This made the Constitution a dynamic instrument, and provided for the

742

See Chapter 7. Article 32 of the Vienna Convention on the Law of Treaties. 744 For instance, the early drafts for a BH Constitution presented to the parties during the Dayton negotiations did not contain an ethnically-based second chamber. See also O’Brien, The Dayton Agreement in Bosnia: Durable Ceasefire, Permanent Negotiation, page 27. 745 See footnote 599 on the note from the leader of the Bosnian Serb delegation in Dayton, Momcilo Krajisnik. 743

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POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION possible phasing out of the ethnically-based constitutional provisions when the time was ripe. As O’Brien notes: “The negotiators intentionally left ways for the Agreement to evolve, with a hand tipping the scales towards settlement.”746

In this case, the background could provide some support for the interpretation of the priority rule as the rule which was meant to prevail in the end. The substance of the priority rule is clear – the rights and freedoms of the ECHR are to be given priority in case of conflict between them and other provisions contained in “all other law”. The following will thus deal with different procedural options for giving effect to this substantive rule. 2.1. Constitutional Amendment by the Parliamentary Assembly The solution that is seemingly the most straightforward way of dealing with this issue is for the Parliamentary Assembly to amend the Constitution. Article X of the BH Constitution provides for constitutional amendments. A decision to amend the Constitution must be made by the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. Because it is the Parliamentary Assembly as a whole that has the competence to adopt amendments, the ordinary decision-making procedures in the House of Peoples must also be followed. This means that the “vital interest” clause could be used to stop constitutional amendments.747 An amendment initiated by the Parliamentary Assembly itself, with the effect of discontinuing the ethnic criteria pertaining to the House of Peoples and the Presidency, would probably be the best solution to the present problem, both from a practical and from a political point of view. Such a constitutional amendment, driven by the Parliamentary Assembly, would carry significantly more legitimacy than a decision to the same effect by, for example, the Constitutional Court or the High Representative. The current political situation in Bosnia and Herzegovina, however, is of such a nature that it seems rather doubtful whether the Parliamentary Assembly will want to abandon the system of ethnic differentiation anytime soon. 2.2. Judgement by the Constitutional Court As the BH Constitution establishes two courts that have been given the competence to deal with human rights issues, the priority rule may also be subject to interpretation (and decision) by one or both of these courts. The Constitutional Court’s primary task is to “uphold this Constitution”.748 This clearly constitutes limitations on what the Constitutional Court can decide. One might argue that a decision which actually might alter the content of the Constitution 746

O’Brien, supra note 194, p. 34. See Article X (1) of the BH Constitution. 748 See Article VI (3) of the BH Constitution. 747

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CHAPTER 9 would not be within the Court’s competence, and that the Court therefore does not have the competence to declare the constitutional provisions allowing for ethnic differentiation to be null and void. There are several traditions and views on the issue of whether a Constitutional Court (or as the case may be, a Supreme Court) can engage in “dynamic” interpretation, and even accord rights which are not explicitly laid down in the Constitution. It is quite clear that a number of such national courts, both in Europe and in the USA, engage in dynamic interpretations, expanding the scope of the relevant constitutional frameworks. The same might be said to be the case as regards the European Court of Human Rights. In any event, the competence of the BH Constitutional Court must be seen in light of the fact that Article II (2) of the Constitution does say that the rights and freedoms of the ECHR shall have priority over all other law. Unlike the constitutional provisions allowing for ethnic differentiation, this provision consists of not only a substantial rule (which says that the rights and freedoms of the ECHR and protocols shall apply directly), but it also consists of a rule on what to do in case of conflict with other rules (a “collision rule”), which states that it shall have priority. One could make the assertion that to respect and implement the priority rule would certainly be to “uphold this Constitution”. O’Brien notes that: “The Bosnian Constitution, Annex 4 to the Agreement, created a powerful Constitutional Court with a mandate to ensure that actions by Governmental officials, and the Constitution itself, comported with international human rights standards.” (Emphasis added.)749

The Constitutional Court was given a wide jurisdiction, both on matters relating to the Constitution itself as well as on human rights.750 Such cases (or “disputes” as Article VI says) may be referred to the Court either by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly or by one-fourth of either chamber of a legislature of an Entity.751 One would therefore think that a request, from either of the above-mentioned persons or groups of persons, claiming that certain provisions of the Constitution itself were inconsistent with international human rights, could be found admissible by the Court. There are also other ways in which a case challenging the constitutionality of the ethnic differentiation provisions could be brought before the Constitutional Court. The Constitutional Court has been given appellate jurisdiction over “issues under the Constitution arising out of a judgement of any other court in Bosnia and Herzegovina”. Such issues could include reviewing whether a law on which the lower court had based its decision “is compatible with this Constitution, with the 749

O’Brien, supra note 194, p. 32. Article VI (a) of the BH Constitution. 751 See Chapter 6 section 2 on the so-called Constituent Peoples case where one member of the Presidency filed a request claiming that several provisions in both Entity Constitutions were inconsistent with the BH Constitution. 750

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POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION European Convention for Human Rights and Fundamental Freedoms and its Protocols . . .”.752 This provision thus allows one to avoid the difficult question of whether the Constitutional Court can also consider the constitutionality of specific provisions of the Constitution itself. Under this provision, the Constitutional Court could simply discuss whether the ethnic requirements are consistent with the ECHR. Either way, and given that the above-mentioned procedural requirements have been fulfilled, the present substantive question of whether the ethnically-based constitutional system would seem to be inconsistent with international human rights standards (and thereby also with the Constitution itself), seems to be within the scope of the competence of the Constitutional Court. 2.3. Judgement by the Human Rights Chamber The Human Rights Chamber has competence to decide in cases involving human rights.753 The Chamber was given responsibility for: “(a) alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, or (b) alleged or apparent discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex . . .”754

According to the wording of this text, it seems that any complaint regarding the ethnically-based system of the BH Constitution would be within the competence of the Human Rights Chamber. It could address the problem with regard to Article 3 of Protocol 1 together with Article 14 of the ECHR, or it could discuss it in light of Article 25 and Article 2 of the ICCPR, or Article 5 of the ICERD. The Chamber has the competence to make decisions pertaining to the human rights protection within the BH Constitution, including the subject of possible discriminatory provisions therein. It would thus have the competence to decide, for example, that Bosnia and Herzegovina discriminates against “others” when it comes to the rights enshrined in Article 3 of Protocol 1 to the ECHR as well as Article 25 of the ICCPR, or Article 5 of the ICERD.

752

Article VI (3) (c) of the BH Constitution. The PIC has now (2003) decided to terminate the Human Rights Chamber, and leave its case-load with the Constitutional Court. This decision seems doubtful from a legalistic point of view, as this termination was not foreseen in the BH Constitution, nor in the Human Rights Agreement. See Chapter 4 section 5.2 on the status of the Human Rights Chamber. 754 Article VIII (1), Part C, and Article II (2) of Part A, of Annex 6. 753

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CHAPTER 9 2.4. Decision by the High Representative The powers of the High Representative have been subject to much debate since the negotiations in Dayton and onward. According to the Dayton Peace Agreement, the competence of the High Representative is quite limited. In Annex 10 of the GFA, which is the Agreement on Civilian Implementation of the Peace Settlement, the High Representative was given inter alia the competence to: “Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation.”755

In Article V of the same Annex, the High Representative was given: “the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement.”

The scope of powers given to the High Representative was a contentious issue, over which the Europeans and Americans had very different views during the negotiations in Dayton. The Europeans preferred a strong mandate for the civilian authority, whereas the Americans were adamant on restricting the powers of the civilian authority vis-à-vis the military commander (COMIFOR).756 The US view prevailed to a large extent, and it was clear that the High Representative only would have very limited powers to “facilitate . . . the resolution of any difficulties arising in connection with civilian implementation”. It was thus very clear that this final authority to interpret Annex 10 did not include the authority to interpret, for example, the Constitution.757 This was also reiterated in the Security Council Resolution that was adopted in connection with the entry into force of the Dayton Peace Agreement, in which the Council endorsed the “establishment of a High Representative”, and confirmed that the High Representative was the “final authority in theatre regarding interpretation of Annex 10 on civilian implementation”.758 Then, as the international community’s patience grew thinner, due to increasing difficulties in implementing the Dayton Peace Agreement, it was decided at the 1997 Peace Implementation Council (PIC)759 meeting in Bonn to extend the powers of the High Representative. The so-called “Bonn-powers” were adopted by the PIC in December 1997, and they welcomed the High Representative’s “intention to use 755

Article II (1) (d) of Annex 10. One of the chief negotiators on this Annex (and the military annexes) was then LieutenantGeneral Wesley Clark, who was under instruction from SACEUR (head of NATO in Europe). 757 As late as June 1996, in connection with a Steering Board meeting pertaining to inter alia “transitional arrangements” and the attempts by the Entities to enter into “Special Parallel Relationships”, the Office of the High Representative proposed that a wider interpretation regarding the competence of the High Representative should be adopted. The Americans were still against any such proposals, and stuck to their initial position that the High Representative only had competence to interpret Annex 10 and did not have any decision-making authority. 758 S/RES 1031 (1995), dated 15 December 1995, para. 26 and 27. 759 See Chapter 3 section 6. 756

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POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary”. (Emphasis added). Such decisions could be “interim measures to take effect when the parties are unable to reach agreement” or “other measures to ensure implementation of the Peace Agreement . . .”.760 The first decision the High Representative made was to impose a law on Citizenship.761 A large number of decisions have followed, ranging from removing or banning certain politicians (including the President of Republika Srpska ) 762 and judges from office, imposing legislation on both the Entity as well as state level, on symbolic issues such as the design of bank notes,763 imposition of a law on the flag of BH,764 and a decision on the Law on the National Anthem of BH.765 There are also more practically oriented decisions, like the decision on the establishment of an independent experts’ commission to prepare the election law.766 One of several decisions that, in particular, illustrate the political climate of non-cooperation by the parties is the decision on “ordering a session of the Presidency of BiH after a long break”.767 Both of the Entity Constitutions have been amended several times through decisions by the High Representative. The BH Constitution itself has not been amended. There have been decisions that pertain to the BH Constitution, but none of them seem to alter anything within the Constitution. In, for example, a decision on a “Law on the Council of Ministers of Bosnia and Herzegovina”, the constitutional provisions on the Council of Ministers are not in any way contradicted, but rather carved out in greater detail.768 In trying to answer the question of whether the High Representative would have the competence to amend the BH Constitution to the effect of terminating the ethnically-based provisions, it seems necessary to assess the above mentioned legal basis for the High Representative’s decision making. The so-called “Bonn-powers” were adopted in the form of a declaration that was the outcome of the fourth meeting of the Peace Implementation Conference (PIC). The PIC was established in London after the signing of the Dayton Peace Agreement as the political body that would 760

Bonn Peace Implementation Conference, 10 December 1997, end document para. XI (2). On 16 December 1997, the High Representative publicised that: “In accordance with my authority under Annex 10 of the Peace Agreement and Article XI of the Bonn Document, I do hereby decide that the Law on Citizenship of Bosnia and Herzegovina shall enter into force by 1 January 1998 on interim basis, until the Parliamentary Assembly adopts this law in due form, without amendments and no conditions attached. The text of the Law, submitted to Parliament and in accordance with Annex 1 of the Bonn Documents is attached hereto and must be published in the Official Gazette as well.” 762 Decision of the High Representative, 5 March 1999. 763 Decision of the High Representative, 27 March 998. 764 Decision of the High Representative, 3 February 1998. 765 Decision of the High Representative, 25 June 1999. 766 Decision of the High Representative, 1 August 1998. 767 Decision of the High Representative, 15 April 1999. 768 Decision of the High Representative, 3 December 2002. 761

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CHAPTER 9 constitute the basis for the financial support and of the practical implementation of the Dayton Peace Agreement. It basically replaced the previous London Conference, which had constituted the political sponsorship for ICFY. The PIC is not mentioned in any of the texts of the Dayton Peace Agreement. It was, in fact, established after the treaty had been signed and entered into force. Its purpose was to give the Office of the High Representative the political and financial backing to implement the Dayton Peace Agreement. It thus does not follow from the treaty itself that the PIC had any competence to assign additional powers to the High Representative. From a treaty law perspective, there was therefore no legal basis for the PIC to give the High Representative powers that went beyond what could reasonably be inferred from the wording in Annex 10. It may be noted, however, that the Constitutional Court has accepted the expanded and even legislative powers of the High Representative.769 In the Decision on the Law on State Border Police, the applicants held that neither Annex 10 of the General Framework Agreement, nor the “Bonn-Powers”, gave the High Representative legislative powers. However, the Constitutional Court decided that it was within the powers of the High Representative to impose this law. The Constitutional Court referred to previous examples of “international supervision” such as certain regimes under the League of Nations and later regimes after the Second World War. The Court said that: “Such situations amounts to a sort of functional duality: an authority of one legal system intervenes in another legal system, thus making its functions dual. The same holds true for the High Representative: he has been vested with special powers by the international community and his mandate is of an international character. In the present case, the High Representative – whose powers under Annex 10 to the General Framework Agreement, the relevant resolutions of the Security Council and the Bonn Declaration as well as his exercise of those powers are not subject to review by the Constitutional Court – intervened in the legal order of Bosnia and Herzegovina substituting himself for the national authorities.”770 (Emphasis added.)

The Constitutional Court thus provides support for the notion that because the mandate of the High Representative is not vested in the BH Constitution itself, the Court does not have competence to assess inter alia the “legislative” activities of the High Representative. There are two parallel systems: one which follows from the BH Constitution, and one which follows from the fact that the international community has assumed authority in order to improve matters in situations where the constitutional system is too slow or otherwise unlikely to solve concrete problems. In light of the increasing international and national criticism over the nonfunctionality of the BH Constitution and the general frustration over the slow political development, it is not difficult to understand why the Constitutional Court 769

Case on Law on State Border Service, Constitutional Court of Bosnia and Herzegovina, Case No. U-9/00, 3 November 2000. 770 Case on Law on State Border Service, Constitutional Court of Bosnia and Herzegovina, Case No. U-9/00, 3 November 2000, para 5.

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POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION might take this position in order to support the attempts by the international community to steer things in the right direction in Bosnia and Herzegovina. By considering the “duality” explanation, the Court avoids the issue of what is the legal basis for the powers of the High Representative. As has been mentioned above, however, it does seem that the wording of the General Framework Agreement, the relevant Security Council Resolution, or the Bonn Declaration actually give the High Representative any legislative powers. The subject of the present discussion, however, is not focused on the general legislative powers of the High Representative, but rather the question of whether he/she would have the competence to actually amend the BH Constitution with regard to the ethnic discrimination system. As has been stated above, the High Representative has not yet made any decisions that alter the BH Constitution. This question has therefore also not been tried by the Constitutional Court. As follows from the above, it seems very improbable that the High Representative should have such powers. It will be the assumption therefore, that the High Representative does not have the authority to terminate the system of ethnic discrimination in the Dayton Constitution. This assumption is based on what appears to be the legal situation today. It cannot be excluded, however, that in the future the international community, through the PIC, might confer additional powers on the High Representative, and that these powers would be accepted by the national courts of Bosnia and Herzegovina. 2.5. New Negotiations by the Parties to the Dayton Peace Agreement One possibility with regard to amending the BH Constitution would be to reconvene the parties to the Dayton negotiations and try to make the parties agree on another constitutional system. As the parties to the Dayton Peace Agreement were Croatia, the Federal Republic of Yugoslavia and Bosnia and Herzegovina, this could perhaps prove to be fruitful – the regimes in both Zagreb and Belgrade are considerably more moderate now than they were in 1995. There are no legal barriers to the possibility of reconvening the parties from Dayton and attempting to make a “Dayton II-conference” adopting the necessary amendments to the constitutional system. States may enter freely into treaties.771 Politically, however, it might not be particularly conducive to an amendment process to have the parties to the GFA discuss constitutional amendments. In 1995, it was seen as necessary to make the three states that had been heavily involved in the war also responsible for the peace. Such an approach today would, however, run the risk of being seen as illegitimate vis-à-vis the parties inside Bosnia and Herzegovina. In addition, it was not the parties to the GFA that were the actual parties to the BH Constitution, those were the Bosnian Croats, the Bosnian Serbs and the Bosniacs. And one would assume that if they cannot agree to make the proposed constitutional amendments through their own Parliamentary Assembly, there is no 771

Article 6 of the Vienna Convention on the Law of Treaties.

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CHAPTER 9 apparent reason why they would agree to amend the Constitution in a “Dayton II” setting. On the other hand, it cannot be overlooked that the dynamics of a new peace conference with the two neighbouring states and for, example, the members of the Contact Group together with representatives of the three constituent peoples of Bosnia and Herzegovina, could lead to a new constitutional system with better prospects for a democratic development. The political climate during such negotiations would necessarily be very different from the political situation in the Entities, where there are practically no motivating factors for the parties to amend the common constitutional system or to make it work. 2.6. Decision by the European Court of Human Rights Since Bosnia and Herzegovina now has become a member of the Council of Europe,772 it is possible for all persons subject to Bosnian jurisdiction to lodge an individual complaint with the European Court of Human Rights, subject to requirements such as exhausting domestic remedies, that there has been an alleged violation of one of the provisions in the ECHR and protocols, and that the complaint was not manifestly ill-founded.773 In a situation where the necessary requirements were fulfilled, it would clearly fall within the competence of the Court, subject to the content of the complaint, to decide whether the ethnic requirements in the BH Constitution are inconsistent with the above-discussed provisions of Article 3 of Protocol 1 and Article 14. The effect of such a decision would be that the state in question has a legal obligation to “abide by the final judgement of the Court in any case to which they are parties”. The Committee of Ministers of the Council of Europe has the task of supervising the execution of final judgements.774 In other words, if the Court came to the conclusion that the ethnic requirements were inconsistent with the ECHR, it would be the obligation of Bosnia and Herzegovina to amend its Constitution on this point, or to make strict interpretations of the relevant provisions, so as to render them ineffective. From a political point of view, it might be more constructive if the process to try to terminate the ethnically-based constitutional system resulted from a binding decision of an international, independent supervisory organ. The political process within domestic Bosnian constitutional organs is clearly contentious, and the constituent peoples are seemingly worried about being seen as submissive (and even cooperative) towards the other constituent peoples. One could speculate that it might be more likely that Bosnian politicians would respect and try to implement a decision that was taken far from Bosnian soil, by an organ that cannot easily be accused of having a political agenda.

772

Bosnia and Herzegovina became a member on the 12 July 2002. Articles 34 and 35 of the ECHR. 774 Article 46 (1) and (2) of the ECHR. 773

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POSSIBLE WAYS OF ADDRESSING ETHNIC DIFFERENTIATION 2.7. The Human Rights Committee Bosnia and Herzegovina is party to both the ICCPR and the ICERD.775 While Bosnia and Herzegovina has become a party to the Optional Protocol to the ICCPR providing for the right to submit individual complaints, it has not, however, declared its acceptance of the competence of the CERD to receive and consider individual complaints according to Article 14 of the ICERD. The conditions for lodging individual complaints under the ICCPR regime are relatively similar to that under the ECHR.776 Article 5 of OP 1 lays down the individual complaints procedure. In cases of individual complaints pertaining to violations of the provisions of the ICCPR, states are under an obligation to inform the Committee of the remedies, if any, that have been taken in order to deal with the alleged violation.777 As opposed to the system of the ECHR, however, states are not legally obliged to follow decisions of the Committee. This does not necessarily mean that the parties do not take decisions by the Human Rights Committee seriously. According to Nowak, the experience from the practice of the Human Rights Committee shows that “most States make an effort to grant domestic effect to Committee decisions”.778 It would therefore seem likely that, as in the above example of a possible decision under the European Court of Human Rights, the authorities in Bosnia and Herzegovina might find a decision by the Human Rights Committee to be a persuasive argument for constitutional amendments. 3. CONCLUDING COMMENTS It follows from the above that there are several ways of instigating amendments to the Constitutional system of Bosnia and Herzegovina. The question is how to trigger such processes. As mentioned above, if such a process were to be initiated and implemented by the Parliamentary Assembly itself, it would give that process legitimacy and political weight. In practice, however, it seems a quite remote possibility in today’s political climate that the three constituent peoples would agree to terminate the ethnic “balance” within the constitutional system. Another approach would be that the Constitutional Court or the Human Rights Chamber, on the basis of the provisions laid down in the BH Constitution and in the Human Rights Agreement, decides that the ethnic requirement rules are inconsistent with human rights, and therefore should be null and void, or simply be interpreted in a restrictive manner. Any such decision by either of the two Courts could facilitate the start of a process towards a non-ethnically-based political system. 775

Status of Ratifications of the Principal International Human Rights Treaties, as of 2 November 2003, Office of the United Nations High Commissioner for Human Rights, <www.unhchr.ch/pdf/report.pdf>. 776 Articles 2, 3 and 5 of OP 1 to the ICCPR. 777 Article 4 of OP 1 to the ICCPR. 778 Nowak, supra note 337, p. 710.

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CHAPTER 9 The option that the relevant international human rights monitoring organs may generate a process that amends the constitution is perhaps even more viable politically, because of the legitimacy that these organs have. If a case, however, concerning the ethnic exclusion provisions, were admitted to either one of the two above-mentioned international bodies, it would, if Bosnia and Herzegovina were found responsible, constitute an officially recognized human rights breech. Seen in this perspective, it seems a much preferable solution that the issue is resolved in either of the two national courts, thus avoiding the political burden of being seen as violating international human rights obligations. It should be noted that this has not been intended to be an exhaustive list of possibilities for terminating the ethnically-based constitutional system, and thus there may be other ways than those discussed in the present chapter of tackling this problem. The elaborations have been meant to contribute to discussions both inside and outside of Bosnia and Herzegovina on how to proceed in order to build a constitutional system which is compatible with international human rights standards. This seems to be of vital importance because it will remain very difficult to implement individual human rights as long as a person’s belonging or not belonging to a collective ethnic group remains decisive for that person’s ability to realise such rights. It is not just the actual denial of central political rights, such as the right to participate in the selection of Delegates and hold office or stand for elections when it comes to the House of Peoples or the Presidency that hampers the implementation of human rights in Bosnia and Herzegovina. This constitutional system legitimates the continued emphasis on ethnicity as a vital feature of every person in the country, and it thus continues to legitimize the division and non-cooperation between the ethnic groups within their common state.

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CHAPTER 10. CONCLUDING REMARKS In this book, it has been assumed that the ethnic exclusion criteria laid down in the BH Constitution can be considered to be in violation of human rights obligations concerning the right to freedom from ethnic discrimination in the exercise of political rights. Moreover it has been claimed that even by looking solely at the situation as it was during the peace negotiations, when emergency measures might have been justified, departing from certain human rights obligations under the derogation or necessity regimes could only have been legitimate if the human rights obligations were fully resumed as soon as the emergency ended. This would entail that the ethnic requirements contained in the peace settlement would have had to be constituted as temporary measures, not as permanent constitutional provisions. One important lesson to be learned from this seems to be that while politically difficult choices must be made when trying to conclude peace agreements, international law offers substantial support for making such choices. In many cases, however, negotiators seem to prioritise the aim of achieving political solutions without considering the framework that international law provides. It is perhaps assumed that this legal framework might hamper the possibility for reaching a settlement, and that those political considerations are so important that the legal aspects must be ignored. The intention of this book was to demonstrate that international law, in addition to securing human rights, not only lays down a framework that provides for special solutions adapted to emergency situations, but that this framework, moreover, can be conducive to peace-building in the long run. One observer points to the: “wider issue of whether the international community should require any minimal thresholds in its facilitation of peace agreements among factious third parties. Is any agreement acceptable as a means to end mass violence? Or rather, are there minimal protections related both to the integrity of the individual and state that are nonnegotiable in such processes? An agreement born out of the policies of ethnic cleansing and massive human rights violations must ensure that it is not a vehicle to facilitate the continuation of the war by other means.”779

In the peace negotiations pertaining to Bosnia and Herzegovina, the responsible mediators tended to regard the prospects of reaching a political settlement as so important that a thorough legal analysis of the human rights aspects of the BH Constitution was not conducted. At the time of the negotiations, particularly because of the failed settlement 18 months earlier, it was regarded as highly hazardous to bring up concerns about the potential ethnic differentiation included in the constitutional system. It was feared that this, in itself, might ruin the prospects for agreement. In retrospect, however, and as a “lesson learned”, it seems clear that it would have been a better solution to follow the parameters of international law through somehow making the ethnic “balancing” system temporary. This would have allowed for political developments in Bosnia that eventually could have been 779

Ni Aolain, supra note 222, pp. 960–961. 251

CHAPTER 10 directed towards a policy of integration instead of, as it has turned out, cementing the initial policy of disintegration. The fact that human rights instruments lay down fundamental standards, which may not, under any circumstances, be departed from, does not preclude the possibility of finding legally justifiable frameworks that, due to the emergency character of most peace negotiations, may temporarily entail refraining from fully implementing all human rights. As has been argued here, it would have been justifiable, both under the derogation regimes of the relevant human rights instruments, as well as under the customary law institute of necessity, to invoke ethnic differentiation as an emergency measure in order to reach a settlement in Bosnia and Herzegovina. Even if such differentiation would have been considered as unlawful discrimination under ordinary circumstances, the ethnic differentiation could have been accepted as an emergency measure for as long as the emergency situation lasted because of the terrible prospects of the war continuing unless agreement was reached. In Dayton, these issues were not discussed with the parties. The international community (the Contact Group) chose not to address them, out of fear that the negotiations might suffer as a result. The reluctance to address these human rights issues with regard to the Dayton Peace Agreement thus resulted in a legal framework which is inconsistent with international human rights law, and which has indeed been widely criticised on that account. But more importantly, it also resulted in a framework that impedes any political development towards a genuine multiethnic political system. Not only do the “others” have less political influence through their exclusion from the House of Peoples and Presidency – which constitutes a human rights problem – but the constitutional system ensures that ethnicity will remain an essential characteristic of every person, and of every political party, in Bosnia in the foreseeable future. Ethnicity will be the driving force behind political arguments on almost every political issue. Continued disintegration will prevail. The conclusion of this book therefore is that it seems preferable to tackle the potential human rights problems in peace negotiations, rather than ignoring them. Even if it might be tempting in the short term to disregard potentially contentious issues pertaining to human rights, there is greater hope of achieving full implementation of human rights in the long term if the issues are dealt with in an open and systematic manner. Furthermore, contentious aspects may be played down through reference to the international legal frameworks on derogation and necessity, which allow for flexible solutions for peace settlements in transitional periods. It seems uncontroversial to conclude that it is better to have limited and temporary human rights infringements than continued war – which usually precludes human rights implementation altogether. And it also seems preferable to reach settlements containing temporary human rights infringements, rather than to agree on settlements in which these issues have not been addressed, and therefore constitute permanent human rights infringements, as the case is with the Dayton Peace Agreement. 252

CONCLUDING REMARKS It seems particularly important in peace negotiations to emphasise the existence and relevance of international legal frameworks so that individuals as well as states can benefit from both the limitations and possibilities laid down in international law.

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BIBLIOGRAPHY O’Flaherty, M., ‘Human Rights in the General Framework Agreement for Peace in Bosnia and Herzegovina’, in G. Alfredsson, J. Grimheden, B. G. Ramcharan, and A. de Zayas, (eds.), International Human Rights Monitoring Mechanisms, Essays in Honour of Jacob Möller (Martinus Nijhoff Publishers, the Hague/Boston/London, 2001). Office of the High Representative; Bosnia and Herzegovina, Essential Texts, (1998). Oraá, J., Human Rights in States of Emergency in International Law (Clarendon Press, Oxford, 1992). Pajic, Z., ‘A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina’, Vol. 20 Human Rights Quarterly (1998) pp. 125–138. Partsch, K. J., Die Rechte und Freiheiten der europãischen Menschenrechtskonvention (Duncker & Humblot, Berlin, 1966). Paulus, A. L. and Simma, B., ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflict: A Positivist View’, Vol. 93, No.2 American Journal of International Law (AJIL) (1999) pp. 302–316. Provost, R., ‘Reciprocity in Human Rights and Humanitarian Law’, 65 The British Yearbook of International Law (BYIL) (1995) pp. 383–454. Ramcharan, B.G., (ed.), The International Conference on the Former Yugoslavia, Official Papers (Kluwer Law International, The Hague, London, Boston, 1997). Ramcharan, B.G., ‘Equality and non-discrimination’, in Louis Henkin (ed.), The International Bill of Human Rights, The Covenant of Civil and Political Rights (Colombia University Press, New York, 1981). Randelzhofer, A., ‘Article 2 (4)’ in Simma, B. (ed.) The Charter of United Nations, A Commentary, Second Edition (Oxford University Press, 2002). Report of the Secretary-General pursuant to General Assembly Resolution 53/35 (1998) (Srebrenica Report). Report of the Secretary-General on the Activities of the International Conference on the Former Yugoslavia, Annex II – V, UN Doc. S/25403 (12 March 1993). Ress, G., ‘Article 53’ and ‘Article 107’, in Simma, B. (editor), The Charter of the United Nations, A Commentary, Second Edition, Oxford University Press, 2002. Roberts, A. E., ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, Vol.95, No. 4 American Journal of International Law (AJIL) (2001) pp. 757–791. Ross, A., Lærebog i Folkeræt, Almindelig del, Tredje utgave (Munksgaard, Copenhagen, 1951). Russel, M., Reforming the House of Lords/Lessons from Overseas (Oxford University Press, 2000). Sarooshi, D., The United Nations and the Development of Collective Security, (Oxford University Press, 1999). Schachter, O., International Law in Theory and Practice (Martinus Nijhoff Publishers, Dodrecht/Boston/London, 1991). Schwartzenberger, G., ‘The Fundamental Principles of International Law’, Vol. 1 Recueil Des Cours (1955). 259

BIBLIOGRAPHY Schwelb, E., ‘The International Convention on the Elimination of All Forms of Racial Discrimination’, Vol. 15 International and Comparative Law Quarterly (1966) pp. 996–1059. Seiderman, I. D., Hierarchy in International Law: The Human Rights Dimension (Intersentia/Hart, Antwerpen, Groningen, Oxford, 2001). Shaw, M. N., International Law, Fourth Edition, (Cambridge University Press, 1997). Simma, B. (ed.), The Charter of United Nations, A Commentary, Second Edition, (Oxford University Press, 2002). Simma, B., ‘NATO, the UN and the Use of Force: Legal Aspects’, Vol.10, No 1 European Journal of International Law (EJIL) (1999) pp. 1–23. Simor, J., ‘Tackling Human Rights Abuses in Bosnia and Herzegovina: The Convention Is up to It, Are Its Institutions?’, Vol. 6 European Human Rights Law review, (1997) pp. 644–662. Singhvi, A. M., The Law of Emergency Powers: A Comparative Study, Ph.D Thesis, (Cambridge, 1986). Slye, R. C., ‘The Dayton Peace Agreement: Constitutionalism and Ethnicity’, Vol. 21, No. 2 The Yale Journal of International Law (1996) pp. 459–473. Spierman, O., Moderne folkeræt efter det 20. århundrede, (Jurist- og økonomforbnundets Forlag, 1999). Stammler, Theory of Justice and del Vecchio, Formal Bases of Law (1921), (as referred in Shaw, International Law (Fourth Edition), page 44.). Status of Ratifications of the Principal International Human Rights Treaties, as of 2 November 2003, Office of the United Nations High Commissioner for Human Rights, <www.unhchr.ch/pdf/report.pdf >. Svennsson-McCharty, A., The International Law of Human Rights and States of Exception (Martinus Nijhoff Publishers, The Hague/Boston/London, 1998). Szasz, P. C., ‘The quest for a Bosnian Constitution: legal aspects of constitutional proposals relating to Bosnia’, Vol. 19, No. 2 Fordham International Law Journal (1995). Szasz, P. C., Introductory note, International Legal Materials, 35 I.L.M. 75, 1996. Szasz, P. C., ‘Protecting Human and Minority Rights in Bosnia: A documentary Survey of International Proposals’, Vol. 25, No. 2 California International Law Journal, (1995). Szasz, P. C., ‘The Protection of Human Rights through the Dayton/Paris Peace Agreement for Bosnia’, Vol. 90, No. 2 The American Journal of International Law (AJIL) (1996). The United Nations and the situation in the Former Yugoslavia, Reference Paper, 15 March 1994 (Reprint), and Add.1, 23 January 1995, United Nations Department of Public Information. Thornberry, P., International Law and the Rights of Minorities (Clarendon Press, Oxford, 1992). Türk, D., Humanitarian Interventions: Balancing Human Rights and National Sovereignty, paper based on a revised version of remarks presented at the 260

BIBLIOGRAPHY Annual Lecture on Human Rights in Global Perspective, University of Missouri-St.Louis, 24 January 2002. van Dijk, P.and van Hoof, G.J.H, Theory and Practice of the European Convention on Human Rights (Kluwer International Law, the Hague/London/Boston, Third Edition, 1998). Villiger, M. E., Customary International Law and Treaties (Kluwer Law International, The Hague, 1997). Watts, Sir A., The International Law Commission 1949–1998, Volume two: The Treaties, part II (Oxford University Press, Oxford, 1999). Woodward, S. L., Balkan Tragedy: Chaos and Dissolution After the Cold War (The Brookings Institution, Washington DC, 1995). Yearbook of the International Law Commission (YBILC) (18th session, 1966) Vol. II. Yee, S., ‘The New Constitution of Bosnia and Herzegovina’, Vol. 7, No. 2 European Journal of International Law, (EJIL) (1996) pp. 164–176. Åkermark, A. S., Justifications of Minority Protection in International Law (Iustisius Forlag, Uppsala, 1997).

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TABLE OF CASES INTERNATIONAL COURT OF JUSTICE Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949. Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Reports 1962. South-West Africa cases, Judgment of 18 July 1966, ICJ Reports 1966. North Sea Continental Shelf cases, Judgment of 20 February 1969, ICJ Reports 1969. Case concerning the Barcelona Traction, Light and Power company, (Barcelona Traction Case) Judgment of 5 February 1970, ICJ Reports 1970. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971. Case concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986. Case concerning Gabcikovo-Nagymaros project (Hungary/Slovakia), Judgement of 25 September 1997, No. 92, ICJ Reports 1997. EUROPEAN COURT OF HUMAN RIGHTS Lawless v. Ireland, Judgement of 1 July 1961, Series A 3. Belgian Linguistic Cases, Judgement of 23 July 1968, Series A 6. Wemhoff v. Germany, Judgement of 27 June 1968, Series A 7. Engel and others v. the Netherlands, Judgment of 8 June 1976, Series A 22. Ireland v. the United Kingdom, Judgement of 18 January 1978, Series A 25. Tyrer v. United Kingdom, Judgement of 25 April 1978, Series A 26. Dudgeon v. the United Kingdom, Judgement of 22 October 1981, Series A 45. Rasmussen v. Denmark, Judgment of 28 November 1984, Series A 87. Mathieu-Mohin and Clerfayt v. Belgium, Judgement of 2 March 1987, Series A 113. Brannigan and McBride v. the United Kingdom, Judgement 26 May 1993, Series A 258 – B. Gaysusuz v. Austria, Judgement of 16 September 1996, Reports 1996-IV. Aksoy v. Turkey, Judgement of 18 December 1996, Reports 1996 – VI. Gitonas and others v. Greece, Judgement of 1 July 1997, Reports 1997-IV. Ahmed and others v. the United Kingdom, Judgement of 2 September 1998, Reports 1998-VI. Matthews v. the United Kingdom, Judgement of 18 February 1999, unreported, REF00001927. Labita v. Italy, Judgement of 6 April 2000, Reports 2000-IV. 263

TABLE OF CASES Podkolzina v. Latvia, Judgement of 9 April 2002, unreported, REF00003548. Selim Sadak and others v. Turkey, Judgement of 11 June 2002, unreported, REF00003634. HUMAN RIGHTS COMMITTEE Broeks and Zwaan-de Vries v. Netherlands, Human Rights Committee, case no.172 and 182/1984. Debreeczeny v. the Netherlands, Human Rights Committee, case no. 500/1992. Gillot et al v. France, Human Rights Committee, case no. 932/2000. Salgar de Montejo v. Colombia, Human Rights Committee, case no. 67/1979. Landinelli v. Uruguay, Human Rights Committee, case no. 34/1978. Gueye et al. v. France, Human Rights Committee, case no.196/1985. CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decision I, U/58-I, 28, 29 and 30 January 2000. Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decision II, U/58-II, 18-19 February 2000. Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decision III, U/58-III, 30 June and 1 July 2000. Constituent Peoples case, Constitutional Court of Bosnia and Herzegovina, Partial Decision IV, U/58-VI, 18-19 August 2000. Case on Law on State Border Service, Constitutional Court of Bosnia and Herzegovina, Case No. U 9/00, 3 November 2000. HUMAN RIGHTS CHAMBER OF BOSNIA AND HERZEGOVINA Damjanovic against the Federation of Bosnia and Herzegovina, case no. CH/96/30, 5 September 1997. Hermas against the Federation of BH, case no. CH/97/45, 18 February 1998. Cegar against the Federation of Bosnia and Herzegovina, case no. CH/96/21, 20 February 1998. Marceta against the Federation of Bosnia and Herzegovina, case no. CH/97/41, 6 April 1998. Zahirovic against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, case no. CH/97/67, 8 July 1999. Pletilic et. al. against The Republika Srpska, case no. CH/98/659, 734, 750, 751, 753, 824, 825, 826, 1100, 1101, 1103, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1116, 10 September 1999. Mahmutovic against the Republika Srpska, case no. CH/98/892, 8 October 1999. Pletilic against the Republika Srpska, case no. CH/98/777, 8 October 1999 Odobasic against the Republika Srpska, case no. CH/98/1786, 5 November 1999.

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TABLE OF CASES Momani against the Federation of Bosnia and Herzegovina, case no. CH/98/946, 5 November 1999. Basic et. al. against Republika Srpska, case no. CH/98/752, 827, 828, 847, 848, 1102, 1104, 1114, 1117, 1119, 1120, 1121, 1125, 1128, 1129, 10 December 1999. Dizdarevic et.al. against the Republika Srpska, case no. CH/98/1124, 1126, 1127, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1139, 1141, 1144, 1145, 1146, 1147, 1148, 1149, 1150 , 1151, 1153, 9 June 2000. Pogarcic against the Federation of Bosnia and Herzegovina, case no. CH/98/1018, 6 April 2001. Mitrovic against the Federation of Bosnia and Herzegovina, case no. CH/98/948, 6 September 2002. ILO ILO, Report of the Commission Appointed under Article 26 of the Constitution of the ILO to Examine the Complaints concerning the Observance by Greece of the Freedom of Association Conventions, ILO Official Bulletin, 54, Special Supplement, No.2 (1971). ILO, Report of the Commission Appointed under Article 26 of the Constitution of the ILO to Examine the Complaints concerning the Observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.96), ILO Official Bulletin, 57, Special Supplement, Ser. B (1984). GENERAL COMMENTS AND RECOMMENDATIONS CCPR General Comment 18, Non-discrimination, UN Doc. CCPR/C/21/Rev.1/Add.1, thirty-seventh session, 10/11/1989. CERD General Recommendation 14, Definition of Discrimination (Art.1, par.1), UN Doc. A/48/18, forty-second session, 19/3/1993. CCPR General Comment 25, The rights to participate in public affairs, voting rights and the right of equal access to public service, UN Doc. CCPR/C/21/Rev.1/Add.7, fifty-seventh session, 12/07/96. CERD General Recommendation 20, Non-discriminatory implementation of rights and freedoms (Art.5), UN. Doc. A/51/18, forty-eight session, 15/03/1996. CCPR General Comment 29, States of emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, seventy-second session, 31/08/2001

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ANNEX I CONSTITUTION OF BOSNIA AND HERZEGOVINA Based on respect for human dignity, liberty, and equality, Dedicated to peace, justice, tolerance, and reconciliation, Convinced that democratic governmental institutions and fair procedures best produce peaceful relations within a pluralist society, Desiring to promote the general welfare and economic growth through the protection of private property and the promotion of a market economy, Guided by the Purposes and Principles of the Charter of the United Nations, Committed to the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina in accordance with international law, Determined to ensure full respect for international humanitarian law, Inspired by the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, as well as other human rights instruments, Recalling the Basic Principles agreed in Geneva on September 8, 1995, and in New York on September 26, 1995, Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows: ARTICLE I BOSNIA AND HERZEGOVINA 1. Continuation The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be “Bosnia and Herzegovina”, shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a Member State of the United Nations and may as Bosnia and Herzegovina maintain or apply for membership in organizations within the United Nations system and other international organizations. 2. Democratic Principles Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections.

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ANNEX I 3. Composition Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska (hereinafter “the Entities”). 4. Movement of Goods, Services, Capital and Persons There shall be freedom of movement throughout Bosnia and Herzegovina. Bosnia and Herzegovina and the Entities shall not impede full freedom of movement of persons, goods, services, and capital throughout Bosnia and Herzegovina. Neither Entity shall establish controls at the boundary between the Entities. 5. Capital The capital of Bosnia and Herzegovina shall be Sarajevo. 6. Symbols Bosnia and Herzegovina shall have such symbols as are decided by its Parliamentary Assembly and approved by the Presidency. 7. Citizenship There shall be a citizenship of Bosnia and Herzegovina, to be regulated by the Parliamentary Assembly, and a citizenship of each Entity, to be regulated by each Entity, provided that:

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a.

All citizens of either Entity are thereby citizens of Bosnia and Herzegovina.

b.

No person shall be deprived of Bosnia and Herzegovina or Entity citizenship arbitrarily or so as to leave him or her stateless. No person shall be deprived of Bosnia and Herzegovina or Entity citizenship on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

c.

All persons who were citizens of the Republic of Bosnia and Herzegovina immediately prior to the entry into force of this Constitution are citizens of Bosnia and Herzegovina. The citizenship of persons who were naturalized after April 6, 1992 and before the entry into force of this Constitution will be regulated by the Parliamentary Assembly.

d.

Citizens of Bosnia and Herzegovina may hold the citizenship of another state, provided that there is a bilateral agreement, approved by the Parliamentary Assembly in accordance with Article IV.4 (d), between Bosnia and Herzegovina and that state governing this matter. Persons with

CONSTITUTION OF BOSNIA AND HERZEGOVINA dual citizenship may vote in Bosnia and Herzegovina and the Entities only if Bosnia and Herzegovina is their country of residence. e.

A citizen of Bosnia and Herzegovina abroad shall enjoy the protection of Bosnia and Herzegovina. Each Entity may issue passports of Bosnia and Herzegovina to its citizens as regulated by the Parliamentary Assembly. Bosnia and Herzegovina may issue passports to citizens not issued a passport by an Entity. There shall be a central register of all passports issued by the Entities and by Bosnia and Herzegovina.

ARTICLE II HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1. Human Rights Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms. To that end, there shall be a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 to the General Framework Agreement. 2. International Standards The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law. 3. Enumeration of Rights All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include: a.

The right to life.

b.

The right not to be subjected to torture or to inhuman or degrading treatment or punishment.

c.

The right not to be held in slavery or servitude or to perform forced or compulsory labor.

d.

The rights to liberty and security of person.

e.

The right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings.

f.

The right to private and family life, home, and correspondence. 269

ANNEX I g.

Freedom of thought, conscience, and religion.

h.

Freedom of expression.

i.

Freedom of peaceful assembly and freedom of association with others.

j.

The right to marry and to found a family.

k.

The right to property.

l.

The right to education.

m. The right to liberty of movement and residence. 4. Non-Discrimination The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 5. Refugees and Displaced Persons 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. Any commitments or statements relating to such property made under duress are null and void. 6. Implementation Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above. 7. International Agreements Bosnia and Herzegovina shall remain or become party to the international agreements listed in Annex I to this Constitution. 8. Cooperation All competent authorities in Bosnia and Herzegovina shall cooperate with and provide unrestricted access to: any international human rights monitoring 270

CONSTITUTION OF BOSNIA AND HERZEGOVINA mechanisms established for Bosnia and Herzegovina; the supervisory bodies established by any of the international agreements listed in Annex I to this Constitution; the International Tribunal for the Former Yugoslavia (and in particular shall comply with orders issued pursuant to Article 29 of the Statute of the Tribunal); and any other organization authorized by the United Nations Security Council with a mandate concerning human rights or humanitarian law. ARTICLE III RESPONSIBILITIES OF AND RELATIONS BETWEEN THE INSTITUTIONS OF BOSNIA AND HERZEGOVINA AND THE ENTITIES 1. Responsibilities of the Institutions of Bosnia and Herzegovina The following matters are the responsibility of the institutions of Bosnia and Herzegovina: a.

Foreign policy.

b.

Foreign trade policy.

c.

Customs policy.

d.

Monetary policy as provided in Article VII.

e.

Finances of the institutions and for the international obligations of Bosnia and Herzegovina.

f.

Immigration, refugee, and asylum policy and regulation.

g.

International and inter-Entity criminal law enforcement, including relations with Interpol.

h.

Establishment and operation of common and international communications facilities.

i.

Regulation of inter-Entity transportation.

j.

Air traffic control.

2. Responsibilities of the Entities (a) The Entities shall have the right to establish special parallel relationships with neighboring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina.

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ANNEX I (b) Each Entity shall provide all necessary assistance to the government of Bosnia and Herzegovina in order to enable it to honor the international obligations of Bosnia and Herzegovina, provided that financial obligations incurred by one Entity without the consent of the other prior to the election of the Parliamentary Assembly and Presidency of Bosnia and Herzegovina shall be the responsibility of that Entity, except insofar as the obligation is necessary for continuing the membership of Bosnia and Herzegovina in an international organization. (c) The Entities shall provide a safe and secure environment for all persons in their respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards and with respect for the internationally recognized human rights and fundamental freedoms referred to in Article II above, and by taking such other measures as appropriate. (d) Each Entity may also enter into agreements with states and international organizations with the consent of the Parliamentary Assembly. The Parliamentary Assembly may provide by law that certain types of agreements do not require such consent. 3. Law and Responsibilities of the Entities and the Institutions (a) All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities. (b) The Entities and any subdivisions thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities, and with the decisions of the institutions of Bosnia and Herzegovina. The general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities. 4. Coordination The Presidency may decide to facilitate inter-Entity coordination on matters not within the responsibilities of Bosnia and Herzegovina as provided in this Constitution, unless an Entity objects in any particular case. 5. Additional Responsibilities (a) Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities. (b) Within six months of the entry into force of this Constitution, the Entities shall begin negotiations with a view to including in the responsibilities of the institutions 272

CONSTITUTION OF BOSNIA AND HERZEGOVINA of Bosnia and Herzegovina other matters, including utilization of energy resources and cooperative economic projects. ARTICLE IV PARLIAMENTARY ASSEMBLY The Parliamentary Assembly shall have two chambers: the House of Peoples and the House of Representatives. 1. House of Peoples The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs). (a) The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska. (b) Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb Delegates are present. 2. House of Representatives The House of Representatives shall comprise 42 Members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska. (a) Members of the House of Representatives shall be directly elected from their Entity in accordance with an election law to be adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement. (b) A majority of all members elected to the House of Representatives shall comprise a quorum. 3. Procedures (a) Each chamber shall be convened in Sarajevo not more than 30 days after its selection or election. (b) Each chamber shall by majority vote adopt its internal rules and select from its members one Serb, one Bosniac, and one Croat to serve as its Chair and Deputy Chairs, with the position of Chair rotating among the three persons selected. (c) All legislation shall require the approval of both chambers. (d) All decisions in both chambers shall be by majority of those present and voting. The Delegates and Members shall make their best efforts to see that the majority includes at least one-third of the votes of Delegates or Members from the territory of each Entity. If a majority vote does not include one-third of the votes of Delegates or Members from the territory of each Entity, the Chair and Deputy Chairs shall meet 273

ANNEX I as a commission and attempt to obtain approval within three days of the vote. If those efforts fail, decisions shall be taken by a majority of those present and voting, provided that the dissenting votes do not include two-thirds or more of the Delegates or Members elected from either Entity. (e) A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates selected in accordance with paragraph 1 (a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb Delegates present and voting. (f) When a majority of the Bosniac, of the Croat, or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity. (g) The House of Peoples may be dissolved by the Presidency or by the House itself, provided that the House's decision to dissolve is approved by a majority that includes the majority of Delegates from at least two of the Bosniac, Croat, or Serb peoples. The House of Peoples elected in the first elections after the entry into force of this Constitution may not, however, be dissolved. (h) Decisions of the Parliamentary Assembly shall not take effect before publication. (i) Both chambers shall publish a complete record of their deliberations and shall, save in exceptional circumstances in accordance with their rules, deliberate publicly. (j) Delegates and Members shall not be held criminally or civilly liable for any acts carried out within the scope of their duties in the Parliamentary Assembly. 4. Powers The Parliamentary Assembly shall have responsibility for:

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a.

Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution.

b.

Deciding upon the sources and amounts of revenues for the operations of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina.

c.

Approving a budget for the institutions of Bosnia and Herzegovina.

d.

Deciding whether to consent to the ratification of treaties.

e.

Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.

CONSTITUTION OF BOSNIA AND HERZEGOVINA ARTICLE V PRESIDENCY The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska. 1. Election and Term (a) Members of the Presidency shall be directly elected in each Entity (with each voter voting to fill one seat on the Presidency) in accordance with an election law adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement. Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by the Parliamentary Assembly. (b) The term of the Members of the Presidency elected in the first election shall be two years; the term of Members subsequently elected shall be four years. Members shall be eligible to succeed themselves once and shall thereafter be ineligible for four years. 2. Procedures (a) The Presidency shall determine its own rules of procedure, which shall provide for adequate notice of all meetings of the Presidency. (b) The Members of the Presidency shall appoint from their Members a Chair. For the first term of the Presidency, the Chair shall be the Member who received the highest number of votes. Thereafter, the method of selecting the Chair, by rotation or otherwise, shall be determined by the Parliamentary Assembly, subject to Article IV.3. (c) The Presidency shall endeavor to adopt all Presidency Decisions (i.e., those concerning matters arising under Article III.1 (a) - (e)) by consensus. Such decisions may, subject to paragraph (d) below, nevertheless be adopted by two Members when all efforts to reach consensus have failed. (d) A dissenting Member of the Presidency may declare a Presidency Decision to be destructive of a vital interest of the Entity from the territory from which he was elected, provided that he does so within three days of its adoption. Such a Decision shall be referred immediately to the National Assembly of the Republika Srpska, if the declaration was made by the Member from that territory; to the Bosniac Delegates of the House of Peoples of the Federation, if the declaration was made by the Bosniac Member; or to the Croat Delegates of that body, if the declaration was made by the Croat Member. If the declaration is confirmed by a two-thirds vote of those persons within ten days of the referral, the challenged Presidency Decision shall not take effect.

275

ANNEX I 3. Powers The Presidency shall have responsibility for: a.

Conducting the foreign policy of Bosnia and Herzegovina.

b.

Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation.

c.

Representing Bosnia and Herzegovina in international and European organizations and institutions and seeking membership in such organizations and institutions of which Bosnia and Herzegovina is not a member.

d.

Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina.

e.

Executing decisions of the Parliamentary Assembly.

f.

Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly.

g.

Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency.

h.

Coordinating as necessary with international and nongovernmental organizations in Bosnia and Herzegovina.

i.

Performing such other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities.

4. Council of Ministers The Presidency shall nominate the Chair of the Council of Ministers, who shall take office upon the approval of the House of Representatives. The Chair shall nominate a Foreign Minister, a Minister for Foreign Trade, and other Ministers as may be appropriate, who shall take office upon the approval of the House of Representatives. (a) Together the Chair and the Ministers shall constitute the Council of Ministers, with responsibility for carrying out the policies and decisions of Bosnia and Herzegovina in the fields referred to in Article III.1, 4, and 5 and reporting to the Parliamentary Assembly (including, at least annually, on expenditures by Bosnia and Herzegovina).

276

CONSTITUTION OF BOSNIA AND HERZEGOVINA (b) No more than two-thirds of all Ministers may be appointed from the territory of the Federation. The Chair shall also nominate Deputy Ministers (who shall not be of the same constituent people as their Ministers), who shall take office upon the approval of the House of Representatives. (c) The Council of Ministers shall resign if at any time there is a vote of noconfidence by the Parliamentary Assembly. 5. Standing Committee (a) Each member of the Presidency shall, by virtue of the office, have civilian command authority over armed forces. Neither Entity shall threaten or use force against the other Entity, and under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina. All armed forces in Bosnia and Herzegovina shall operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina. (b) The members of the Presidency shall select a Standing Committee on Military Matters to coordinate the activities of armed forces in Bosnia and Herzegovina. The Members of the Presidency shall be members of the Standing Committee. ARTICLE VI CONSTITUTIONAL COURT 1. Composition The Constitutional Court of Bosnia and Herzegovina shall have nine members. (a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency. (b) Judges shall be distinguished jurists of high moral standing. Any eligible voter so qualified may serve as a judge of the Constitutional Court. The judges selected by the President of the European Court of Human Rights shall not be citizens of Bosnia and Herzegovina or of any neighboring state. (c) The term of judges initially appointed shall be five years, unless they resign or are removed for cause by consensus of the other judges. Judges initially appointed shall not be eligible for reappointment. Judges subsequently appointed shall serve until age 70, unless they resign or are removed for cause by consensus of the other judges. (d) For appointments made more than five years after the initial appointment of judges, the Parliamentary Assembly may provide by law for a different method of selection of the three judges selected by the President of the European Court of Human Rights.

277

ANNEX I 2. Procedures (a) A majority of all members of the Court shall constitute a quorum. (b) The Court shall adopt its own rules of court by a majority of all members. It shall hold public proceedings and shall issue reasons for its decisions, which shall be published. 3. Jurisdiction The Constitutional Court shall uphold this Constitution. (a) The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to: x

Whether an Entity's decision to establish a special parallel relationship with a neighboring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.

x

Whether any provision of an Entity's constitution or law is consistent with this Constitution.

Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity. (b) The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina. (c) The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court's decision. 4. Decisions Decisions of the Constitutional Court shall be final and binding.

278

CONSTITUTION OF BOSNIA AND HERZEGOVINA ARTICLE VII CENTRAL BANK There shall be a Central Bank of Bosnia and Herzegovina, which shall be the sole authority for issuing currency and for monetary policy throughout Bosnia and Herzegovina. 1. The Central Bank's responsibilities will be determined by the Parliamentary Assembly. For the first six years after the entry into force of this Constitution, however, it may not extend credit by creating money, operating in this respect as a currency board; thereafter, the Parliamentary Assembly may give it that authority. 2. The first Governing Board of the Central Bank shall consist of a Governor appointed by the International Monetary Fund, after consultation with the Presidency, and three members appointed by the Presidency, two from the Federation (one Bosniac, one Croat, who shall share one vote) and one from the Republika Srpska, all of whom shall serve a six-year term. The Governor, who shall not be a citizen of Bosnia and Herzegovina or any neighboring state, may cast tiebreaking votes on the Governing Board. 3. Thereafter, the Governing Board of the Central Bank of Bosnia and Herzegovina shall consist of five persons appointed by the Presidency for a term of six years. The Board shall appoint, from among its members, a Governor for a term of six years. ARTICLE VIII FINANCES 1. The Parliamentary Assembly shall each year, on the proposal of the Presidency, adopt a budget covering the expenditures required to carry out the responsibilities of institutions of Bosnia and Herzegovina and the international obligations of Bosnia and Herzegovina. 2. If no such budget is adopted in due time, the budget for the previous year shall be used on a provisional basis. 3. The Federation shall provide two-thirds, and the Republika Srpska one-third, of the revenues required by the budget, except insofar as revenues are raised as specified by the Parliamentary Assembly. ARTICLE IX GENERAL PROVISIONS 1. No person who is serving a sentence imposed by the International Tribunal for the Former Yugoslavia, and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear before the Tribunal, may stand as a candidate or hold any appointive, elective, or other public office in the territory of Bosnia and Herzegovina. 279

ANNEX I 2. Compensation for persons holding office in the institutions of Bosnia and Herzegovina may not be diminished during an officeholder's tenure. 3. Officials appointed to positions in the institutions of Bosnia and Herzegovina shall be generally representative of the peoples of Bosnia and Herzegovina. ARTICLE X AMENDMENT 1. Amendment Procedure This Constitution may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. 2. Human Rights and Fundamental Freedoms No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph. ARTICLE XI TRANSITIONAL ARRANGEMENTS Transitional arrangements concerning public offices, law, and other matters are set forth in Annex II to this Constitution. ARTICLE XII ENTRY INTO FORCE 1. This Constitution shall enter into force upon signature of the General Framework Agreement as a constitutional act amending and superseding the Constitution of the Republic of Bosnia and Herzegovina. 2. Within three months from the entry into force of this Constitution, the Entities shall amend their respective constitutions to ensure their conformity with this Constitution in accordance with Article III.3 (b). ANNEX I ADDITIONAL HUMAN RIGHTS AGREEMENTS TO BE APPLIED IN BOSNIA AND HERZEGOVINA 1.

280

1948 Convention on the Prevention and Punishment of the Crime of Genocide

CONSTITUTION OF BOSNIA AND HERZEGOVINA 2.

1949 Geneva Conventions I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I-II thereto

3.

1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto

4.

1957 Convention on the Nationality of Married Women

5.

1961 Convention on the Reduction of Statelessness

6.

1965 International Convention on the Elimination of All Forms of Racial Discrimination

7.

1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto

8.

1966 Covenant on Economic, Social and Cultural Rights

9.

1979 Convention on the Elimination of All Forms of Discrimination against Women

10. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 11. 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 12. 1989 Convention on the Rights of the Child 13. 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 14. 1992 European Charter for Regional or Minority Languages 15. 1994 Framework Convention for the Protection of National Minorities ANNEX II TRANSITIONAL ARRANGEMENTS 1. Joint Interim Commission (a) The Parties hereby establish a Joint Interim Commission with a mandate to discuss practical questions related to the implementation of the Constitution of Bosnia and Herzegovina and of the General Framework Agreement and its Annexes, and to make recommendations and proposals. 281

ANNEX I (b) The Joint Interim Commission shall be composed of four persons from the Federation, three persons from the Republika Srpska, and one representative of Bosnia and Herzegovina. (c) Meetings of the Commission shall be chaired by the High Representative or his or designee. 2. Continuation of Laws All laws, regulations, and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina. 3. Judicial and Administrative Proceedings All proceedings in courts or administrative agencies functioning within the territory of Bosnia and Herzegovina when the Constitution enters into force shall continue in or be transferred to other courts or agencies in Bosnia and Herzegovina in accordance with any legislation governing the competence of such courts or agencies. 4. Offices Until superseded by applicable agreement or law, governmental offices, institutions, and other bodies of Bosnia and Herzegovina will operate in accordance with applicable law. 5. Treaties Any treaty ratified by the Republic of Bosnia and Herzegovina between January 1, 1992 and the entry into force of this Constitution shall be disclosed to Members of the Presidency within 15 days of their assuming office; any such treaty not disclosed shall be denounced. Within six months after the Parliamentary Assembly is first convened, at the request of any member of the Presidency, the Parliamentary Assembly shall consider whether to denounce any other such treaty.

282

ANNEX II OFFICE OF THE HIGH REPRESENTATIVE DAYTON PEACE AGREEMENT Thursday, December 14, 1995 The General Framework Agreement: Annex 6 ANNEX 6 AGREEMENT ON HUMAN RIGHTS The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (the “Parties”) have agreed as follows: Chapter One: Respect for Human Rights Article I: Fundamental Rights and Freedoms The Parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex. These include: 1.

The right to life.

2.

The right not to be subjected to torture or to inhuman or degrading treatment or punishment.

3.

The right not to be held in slavery or servitude or to perform forced or compulsory labor.

4.

The rights to liberty and security of person.

5.

The right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings.

6.

The right to private and family life, home, and correspondence.

7.

Freedom of thought, conscience and religion.

8.

Freedom of expression.

9.

Freedom of peaceful assembly and freedom of association with others.

10. The right to marry and to found a family. 283

ANNEX II 11. The right to property. 12. The right to education. 13. The right to liberty of movement and residence. 14. The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in the Annex to this Constitution secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Chapter Two: The Commission on Human Rights Part A: General Article II: Establishment of the Commission 1.

To assist in honoring their obligations under this Agreement, the Parties hereby establish a Commission on Human Rights (the ”Commission”). The Commission shall consist of two parts: the Office of the Ombudsman and the Human Rights Chamber.

2.

The Office of the Ombudsman and the Human Rights Chamber shall consider, as subsequently described:

3.

284

a.

alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, or

b.

alleged or apparent discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex, where such violation is alleged or appears to have been committed by the Parties, including by any official or organ of the Parties, Cantons, Municipalities, or any individual acting under the authority of such official or organ.

The Parties recognize the right of all persons to submit to the Commission and to other human rights bodies applications concerning alleged violations of human rights, in accordance with the procedures of this Annex and such bodies. The Parties shall not undertake any punitive action directed against persons who intend to submit, or have submitted, such allegations.

AGREEMENT ON HUMAN RIGHTS Article III: Facilities, Staff and Expenses 1.

The Commission shall have appropriate facilities and a professionally competent staff. There shall be an Executive Officer, appointed jointly by the Ombudsman and the President of the Chamber, who shall be responsible for all necessary administrative arrangements with respect to facilities and staff. The Executive Officer shall be subject to the direction of the Ombudsman and the President of the Chamber insofar as concerns their respective administrative and professional office staff.

2.

The salaries and expenses of the Commission and its staff shall be determined jointly by the Parties and shall be borne by Bosnia and Herzegovina. The salaries and expenses shall be fully adequate to implement the Commission's mandate.

3.

The Commission shall have its headquarters in Sarajevo, including both the headquarters Office of the Ombudsman and the facilities for the Chamber. The Ombudsman shall have at least one additional office in the territory of the Federation and the Republika Srpska and at other locations as it deems appropriate. The Chamber may meet in other locations where it determines that the needs of a particular case so require, and may meet at any place it deems appropriate for the inspection of property, documents or other items.

4.

The Ombudsman and all members of the Chamber shall not be held criminally or civilly liable for any acts carried out within the scope of their duties. When the Ombudsman and members of the Chamber are not citizens of Bosnia and Herzegovina, they and their families shall be accorded the same privileges and immunities as are enjoyed by diplomatic agents and their families under the Vienna Convention on Diplomatic Relations.

5.

With full regard for the need to maintain impartiality, the Commission may receive assistance as it deems appropriate from any governmental, international, or non-governmental organization. Part B: Human Rights Ombudsman

Article IV: Human Rights Ombudsman 1.

The Parties hereby establish the Office of the Human Rights Ombudsman (the ”Ombudsman”).

2.

The Ombudsman shall be appointed for a non-renewable term of five years by the Chairman- in-Office of the Organization for Security and Cooperation in Europe (OSCE), after consultation with the Parties. He or she shall be independently responsible for choosing his or her own staff. 285

ANNEX II Until the transfer described in Article XIV below, the Ombudsman may not be a citizen of Bosnia and Herzegovina or of any neighboring state. The Ombudsman appointed after that transfer shall be appointed by the Presidency of Bosnia and Herzegovina. 3.

Members of the Office of the Ombudsman must be of recognized high moral standing and have competence in the field of international human rights.

4.

The Office of the Ombudsman shall be an independent agency. In carrying out its mandate, no person or organ of the Parties may interfere with its functions.

Article V: Jurisdiction of the Ombudsman

286

1.

Allegations of violations of human rights received by the Commission shall generally be directed to the Office of the Ombudsman, except where an applicant specifies the Chamber.

2.

The Ombudsman may investigate, either on his or her own initiative or in response to an allegation by any Party or person, non-governmental organization, or group of individuals claiming to be the victim of a violation by any Party or acting on behalf of alleged victims who are deceased or missing, alleged or apparent violations of human rights within the scope of paragraph 2 of Article II. The Parties undertake not to hinder in any way the effective exercise of this right.

3.

The Ombudsman shall determine which allegations warrant investigation and in what priority, giving particular priority to allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds.

4.

The Ombudsman shall issue findings and conclusions promptly after concluding an investigation. A Party identified as violating human rights shall, within a specified period, explain in writing how it will comply with the conclusions.

5.

Where an allegation is received which is within the jurisdiction of the Human Rights Chamber, the Ombudsman may refer the allegation to the Chamber at any stage.

6.

The Ombudsman may also present special reports at any time to any competent government organ or official. Those receiving such reports shall reply within a time limit specified by the Ombudsman, including specific responses to any conclusions offered by the Ombudsman.

AGREEMENT ON HUMAN RIGHTS 7.

The Ombudsman shall publish a report, which, in the event that a person or entity does not comply with his or her conclusions and recommendations, will be forwarded to the High Representative described in Annex 10 to the General Framework Agreement while such office exists, as well as referred for further action to the Presidency of the appropriate Party. The Ombudsman may also initiate proceedings before the Human Rights Chamber based on such Report. The Ombudsman may also intervene in any proceedings before the Chamber.

Article VI: Powers 1.

The Ombudsman shall have access to and may examine all official documents, including classified ones, as well as judicial and administrative files, and can require any person, including a government official, to cooperate by providing relevant information, documents and files. The Ombudsman may attend administrative hearings and meetings of other organs and may enter and inspect any place where persons deprived of their liberty are confined or work.

2.

The Ombudsman and staff are required to maintain the confidentiality of all confidential information obtained, except where required by order of the Chamber, and shall treat all documents and files in accordance with applicable rules. Part C: Human Rights Chamber

Article VII: Human Rights Chamber 1.

The Human Rights Chamber shall be composed of fourteen members.

2.

Within 90 days after this Agreement enters into force, the Federation of Bosnia and Herzegovina shall appoint four members and the Republika Srpska shall appoint two members. The Committee of Ministers of the Council of Europe, pursuant to its resolution (93)6, after consultation with the Parties, shall appoint the remaining members, who shall not be citizens of Bosnia and Herzegovina or any neighboring state, and shall designate one such member as the President of the Chamber.

3.

All members of the Chamber shall possess the qualifications required for appointment to high judicial office or be jurists of recognized competence. The members of the Chamber shall be appointed for a term of five years and may be reappointed.

4.

Members appointed after the transfer described in Article XIV below shall be appointed by the Presidency of Bosnia and Herzegovina. 287

ANNEX II Article VIII: Jurisdiction of the Chamber

288

1.

The Chamber shall receive by referral from the Ombudsman on behalf of an applicant, or directly from any Party or person, non-governmental organization, or group of individuals claiming to be the victim of a violation by any Party or acting on behalf of alleged victims who are deceased or missing, for resolution or decision applications concerning alleged or apparent violations of human rights within the scope of paragraph 2 of Article II.

2.

The Chamber shall decide which applications to accept and in what priority to address them. In so doing, the Chamber shall take into account the following criteria: a.

Whether effective remedies exist, and the applicant has demonstrated that they have been exhausted and that the application has been filed with the Commission within six months from such date on which the final decision was taken.

b.

The Chamber shall not address any application which is substantially the same as a matter which has already been examined by the Chamber or has already been submitted to another procedure or international investigation or settlement.

c.

The Chamber shall also dismiss any application which it considers incompatible with this Agreement, manifestly ill-founded, or an abuse of the right of petition.

d.

The Chamber may reject or defer further consideration if the application concerns a matter currently pending before any other international human rights body responsible for the adjudication of applications or the decision of cases, or any other Commission established by the Annexes to the General Framework Agreement.

e.

In principle, the Chamber shall endeavor to accept and to give particular priority to allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds.

f.

Applications which entail requests for provisional measures shall be reviewed as a matter of priority in order to determine (1) whether they should be accepted and, if so (2) whether high priority for the scheduling of proceedings on the provisional measures request is warranted.

AGREEMENT ON HUMAN RIGHTS 3.

The Chamber may decide at any point in its proceedings to suspend consideration of, reject or strike out, an application on the ground that (a) the applicant does not intend to pursue his application; (b) the matter has been resolved; or (c) for any other reason established by the Chamber, it is no longer justified to continue the examination of the application; provided that such result is consistent with the objective of respect for human rights.

Article IX: Friendly Settlement 1.

At the outset of a case or at any stage during the proceedings, the Chamber may attempt to facilitate an amicable resolution of the matter on the basis of respect for the rights and freedoms referred to in this Agreement.

2.

If the Chamber succeeds in effecting such a resolution it shall publish a Report and forward it to the High Representative described in Annex 10 to the General Framework Agreement while such office exists, the OSCE and the Secretary General of the Council of Europe. Such a Report shall include a brief statement of the facts and the resolution reached. The report of a resolution in a given case may, however, be confidential in whole or in part where necessary for the protection of human rights or with the agreement of the Chamber and the parties concerned.

Article X: Proceedings before the Chamber 1.

The Chamber shall develop fair and effective procedures for the adjudication of applications. Such procedures shall provide for appropriate written pleadings and, on the decision of the Chamber, a hearing for oral argument or the presentation of evidence. The Chamber shall have the power to order provisional measures, to appoint experts, and to compel the production of witnesses and evidence.

2.

The Chamber shall normally sit in panels of seven, composed of two members from the Federation, one from the Republika Srpska, and four who are not citizens of Bosnia and Herzegovina or any neighboring state. When an application is decided by a panel, the full Chamber may decide, upon motion of a party to the case or the Ombudsman, to review the decision; such review may include the taking of additional evidence where the Chamber so decides. References in this Annex to the Chamber shall include, as appropriate, the Panel, except that the power to develop general rules, regulations and procedures is vested in the Chamber as a whole.

3.

Except in exceptional circumstances in accordance with rules, hearings of the Chamber shall be held in public.

289

ANNEX II 4.

Applicants may be represented in proceedings by attorneys or other representatives of their choice, but shall also be personally present unless excused by the Chamber on account of hardship, impossibility, or other good cause.

5.

The Parties undertake to provide all relevant information to, and to cooperate fully with, the Chamber.

Article XI: Decisions 1.

Following the conclusion of the proceedings, the chamber shall promptly issue a decision, which shall address: a.

whether the facts found indicate a breach by the Party concerned of its obligations under this Agreement; and if so

b.

what steps shall be taken by the Party to remedy such breach, including orders to cease and desist, monetary relief (including pecuniary and non-pecuniary injuries), and provisional measures.

2.

The Chamber shall make its decision by a majority of members. In the event a decision by the full Chamber results in a tie, the President of the Chamber shall cast the deciding vote.

3.

Subject to review as provided in paragraph 2 of Article X, the decisions of the Chamber shall be final and binding.

4.

Any member shall be entitled to issue a separate opinion on any case.

5.

The Chamber shall issue reasons for its decisions. Its decisions shall be published and forwarded to the parties concerned, the High Representative described in Annex 10 to the General Framework Agreement while such office exists, the Secretary General of the Council of Europe and the OSCE.

6.

The Parties shall implement fully decisions of the Chamber.

Article XII: Rules and Regulations The Chamber shall promulgate such rules and regulations, consistent with this Agreement, as may be necessary to carry out its functions, including provisions for preliminary hearings, expedited decisions on provisional measures, decisions by panels of the Chamber, and review of decisions made by any such panels.

290

AGREEMENT ON HUMAN RIGHTS Chapter Three: General Provisions Article XIII: Organizations Concerned with Human Rights 1.

The Parties shall promote and encourage the activities of non-governmental and international organizations for the protection and promotion of human rights.

2.

The Parties join in inviting the United Nations Commission on Human Rights, the OSCE, the United Nations High Commissioner for Human Rights, and other intergovernmental or regional human rights missions or organizations to monitor closely the human rights situation in Bosnia and Herzegovina, including through the establishment of local offices and the assignment of observers, rapporteurs, or other relevant persons on a permanent or mission-by- mission basis and to provide them with full and effective facilitation, assistance and access.

3.

The Parties shall allow full and effective access to non-governmental organizations for purposes of investigating and monitoring human rights conditions in Bosnia and Herzegovina and shall refrain from hindering or impeding them in the exercise of these functions.

4.

All competent authorities in Bosnia and Herzegovina shall cooperate with and provide unrestricted access to the organizations established in this Agreement; any international human rights monitoring mechanisms established for Bosnia and Herzegovina; the supervisory bodies established by any of the international agreements listed in the Appendix to this Annex; the International Tribunal for the Former Yugoslavia; and any other organization authorized by the U.N. Security Council with a mandate concerning human rights or humanitarian law.

Article XIV: Transfer Five years after this Agreement enters into force, the responsibility for the continued operation of the Commission shall transfer from the Parties to the institutions of Bosnia and Herzegovina, unless the Parties otherwise agree. In the latter case, the Commission shall continue to operate as provided above. Article XV: Notice The Parties shall give effective notice of the terms of this Agreement throughout Bosnia and Herzegovina. Article XVI: Entry into Force This Agreement shall enter into force upon signature. For the Republic of Bosnia and Herzegovina 291

ANNEX II For the Federation of Bosnia and Herzegovina For the Republika Srpska Appendix: Human Rights Agreements 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

1948 Convention on the Prevention and Punishment of the Crime of Genocide 1949 Geneva Conventions I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I-II thereto 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Protocols thereto 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto 1957 Convention on the Nationality of Married Women 1961 Convention on the Reduction of Statelessness 1965 International Convention on the Elimination of All Forms of Racial Discrimination 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto 1966 Covenant on Economic, Social and Cultural Rights 1979 Convention on the Elimination of All Forms of Discrimination against Women 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1989 Convention on the Rights of the Child 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1992 European Charter for Regional or Minority Languages 1994 Framework Convention for the Protection of National Minorities

Office of the High Representative Emerika Bluma 1, 71000 Sarajevo; Tel: +387 33 283 500, Fax: +387 33 283 501 www.ohr.int

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INDEX Cutiliero Principles, 51–52 Cutiliero, Jose, 51

A Agreed Basic Principles, 47 Annex 4 (The Constitution of Bosnia and Herzegovina), 13, 17, 27, 61– 91, 99–102, 104–107, 137–139, 144–159, 161, 239–243 Annex 6 (Agreement on Human Rights), 13, 14, 61, 62, 71, 87–91, 89, 95, 97, 106, 109, 126, 127, 153, 243 Arms embargo, 45 Association with national minority, 124

D ‘Dayton mistake’, see Presidency decisions Derogation, 11, 180, 183–216 Descent, 122–124 Discrimination, 11, 14, 25, 93, 102– 129, 133–135, 144, 156, 158, 179, 180, 194–205, 209, 210 racial, 114 Distress, 223 Draft Articles on State Responsibility, 11, 217–236 ‘Dual key’, 45, 58

B Bildt, Carl, xi, 12, 19, 42, 49, 55, 56, 57, 66, 70, 72, 80, 81, 82, 138 Bonn-powers, 150, 244–245 Bosniac/ Muslim, 36, 138 Boutros-Boutros Ghali, 44 Brcko, 17

E Emergency, 184, 187, 191, 200, 209 Entities, 12, 17, 37, 56, 58, 62, 63, 64, 65, 67, 68–69, 70, 71, 72, 73, 74, 76, 79, 80, 84, 85, 89, 90, 95, 96, 140, 141, 142, 144, 146, 148, 151, 152, 155, 158, 159, 173, 181, 244, 248 Erga omnes, 228–236 Ethnic cleansing, 118 Ethnic origin, 122 Ethnic veto, 75,90, 148–150, 153– 155, 226 Exclusion criteria, 167–171, 173 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 11, 14, 25, 27, 70, 71, 89, 94–112, 115, 117, 118, 121128, 162–174, 177, 180, 181, 183 190, 192–194, 196, 197, 199, 200, 202, 206 210, 212, 213, 214, 236, 239, 241, 242, 243, 248, 249

C Carrington Conference, 50 Christopher, Warren, 80 Citizenship, 69–70 Colour, 120–121 COMIFOR, 48, 81, 244 Constitutional Court of Bosnia and Herzegovina, 27, 65, 66, 73, 78, 80, 83–85, 107, 139, 149, 155, 246 Constituent Peoples, 14–16, 65, 73, 76, 107, 128, 135–159, 170, 179, 190, 204, 205, 242, 248, 249 Contact Group for the Former Yugoslavia, 12, 35, 54–55, 57, 235 Council of Ministers of Bosnia and Herzegovina, 83, 245 293

INDEX European Union Plan, 53

F Federal Republic of Yugoslavia, 13, 36, 38, 46, 55, 57, 61, 63, 247 Federation of Bosnia and Herzegovina, 37, 54, 56, 62, 64, 68, 74, 100, 107, 109, 127, 138, 142, 144 First (lower) Chamber, 164 Force majeure, 223 Freedom of Association, 211, 220

G General Comment, 112, 113, 114, 172, 174, 177, 178, 188, 189, 190, 193, 194, 195, 216, 219 General Framework Agreement, 1, 12, 13, 18, 57, 58, 61–83, 89, 95, 97, 100, 215, 246, 247 Genocide, 104, 134 Granic, Mate, 56

H Holbrooke, Richard, 55,57 House of Peoples, 15, 16, 18, 74, 75, 76, 84, 86, 142–149, 150, 154, 155, 156, 157, 158, 162, 164, 166, 167, 169, 170, 171, 173, 175, 178, 180, 181, 192, 204, 240, 241, 250, 252 House of Representatives, 15, 74, 75, 76, 83, 84, 86, 142–149, , 155, 166, 167, 169, 241 Human Rights, 1–5, 8, 10, 12, 13, 14, 16, 18, 19, 25, 26, 27, 28, 31, 42, 50, 52, 61, 62, 64, 65, 66, 70, 71, 72, 83, 84, 87, 88, 89, 90, 93, 94, 95, 97– 113, 117, 119, 120, 121, 125, 126, 127, 129, 133, 156, 161, 162, 164, 169, 171, 172, 174, 175, 294

176, 177, 178, 184, 185, 186, 188– 195, 199– 203, 205, 206, 207, 210, 211, 213, 216, 217, 218, 219, 220, 232, 235, 242, 243, 248, 249 prohibition against torture, 25, 193 right to stand for election, 104, 164, 169, 170, 171 right to take part in the conduct of public affairs, 113 right to vote, 85, 93, 103, 113, 161, 162, 164, 166, 168, 169, 170, 172, 173, 174, 175, 176, 177, 178, 181 Human Rights Chamber of Bosnia and Herzegovina, 88–92, 97, 100, 127 Human Rights Commission, 71, 88, 89, 95, 99, 126 Human Rights Committee, 19, 27, 111, 112, 113, 126, 172, 174, 175, 176, 177, 178, 188, 189, 190, 191, 193, 194, 195, 207, 213, 216, 219, 249

I ILO Special Commission, 211, 212 International Conference on the Former Yugoslavia (ICFY), 3, 19, 36, 37, 42, 43, 51, 52, 53, 55, 57, 59, 60, 66, 94, 246 International Convention on the Elimination on All Forms of Racial Discrimination (ICERD), 25, 102, 109, 114, 115, 116, 117, 118, 122, 123, 156, 163, 179, 180, 183, 185, 203, 208, 209, 243, 249 International Court of Justice (ICJ), 6, 23, 24, 25, 26, 27, 29, 32, 43, 132, 134, 135, 212, 218, 219, 222, 225, 226, 227, 230, 232, 233 International Covenant on Civil and Political Rights (ICCPR), 11, 25, 100, 102, 104, 105, 109–113, 117,

INDEX 118, 120, 122, 124, 126, 134, 135, 139, 163, 171, 175, 177, 180, 181, 183, 184, 185, 186, 187, 188, 190, 192, 193, 194, 195, 196, 199–210, 212, 214, 217, 235, 236, 243, 249 International Criminal Tribunal for the Former Yugoslavia (ICFY), 3, 9, 19, 43, 46, 51–53, 55, 59, 60, 66, 85, 94, 96, 246 International law (sources and methods), 10, 21–33, 185, 239 International Law Commission (ILC), 6, 7, 8, 11, 26, 130, 131, 132, 133, 134, 184, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 234 Internment, 201 ‘Invincible’ plan, see OwenStoltenberg Peace Plan Ischinger, Wolfgang, 57 Ivanov, Igor, 57 Izetbegovic, Alija, 36, 57, 139

Milosevic, Slobodan , 51, 57

N National origin, 122, 201 Nationality (Narodnosti), 123, 137, 139 Nations (Narod), 123, 139 NATO, 8, 41, 45, 50, 55, 58, 66, 244 Necessity, 11, 217, 220, 224, 225, 228 Neville-Jones, Pauline, 57 Non-discrimination criteria, 199–205 Non-derogable rights, 192–194

O

jus cogens (see Peremptory norms of international law), 6, 7, 8, 26, 130–136, 229, 231, 232, 233, 234, 235

Office of the High Representative (OHR), 1, 17, 55, 59, 61, 62, 68, 70, 71, 73, 78, 81, 82, 83, 88, 138, 140, 142, 149, 150, 153, 155, 162, 244, 246 ‘Other status’, 126 ‘Others’, 154–159 Owen, David, 42, 52 Owen-Stoltenberg Peace Plan (see ‘Invincible’ plan), 3, 52, 53, 88, 94, 137, 152

K

P

Karadic, Radovan, 47, 86 Krajisnik, Momcilo, 77, 192, 240 Kornblum, John, 81

Parliamentary Assembly, 15, 19, 56, 70, 74, 75, 76, 77, 79, 82, 83, 84, 86, 90, 91, 99, 137, 140, 142–148, , 149, 150, 151, 155, 157, 161, 162, 166, 167, 170, 171, 173, 178, 226, 239, 241, 242, 245, 247, 249 Peace Implementation Conference (and Council), 59, 82, 245 Peremptory norms of international law (see jus cogens) Permanent Election Commission, 161 Political Rights, 11, 103, 110, 112, 113, 116

J

L Language, 121 Legal positivism, 30 Lord Carrington, 50

M Muslim 36, 138

295

INDEX Presidency decisions (see ‘Dayton Mistake’) 78–82, 152–154 Presidency of Bosnia and Herzegovina, 15, 76–83, 150, 173, 178, 180 Priority rule, 98–100, 239–249 Provisional Election Commission, 161

51, 61, 122, 123, 124, 126, 139, 141, 185 Special Parallel Relationships, 73, 244 Srebrenica massacre, 45, 47, 58 Stoltenberg, Thorvald, xi, 19, 42, 52, 59 Szasz, Paul C., xi, 51, 52, 53, 54, 65, 66, 88, 94, 153

R T Race, 119 Racial discrimination, 114, 179 Racial discrimination (definition of), 114 Ramcharan, Bertrand, xi, 59, 112 Religion, 121 Republic of Croatia, 13, 53, 57, 61, 74 Republika Srpska, 17, 52, 56, 57, 62, 67, 68, 69, 70, 71, 75, 76, 84, 86, 88, 107, 108, 109, 128, 129, 140, 142, 143, 144, 145, 147, 148, 149, 150, 152, 154, 155, 157, 158, 162, 173, 178, 245

S Sacirbey, Muhamed, 56 Safe areas, 37 Sanctions (economic), 46 Second (upper) chamber, 164–165, 173 Security Council, 2, 4, 5, 8, 9, 10, 26, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 60, 96, 219, 244, 246, 247 Self-defence, 223 Self preservation, 220 Serbia and Montenegro, 36, 46, 124 SFRY Constitution, 137–142 Socialist Federal Republic of Yugoslavia (SFRY), 35, 36, 50,

296

Tito (Josip Broz), 35, 141 Tudjman, Franjo, 37, 57, 61

U UNPROFOR (UN Protection Force), 43–45

V Vance, Cyrus, 42, 52, Vance-Owen Peace Plan, 47, 52, 93, 137 Vital interest clause, 75–78, 142–151 Venice Commission, 68, 73, 157, 162

W Washington Agreement, 36, 37, 53, 74, 138, 144

Z Zubak, Kresimir, 77

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Göran Melander (ed.): The Raoul Wallenberg Institute Compilation of Human Rights Instruments ISBN 0-79233-646-1 U. Oji Umozurike: The African Charter on Human and Peoples’ Rights ISBN 90-411-0291-4 Bertrand G. Ramcharan (ed.): The Principle of Legality in International Human Rights Institutions; Selected Legal Opinions ISBN 90-411-0299-X Zelim Skurbaty: As If Peoples Mattered; Critical Appraisal of ‘Peoples’ and `Minorities’ from the International Human Rights Perspective and Beyond ISBN 90-411-1342-8 Gudmundur Alfredsson and Rolf Ring (eds.): The Inspection Panel of the World Bank; A Different Complaints Procedure ISBN 90-411-1390-8 Gregor Noll (ed.): Negotiating Asylum; The EU Acquis, Extraterritorial Protection and the Common Market of Deflection ISBN 90-411-1431-9 Gudmundur Alfredsson, Jonas Grimheden, Bertrand G. Ramcharan and Alfred de Zayas (eds.): International Human Rights Monitoring Mechanisms; Essays in Honour of Jakob Th. Möller ISBN 90-411-1445-9 Gudmundur Alfredsson and Peter Macalister-Smith (eds.): The Land Beyond; Collected Essays on Refugee Law and Policy ISBN 90-411-1493-9 Hans-Otto Sano, Gudmundur Alfredsson and Robin Clapp (eds.): Human Rights and Good Governance; Building Bridges ISBN 90-411-1776-8 Gudmundur Alfredsson and Maria Stavropoulou (eds.): Justice Pending: Indigenous Peoples and Other Good Causes; Essays in Honour of Erica-Irene A. Daes ISBN 90-411-1876-4 Göran Bexell and Dan-Erik Andersson (eds.): Universal Ethics; Perspectives and Proposals from Scandinavian Scholars ISBN 90-411-1933-7 Hans Göran Franck, Revised and edited by William Schabas: The Barbaric Punishment; Abolishing the Death Penalty ISBN 90-411-2151-X Radu Mares (ed.): Business and Human Rights; A Compilation of Documents ISBN 90-04-13656-8 Manfred Nowak: Introduction to the International Human Rights Regime ISBN 90-04-13658-4 (Hb) ISBN 90-04-13672-X (Pb) Göran Melander, Gudmundur Alfredsson and Leif Holmström (eds.): The Raoul Wallenberg Institute Compilation of Human Rights Instruments; Second Revised Edition ISBN 90-04-13857-9 Gregor Noll (ed.): Proof, Evidentiary Assessment and Credibility in Asylum Procedures ISBN 90-04-14065-4 Ineta Ziemele (ed.): Reservations to Human Rights Treaties and the Vienna Convention Regime; Conflict, Harmony or Reconciliation ISBN 90-04-14064-6 Nisuke Ando (ed.), on behalf of the Committee: Towards Implementing Universal Human Rights; Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee ISBN 90-04-14078-6

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