Refugees, displaced persons and reconstruction in certain countries of former Yugoslavia
Doc. 7472
23 January 1996
OPINION[1]
Rapporteur: Mrs GELDERBLOM-LANKHOUT, Netherlands, Liberal, Democratic and Reformers' Group
I. Introduction
1 The report of the Committee on Migration and Refugees covers extensively the relevant issues, basing itself inter alia on information obtained during a seminar organised by the Sub-Committee on refugees, displaced persons and reconstruction in Croatia and Bosnia-Herzegovina (Zagreb, 12-14 October 1995) and visits to refugee camps in the two countries.
2 The major development which followed the visit of the Sub-Committee on Refugees to the region was the conclusion, on 21 November 1995 in Dayton, of the General Framework Agreement for Peace in Bosnia-Herzegovina. A set of more specific Agreements, appended to the general one, are concluded by the three "Parties" that form the State of Bosnia-Herzegovina, that is the Republic of Bosnia-Herzegovina, on the one hand, and the two entities, the Federation of Bosnia-Herzegovina (Bosniaks and Croats) and the Republica Srpska (Serbs), on the other. The Rapporteur joins the Rapporteurs of the Committee on Migration, Refugees and Demography in welcoming the conclusion of the Dayton Agreement which for the first time offers a realistic perspective for an end to the war.
3 The report of the Committee on Migration and Refugees contains a chapter concerning the Agreement on Refugees and Displaced Persons (Annex 7 to the Dayton Agreement). While leaving it for the Rapporteurs of the Political Affairs Committee to present the general structure of the Dayton Agreement and its political implications, the Rapporteur of the Committee on Legal Affairs and Human Rights wishes to present briefly the Agreement on Human Rights (Annex 6 to the Dayton Agreement) since it contains express mandates to the Council of Europe (see II.B below).
4 There some other issues that the Rapporteur would like to raise in addition to what has been drafted by the main Rapporteurs (see II.A below) and in relation to which she proposes a number of amendments to the draft recommendation (see II.C below).
II. Explanatory memorandum
A. General observations
5 In general, the Rapporteur supports the draft recommendation adopted by the Committee on Migration and Refugees. There are, nevertheless, some additional issues she would like to raise and for this purpose she proposes a series of amendments.
6 In the Rapporteur's view, the widest possible guarantees must be given to returning refugees and displaced persons who should not be discriminated against on any ground. This is why the Rapporteur proposes Amendment No 2.
7 The problem of law enforcement and keeping order is of major importance. There is a general lack of confidence of the public to the role of local police which has often been accused for nationalist attitudes. This problem does not seem to find a satisfactory solution in the Dayton Agreement. The Rapporteur considers that joint police forces comprising members of the different ethnic groups could enhance confidence of the local population and help avoid acts of revenge (see Amendment No 3).
8 It is not sufficient that the Dayton Agreement establishes a human rights protection mechanism for Bosnia-Herzegovina if the persons concerned are not aware of the various available remedies. Wide publicity should thus be given to the existence and powers in particular of the Human Rights ombudsman and the Human Rights Chamber (see Amendment No. 4).
9 In a debate on reconstruction after a war the psychological aspect should not be neglected. Therefore the Rapporteur proposes Amendment No 5.
10 Return of refugees and displaced persons who are due to do their military service could be impeded for this reason. This is why the Rapporteur proposes Amendment No 6.
11 The conditions for granting economic assistance - in addition to humanitarian aid -should be clearly spelt out, in particular as far as co-operation with the International Criminal Tribunal for the Former Yugoslavia is concerned (see Amendment No 7).
12 No discrimination in granting humanitarian and economic assistance should be made between those who stayed at their place of origin throughout the war and those who return if tensions are to be avoided (see Amendment No 8).
13 The absence of constructive measures to facilitate the return of the Serb population who fled from Croatia during the military operations has resulted to a de facto limitation of their recognised right to return to their homes in safety and dignity. In particular, no time-limit should be placed on the exercise of the right of refugees and displaced persons to recover their property or receive compensation for it.[2] The Rapporteur proposes therefore Amendment No 11.
14 Full co-operation with the International Criminal Tribunal for the Former Yugoslavia and efforts to ensure the prosecution of suspected perpetrators of crimes - records are poor at present - should be specifically asked by Croatia.
15 The Rapporteur sees no reason why not to address also the authorities of Bosnia-Herzegovina in the context of the present report and thus proposes Amendment No 12.
16 Full co-operation with the International Criminal Tribunal for the Former Yugoslavia and support for its activities should also be asked by the member States of the Council of Europe (see Amendment No 13).
B. The Agreement on Human Rights (Annex 6 to the Dayton Agreement)
1. The content of the protection
17 According to both the Constitution of Bosnia-Herzegovina (Article II, paragraph 1) and the Agreement on Human Rights (Article I), Bosnia-Herzegovina and the two entities (the Federation of Bosnia-Herzegovina and the Republica Srpska) guarantee to all persons within their jurisdiction "the highest level of internationally recognised human rights and fundamental freedoms", including those set forth in the European Convention on Human Rights (ECHR) and its Protocols and other international agreements listed in the Appendix to the Constitution and the Agreement. Among those agreements, there are three other Council of Europe Conventions:
. European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
. European Charter for Regional or Minority Languages;
. Framework Convention for the Protection of National Minorities.
18 The rights and freedoms secured by the European Convention on Human Rights shall apply directly in Bosnia-Herzegovina and have priority over all other law (Article II, paragraph 2 of the Constitution). This means that even without (or prior to) ratification by Bosnia-Herzegovina (which could only be made after its accession to the Council of Europe) and without any other procedural step to be necessary, the substantive part of the ECHR is fully and directly applicable as part of the Constitution.
19 With regard to the other three Council of Europe Conventions, the Constitution provides that Bosnia-Herzegovina shall become party (Article II, paragraph 7 of the Constitution). In this respect the Rapporteur wants to draw attention to the following problems which could arise in the implementation of this clause and which the Committee of Ministers of the Council of Europe will have to face:
. the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is not open for signature to non-member States of the Council of Europe (except on the basis of its Protocol No 1 which is not included in the list appended to the Constitution and the Agreement and, in any case, is not put into force);
. the European Charter for Regional or Minority Languages can be open for signature to non-member States of the Council of Europe only after its entry into force, which is not yet the case;
. the Framework Convention for the Protection of National Minorities allows for non-member States to be invited to accede even before its entry into force and, therefore, is the only Convention to which Bosnia-Herzegovina could immediately become party upon request.
2. The protection machinery
20 The Agreement on Human Rights provides for the setting up of a Commission on Human Rights to safeguard the rights guaranteed by the Constitution. The Commission consists of two parts: the Office of the Human Rights Ombudsman and the Human Rights Chamber.
21 The Ombudsman is appointed by the Organisation for Security and Co-operation in Europe and has the power to investigate human rights violations, issue findings and bring proceedings before the Human Rights Chamber.
22 The Human Rights Chamber shall hear human right cases brought before it by the Ombudsman or directly by any person, non-governmental organisation or any of the Parties to the Agreement (Bosnia-Herzegovina and the two entities).
23 Moreover, the Constitutional Court provided by the Constitution of Bosnia-Herzegovina is also of relevance to human rights issues since it is competent inter alia to review upon referral by any court in Bosnia-Herzegovina whether a law is compatible with the Constitution and the European Convention on Human Rights.
24 On the basis of the Agreement, the Committee of Ministers of the Council of Europe has been invited to appoint eight members (out of a total of fourteen) of the Human Rights Chamber (including its President) in pursuance to its resolution (93) 6. In this respect, the Rapporteur notes that the Parliamentary Assembly has so far not been at all been consulted or in other way associated by the Committee of Ministers in the consideration and selection of the candidates. This in particular, since the ECHR gives an important role to the Assembly in the appointment of both members of the European Commission and judges of the European Court of Human Rights. It is therefore proposed that the list of candidates be transmitted to the Assembly for consultation within the set time-limit.
25 Moreover, the President of the European Court of Human Rights is to appoint three of the nine members of the Constitutional Court of Bosnia-Herzegovina (including its President).
26 There are two general remarks that the Rapporteur wishes to make in this context:
. The number of the supervising bodies that are set-up and the fact that their competence are not always clearly delimited could reduce their effectiveness. Conflicts of competence are to be foreseen. The Council of Europe having a great experience in this field could contribute to this direction. In particular, the Committee of Legal Affairs and Human Rights should closely follow the work of the different bodies provided by the Agreement.
. According to the agreement, salaries and expenses of the Commission and its staff shall be determined jointly by the Parties and borne by Bosnia-Herzegovina. While the salaries should be such as to guarantee the quality of the people to be appointed or recruited, the Rapporteur wishes to draw attention to the risk that a large part of the economic assistance to be given to Bosnia-Herzegovina for reconstruction will be spent for the payment of salaries.
C. Proposed amendments
27 The amendments proposed on the basis of the above considerations (see II.B) are the following:
Amendment No 1
In the draft recommendation, paragraph 2, at the end of the first sentence, add a new sentence:
"To a large extent, their homes have been either totally destroyed or burnt and looted."
At the beginning of the old second sentence, add the words:
"In any case,"
[As a consequence, paragraph 2 will read as follows (the added text in italics):
"The Assembly points out that, throughout the territory of former Yugoslavia, almost four million persons have left their homes since 1991, only a small proportion of whom have been able to return. To a large extent, their homes have been either totally destroyed or burnt and looted. In any case, all these refugees and displaced persons have the right to return to their original homes and to recover their property or to receive compensation for it."]
Amendment No 2
In the draft recommendation, paragraph 3, delete the second sentence and add two new sentences as follows:
"There should be no risk of harassment, intimidation, persecution or discrimination on any ground such as ethnic origin, religious belief, political or other opinion for those who return. Their safety and human rights must be guaranteed and, in particular, nobody may be forced to return to dangerous places or those lacking any basic infrastructure."
Amendment No 3
In the draft recommendation, after paragraph 4, add a new paragraph:
"The deployment of joint police forces (comprising members from the different ethnic groups) could contribute to the establishment of confidence and help avoid acts of revenge."
Amendment No 4
In the draft recommendation, after paragraph 5, add a new paragraph:
"With regard to Bosnia-Herzegovina, it is important to give wide publicity to the existence of the protection mechanisms established by the Dayton agreement, in particular the Human Rights Ombudsman and the Human Rights Chamber, as well as the Commission for Displaced Persons and Refugees."
Amendment No 5
In the draft recommendation, at the end of paragraph 6, add the following sentence:
"Moreover, the psychological aspect should not be neglected. Means should be made available to the medical profession to help the population, and in particular the children, recover from the harrowing experience of the war."
Amendment No 6
In the draft recommendation, after paragraph 6, add a new paragraph:
"There should be no discrimination against returning refugees and displaced persons with respect to conscription into military service. Positive consideration should be given to requests for exemption from military service on the basis of individual circumstances in order to enable returnees to rebuild their lives. Provision should be made for alternative service in the reconstruction process".
Amendment No 7
In the draft recommendation, paragraph 9, replace the part of the second sentence after the word "conditional" until the end with the following text:
"not only upon the setting up of a market economy, but above all upon respect for human rights, including the creation of conditions for the return of refugees, the prosecution of perpetrators of crimes and co-operation with the International Criminal Tribunal for the Former Yugoslavia."
Amendment No 8
In the draft recommendation, paragraph 9, at the end of the last sentence, add a new sentence:
"Moreover, humanitarian and reconstruction assistance should also be given to the local population in order to avoid tensions between those who stayed and those who return."
Amendment No 9
In the draft recommendation, sub-paragraph iv (a) of paragraph 12, after the words "remaining in", add the words: "Croatia, and in particular in".
Amendment No 10
In the draft recommendation, sub-paragraph iv (a) of paragraph 12, after the words "allow them", add the words:
", through a specific procedure established by law, to effectively exercise their right"
Amendment No 11
In the draft recommendation, after sub-paragraph iv (a) of paragraph 12, add a new sub-paragraph as follows:
"b. to make every effort to ensure the prosecution of perpetrators of crimes and to fully co-operate with the International Criminal Tribunal for the Former Yugoslavia;"
Amendment No 12
In the draft recommendation, after sub-paragraph iv of paragraph 12, add a new sub-paragraph:
"v. ask the authorities of Bosnia-Herzegovina:
to fully co-operate with and facilitate the task of any international human rights monitors and other supervisory bodies established by the Dayton agreement, as well as the International Criminal Tribunal for the Former Yugoslavia;"
Amendment No 13
In the draft recommendation, at the end of sub-paragraph v of paragraph 12, add a new sentence:
"e. to fully co-operate with and support the work of the International Criminal Tribunal for the Former Yugoslavia;"
Reporting committee: Committee on Migration, Refugees and Demography
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Order No. 483, of 5 November 1992, and Doc 6951, Reference No. 1904 of 4 November 1993
Opinion approved by the committee on 23 January 1996
Secretaries to the committee: Mr Plate, Ms Chatzivassiliou and Ms Kleinsorge
[1]. by the Committee on Legal Affairs and Human Rights
[2]. The Croatian legislation provided initially for a 30-day and then a 90-day time-limit for claims on property to be made. This deadline has now been suspended but should be lifted in a definitive manner.