Benchmarks or deutschmarks? Determining the criteria for the repatriation of refugees to Bosnia and Herzegovina

International Journal of Refugee Law

Volumn 9, Issue 4, 1997, Pages 565-592

  Bagshaw, Simon ^a  

^a European University Institute   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0038211162     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/9.4.566     Document Type: Article

References (149)

1. 'General Framework Agreement for Peace in Bosnia and Herzegovina': 35 ILM 75 (1996). Hereinafter, Framework Agreement. The peace agreements signed in Paris on 14 Dec. technically consist of the Framework Agreement, signed by the Republic of BiH, the Federal Republic of Yugoslavia (FRY) and Croatia and its 12 annexes, signed by the Republic of BiH and the two entities, the Federation of BiH and the Republika Srpska but with the exception of Annex 1-B and Annex 10 which were also signed by the FRY and Croatia. Within the context of this paper, the term Framework Agreement is used to refer to the Framework Agreement and the annexes, unless otherwise specified. For an account of the events surrounding the signing of the Framework Agreement see Silber. L, and Little, R., 'Pax Americana', in 'The Death of Yugoslavia'. London: Penguin/BBC (1996).
2. 'General Framework Agreement for Peace in Bosnia and Herzegovina': 35 ILM 75 (1996). Hereinafter, Framework Agreement. The peace agreements signed in Paris on 14 Dec. technically consist of the Framework Agreement, signed by the Republic of BiH, the Federal Republic of Yugoslavia (FRY) and Croatia and its 12 annexes, signed by the Republic of BiH and the two entities, the Federation of BiH and the Republika Srpska but with the exception of Annex 1-B and Annex 10 which were also signed by the FRY and Croatia. Within the context of this paper, the term Framework Agreement is used to refer to the Framework Agreement and the annexes, unless otherwise specified. For an account of the events surrounding the signing of the Framework Agreement see Silber. L, and Little, R., 'Pax Americana', in 'The Death of Yugoslavia'. London: Penguin/BBC (1996).
3. Concluded 28 Jul. 1951; entered into force: 22 Apr. 1954: 189 UNTS 2545. Hereinafter, 1951 Convention.
4. Concluded 31 Jan. 1967; entered into force: 4 Oct. 1967: 606 UNTS 8791.
5. See High Level Meeting on Implementation of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina. Operational Plan for Durable Solutions within the Framework of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina and Related Regional Return and Repatriation Movements (hereinafter, 'Repatriation Plan'). Oslo, 8 Mar. 1996. HLWM/1996/1 (27 Feb. 1996).
6. In accordance with art. 1(5), Annex 7, Agreement on Refugees and Displaced Persons, of the Framework Agreement.
7. It was estimated that some 250,000 persons had returned to Bill by December 1996. See Peace Implementation Conference, Bosnia and Herzegovina 1997: Making Peace Work. London, 4-5 Dec. 1996, 10.
8. New York Times, 'Bavarian Expels Bosnian War Refugees'. 10 Oct. 1996.
9. Art. 1(1), Annex 7.
10. Art. 1(2), Annex 7.
11. Figures as at June 1996. United Nations High Commissioner for Refugees (UNHCR), cited in The Economist, 'Doors Slam', 28 Sept. 1996.
12. Ibid.
13. Art. 1(A)(2), 1951 Convention.
14. See 'International Meeting on Humanitarian Aid for Victims of the Conflict in Former Yugoslavia', Geneva, 29 Jul. 1992: Doc. HCR/IMFY/1992/2 (24 Jul. 1992). For an overview of the temporary protection regime as applied to refugees from the former Yugoslavia see Humanitarian Issues Working Group, see UNHCR, 'Survey on the Implementation of Temporary Protection', 8 Mar. 1995; Inter-governmental Consultations, 'Report on Temporary Protection in States in Europe, North America and Australia', Geneva, Aug. 1995; and Kjaerum, M., 'Temporary Protection in Europe in the 1990s,' 6 IJRL 444 (1994).
15. See 'International Meeting on Humanitarian Aid for Victims of the Conflict in Former Yugoslavia', Geneva, 29 Jul. 1992: Doc. HCR/IMFY/1992/2 (24 Jul. 1992). For an overview of the temporary protection regime as applied to refugees from the former Yugoslavia see Humanitarian Issues Working Group, see UNHCR, 'Survey on the Implementation of Temporary Protection', 8 Mar. 1995; Inter-governmental Consultations, 'Report on Temporary Protection in States in Europe, North America and Australia', Geneva, Aug. 1995; and Kjaerum, M., 'Temporary Protection in Europe in the 1990s,' 6 IJRL 444 (1994).
16. See 'International Meeting on Humanitarian Aid for Victims of the Conflict in Former Yugoslavia', Geneva, 29 Jul. 1992: Doc. HCR/IMFY/1992/2 (24 Jul. 1992). For an overview of the temporary protection regime as applied to refugees from the former Yugoslavia see Humanitarian Issues Working Group, see UNHCR, 'Survey on the Implementation of Temporary Protection', 8 Mar. 1995; Inter-governmental Consultations, 'Report on Temporary Protection in States in Europe, North America and Australia', Geneva, Aug. 1995; and Kjaerum, M., 'Temporary Protection in Europe in the 1990s,' 6 IJRL 444 (1994).
17. See 'International Meeting on Humanitarian Aid for Victims of the Conflict in Former Yugoslavia', Geneva, 29 Jul. 1992: Doc. HCR/IMFY/1992/2 (24 Jul. 1992). For an overview of the temporary protection regime as applied to refugees from the former Yugoslavia see Humanitarian Issues Working Group, see UNHCR, 'Survey on the Implementation of Temporary Protection', 8 Mar. 1995; Inter-governmental Consultations, 'Report on Temporary Protection in States in Europe, North America and Australia', Geneva, Aug. 1995; and Kjaerum, M., 'Temporary Protection in Europe in the 1990s,' 6 IJRL 444 (1994).
18. See Note on International Protection, 45th Session of the Executive Committee of the High Commissioner's Programme: UN doc. A/AC.96/830 (1994).
19. The elements of which are outlined in Conclusion No. 22 (XXXII) of the Executive Committee of the UNHCR, 'Protection of Asylum Seekers in Situations of Large-Scale Influx'.
20. 'Temporary protection was conceived as a flexible, pragmatic tool in the interest of all those seeking safety across borders and of States receiving them. The concept was meant to ensure immediate protection to broad categories of people in need of it, i.e. to the many refugees in the sense of the [1951 Convention] as well as to persons who, fleeing from situations of generalised violence, might not be found to qualify for normal refugee status under these instruments': UNHCR, 'Post Conflict Solutions. UNHCR Programme in Bosnia and Herzegovina and other Countries in the Region': HIWG/96/2 (10 Jan. 1996), at para.3, Annex 2.
21. European governments have often tended to characterise the refugee and asylum issue in terms of 'floods' or 'tidal waves' of often allegedly bogus refugees seeking asylum. Such a characterisation, apart from being factually incorrect, is used as a means of justifying tighter asylum and immigration policies in order to fend off the challenges posed by increasingly right wing and racist political debate. See for example, the Independent, 'Europe's High Tide of Hysteria: Tony Barber on the Politics of Prejudice and the Mirage of an Immigration Flood', 27 Oct. 1991; 'Why Crack Down on Refugees Who Are Not Coming? Home Office Figures Belie Warning of Asylum Cheats', 29 May 1992.
22. European governments have often tended to characterise the refugee and asylum issue in terms of 'floods' or 'tidal waves' of often allegedly bogus refugees seeking asylum. Such a characterisation, apart from being factually incorrect, is used as a means of justifying tighter asylum and immigration policies in order to fend off the challenges posed by increasingly right wing and racist political debate. See for example, the Independent, 'Europe's High Tide of Hysteria: Tony Barber on the Politics of Prejudice and the Mirage of an Immigration Flood', 27 Oct. 1991; 'Why Crack Down on Refugees Who Are Not Coming? Home Office Figures Belie Warning of Asylum Cheats', 29 May 1992.
23. 'States and UNHCR have always underlined that among the various aspects of temporary protection there is clearly a focus on return as the most appropriate solution': UNHCR, above, note 16, para. 7, Annex 2.
24. Repatriation Plan, above note 4, at para. 11.
25. In the wider context, see also Hathaway, J., 'Reconceiving Refugee Law as Human Rights Protection' 4 JRS 113 (1991); Refugee Law Research Unit, 'Common but Differentiated Responsibility. A Model for Enhanced International Refugee Protection Within Interest Convergence Groups', Centre for Refugee Studies, York University, 25 Mar. 1996.
26. In the wider context, see also Hathaway, J., 'Reconceiving Refugee Law as Human Rights Protection' 4 JRS 113 (1991); Refugee Law Research Unit, 'Common but Differentiated Responsibility. A Model for Enhanced International Refugee Protection Within Interest Convergence Groups', Centre for Refugee Studies, York University, 25 Mar. 1996.
27. According to Chimni, for example, 'to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of refugees, is to create space for repatriation under duress, and may be tantamount to refoulement': Chimni, B.S., 'The Meaning of Words and the Role of UNHCR in Voluntary Repatriation,' 5 IJRL, 442, 454 (1993). See also art. V(1), 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which provides that the '. . . essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will'. The UNHCR Executive Committee has adopted two conclusions on voluntary repatriation, both of which stress the voluntary nature of repatriation. In the second (1985) conclusion, the Executive Committee recommended that '[t]he repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected'. See Executive Committee Conclusion No. 40 (1985), Report of the 36th Session: UN doc. A/AC.96/673, para. 115(5); also Executive Committee Conclusion No. 18 (1980), Report of the 31st Session: UN doc. A/AC.96/588, para. 48(3). See also Chimni, B.S., 'Perspectives on Voluntary Repatriation: A Critical Note', 3 IJRL 541 (1991); Frelick, B., 'The Right to Return', 2 IJRL 442 (1990); Goodwin-Gill, G.S., 'Voluntary Repatriation-Legal and Policy Issues', and Cuny, F. and Stein, B., 'Prospects for and Promotion of Spontaneous Repatriation,' both in Loescher, G. and Monahan, L., (eds.), Refugees and International Relations, Oxford, Oxford University Press (1989).
28. According to Chimni, for example, 'to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of refugees, is to create space for repatriation under duress, and may be tantamount to refoulement': Chimni, B.S., 'The Meaning of Words and the Role of UNHCR in Voluntary Repatriation,' 5 IJRL, 442, 454 (1993). See also art. V(1), 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which provides that the '. . . essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will'. The UNHCR Executive Committee has adopted two conclusions on voluntary repatriation, both of which stress the voluntary nature of repatriation. In the second (1985) conclusion, the Executive Committee recommended that '[t]he repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected'. See Executive Committee Conclusion No. 40 (1985), Report of the 36th Session: UN doc. A/AC.96/673, para. 115(5); also Executive Committee Conclusion No. 18 (1980), Report of the 31st Session: UN doc. A/AC.96/588, para. 48(3). See also Chimni, B.S., 'Perspectives on Voluntary Repatriation: A Critical Note', 3 IJRL 541 (1991); Frelick, B., 'The Right to Return', 2 IJRL 442 (1990); Goodwin-Gill, G.S., 'Voluntary Repatriation-Legal and Policy Issues', and Cuny, F. and Stein, B., 'Prospects for and Promotion of Spontaneous Repatriation,' both in Loescher, G. and Monahan, L., (eds.), Refugees and International Relations, Oxford, Oxford University Press (1989).
29. According to Chimni, for example, 'to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of refugees, is to create space for repatriation under duress, and may be tantamount to refoulement': Chimni, B.S., 'The Meaning of Words and the Role of UNHCR in Voluntary Repatriation,' 5 IJRL, 442, 454 (1993). See also art. V(1), 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which provides that the '. . . essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will'. The UNHCR Executive Committee has adopted two conclusions on voluntary repatriation, both of which stress the voluntary nature of repatriation. In the second (1985) conclusion, the Executive Committee recommended that '[t]he repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected'. See Executive Committee Conclusion No. 40 (1985), Report of the 36th Session: UN doc. A/AC.96/673, para. 115(5); also Executive Committee Conclusion No. 18 (1980), Report of the 31st Session: UN doc. A/AC.96/588, para. 48(3). See also Chimni, B.S., 'Perspectives on Voluntary Repatriation: A Critical Note', 3 IJRL 541 (1991); Frelick, B., 'The Right to Return', 2 IJRL 442 (1990); Goodwin-Gill, G.S., 'Voluntary Repatriation-Legal and Policy Issues', and Cuny, F. and Stein, B., 'Prospects for and Promotion of Spontaneous Repatriation,' both in Loescher, G. and Monahan, L., (eds.), Refugees and International Relations, Oxford, Oxford University Press (1989).
30. According to Chimni, for example, 'to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of refugees, is to create space for repatriation under duress, and may be tantamount to refoulement': Chimni, B.S., 'The Meaning of Words and the Role of UNHCR in Voluntary Repatriation,' 5 IJRL, 442, 454 (1993). See also art. V(1), 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which provides that the '. . . essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will'. The UNHCR Executive Committee has adopted two conclusions on voluntary repatriation, both of which stress the voluntary nature of repatriation. In the second (1985) conclusion, the Executive Committee recommended that '[t]he repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected'. See Executive Committee Conclusion No. 40 (1985), Report of the 36th Session: UN doc. A/AC.96/673, para. 115(5); also Executive Committee Conclusion No. 18 (1980), Report of the 31st Session: UN doc. A/AC.96/588, para. 48(3). See also Chimni, B.S., 'Perspectives on Voluntary Repatriation: A Critical Note', 3 IJRL 541 (1991); Frelick, B., 'The Right to Return', 2 IJRL 442 (1990); Goodwin-Gill, G.S., 'Voluntary Repatriation-Legal and Policy Issues', and Cuny, F. and Stein, B., 'Prospects for and Promotion of Spontaneous Repatriation,' both in Loescher, G. and Monahan, L., (eds.), Refugees and International Relations, Oxford, Oxford University Press (1989).
31. According to Chimni, for example, 'to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of refugees, is to create space for repatriation under duress, and may be tantamount to refoulement': Chimni, B.S., 'The Meaning of Words and the Role of UNHCR in Voluntary Repatriation,' 5 IJRL, 442, 454 (1993). See also art. V(1), 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which provides that the '. . . essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will'. The UNHCR Executive Committee has adopted two conclusions on voluntary repatriation, both of which stress the voluntary nature of repatriation. In the second (1985) conclusion, the Executive Committee recommended that '[t]he repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected'. See Executive Committee Conclusion No. 40 (1985), Report of the 36th Session: UN doc. A/AC.96/673, para. 115(5); also Executive Committee Conclusion No. 18 (1980), Report of the 31st Session: UN doc. A/AC.96/588, para. 48(3). See also Chimni, B.S., 'Perspectives on Voluntary Repatriation: A Critical Note', 3 IJRL 541 (1991); Frelick, B., 'The Right to Return', 2 IJRL 442 (1990); Goodwin-Gill, G.S., 'Voluntary Repatriation-Legal and Policy Issues', and Cuny, F. and Stein, B., 'Prospects for and Promotion of Spontaneous Repatriation,' both in Loescher, G. and Monahan, L., (eds.), Refugees and International Relations, Oxford, Oxford University Press (1989).
32. As provided in the 'cessation clauses': art. 1(C), 1951 Convention.
33. Hathaway, above, note 20.
34. Ibid. Regarding non-entrée, that is 'non-admission' policies, see Hathaway, J., 'The Emerging Politics of Non-Entrée', 91 Refugees 40 (1992); 'Harmonising for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration,' 26 Cornell Int. Law J. 719 (1993).
35. Ibid. Regarding non-entrée, that is 'non-admission' policies, see Hathaway, J., 'The Emerging Politics of Non-Entrée', 91 Refugees 40 (1992); 'Harmonising for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration,' 26 Cornell Int. Law J. 719 (1993).
36. Hathaway, above, note 20.
37. Goodwin-Gill, G.S., The Refugee in International Law 2nd ed., 1996, Clarendon Press, Oxford, 275.
38. According to art. 11, Chapter 2 of Annex 7, the Commission is charged with dealing with claims for the return of property in BiH, or for just compensation in lieu of return and in accordance with the provisions laid down in art. 1(1) of Annex 7.
39. Art. 1(1), Annex 7. See also art. 2(5), Annex 4, Constitution.
40. Ibid.
41. Ibid.
42. Art. 1(2), Annex 7.
43. Art. 1(3), Annex 7.
44. Art. 1(5), Annex 7.
45. The plan, then entitled, 'Post Conflict Solutions. UNHCR Programme in Bosnia and Herzegovina and Other Countries in the Region': above, note 16, was first presented to the 16 Jan. 1996 meeting of the Humanitarian Issues Working Group (HIWG) of the International Conference on Former Yugoslavia (ICFY). This document contained the initial strategic planning for the repatriation of refugees, formulated in consultation with the Parties to the Framework Agreement, and examined the phasing out of temporary protection in the context of the implementation of the Framework Agreement. It was finalised at the High Level Meeting on Implementation of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina on 8 Mar. 1996.
46. See 'Statement by Mrs Sadako Ogata, United Nations High Commissioner for Refugees at the Humanitarian Issues Working Group of the International Conference on Former Yugoslavia', Geneva, 16 Jan. 1996.
47. Repatriation Plan, above, note 4, at para. 6.
48. Ibid., para. 7.
49. Ibid., para. 12.
50. Arts. 2, 3, 4, 6 and 9, Annex 1-A.
51. See Statement by Mrs Sadako Ogata, United Nations High Commissioner for Refugees at the Humanitarian Issues Working Group of the Peace Implementation Conference, Geneva, 13 May 1996.
52. Appointed in accordance with art. 1, Annex 10 of the Framework Agreement - Agreement on Civilian Implementation of the Peace Settlement, the High Representative is charged with coordinating the activities of the organisations and agencies involved in the civilian aspects of the Framework Agreement and with monitoring its implementation.
53. Speech of the High Representative. Report to the Florence Mid-Year Review Conference, Florence, 13 Jun. 1996.
54. See art. 4, Annex 1-A. It is estimated that there are between one to three million mines in the country, in addition to unknown quantities of unexploded ordnance: UNHCR, Special Operation for Former Yugoslavia (SOFY). 'General Repatriation Information Report, September/October 1996'. But it is not just mines that are at issue in terms of the implementation of Annex 1-A. The High Representative acknowledges the possibility that 'an unknown number of persons continue to be held in "hidden" detention . . .'. Any authority holding prisoners detained during the conflict is committing a 'substantial breach of its obligations under Annex 1-A . . . and . . . the speculation that large numbers of persons remain in hidden detention undermines the resolution of missing persons questions and the peace process more generally': High Representative, 'Report of the High Representative for the Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations', 10 Dec. 1996, para. 66. According to the International Committee of the Red Cross (ICRC), about 16,000 persons are still unaccounted for in BiH: The Times, 'Missing 16,000 Blight Hopes of Lasting Peace in Bosnia', 5 Dec. 1996. Also Nowak, M., 'Opinion: Monitoring Disappearances - The Difficult Path from Clarifying Past Causes to Effectively Preventing Future Ones', 1 European Human Rights Law Review 348 (1996), on the task facing the UN Special Process in investigating the fate of the 30,000 people still missing from the former Yugoslavia. The International Crisis Group (ICG) has also questioned the extent to which Annex 1-A has been implemented. In its own six-month review of the implementation of the Framework Agreement, ICG noted how in relation to art. 2, Annex 1-A, although the cease-fire has held in compliance with this article the Parties have failed to 'provide a safe and secure environment for all persons in their jurisdictions . . .' The ICG further charged that the failure of the Parties in this respect constituted 'the single greatest impediment to full freedom of movement': ICG, 'The Dayton Peace Accords: A Six Month Review', ICG Bosnia Project (13 Jun. 1996), at 2.
55. See art. 4, Annex 1-A. It is estimated that there are between one to three million mines in the country, in addition to unknown quantities of unexploded ordnance: UNHCR, Special Operation for Former Yugoslavia (SOFY). 'General Repatriation Information Report, September/October 1996'. But it is not just mines that are at issue in terms of the implementation of Annex 1-A. The High Representative acknowledges the possibility that 'an unknown number of persons continue to be held in "hidden" detention . . .'. Any authority holding prisoners detained during the conflict is committing a 'substantial breach of its obligations under Annex 1-A . . . and . . . the speculation that large numbers of persons remain in hidden detention undermines the resolution of missing persons questions and the peace process more generally': High Representative, 'Report of the High Representative for the Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations', 10 Dec. 1996, para. 66. According to the International Committee of the Red Cross (ICRC), about 16,000 persons are still unaccounted for in BiH: The Times, 'Missing 16,000 Blight Hopes of Lasting Peace in Bosnia', 5 Dec. 1996. Also Nowak, M., 'Opinion: Monitoring Disappearances - The Difficult Path from Clarifying Past Causes to Effectively Preventing Future Ones', 1 European Human Rights Law Review 348 (1996), on the task facing the UN Special Process in investigating the fate of the 30,000 people still missing from the former Yugoslavia. The International Crisis Group (ICG) has also questioned the extent to which Annex 1-A has been implemented. In its own six-month review of the implementation of the Framework Agreement, ICG noted how in relation to art. 2, Annex 1-A, although the cease-fire has held in compliance with this article the Parties have failed to 'provide a safe and secure environment for all persons in their jurisdictions . . .' The ICG further charged that the failure of the Parties in this respect constituted 'the single greatest impediment to full freedom of movement': ICG, 'The Dayton Peace Accords: A Six Month Review', ICG Bosnia Project (13 Jun. 1996), at 2.
56. See art. 4, Annex 1-A. It is estimated that there are between one to three million mines in the country, in addition to unknown quantities of unexploded ordnance: UNHCR, Special Operation for Former Yugoslavia (SOFY). 'General Repatriation Information Report, September/October 1996'. But it is not just mines that are at issue in terms of the implementation of Annex 1-A. The High Representative acknowledges the possibility that 'an unknown number of persons continue to be held in "hidden" detention . . .'. Any authority holding prisoners detained during the conflict is committing a 'substantial breach of its obligations under Annex 1-A . . . and . . . the speculation that large numbers of persons remain in hidden detention undermines the resolution of missing persons questions and the peace process more generally': High Representative, 'Report of the High Representative for the Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations', 10 Dec. 1996, para. 66. According to the International Committee of the Red Cross (ICRC), about 16,000 persons are still unaccounted for in BiH: The Times, 'Missing 16,000 Blight Hopes of Lasting Peace in Bosnia', 5 Dec. 1996. Also Nowak, M., 'Opinion: Monitoring Disappearances - The Difficult Path from Clarifying Past Causes to Effectively Preventing Future Ones', 1 European Human Rights Law Review 348 (1996), on the task facing the UN Special Process in investigating the fate of the 30,000 people still missing from the former Yugoslavia. The International Crisis Group (ICG) has also questioned the extent to which Annex 1-A has been implemented. In its own six-month review of the implementation of the Framework Agreement, ICG noted how in relation to art. 2, Annex 1-A, although the cease-fire has held in compliance with this article the Parties have failed to 'provide a safe and secure environment for all persons in their jurisdictions . . .' The ICG further charged that the failure of the Parties in this respect constituted 'the single greatest impediment to full freedom of movement': ICG, 'The Dayton Peace Accords: A Six Month Review', ICG Bosnia Project (13 Jun. 1996), at 2.
57. As envisaged in the 'Chairman's Conclusions of the Peace Implementation Council', Florence, 13-14 Jun. 1996, at para. 10. Hereinafter, Chairman's Conclusions. Only about half of the minefields have been located; mine clearance has been performed on only a small scale and is a costly and time consuming operation, between US$3 to US$6 per square metre of land. In one year, 2,000 de-miners can clear only 10,000,000 square metres of land: SOFY, above, note 43.
58. In some parts of Republika Srpska the homes of Bosnian Muslims and Croats have been deliberately mined in an express attempt to prevent the return of refugees and displaced persons to their homes of origin. See ICG, above note 43, at 14. As UNHCR noted in the Repatriation Plan, the presence of mines represents a 'formidable constraint' on the success of the plan, observing that while many of the war-affected and displaced persons may have had the opportunity to familiarise themselves with the locations of mines, 'refugees repatriating from farther afield will need to be aware of the risks and need to receive information on mine awareness'. Consequently, UNHCR recommended that the international community encourage the Parties and experienced agencies to expand de-mining activities within BiH, particularly in areas where 'threats to life and safety could diminish the momentum of return'. UNHCR, Repatriation Plan, above, note 4, para. 21.
59. The High Representative appeared to contradict himself, as six months after stating that the military provisions of the Framework Agreement had been fulfilled, he noted that IFOR were required to take a firm line in compelling the Parties to put more effort into using their military forces to clear and mark minefields. He also acknowledged that '[p]rogress in actually clearing mines to the agreed standard has been limited and winter weather will further limit achievement in this area. Continued pressure from the follow-on [Stabilisation Force] is likely to be required if progress is to improve', and the agreed standard be attained: High Representative, above note 43, para. 78. Emphasis added.
60. Art. 6, Annex 7.
61. Amnesty laws entered into force on 24 Feb., 1 Jul., and 4 Jul. 1996 for BiH, the Federation of BiH and Republika Srpska, respectively.
62. See, for example, Amnesty International Country Report, Bosnia - The International Community's Responsibility to Ensure Human Rights, AI doc. EUR 63/14/96, Jun. 1996.
63. See SOFY, above, note 43.
64. Ibid.
65. Ibid.
66. The term 'human rights' appears in the Framwork Agreement no fewer than 70 times. Specifically, human rights are dealt with in Annex 3, Agreement on Elections; Annex 4, Constitution; Annex 6, Agreement on Human Rights; and Annex 7, Agreement on Refugees and Displaced Persons. See Sloan, 'The Dayton Peace Agreement: Human Rights Guarantees and their Implementation', 7 EJIL 207 (1996); Nowak, M., 'Beyond "Bookkeeping": Bringing Human Rights to Bosnia', 52 The World Today 102 (Apr. 1996); Szasz, P., 'Protecting Human and Minority Rights in Bosnia: A Documentary Survey of International Proposals', 25 Cal. West. Int. Law J. 237 (1995); Szasz, P., 'The Protection of Human Rights through the Dayton/Paris Peace Agreement on Bosnia', 90 AJIL 301 (1996).
67. The term 'human rights' appears in the Framwork Agreement no fewer than 70 times. Specifically, human rights are dealt with in Annex 3, Agreement on Elections; Annex 4, Constitution; Annex 6, Agreement on Human Rights; and Annex 7, Agreement on Refugees and Displaced Persons. See Sloan, 'The Dayton Peace Agreement: Human Rights Guarantees and their Implementation', 7 EJIL 207 (1996); Nowak, M., 'Beyond "Bookkeeping": Bringing Human Rights to Bosnia', 52 The World Today 102 (Apr. 1996); Szasz, P., 'Protecting Human and Minority Rights in Bosnia: A Documentary Survey of International Proposals', 25 Cal. West. Int. Law J. 237 (1995); Szasz, P., 'The Protection of Human Rights through the Dayton/Paris Peace Agreement on Bosnia', 90 AJIL 301 (1996).
68. The term 'human rights' appears in the Framwork Agreement no fewer than 70 times. Specifically, human rights are dealt with in Annex 3, Agreement on Elections; Annex 4, Constitution; Annex 6, Agreement on Human Rights; and Annex 7, Agreement on Refugees and Displaced Persons. See Sloan, 'The Dayton Peace Agreement: Human Rights Guarantees and their Implementation', 7 EJIL 207 (1996); Nowak, M., 'Beyond "Bookkeeping": Bringing Human Rights to Bosnia', 52 The World Today 102 (Apr. 1996); Szasz, P., 'Protecting Human and Minority Rights in Bosnia: A Documentary Survey of International Proposals', 25 Cal. West. Int. Law J. 237 (1995); Szasz, P., 'The Protection of Human Rights through the Dayton/Paris Peace Agreement on Bosnia', 90 AJIL 301 (1996).
69. The term 'human rights' appears in the Framwork Agreement no fewer than 70 times. Specifically, human rights are dealt with in Annex 3, Agreement on Elections; Annex 4, Constitution; Annex 6, Agreement on Human Rights; and Annex 7, Agreement on Refugees and Displaced Persons. See Sloan, 'The Dayton Peace Agreement: Human Rights Guarantees and their Implementation', 7 EJIL 207 (1996); Nowak, M., 'Beyond "Bookkeeping": Bringing Human Rights to Bosnia', 52 The World Today 102 (Apr. 1996); Szasz, P., 'Protecting Human and Minority Rights in Bosnia: A Documentary Survey of International Proposals', 25 Cal. West. Int. Law J. 237 (1995); Szasz, P., 'The Protection of Human Rights through the Dayton/Paris Peace Agreement on Bosnia', 90 AJIL 301 (1996).
70. The third benchmark refers to the national elections in BiH which, 'while not a benchmark for return, are obviously of direct relevance to it through the establishment of democratic political institutions. The fulfilment of commitments associated with free and fair elections will demonstrate progress towards democratic processes and respect for human rights'. Repatriation Plan, above, note 4, at para. 16. The extent to which the Sept. 1996 elections in BiH can be considered as demonstrating progress towards democratic processes and human rights is open to debate. The staging, conduct and certification of the elections were motivated more by the foreign and domestic policy concerns of some of the members of the international community than by the fulfilment of commitments associated with free and fair elections. See International Herald Tribune, 'Swiss Resists Pressure by US for Bosnia Vote', 10 Jun. 1996. Indeed, the conditions for free and fair elections, as specified in art. 1, Annex 3 of the Framework Agreement, 'remained largely unfulfilled at the time of the elections. In particular, the requirements for a politically neutral environment, for freedom of expression and association and for freedom of movement had not been met': Electoral Reform International Services, 'Bosnia and Herzegovina: Elections 14 September 1996. Short-Term Election Observation Report to the Foreign and Commonwealth Office', London, ERIS, 1 Oct. 1996, para. 2.1.2. See also ICG, 'Why the Bosnian Elections Must be Postponed', ICG Bosnia Project, Report No. 14, 14 Aug. 1996 and 'Elections in Bosnia', ICG Bosnia Project, 22 Sept. 1996.
71. The third benchmark refers to the national elections in BiH which, 'while not a benchmark for return, are obviously of direct relevance to it through the establishment of democratic political institutions. The fulfilment of commitments associated with free and fair elections will demonstrate progress towards democratic processes and respect for human rights'. Repatriation Plan, above, note 4, at para. 16. The extent to which the Sept. 1996 elections in BiH can be considered as demonstrating progress towards democratic processes and human rights is open to debate. The staging, conduct and certification of the elections were motivated more by the foreign and domestic policy concerns of some of the members of the international community than by the fulfilment of commitments associated with free and fair elections. See International Herald Tribune, 'Swiss Resists Pressure by US for Bosnia Vote', 10 Jun. 1996. Indeed, the conditions for free and fair elections, as specified in art. 1, Annex 3 of the Framework Agreement, 'remained largely unfulfilled at the time of the elections. In particular, the requirements for a politically neutral environment, for freedom of expression and association and for freedom of movement had not been met': Electoral Reform International Services, 'Bosnia and Herzegovina: Elections 14 September 1996. Short-Term Election Observation Report to the Foreign and Commonwealth Office', London, ERIS, 1 Oct. 1996, para. 2.1.2. See also ICG, 'Why the Bosnian Elections Must be Postponed', ICG Bosnia Project, Report No. 14, 14 Aug. 1996 and 'Elections in Bosnia', ICG Bosnia Project, 22 Sept. 1996.
72. The third benchmark refers to the national elections in BiH which, 'while not a benchmark for return, are obviously of direct relevance to it through the establishment of democratic political institutions. The fulfilment of commitments associated with free and fair elections will demonstrate progress towards democratic processes and respect for human rights'. Repatriation Plan, above, note 4, at para. 16. The extent to which the Sept. 1996 elections in BiH can be considered as demonstrating progress towards democratic processes and human rights is open to debate. The staging, conduct and certification of the elections were motivated more by the foreign and domestic policy concerns of some of the members of the international community than by the fulfilment of commitments associated with free and fair elections. See International Herald Tribune, 'Swiss Resists Pressure by US for Bosnia Vote', 10 Jun. 1996. Indeed, the conditions for free and fair elections, as specified in art. 1, Annex 3 of the Framework Agreement, 'remained largely unfulfilled at the time of the elections. In particular, the requirements for a politically neutral environment, for freedom of expression and association and for freedom of movement had not been met': Electoral Reform International Services, 'Bosnia and Herzegovina: Elections 14 September 1996. Short-Term Election Observation Report to the Foreign and Commonwealth Office', London, ERIS, 1 Oct. 1996, para. 2.1.2. See also ICG, 'Why the Bosnian Elections Must be Postponed', ICG Bosnia Project, Report No. 14, 14 Aug. 1996 and 'Elections in Bosnia', ICG Bosnia Project, 22 Sept. 1996.
73. The third benchmark refers to the national elections in BiH which, 'while not a benchmark for return, are obviously of direct relevance to it through the establishment of democratic political institutions. The fulfilment of commitments associated with free and fair elections will demonstrate progress towards democratic processes and respect for human rights'. Repatriation Plan, above, note 4, at para. 16. The extent to which the Sept. 1996 elections in BiH can be considered as demonstrating progress towards democratic processes and human rights is open to debate. The staging, conduct and certification of the elections were motivated more by the foreign and domestic policy concerns of some of the members of the international community than by the fulfilment of commitments associated with free and fair elections. See International Herald Tribune, 'Swiss Resists Pressure by US for Bosnia Vote', 10 Jun. 1996. Indeed, the conditions for free and fair elections, as specified in art. 1, Annex 3 of the Framework Agreement, 'remained largely unfulfilled at the time of the elections. In particular, the requirements for a politically neutral environment, for freedom of expression and association and for freedom of movement had not been met': Electoral Reform International Services, 'Bosnia and Herzegovina: Elections 14 September 1996. Short-Term Election Observation Report to the Foreign and Commonwealth Office', London, ERIS, 1 Oct. 1996, para. 2.1.2. See also ICG, 'Why the Bosnian Elections Must be Postponed', ICG Bosnia Project, Report No. 14, 14 Aug. 1996 and 'Elections in Bosnia', ICG Bosnia Project, 22 Sept. 1996.
74. The third benchmark refers to the national elections in BiH which, 'while not a benchmark for return, are obviously of direct relevance to it through the establishment of democratic political institutions. The fulfilment of commitments associated with free and fair elections will demonstrate progress towards democratic processes and respect for human rights'. Repatriation Plan, above, note 4, at para. 16. The extent to which the Sept. 1996 elections in BiH can be considered as demonstrating progress towards democratic processes and human rights is open to debate. The staging, conduct and certification of the elections were motivated more by the foreign and domestic policy concerns of some of the members of the international community than by the fulfilment of commitments associated with free and fair elections. See International Herald Tribune, 'Swiss Resists Pressure by US for Bosnia Vote', 10 Jun. 1996. Indeed, the conditions for free and fair elections, as specified in art. 1, Annex 3 of the Framework Agreement, 'remained largely unfulfilled at the time of the elections. In particular, the requirements for a politically neutral environment, for freedom of expression and association and for freedom of movement had not been met': Electoral Reform International Services, 'Bosnia and Herzegovina: Elections 14 September 1996. Short-Term Election Observation Report to the Foreign and Commonwealth Office', London, ERIS, 1 Oct. 1996, para. 2.1.2. See also ICG, 'Why the Bosnian Elections Must be Postponed', ICG Bosnia Project, Report No. 14, 14 Aug. 1996 and 'Elections in Bosnia', ICG Bosnia Project, 22 Sept. 1996.
75. Vedsted-Hansen, J., 'An Analysis of the Requirements for Repatriation', above, pp. 559-65.
76. Ibid.
77. Ibid.
78. Repatriation Plan, above, note 4, para. 15. Emphasis added.
79. Established in accordance with art. 2(1) of Annex 6, to assist the Parties in honouring their obligations under the Framework Agreement. The mandate of the Commission (art. 2) is to consider alleged or apparent violations by the Parties of the rights set out in the European Convention on Human Rights and the Protocols thereto, on prohibited grounds such as ethnicity, religion, political opinion, and so forth. Allegations are normally directed to the Ombudsperson who investigates them and makes a report (art. 5). Based on the investigation, the Ombudsperson can pass a report to the Chamber for resolution or a decision regarding the alleged violation (arts. 5, 9 and 11). The Ombudsperson's office began receiving complaints in March 1996 and by October 1996, ten cases had been brought before it. The Chamber also began functioning in March 1996. It meets every month for a four day plenary session. See SOFY, above note 43.
80. As provided in Chapter 2 of Annex 7.
81. Established by the High Representative to bring together the various organisations involved in implementing the human rights provisions of the Framework Agreement.
82. Established following the first meeting of the HRTF to act as a central point for the collection of human rights information and day-to-day coordination of human rights activities. The HRCC includes participants from inter-governmental organisations and agencies and works to ensure coordinated, effective responses to human rights situations of particular concern.
83. Pursuant to art. 1 of Annex 6 - Agreement on Human Rights. The opinion presented is that of the Chairman of the June 1996 Peace Implementation Council, Italian Foreign Minister, Lamberto Dini. It is based on the report on the state of human rights in BiH from the Office of the High Representative; and on Statements from the UN Special Representative of the Secretary-General, the President of the International Criminal Tribunal for the former Yugoslavia and the heads of other relevant agencies. See Chairman's Conclusions, above note 43, para. 32. This opinion is shared, among others, by ICG, above, note 44; Amnesty International, above, note 50; and Human Rights Watch, 'Bosnia and Herzegovina: The Continuing Influence of Bosnia's Warlords'. Washington, Dec. 1996.
84. Pursuant to art. 1 of Annex 6 - Agreement on Human Rights. The opinion presented is that of the Chairman of the June 1996 Peace Implementation Council, Italian Foreign Minister, Lamberto Dini. It is based on the report on the state of human rights in BiH from the Office of the High Representative; and on Statements from the UN Special Representative of the Secretary-General, the President of the International Criminal Tribunal for the former Yugoslavia and the heads of other relevant agencies. See Chairman's Conclusions, above note 43, para. 32. This opinion is shared, among others, by ICG, above, note 44; Amnesty International, above, note 50; and Human Rights Watch, 'Bosnia and Herzegovina: The Continuing Influence of Bosnia's Warlords'. Washington, Dec. 1996.
85. Pursuant to art. 1, Annex 6.
86. High Representative, above, note 44, paras. 60-1.
87. Regarding the staging of 'successful' elections, see above, note 55.
88. Migration News Sheet, 'Repatriation of Bosnians to Begin on 1 October', Oct. 1996, at 7. Germany's decision was greeted with consternation by UNHCR, which believed that the time was far from suitable for the beginning of a policy of mandatory returns, especially given the lack of adequate accommodation in BiH. UNHCR expressed concern over the use of the family situation of the refugee as the decisive criterion for return, stressing that more importance should be given to the refugees ethnic identity and his or her region of origin: ibid., at 8. Concern was also voiced over the possibility that the list of 22 'target areas', which are the subject of housing and infrastructure rehabilitation projects, in an effort to encourage the voluntary return of refugees and displaced persons to their original homes, might be considered as 'safe areas' to which refugees could be expelled: ibid. Although they are not 'safe areas' and should not be used as a pretext for lifting temporary protection, UNHCR's fears appear to have had some foundation. A number of the Länder invoked 'target areas' as a pretext for lifting temporary protection; see 'Summary of Instructions Issued by the German Federal States (Länder) in Implementation of the Decision of the 19 September 1996 Conference of German Interior Ministers', UNHCR Branch Office, Bonn, 14 Jan. 1997. Hereinafter, Summary of Instructions.
89. Migration News Sheet, 'Repatriation of Bosnians to Begin on 1 October', Oct. 1996, at 7. Germany's decision was greeted with consternation by UNHCR, which believed that the time was far from suitable for the beginning of a policy of mandatory returns, especially given the lack of adequate accommodation in BiH. UNHCR expressed concern over the use of the family situation of the refugee as the decisive criterion for return, stressing that more importance should be given to the refugees ethnic identity and his or her region of origin: ibid., at 8. Concern was also voiced over the possibility that the list of 22 'target areas', which are the subject of housing and infrastructure rehabilitation projects, in an effort to encourage the voluntary return of refugees and displaced persons to their original homes, might be considered as 'safe areas' to which refugees could be expelled: ibid. Although they are not 'safe areas' and should not be used as a pretext for lifting temporary protection, UNHCR's fears appear to have had some foundation. A number of the Länder invoked 'target areas' as a pretext for lifting temporary protection; see 'Summary of Instructions Issued by the German Federal States (Länder) in Implementation of the Decision of the 19 September 1996 Conference of German Interior Ministers', UNHCR Branch Office, Bonn, 14 Jan. 1997. Hereinafter, Summary of Instructions.
90. Migration News Sheet, 'Bosnians Receive Notice to Leave', Nov. 1996, at 9.
91. See above, note 7. On 9 Oct. 1996, the authorities in Saxony-Anhalt changed their decision to repatriate 31 Bosnian orphans to Sarajevo after it became public knowledge: Ibid.
92. Ibid. Migration News Sheet also reported the suicide of a Muslim refugee in a reception centre in Berlin: Migration News Sheet, 'Suicide of a Bosnian Too Scared to Return', Dec. 1996, 11. See also Sunday Times, 'Bosnians Prefer Suicide as Bonn Sends Them Home', 29 Sept. 1996.
93. Ibid. Migration News Sheet also reported the suicide of a Muslim refugee in a reception centre in Berlin: Migration News Sheet, 'Suicide of a Bosnian Too Scared to Return', Dec. 1996, 11. See also Sunday Times, 'Bosnians Prefer Suicide as Bonn Sends Them Home', 29 Sept. 1996.
94. Migration Noes Sheet, above, note 67, at 7.
95. Migration News Sheet, 'Readmission Agreement with Bosnia', Dec. 1996, at 11. Also in November 1996. the Federal Interior Minister and the Bosnian Minister for Refugees and Emigration concluded an agreement on the return of refugees, under which single adults and married couples without children would be the first to return. However, the agreement did exclude people in a traumatic situation resulting from the war; elderly persons whose relatives were not in BiH but were legally residing in Germany; witnesses to testify before the International Criminal Tribunal for the former Yugoslavia; and youths authorised to stay in order to complete training courses: ibid., at 11.
96. Migration News Sheet, 'Readmission Agreement with Bosnia', Dec. 1996, at 11. Also in November 1996. the Federal Interior Minister and the Bosnian Minister for Refugees and Emigration concluded an agreement on the return of refugees, under which single adults and married couples without children would be the first to return. However, the agreement did exclude people in a traumatic situation resulting from the war; elderly persons whose relatives were not in BiH but were legally residing in Germany; witnesses to testify before the International Criminal Tribunal for the former Yugoslavia; and youths authorised to stay in order to complete training courses: ibid., at 11.
97. Migration News Sheet, 'First Group of Bosnians Forcibly Repatriated by a Chartered Plane', Jan. 1997. at 9.
98. Reply of UNHCR Branch Office, Bonn, to enquiries by the author, 4 Feb. 1996.
99. Ibid.
100. In a judgment of 7 Nov. 1996, the Dutch Aliens Court overturned the decision of the Secretary of State of the Justice Department who, on 1 Dec. 1995, suspended the processing of asylum applications from Bosnians as their country was considered 'safe' after the signing of the Framework Agreement. Asylum seekers with a temporary residence permit who cannot be returned to their home country owing to the unsafe situation there are entitled to a permanent residence permit after three years. However, Bosnians who had applied for a permanent residence permit and had resided in the Netherlands for over three years before 1 Dec. 1995, but whose asylum applications were still pending were excluded from receiving a permanent residence permit. The Court requested the Secretary of State to reconsider all suspended applications. Migration News Sheet, 'Some 3,000 Bosnians May be Allowed to Stay', Dec. 1996, at 12. In November 1996, the Swedish Government also announced guideline decisions concerning asylum applications by 1,900 Bosnians submitted after the signing of the Framwork Agreement and regarding 2,500 persons with both Bosnian and Croatian nationality. Bosnians who applied for asylum after the cessation of hostilities and who originated from areas where their own ethnic group is in a majority can return within six months of the decision. Those with both Bosnian and Croatian nationality were given three months in which to return to Croatia, as both the Croatian Government and the UNUCR had confirmed that they and refugees with only Croatian nationality could live there In safety. However, those originating from areas where they would now be in a minority would be allowed to remain in Sweden as refugees as it was unlikely that they would be able to return in safety. Migration News Sheet, 'Only Bosnians Originating from Bosnian Serb Controlled Areas May Remain in Sweden', Dec. 1996, at 13. The Swiss Federal Refugee Office ran an apparently successful aid programme to returning Bosnian refugees, in an effort to encourage voluntary repatriation. However, the Swiss authorities have not ruled out the possibility of forced repatriation if necessary. Migration News Sheet, 'Programme of Aid to Returning Bosnians Appears Successful', Oct. 1996, at 11.
101. In a judgment of 7 Nov. 1996, the Dutch Aliens Court overturned the decision of the Secretary of State of the Justice Department who, on 1 Dec. 1995, suspended the processing of asylum applications from Bosnians as their country was considered 'safe' after the signing of the Framework Agreement. Asylum seekers with a temporary residence permit who cannot be returned to their home country owing to the unsafe situation there are entitled to a permanent residence permit after three years. However, Bosnians who had applied for a permanent residence permit and had resided in the Netherlands for over three years before 1 Dec. 1995, but whose asylum applications were still pending were excluded from receiving a permanent residence permit. The Court requested the Secretary of State to reconsider all suspended applications. Migration News Sheet, 'Some 3,000 Bosnians May be Allowed to Stay', Dec. 1996, at 12. In November 1996, the Swedish Government also announced guideline decisions concerning asylum applications by 1,900 Bosnians submitted after the signing of the Framwork Agreement and regarding 2,500 persons with both Bosnian and Croatian nationality. Bosnians who applied for asylum after the cessation of hostilities and who originated from areas where their own ethnic group is in a majority can return within six months of the decision. Those with both Bosnian and Croatian nationality were given three months in which to return to Croatia, as both the Croatian Government and the UNUCR had confirmed that they and refugees with only Croatian nationality could live there In safety. However, those originating from areas where they would now be in a minority would be allowed to remain in Sweden as refugees as it was unlikely that they would be able to return in safety. Migration News Sheet, 'Only Bosnians Originating from Bosnian Serb Controlled Areas May Remain in Sweden', Dec. 1996, at 13. The Swiss Federal Refugee Office ran an apparently successful aid programme to returning Bosnian refugees, in an effort to encourage voluntary repatriation. However, the Swiss authorities have not ruled out the possibility of forced repatriation if necessary. Migration News Sheet, 'Programme of Aid to Returning Bosnians Appears Successful', Oct. 1996, at 11.
102. In a judgment of 7 Nov. 1996, the Dutch Aliens Court overturned the decision of the Secretary of State of the Justice Department who, on 1 Dec. 1995, suspended the processing of asylum applications from Bosnians as their country was considered 'safe' after the signing of the Framework Agreement. Asylum seekers with a temporary residence permit who cannot be returned to their home country owing to the unsafe situation there are entitled to a permanent residence permit after three years. However, Bosnians who had applied for a permanent residence permit and had resided in the Netherlands for over three years before 1 Dec. 1995, but whose asylum applications were still pending were excluded from receiving a permanent residence permit. The Court requested the Secretary of State to reconsider all suspended applications. Migration News Sheet, 'Some 3,000 Bosnians May be Allowed to Stay', Dec. 1996, at 12. In November 1996, the Swedish Government also announced guideline decisions concerning asylum applications by 1,900 Bosnians submitted after the signing of the Framwork Agreement and regarding 2,500 persons with both Bosnian and Croatian nationality. Bosnians who applied for asylum after the cessation of hostilities and who originated from areas where their own ethnic group is in a majority can return within six months of the decision. Those with both Bosnian and Croatian nationality were given three months in which to return to Croatia, as both the Croatian Government and the UNUCR had confirmed that they and refugees with only Croatian nationality could live there In safety. However, those originating from areas where they would now be in a minority would be allowed to remain in Sweden as refugees as it was unlikely that they would be able to return in safety. Migration News Sheet, 'Only Bosnians Originating from Bosnian Serb Controlled Areas May Remain in Sweden', Dec. 1996, at 13. The Swiss Federal Refugee Office ran an apparently successful aid programme to returning Bosnian refugees, in an effort to encourage voluntary repatriation. However, the Swiss authorities have not ruled out the possibility of forced repatriation if necessary. Migration News Sheet, 'Programme of Aid to Returning Bosnians Appears Successful', Oct. 1996, at 11.
103. Thomas Franck observes that 'legitimacy' in international law is to be discerned from the extent of voluntary compliance with a rule. 'In international
104. Vedsted-Hansen, above, note 55.
105. This may not be the case in Germany. In January 1996 the German Federal Interior Minister, Manfred Kanther, reportedly advised refugees not to apply for asylum on the lifting of temporary protection, as they would, 'with great probability', be rejected quickly: Migration News Sheet, 'Bosnian Refugees: Repatriation to Begin on 1 July', Feb. 1996, at 8.
106. See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, at 42.
107. Vedsted-Hansen, above, note 55.
108. Ibid.
109. As the High Representative has observed, '[d]espite statements by the political leaders in Bosnia and Herzegovina about the importance of implementing Annex 7 . . ., negative political linkages and reciprocity demands, coupled with insufficient efforts to ensure the political, economic and social conditions necessary for voluntary and safe return, are still the norm. The decision not to return is all too often conditioned by the lack of effective options. Possibilities for people to return to their homes of origin are limited not only by concerns about the security environment, but also by the lack of available housing, employment and social services, as well as the level of infrastructure and communications'. High Representative, above, note 43, at paras. 50-51.
110. Citing the non-binding joint position adopted by the member States of the European Union concerning the interpretation of the 1951 Convention, Andersen notes that a refugee's inability or unwillingness to return to his or her home of origin would not necessarily preclude his return to BiH. Andersen, 'Promoting Safe and Peaceful Repatriation Under the Dayton Agreements', 7 EJIL 193, 205 (1996).
111. It is estimated that during the course of the conflict in BiH, some two-thirds of housing stock had been destroyed. UNHCR/International Peace Academy. Healing the Wounds. Refugees, Reconstruction and Reconciliation. Report of the Second Conference, 30 June-1 July 1996, Geneva/New York, UNHCR/ IPA (1996), at 12.
112. SOFY appear to concur with the interpretation of homes of origin as being that of the actual property of the refugees, stating that, 'in principle, everyone should have the possibility of returning to the property which he or she left during the war'. In practice however, SOFY notes that in spite of the fact that the right to return supersedes any national or entity legislation which is inconsistent with it, 'the war-time legislation on Abandoned Apartments (Bill) and on Abandoned Property (Republika Srpska) pose a serious obstacle for refugees and displaced persons to return to their original homes'. SOFY, above, note 43. Also, according to art. 1 of the 'Procedure for Return and Reconstruction in the Zone of Separation', established by the OHR, UNHCR, IFOR, the International Police Task Force (IPTF), and the office of the European Commission and in consultation with officials from BiH and the Entities, property owners 'have the right to reconstruct their houses and re-inhabit them. This right derives from the right to property (annex 6 of the [Framework Agreement]) and from the right to freely return to homes of origin'. Cited in 'Situation of human rights in the territory of the former Yugoslavia. Periodic report submitted by Ms Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 45 of Commission resolution 1996/71': UN doc. E/CN.4/1997/9 (1996), at para. 19. Emphasis added. It has also been reported that UNHCR's efforts to get people back to their original homes are often sabotaged; see The Sunday Times, 'Germans Send Bosnians Back to Land of Fear', 29 Dec. 1996.
113. There are grounds for believing that the right to return to homes of origin has indeed been violated. In December 1996, The Sunday Times reported the case of a Bosnian Muslim refugee deported after German police raided his flat and gave him five minutes to pack and say goodbye to his wife and two small children before being put on board a flight to Sarajevo under police guard. 'In the Bosnian capital a few hours later, [UNHCR officials] found him wandering around the freezing central bus station. He had little money and felt completely lost'. The same article also cited the case of a young Muslim couple from Srebrenica who were seized and handcuffed by police, put in prison and later deported. 'In Bosnia they have no idea where to live. Even if they wanted to they could not return to their home town which has been occupied by Bosnian Serbs since being overrun in the summer of 1995'. The High Commissioner for Refugees had noted the previous month that, 'Those unable to return to their home areas should . . . not be pushed back, as long as they will not have a decent roof over their head and a decent alternative solution in sight': Opening Statement by the UN High Commissioner for Refugees to the Executive Committee of the High Commissioner's Programme at its Forty-Seventh Session, 7 Oct. 1996, Report of the Executive Committee: UN doc. A/51/12/Add.1 (1996).
114. In an 'Introductory Note' to the Framework Agreement, Paul Szasz notes that Annex 7 provides for 'the implementation of the very cursory constitutional provisions on the reversal of ethnic cleansing': 'Bosnia and Herzegovina-Croatia-Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes', 35 ILM 75 (1996).
115. The commitment of the Parties to creating the suitable conditions for return is somewhat suspect; see High Representative, above, note 83.
116. Sadako Ogata, United Nations High Commissioner for Refugees, above, note 36.
117. As the High Commissioner for Refugees has observed, '[l]et us make sure that the promise of peace signed in Paris is becoming a reality on the ground before we take a step that will affect the lives of hundreds of thousands of people, who have already endured enormous̀ hardship in the past. This will allow some time for critical reconstruction activities to get underway, and would avoid a destabilising effect on the peace process'. Ibid.
118. Art. 1(1), Annex 7.
119. With the exception of Annex 1-B and Annex 10 to which Croatia and the Federal Republic of Yugoslavia are also parties.
120. As Goodwin-Gill observes, '[t]here is substantial, if not conclusive authority that the principle [of non-refoulement] is binding on all States, independently of specific assent . . . State practice . . . is persuasive evidence of the concretisation of a customary rule, even in the absence of any formal judicial pronouncement': Goodwin-Gill, G.S., The Refugee in International Law, 2nd ed., 1996, 167.
121. As did also, the United States, the Russian Federation and the European Union's Special Negotiator.
122. See Gaeta, 'The Dayton Agreements and International Law', 7 EJIL, 147, 154 (1996).
123. See generally, Lucarelli, S., 'The International Community and the Yugoslav Crisis: A Chronology of Events', EUI Working Papers of the Robert Schuman Centre, Florence, European University Institute (1995); and 'The European Response to the Yugoslav Crisis: Story of a Two Level Constraint', EUI Working Papers of the Robert Schuman Centre, Florence, European University Institute (1995).
124. See generally, Lucarelli, S., 'The International Community and the Yugoslav Crisis: A Chronology of Events', EUI Working Papers of the Robert Schuman Centre, Florence, European University Institute (1995); and 'The European Response to the Yugoslav Crisis: Story of a Two Level Constraint', EUI Working Papers of the Robert Schuman Centre, Florence, European University Institute (1995).
125. See Szasz (1996), above, note 51, at 301-3.
126. The Bosnia Proximity Peace Talks, however, were effectively under the management of the United States State Department. See Szasz, P., 'The Quest for a Bosnian Constitution: Legal Aspects of Constitutional Proposals Relating to Bosnia', 19 Fordham Int. Law J. 363, 374-5 (1995).
127. Ibid., at 373.
128. Szasz (1996), above, note 54, at 303.
129. Szasz, above, note 99, at 404.
130. Statement by Dr Olaf Reermann, Head of Delegation. Director General, Federal Ministry of the Interior. Geneva, 16 Dec. 1996. Hereinafter, Reermann Statement.
131. The initial strategic planning document (see above, note 16) which specified the benchmarks as they appear in the Repatriation Plan, was 'widely endorsed by all participants at the [January 1996] HIWG meeting', at which Germany was present. Repatriation Plan, above, note 4, at para. 2. Emphasis added. Moreover, the High Commissioner observed that the Repatriation Plan itself 'received strong and unanimous support' at the High Level Working Meeting on Implementation of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina: UN High Commissioner for Refugees, above, note 41. Emphasis added.
132. Reermann Statement, above, note 103.
133. The numbers in Germany are greater than in the rest of the European Union member States combined, and the costs have been estimated at 17 billion Deutschmarks; see the Guardian, 'Germans to Deport Bosnian Refugees', 20 Sept. 1996; The Times, 'Wary Bonn Issues Refugees with Notice to Quit', 2 Oct. 1996.
134. The numbers in Germany are greater than in the rest of the European Union member States combined, and the costs have been estimated at 17 billion Deutschmarks; see the Guardian, 'Germans to Deport Bosnian Refugees', 20 Sept. 1996; The Times, 'Wary Bonn Issues Refugees with Notice to Quit', 2 Oct. 1996.
135. The UN High Commissioner for Refugees requested States not to adopt a unilateral approach to repatriation by 'encouraging' them 'to remain committed to a multi-lateral approach that will allow all concerned to bring to a dignified conclusion a tragic chapter in human history. Any precipitated return or action, taken in isolation, might jeopardise the still fragile peace agreement'. UNHCR, above, note 16, para. 3.
136. Migration New's Sheet, above, note 68, at 8.
137. Migration New's Sheet, 'No Postponement of Date of Repatriation of Bosnians, but Implementation will be Flexible', Sept. 1996, at 8.
138. Ibid., at 8.
139. Ibid., at 9.
140. Migration New's Sheet 'Forced Repatriation of Bosnians Virtually Ruled Out', Dec. 1996, at 13.
141. Migration News Sheet, 'Bosnian Refugees: Forced Return Ruled Out' Mar. 1996.
142. Migration New's Sheet, above, note 76, at 13.
143. Ibid., at 11.
144. The lack of consensus among States on this issue also puts in doubt the legitimacy of mandatory repatriation in the sense used by Franck (see above, note 77). Franck's definition of legitimacy is applied specifically to rules of international law, but it provides a useful analogy with which to question the legitimacy of mandatory repatriation given that there does not appear to be any 'pull towards voluntary compliance' on the part of all host States.
145. Art. 1(5), Annex 7.
146. The Belgian Commissioner General for Refugees and Stateless Persons believes that some Bosnian refugees who fear mandatory repatriation from Germany may have entered Belgium in order to apply for asylum. However, such applications would be rejected on the basis of provisions in the Schengen Convention and a national rule under which an application presented by any person having spent at least three months in another country of reception will be considered as inadmissible. Migration New's Sheet, 'Bosnians Required to Leave Germany May go to Belgium', Oct. 1996, at 6-7.
147. As UNHCR observes, '[J]ack of coordination and premature decisions would risk destabilising the peace process and would render sound planning most difficult. They could moreover result in an avalanche of asylum requests, which the concept of temporary protection was intended to render unnecessary, and in secondary movements of Bosnians in Europe and elsewhere'. UNHCR, above, note 16, para. 15.
148. This is exemplified by the attempts of some States actively to discourage, if not prevent, the arrival of Bosnian refugees in their territories. Cf. the Independent, 'Government's Pretence on Asylum Exposed', 18 Nov. 1992.
149. As the preamble to the 1951 Convention notes, 'the grant of asylum may place unduly heavy burdens on certain countries, and . . . a satisfactory solution of a problem which the United Nations has recognised the international scope and nature cannot therefore be achieved without international cooperation'.