The right to return home: International intervention and ethnic cleansing in Bosnia and Herzegovina

International and Comparative Law Quarterly

Volumn 47, Issue 3, 1998, Pages 599-631

  Cox, Marcus ^a  

^a NONE

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EID: 84987603510     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300062199     Document Type: Article

References (81)

1. The General Framework Agreement for Peace in Bosnia and Herzegovina, agreed in Sept. 1995, and entering into force on 14 Dec. 1995 (hereafter “the Dayton Agreement”): (1996) 35 I.L.M. 1171.
2. There is extensive discussion of the reality of this threat in international relations literature: e.g. Brubaker, Nationalism Reframed: Nationhood and the National Question in the New Europe (1996)
3. Ryan, Ethnic Conflict and International Relations (2nd edn, 1995)
4. Gottlieb, Nation Against State: A New Approach to Ethnic Conflicts and the Decline of Sovereignty (1993)
5. Bowen, “The Myth of Global Ethnic Conflict” (1966) 7 Journal of Democracy 3.
6. Gaeta, “The Dayton Agreements and International Law” (1996) 7 E.J.I.L. 147.
7. The Washington Agreement provided for the establishment of a Bosniac-Croat Federation of ten cantons, under a constitution agreed on 18 Mar. 1994: (1994) 33 I.L.M. 740.
8. The Dayton Agreement takes the form of a brief General Framework Agreement followed by much more detailed annexes. The parties to the General Framework Agreement are the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia, with the EU and each of the Contact Group States signing as witnesses. A number of the annexes have different signatories. The three most relevant to this article-Armex 4 (Constitution), Annex 6 (Agreement on Human Rights) and Annex 7 (Agreement on Refugees and Displaced Persons)-each have the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska as parties. At the time of signature, these entities represented the three ethnic groups in Bosnia and Herzegovina, and the term “parties” in this article is used as shorthand for the three separate political and military blocs. For a detailed analysis, see Gaeta, I.L.M.
9. Agreed Principles, Geneva, 8 Sept. 1995, paras.2.4,3.1: Office of the High Representative, Bosnia and Herzegovina: Essential Texts (undated).
10. The same principles were reiterated in the Further Agreed Basic Principles adopted at New York on 26 Sept. 1995: idem.
11. Constitution of Bosnia and Herzegovina, Art.5.
12. Annex 7, Art.I-2.
13. Constitution, Art.II-1.
14. Art.11–7 and Annex I to the Constitution.
15. Annex 7. Art.XI.
16. Annex 7,Art.XII.
17. Annex 6, Art.II-2. The Chamber has held that Annex 6 does not have retrospective application, and that its jurisdiction is therefore limited to violations occurring after 14 Dec 1995. However, although most refugees and displaced persons left their homes before that date, the denial of property rights represents a continuing human rights violation which falls within the Chamber's jurisdiction: Decision on the Admissibility of Case No.CH/96/23 Kalincevic v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, 6 J une 1997, para.ll.
18. Annex 6, Art.V.
19. Annex 6, Art.XI.
20. Conclusions of the Peace Implementation Conference Held at Lancaster House London, 8–9 Dec 1995, paras. 17–18.
21. Annex 10, Art.II.
22. Annex 10, Art.V.
23. Bonn Peace Implementation Conference, 8 Dec. 1997. Art.XI-2.
24. OHR Press Release, 16 Dec 1997. Various other binding measures have since been imposed, including the dismissal of police and municipal officials.
25. UNHCR was asked to undertake this role in a letter from the UN Secretary-General dated 25 Oct. 1991: Barutciski, “The Reinforcement of Non-Admission Policies and the Subversion of UNHCR” (1996) 8 I.J.Ref.L. 49,80.
26. Annex 7, Art.1–5.
27. Annex
28. In 1997 the UN received a total of US$288 million for civilian programmes in the former Yugoslavia, of which UNHCR's portion was US$235 million: UN Department of Humanitarian Affairs, “United Nations Consolidated Inter-Agency Appeal for Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia and Former Yugoslav Republic of Macedonia January-December 1998” (1997), p.19.
29. Barutciski, “United Nations Consolidated Inter-Agency Appeal for Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia and Former Yugoslav Republic of Macedonia January-December 1998”
30. Political Declaration from the Ministerial Meeting of the Steering Board of the Peace Implementation Conference (Sintra, 30 May 1997). para.44.
31. Security Council Res. 1022 of 22 Nov. 1995 would have automatically reimposed sanctions on the Federal Republic of Yugoslavia if the agreement had not been signed by the Serbs.
32. For a more detailed description, see Slye, “The Dayton Peace Agreement: Constitutionalism and Ethnicity” (1996) 21 Y.J.I.L. 459.
33. The term “Bosniac” is an old term revived by the Bosnian Muslims during the course of the war to denote their nationality. Muslims have been recognised as a “Nation of Yugoslavia” in the Yugoslav Constitution since 1991, although the percentage of those practising their religion was lower in the Republic of Bosnia and Herzegovina than in any other Republic Poulton, The Balkans: Minorities and States in Conflict (1993).
34. Slye argues that the Constitution is in breach of Ans.2(I) (non-discrimination) and 25 (right to participate in government) of the International Covenant on Civil and Political Rights: The Balkans: Minorities and States in Conflict
35. “Only in the intended end-state of peace implementation, with two multi-ethnic Entities functioning on the basis of the rule of law. equipped with effective judiciary and administrative institutions, achieving the levels of human rights protection and freedom of movement throughout the country to which the Parties have committed themselves, will such decisions [to relocate] be truly voluntary.” Statement by the Deputy High Representative. Mr Andrew Bearpark, to the Humanitarian Issues Working Group, Geneva, 17 Dec 1997.
36. Annex 7. Art.XI.
37. Annex 7, Art.XIV.
38. Law on Abandoned Real Property Owned by Citizens During a State of War or in a Case of Direct Threat of War (Official Gazette of the Republic of Bosnia and Herzegovina No.1497/93). All references to domestic legislation are to English translations circulated by the Office of the High Representative in Sarajevo.
39. Law on Abandoned Apartments (Official Gazette of the Republic of Bosnia and Herzegovina No.6/92,8/92,12/92,16/92,13/94, 36/94,9/95 and 33/95).
40. Law on the Use of Abandoned Property of the Republika Srpska (Official Gazette of the Republika Srpska No.3/96).
41. The Peace Implementation Council has declared that “maintaining administrative or other bodies that are unconstitutional, will not be tolerated. This applies to existing institutions of the former Herceg Bosna as well as of the former Republic of Bosnia-Herzegovina.” Political Declaration from Ministerial Meeting of the Steering Board of the Peace Implementation Council, Sintra. 30 May 1997.
42. E.g. the Decree on Abandoned Apartments (National Gazette of Herzeg-Bosna No. 13/93).
43. For a fuller description, see UNHCR, “Repatriation and Return Operation 1998” (HIWG/97/7.1997). Parts VI and VII.
44. Opinion of the Legal Adviser to the High Representative, Jan. 1997.
45. Peace Implementation Council, Opinion of the Legal Adviser to the High Representative, al paras.38–39.
46. “Survey the Balkans”, The Economist, 24–30 Jan. 1998.
47. UNHCR, The Economist, at p.9.
48. Information provided by officials of UNHCR Bonn. For the UK position see Mac-donald and Blake, Macdonald's Immigration Law and Practice (4th edn, 1995), para.1236.
49. UNHCR, The State of the World's Refugees 1995 (1995), p.70.
50. High Commissioner Sadako Ogata, Statement to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, Geneva, 29 July 1992.
51. Statement to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia
52. See infra.
53. “Those refugees who could easily identify solutions for themselves on return have already done so. As most of the refugees remaining abroad originate from areas where they would now form part of the minority group, the days of ‘easy returns’ are over.” UNHCR, “Information Notes May/June 1997” (1997), p.1.
54. UNHCR, “Information Notes May/June 1997”, at p.9.
55. UNHCR, “Information Notes May/June 1997”, at p.3, estimates that more than 70% of repatriating refugees in the second half of 1997 did not return to their homes.
56. Idem, Part VII.
57. James Hathaway, Law of Refugee Status (1991), p.111.
58. UNHCR, Law of Refugee Status
59. Official Census of the Republic of Bosnia and Herzegovina 1991 (Cro-Stat, Zagreb, Apr. 1995).
60. Defined by UNHCR, Official Census of the Republic of Bosnia and Herzegovina 199, at p. 10, to include repatriation and local integration measures, refugee or permanent resident status, or resettlement to a third country.
61. Idem, p.9.
62. Idem, p.15.
63. These figures are based on municipal registration figures provided by the Bosnia and Herzegovina/Federation Institute of Statistics in Sarajevo, but are not completely accurate due to discrepancies in the registration process: UNHCR, “Registration of Repatriates in the Federation of BiH and Entitlement to Food Assistance and Medical Care” (1997).
64. UNHCR, “Registration of Repatriates in the Federation of BiH and Entitlement to Food Assistance and Medical Care”, at p.3.
65. CRPC and UNHCR, “Return, Relocation and Property Rights” (1997), Annex.
66. UNHCR, “Repatriation and Return Operation 1997”
67. Amnesty International, “Righting the Wrongs: Recommendations Regarding Return of Refugees and Displaced Persons for 1998” (EUR 63/28/97,1998)
68. Office of the High Representative, “Report of the High Representative for Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations” (11 July 1997)
69. International Crisis Group, “Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia and Herzegovina” (1997)
70. CRPC and UNHCR, “Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia and Herzegovina”
71. Internationa] Management Group, “A Draft Proposal for a Preliminary Approach to the Return and Relocation of Refugees and Displaced Persons in Bosnia and Herzegovina” (1997).
72. UN Dept of Humanitarian Affairs, “A Draft Proposal for a Preliminary Approach to the Return and Relocation of Refugees and Displaced Persons in Bosnia and Herzegovina”, at p.30.
73. UNHCR, “A Draft Proposal for a Preliminary Approach to the Return and Relocation of Refugees and Displaced Persons in Bosnia and Herzegovina”, at p.24.
74. Idem, pp. 17–22.
75. The results of the surveys and focus groups carried out by the Property Commission are published m full in CRPC and UNHCR, Idem, at pp.12–19.
76. UN Dept of Humanitarian Affairs, Idem, at p.48.
77. UNHCR, Idem, at p.24.
78. Statement by UN High Commissioner Mrs Sadako Ogata to the Humanitarian Issues Working Group, Geneva, 17 Dec 1997.
79. Statement by Bearpark, Commissioner Mrs Sadako Ogata to the Humanitarian Issues Working Group.
80. Statement by the Chairman of the Property Commission, Mr Jean-Pierre Hocke, to the Humanitarian Issues Working Group, Geneva, 17 Dec 1997.
81. See Griffiths, Levine and Weller, “Sovereignty and Suffering”, in John Harriss (Ed.), The Politics of Humanitarian Intervention (1995).