Featuring
James Newton
Formerly at Human Rights Chamber for Bosnia and Herzegovina
In recent years military humanitarian intervention has been based on the belief in and the need to protect fundamental human rights. A successful military campaign under this banner must bring the protection of some such rights. Once hostilities have ended, however, there still exist huge obstacles to this task.
In its effort to ensure the rights described in its Agreement on Human Rights, the Dayton Peace Accords created a unique international tribunal called the Human Rights Chamber for Bosnia and Herzegovina, located in Sarajevo. This court has established a national body of law applicable in all of Bosnia. Just as important, it has brought the concept of fundamental human rights down from the lofty language used to help justify humanitarian intervention to tangible procedures that can be used by the local community to protect its rights.
The Human Rights Chamber applies the jurisprudence of the Council of Europe, which is the body responsible for applying the European Convention on Human Rights. The Agreement on Human Rights, however, also places other international instruments directly within the Chamber’s jurisdiction, giving it a broader mandate than that of the Council of Europe. The Chamber deals with problems that resulted from the war and the NATO intervention, such as the return of hundreds of thousands of displaced persons from their homes, as well as issues that the conclusion of hostilities exposed, such as a judicial and administrative system pervaded as much by corruption as by the rule of law.
The Chamber receives applications from any person or group who claims to be the victim of a violation of a protected right. Grievances must be directed against the parties to the Agreement on Human Rights, which are the state of Bosnia and Herzegovina, the Muslim-Croat Federation, and the Serb Republic. They are primarily civil, rather than criminal, in nature. The majority of the applications received and registered deal with an applicant’s attempts to regain control of his or her property lost because of the war. The Chamber accepts cases according to discretionary criteria, such as whether the applicant has exhausted all possible remedies in the domestic legal system or whether to continue to do so would be futile. If it determines there has been a violation of protected rights, it may order that relief be granted in the form of monetary compensation, land reclamation, or whatever else the Chamber considers equitable. Its conclusions are binding law in Bosnia, and their enforcement is obligatory. While enforcement has proved difficult, especially with respect to politically sensitive cases such as ordering the construction of Islamic mosques in a predominantly Orthodox region, all the parties have made strides recently in meeting their obligations.
One of the most important effects of the Chamber’s work is that it has reduced the rhetoric of human rights to concrete procedures. Inherent in the international community’s decision to intervene in Bosnia was the goal of limiting all forms of discrimination among the Croats, the Muslims, and the Serbs. Before the war, there was no legitimate means by which individuals of one ethnicity could complain if they felt they had been discriminated against by an official from another. With the cessation of hostilities, however, the agreement made applications containing allegations of discrimination an express priority of the Chamber.
While discrimination remains one of the most difficult violations to prove, the Chamber has made a few decisions in favor of the claimant. In the town of Livno, a predominantly Croat area, for example, numerous public bus drivers who were Muslim were fired during the war because of their ethnic origin. After the war ended, these persons attempted to regain their positions but were denied, again owing to their ethnicity—and despite numerous legal efforts. One of these bus drivers applied to the Human Rights Chamber in an attempt to regain his job. The court found that there had been discrimination and ordered that the driver be given back his job. Much to the relief of the applicant, he was reinstated soon thereafter.
With such rulings, the Chamber has provided hope and confidence in the rule of law to a populace who had lost almost all faith in its own legal system. Applicants express genuine gratitude toward the Chamber for its work. When an applicant receives a favorable decision, the reaction is often akin to disbelief, even if the case was clearly in the applicant’s favor. The Chamber’s work has also raised the profile of human rights in Bosnia in general. As the Chamber has issued more decisions, and as more of these decisions have been enforced, the idea of human rights has spread through word of mouth and media coverage of the Chamber’s actions. In addition, international organizations and NGOs such as the OSCE refer to the Chamber’s remedies, a recognition that raises interest in human rights. Moreover, the Chamber has set standards for the bodies responsible for writing and enacting laws in Bosnia.
Further benefits resulting from the Chamber’s presence are evident in the legal profession in Bosnia. During the five-plus years of the Chamber’s existence, both the parties that bring their cases to the Chamber and the respondents have become more savvy in their understanding and argumentation of human rights. Early arguments made by the parties before the Chamber would for the most part simply refute the facts. Now the parties cite the case law of the Council of Europe, the Chamber, and other relevant international bodies.
The Chamber’s popularity, however, brings difficulties. It has created a sizable backlog—there are approximately 6,000 open cases, with more being registered daily. Applicants may have to wait for long periods of time for decisions, leading to obvious frustrations. Further, as the Chamber’s body of law grows, it exposes laws written both before and after the war that do not meet international standards. This forces the relevant legislatures to create new laws, pushing these institutions farther than they may be currently capable or willing to go.
Another drawback of the Chamber’s work is its deepening of Bosnia’s dependence on the international community. A significant portion of the Chamber’s legitimacy comes from its internationality—Bosnians believe it to be above the conflicts and biases of domestic institutions. However, in many cases it is perceived as the only legitimate legal institution that can provide justice. Unless the domestic system is used, it will not improve, its deficiencies will not be exposed and corrected, nor will it have the chance to develop under the guidance of the international community. Also, like many international tribunals, the Chamber is funded primarily by donations from European governments and the United States. Five years after the end of the war, the will to provide money is starting to wane. While local governments are supposed to take over the funding of the Chamber and make it a wholly domestic institution, the future is uncertain. Until relevant domestic institutions have become fully capable of ensuring human rights protection, the Chamber’s survival will depend on the international community.
Despite its problems, the Chamber has done much to raise the profile of human rights and the rule of law. Over time, these improvements will continue to trickle down and permeate a civil society suppressed by socialism and made cynical by the war. In addressing the effects of war and humanitarian intervention, the Chamber has proved that its unique work is of great benefit in the effort to right pressing wrongs faced by Bosnians in their everyday lives.
