Position on Refugees from the Former Yugoslavia

This paper revises the ECRE position of December 1996 in the light of developments in the entities which now constitute the former Yugoslavia and in the European countries of asylum during the past year. It is the product of the continuing work of the 'ECRE/ICVA NGO Reference Group', particularly the meetings of the Group which took place in Munich in June 1997 and in Banja Luka in November 1997, and a series of delegations from western Europe to the region. It also reflects the changing nature of the Group's work as we face the challenge of establishing a meaningful dialogue with the growing number of locally-based 'national' NGOs and other associations representing refugees and internally displaced persons.

This paper should be read in the context of the situation as it is presented in numerous reports on refugees and the former Yugoslavia by other organisations. In particular, it draws upon information reported by Amnesty International, the International Crisis Group, the research team of Sussex University (UK), the Federation of Red Cross and Red Crescent Societies, the Office of the High Representative and UNHCR.

EXECUTIVE SUMMARY

It is now two years since the Dayton Agreement was signed, and some 158,000 refugees have returned to Bosnia. However, returns of refugees to areas where their ethnic group is in the minority have been extremely limited. Indeed, since the Dayton Agreement was signed many members of minorities have decided to leave areas controlled by other ethnic groups, amounting to a net reduction of some 50,000 minorities in these areas. This sadly demonstrates that the overall political and social climate is still that of separatism, rather than reconciliation and respect for human rights. It is therefore widely acknowledged that UNHCR's estimates for returns during 1997 were over-optimistic.

Looking to the future, the UN High Commissioner for Refugees declared last month that "Next year must become the year of minority returns". This would indeed be a great achievement. However, such returns will be impossible so long as the conditions still do not exist to allow them to take place in safety and dignity. These are the principles which must not be compromised. While it is absolutely right for UNHCR and other agencies to resolutely promote and implement initiatives which allow refugees to return home to minority areas, ECRE emphasises that it is not feasible for such initiatives to be sustained, or progress much further, without more fundamental political change. We understand that UNHCR shares this view and will strive to ensure that minority returns are voluntary and safe.

It remains of critical importance that the key principles of the Dayton Agreement, relating to pluralism, democratic reconstruction and the peaceful consolidation of the entities, be vigorously upheld. There is a long-term obligation on the international community to exert the greatest possible political and moral pressure on local political leadership in order to see that these principles are implemented. Any other position risks the collapse of the accords, the victory of bigotry, the resumption of conflict, and the return of refugees without the necessary conditions of safety and dignity. Acquiescence to long-term ethnic partition is no solution – refugee situations around the globe and throughout history teach us that such a course of action would merely lay the seeds of future conflicts.

A voluntary return process, based upon accurate analysis of the possibilities for return in safety, dignity and with the means to live, and in close dialogue with refugees and NGOs in the receiving areas, should contribute to the peaceful development of the entities which now constitute what was the former Yugoslavia.

ECRE notes that there have been some positive examples of successful minority returns in 1997. However, there is also incontrovertible evidence that ethnically-based violence, including violence against returnees and the fresh eviction of ethnic minorities, continues. Indications are that this violence is not a spontaneous expression of popular anger, but rather an orchestrated political manoeuvre. This alone clearly demonstrates that there remain very serious refugee protection needs which European asylum States must continue to meet.

ECRE warmly welcomes the fact that the overwhelming majority of European asylum States have now granted refugees from the former Yugoslavia a secure status which allows them to make a truly free decision about whether or not to return after so long away from their homes. ECRE also welcomes the approach of those European States which have assisted refugees with "look and see" visits, allowing them the legal right to return to the asylum State within a certain period if they decide it is necessary. Such schemes appear to have been successful.

However, in this context, ECRE wishes to again voice its strong objection to those European States which continue to threaten refugees from the former Yugoslavia with the termination of their status and forced deportation. Such policies of forced return are both inhumane and undermine the wider security efforts of the international

community in the region.

ECRE asks the question of how someone can be expected to return to a town where their former persecutors are still exercising influence – perhaps controlling the local police force? In this context, the arrest of indicted war crimes suspects is crucial , both as a moral imperative, a symbol of change, and as a practical measure to reform the political structures. ECRE welcomes the recent statements of renewed determination by the international community to uphold the principles of Dayton, and supports the inter-governmental agencies in this 'battle of wills'. The arrest of the war crimes suspects would be an important and visible sign of this determination.

In solidarity with non-governmental organisations in the region, ECRE also calls for increased attention to be devoted to the development of an independent civil society in all the entities, and in this respect emphasises the urgent need for reform of the legal framework for local NGOs working in the region. NGOs are an indicator of the democratic health of a society, and the growing voice of humanitarian and human rights NGOs in their post-war work should be given every international support. This is now a goal which is distinct from the issue of refugee return and important in its own right.

Finally, ECRE again reminds the European donor States that humanitarian assistance and opportunities for continued protection must be provided without discrimination to refugees in all areas which were affected by the conflicts in the former Yugoslavia and not only those explicitly covered by the provisions of the Dayton Agreement. The refugee crisis in the Federal Republic of Yugoslavia continues to receive insufficient recognition and assistance.

In conclusion, ECRE's central recommendations today are the same as those adopted a year ago: that the principles of Dayton must be vigorously upheld, asylum rights must continue to be respected, and no forcible returns to the region should take place.

Creating the Conditions for Return

Respect for Human Rights

1          .ECRE believes that facilitation of returns is best approached not as an end in itself but as the consequence of improving the human rights situation in the entities of the former Yugoslavia, including respect for property rights and socio-economic rights. Other push or pull factors related to return are likely to be of negligible importance in the context of widespread human rights violations.

2          .The reasons for the current deadlock in the return process are clear: fear of intimidation and the prospect of living as a minority under extreme social, economic and political pressure. Attention to minority rights is a primary responsibility from which increased refugee returns from overseas would naturally flow. However, some individuals are likely to be willing to risk returning to their pre-war homes even where the human rights conditions are objectively lacking, and there is also a responsibility to monitor the protection of such returnees.

3          .In order to create the conditions for minorities to live in dignity and safety, and for returnees to thus come home in dignity and safety,[1] the human rights mechanisms must be effectively functioning as foreseen in Annex 6 of the Peace Agreement – namely, the Commission on Human Rights, the Human Rights Ombudsman, and the Human Rights Chamber. A further essential element is the effective operation of the institutions foreseen in Annex 7, namely the Commission for Displaced Persons and Refugees and the Refugees and Displaced Persons Property Fund.

4.         Indicted war crime suspects must be arrested and brought before the International Criminal Tribunal for Former Yugoslavia. This is a prerequisite for changing the political climate towards one in which reconciliation and minority returns can take place. Where the local authorities are unwilling or unable to make such arrests, it is the responsibility of the international community through SFOR to do so.

5.         The restoration of property rights is a key issue in creating the conditions for return of minorities and majorities alike. ECRE calls for European States to lend increased financial and political support to the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC). For the Commission's work to progress effectively, free movement throughout the entities is needed so that returnees can obtain evidence and initiate procedures; access to reliable records and the co-operation of local authorities must be attained and should be encouraged by international pressure; and the enforcement of decisions must be possible. This relates to wider factors preventing minority returns which are beyond the direct control of the Commission.

6.         ECRE particularly congratulates the Commission on having opened offices from which refugees can initiate property claims in several European host countries, and encourages other governments to follow this example and organise the establishment of such offices, in partnership with NGOs.

7.         ECRE opposes the privatisation laws of Bosnia and Herzegovina which permit current occupiers of abandoned properties to purchase them, thus hardening the current pattern of ethnic division and displacement. Such property laws clearly violate the Dayton Agreement and will undoubtedly prevent future returns. The utmost international pressure should be exerted in order to reform these laws.

8          .ECRE notes that returns to unoccupied houses should be prioritised and no municipal authorities should, under any circumstances, be permitted to hinder such returns.

9.         Continuing displacements motivated by ethnic hatred and orchestrated opposition to returns have taken place throughout 1997 (for example, the evictions of Muslim returnees, house burnings and blocked returns in Jajce in August). The harassment of returnees (for example, the constant checking of identity cards, controlling visitors to their homes, and the levying of "war taxes" as penalty for their absence during the war) is widespread. In this situation, monitoring the situations of returnees as part of wider human rights monitoring is critical and should be conducted by the OSCE and other organisations with expertise in this field.

10        .There must be an end to impunity for violent attacks on returnees and minorities. Justice and the rule of law, for example the existence of an independently functioning judiciary and an effective multiethnic police force, are vital for the democratic reconstruction of the country and for minority returns to take place with confidence in the returnees' longer term safety and dignity.

11.       ECRE continues to express concern that the proclaimed amnesty legislation for returnees is not seen to be effective in operation and has not yet been adopted in Republika Srpska.

12.       Electoral reform should be undertaken[2] to establish a system whereby candidates are obliged to seek support from voters of other ethnic backgrounds in addition to their own in order to get elected. This would ensure election of moderate candidates who could help restore the lost trust between the peoples of Bosnia and Herzegovina.

13.       Six million landmines continue to pose a major threat to civilians and will do so for years ahead. They clearly prevent reconstruction and return in safety to a great many rural areas. Therefore ECRE calls for de-mining efforts to be urgently intensified, in particular that the quotas of de-mining work allocated to military regiments should be strictly observed and that these should be completed to 'civilian' rather than to merely 'military standards'.

14.       Current estimates of the unemployment rate in Bosnia range from 50-75%. The situation is much worse, however, among minorities and returnees who suffer discrimination in the labour market. Assistance programmes, especially those concerned with generating employment, therefore must make every effort to operate in conditions of non-discrimination and to counter the effects of widespread discrimination against minority groups. High economic growth rates are immaterial to creating the conditions for return so long as such discrimination will continues to exclude certain returnees from the labour market.

15.       Access to education for their children is often expressed as a high priority among refugees considering return to their homes. In many areas, the schooling of minority children currently takes place in a spirit of hostility and separatism. Refugees can not be expected to return where this will jeopardise the education and thus the futures of their children.

16        Other basic freedoms, such as freedom of the media, freedom of expression and freedom of religion, are also absent in much of the former Yugoslavia, amounting to conditions of insecurity and indignity for both minorities and returnees. ECRE urges that information on conditions in municipalities should not omit analysis in terms of such human rights.

Reconstruction and Material Assistance

17        It is a continued lack of infrastructure which hinders the delivery of many essential social services such as psycho-social assistance to survivors of torture. This lack of infrastructure is, in turn, often a consequence of nationalist political agendas rather than economic causes – it is only the politics of separatism which prevents transport and communication lines from running freely across the entities, for example. In this context, ECRE notes the approach of the World Bank which is viewing reconstruction efforts in terms of a five year period. It may be advisable to approach refugee issues in the region with a similarly long term perspective, during which the complex processes of reconstruction, reconciliation and repatriation should continue in parallel[3].

18.       ECRE emphasises the need for programmes in the fields of health, education and housing which will benefit both the returning refugees and the local communities receiving them simultaneously. Support for this view can be found in the recent OECD DAC Guidelines on Conflict, Peace and Development Co-operation, which observe that "Programmes which result in more attention being given to returning refugees than to internally displaced persons and other groups affected by conflict can create tensions..."

19.       Humanitarian assistance should be offered to the entities without discrimination, on the basis of need. In this light, ECRE would again draw attention to the critical refugee situation in the Federal Republic of Yugoslavia (FRY) – where there are still some 600,000 refugees and displaced persons housed with 'host families', very many of whom were expelled from Croatia and now find attempts to return blocked. This constitutes a massive humanitarian problem, requiring a range of responses from the international community and the FRY authorities. ECRE therefore calls on UNHCR and other humanitarian agencies to urgently seek durable solutions for the refugees now in FRY, Serbia and Montenegro. The modest levels of international aid committed to refugees in the FRY should be increased during the course of 1998.

General Principles relating to Return

20.       ECRE continues to strongly support the principle laid out in the first paragraph of Annex 7 of the Dayton Agreement: "All refugees and displaced persons have the right to freely return to their homes of origin..." No-one should be forced or enticed to return to an area where s/he did not live before. At the same time ECRE recognises that some refugees will chose to return to areas which are not, and never were, their homes. The refugee's freedom of choice should be the paramount consideration; however because many areas are not permitting return of ethnic minorities, it can not be said that this freedom of choice yet exists in the former Yugoslavia. ECRE opposes initiatives which induce people to return to unsustainable situations, without safety or dignity, such as small clusters of elderly refugees isolated in areas controlled by other ethnic groups.

21.       ECRE emphasises that no concept of an 'internal flight alternative' is applicable to this situation. Seeking such an alternative could not reasonably have been expected during the war, and to impose the concept retrospectively would be a legalistic approach cynically meeting the objective of certain European asylum States to facilitate involuntary returns but ignoring the situation on the ground to a dangerous extent.

22.       Constant and increasing psychological pressure, the reduction of social support, and explicit or implicit threat of forced mass deportation, are in clear contradiction to the principle of voluntary return, as it is defined in the UNHCR Handbook on Voluntary Repatriation or the UNHCR Executive Committee Conclusions. Such factors put refugees in a desperate position where they have no option but to return. ECRE wishes to repeat its objection to those European governments which are currently exerting such pressures upon refugees, and to call upon these States to refrain from setting further arbitrary deadlines for forced returns during the course of 1998. Simply from a practical point of view, such forced returns will not work.

23.       ECRE further calls for the very greatest caution in encouraging or assisting refugees who are returning to areas controlled by their own ethnicity but who are not returning to their own homes. There is a limited capacity in many areas to absorb further such returnees and these relocations serve the purposes of those who continue to pursue "ethnic engineering". Refugee return is not an operation discrete to itself, as in some other post-war situations, but is at the core of attempts to restructure multiethnic communities in the region. The right to return home is, in fact, a form of redress for the human rights violation of mass expulsion.

24.       The return of rejected asylum seekers to the Federal Republic of Yugoslavia (FRY) certainly should not take place without the framework of multilateral agreements, and European States should recognise that their human rights responsibilities do not disappear at the point of return. There is a higher level of host State responsibility for returns which take place in a post-conflict situation, where the persons concerned had earlier received some form of protection, than in cases where asylum seekers initially make claims entirely lacking in substance.

Access to Refugee Determination Procedures, Integration and Resettlement

25.       ECRE calls for access to protection for those groups identified by UNHCR, including individuals in mixed marriages, conscientious objectors and members of certain minorities. Moreover, ECRE recommends flexible policies with regard to permission to remain in humanitarian cases, including those who can never return home due to the severity of the trauma suffered.

26.       ECRE emphasises that return can only be considered in the context of other durable solutions – such as integration and resettlement. Many refugees will require a secure status allowing them to remain in the host country, together with the right of family reunification. It is welcome that most European host States have now recognised this fact and regularised the status of those persons who were received under Temporary Protection.

27.       ECRE calls for countries of resettlement receiving refugees from the former Yugoslavia to pay particular attention to the effects of trauma on individuals, in terms of health care, counselling and the conditions of reception. ECRE also urges that resettlement should take place with protection as the prioritised criteria for selection and under conditions of non-discrimination in all the entities.

Modalities of Return

28.       There are now many successful examples of NGOs in European asylum countries providing counselling and other assistance programmes to refugees returning to the former Yugoslavia. The most successful of these have been founded upon co-operation with local NGOs and refugee communities themselves, and the importance of "follow-up activities" is also widely recognised.

29.       The failure of European States to provide roughly uniform levels of pre-departure assistance to returnees has not so far proved to have an effect upon the various rates of return or success of returns. In most cases the amount of money received was reported by returnees to be immaterial in comparison to the human rights, political and economic conditions existing in the area to which they returned.

30.       ECRE notes the successful implementation of policies allowing returnees to see for themselves the viability of permanent return, and also the benefits of "return clauses" allowing them to re-enter the host country if unable to find shelter, safety or the means to live which they require within a certain period. From 1000 returnees who have benefited from such a policy since it was adopted by the Danish government, only 15% regretted their return to the former Yugoslavia and availed themselves of the right to return to Denmark.

31        .Economic conditionality can be a useful means of creating the conditions for return. The 'Open Cities' initiative, whereby priority in reconstruction aid is given to those municipalities that are receptive to returns and meet a range of criteria relating to the treatment of ethnic minorities, is a generally positive initiative. It deserves the financial support of European States, but donor States are also urged to accept UNHCR's recommended use of such conditionality at a realistic pace and tied firmly to the set criteria. ECRE also urges UNHCR to revisit 'Open Cities' decisions if conditions deteriorate to make this necessary.

32.       ECRE calls for the fuller utilisation of returnees' practical experience in designing future initiatives to assist return, for a focus on creating the conditions for return through the respect of minority rights, and for the continued dissemination of information about human rights conditions.

Information Channels

33.       The informal exchange of experience between families and friends has been the main information channel utilised by refugees and returnees. Personalised information gained via telephone conversations, for example, is in many ways more efficient and important to refugees than official reports. Most formal information channels (whether provided by governments or NGOs) have thus been significantly under-used. Nevertheless monitoring and reporting of conditions in the region by international and human rights organisations is indispensable. Such reports should be compiled in consultation with returnees and local NGOs, and should be as widely distributed as possible.

34.       In this context, ECRE expresses concern that the Repatriation Information Reports (RIRs) should not only concentrate on infrastructure and disturbances of the peace, but also on less visible human rights violations. Information reports should be compiled in close consultation with those for whom the information is intended, and welcomes all steps taken in recent months to improve this consultation.

The Role of NGOs

35.       The devastation of social structures, family ties and personal networks in the former Yugoslavia has created a situation of great stress and damage to the values of toleration and pluralism. If the rebuilding of the social fabric is left unattended, not only will further returns be extremely difficult but the peace itself will remain precarious. Non-governmental organisations, whose work is based on human rights or humanitarian principles, are essential to the long term process of normalisation and reconciliation in the region.

36.       In every entity, many of the national NGOs are working under extreme pressure. The legal regimes within which they must operate are unclear, obstructive or simply inadequate. Many are vulnerable to political influence and infiltration and are threatened by administrative measures such as harsh tax laws and obstructive registration requirements. The international community is urged to sustain its pressure with the relevant authorities in order to facilitate the free operation of NGOs, including arrangements for cross-entity registration.

37.       ECRE specifically urges international agencies and other NGOs to lend their support to the developing women's organisations and initiatives in the region. Women face particular problems when they return and at the same time often play a key role in caring for war victims and promoting reconciliation.

38.       In the current phase it is essential to strengthen co-operation and co-ordination between local, national and international NGOs, as well as their donors. Trade unions and other professional organisations should similarly be assisted to network at national and international level. It should be emphasised that local NGOs which have acquired considerable experience over the years should be considered as full partners in any project. Building upon its experience in working with refugee-assisting NGOs elsewhere in central and eastern Europe, ECRE will aim to develop these partnerships[4].

Concluding Remarks

39.       ECRE affirms the continuing need for SFOR's presence, beyond June 1998, in order to maintain safe conditions for the delivery of assistance and the implementation of the Office of the High Representative's mandate. NGOs call on European governments to guarantee this commitment.

40.       ECRE emphasises the broader significance of developments in the entities which now constitute what was the former Yugoslavia, as possible standards or models of international action in other post-war situations, including peace implementation and refugee return. From this perspective, it is all the more important that human rights principles and the choices of refugees are respected.

41.       The signs of hope which have emerged during the past year deserve to be acknowledged – for example, increased freedom of movement across the Inter-Entity Boundary Line (IEBL). The ECRE/ICVA NGO Reference Group meeting in Banja Luka, where the 170 participants came from the all entities, was itself symbolic of improving conditions. ECRE concludes that such improvements can only be consolidated if the international community holds firmly and unanimously to the principles of the Dayton Agreement, including Annex 7, and if forced movements do not destabilise the current situation. The NGO role in this is crucial.

[1] See UNHCR definition of "safety and dignity" in the 1996 Handbook on Voluntary Repatriation, Section 2.4

[2] See the International Crisis Group report, 'Beyond Ballot Boxes', September 1997.

[3] ECRE welcomes the increased focus of the World Bank on refugee returns, and the prospect of a donor conference on this issue, but calls for care in distinguishing between voluntary/involuntary returns and returns home as apposed to relocations.

[4] See ECRE 'Report on Activities: Promotion of Refugee Protection in central and eastern Europe, August 1993 - July 1995' and the forthcoming report on activities 1995 - 1997.