UNHCR Position on Categories of Persons From Bosnia and Herzegovina Who Are in Continued Need of International Protection

1. Introduction

1.1 Bosnia and Herzegovina was the largest refugee-producing country in the region and, at the same time, faces the greatest problem of internal displacement. According to UNHCR's estimates, over 550,000 refugees from Bosnia and Herzegovina are still in need of a durable solution. Outside the region, Germany and Switzerland host the highest numbers. Within Bosnia and Herzegovina, up to 820,000 people remain displaced from their pre-conflict homes, of whom 450,000 are in the Federation of Bosnia and Herzegovina (the Federation) and 366,000 in the Republika Srpska (RS). The country also hosts some 40,000 refugees from Croatia. In the period from March to June 1998, the State authorities registered 306 new arrivals from Kosovo, but there may in fact be up to 4,000 Kosovo Albanians in the country.

1.2 The majority of Bosnian refugees who found refuge in Western Europe were generously granted temporary protection.[1] Although temporary protection does not amount to full refugee status, as defined by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, it has become an essential tool of international protection in response to mass influx situations. In UNHCR's view, which is supported by current State practice, the ending of temporary protection requires a differentiated approach. While some groups may be able to repatriate, particularly to majority areas, others require continued protection.

1.3 Arguably, not least because ethnic displacement was a central objective of the conflict in Bosnia and Herzegovina, the majority of current beneficiaries of temporary protection may have qualified for refugee status according to the 1951 Convention, if they had been processed in individual asylum procedures at the time they arrived in their current host countries.[2] While the temporary protection regime is different in character from the asylum regime, there are certain areas of overlap. Taking into account that overlap, it is important to have in place sufficient protections for those categories of persons identified to be in continued need of international protection. While the 'ceased circumstances' cessation clause of Article 1C(5) of the 1951 Convention may not be directly applicable, there are valuable elements to be drawn from the application of this cessation clause to consider when and for whom temporary protection can be lifted.[3] To allow for the general lifting of temporary protection for the categories of persons who have been identified to be in continued need of international protection, the changes, coupled with reintegration potential, must be fundamental and must remove the circumstances which generated the protection need in the first place.

1.4 Annex 7 of the General Framework Agreement for Peace (GFAP) guarantees in Article I(1) the right of all refugees and displaced persons freely to return to their homes of origin. The underlying rationale for this position in international law is grounded on the fact that peace building, peace consolidation and the creation of secure and stable conditions in Bosnia and Herzegovina are related to reversing the effects of ethnic cleansing, that is, forced displacement to gain effective control over territory, which was the prime objective of the conflict.

1.5 In its 1997 Repatriation and Return Plan,[4] UNHCR recognised that repatriation of persons to their former place of residence was a possibility where this was within an area where their constituent people was the majority and administered the area (so-called 'majority returns').[5] Such majority returns were subject to verification by the host State that there were not individual circumstances which could impede safe repatriation. However, important political and other barriers still prevented repatriation to minority areas. The development of an effective domestic human rights protection mechanism in Bosnia and Herzegovina, as well as the removal of the political and other barriers to return were considered crucial if minority returns were to be successful and sustainable.

1.6 In planning for 1998, UNHCR had considered that 50,000 minority returns to Bosnia and Herzegovina would constitute a credible breakthrough. This figure was realistic at the time, in view of the renewed commitments and declarations of intent by the authorities. However, despite the massive involvement of the international community, only some 10,000 minority returns are estimated to have occurred in the first five months of 1998, including 4,000 registered returns. This reflects the reality that the fundamental causes of displacement have not been removed.

1.7 UNHCR therefore considers that five main categories of people are in continued need of international protection. Repatriation of these groups should only take place when the individual has decided to return out of her or his own free will and on the basis of an informed choice. The situation of each of the following five categories is examined in Sections 2 - 6:

- Persons originating from areas where they would no longer be in the majority upon return;

- Humanitarian cases (ex-camp or prison detainees; victims or witnesses of violence; severely traumatised persons; witnesses testifying before the International Criminal Tribunal for Former Yugoslavia; individuals in need of special care);

- Persons of mixed ethnicity or in mixed marriages;

- Potentially stateless persons;

- Other specific protection categories (political and military leaders of the Demokratska Narodna Zajednica, also known as, 'former Abdic supporters'; deserters and draft-evaders of the Bosnian Serb army; minority members of the armed forces; members of the Roma communities).

2. Persons Originating From Areas Where They Would No Longer Be in the Majority Upon Return

2.1 This category includes all persons who would fall within a current minority constituent people in their area of pre-conflict residence. This applies to all constituent peoples throughout the country. Members of minority constituent peoples who would be likely to experience systematic harassment, discrimination and violations of their rights upon return, continue to be in need of international protection, especially on cumulative grounds. The situation in many minority areas produces a feeling of insecurity regarding their future existence. The lifting of temporary protection in respect of this category can therefore only be recommended once the changes to the legal, administrative and social framework in Bosnia and Herzegovina are sufficiently substantial to allow for their safe, dignified and sustainable return. In the absence of changes, repatriation to a minority area, including to a recognised 'Open City', should only take place if the individual has made a free and informed choice as to her or his return.

2.2 Problems include the following: continued threats to the personal safety of returnees; lack of an enabling comprehensive legal framework conducive to safe, dignified and sustainable return, notably in the property, citizenship and amnesty areas; absence of an effective human rights regime; denial of registration and thus access to essential social services; imposition of 'war taxes'; discrimination in the education and employment sectors.

2.3 The following paragraphs provide a general overview of the legal, administrative and social framework in Bosnia and Herzegovina as it relates to the safe and dignified return of refugees and displaced persons. It identifies, in particular, the shortcomings of this framework by describing in more detail the administrative and legal obstacles to return, and outlines briefly the measures necessary to create the enabling legal, social and administrative conditions conducive to voluntary and sustainable return in safety and with dignity.

a. The Legal Framework

Property Legislation

2.4 Article I(1) of Annex 7 of the GFAP enshrines the right of all refugees and displaced persons freely to return to their homes of pre-conflict residence. Legislation passed in both Entities during and immediately after the conflict, however, deprived refugees and displaced persons of their property and housing rights. The international community considers the existence of property and housing legislation in line with the requirements of Annex 7 and international human rights law an essential element of the safe and dignified return of all pre-conflict residents. In 1997, the majority of cases before the domestic human rights institutions related to violations of property rights.[6]

2.5 The passage of four new Federation laws regulating property and housing issues (The Law Regulating the Application of the Law on Temporarily Abandoned Real Property Owned by Citizens; The Law on the Cessation of the Application of the Law on Abandoned Apartments; The Law on the Taking Over of the Law on Housing Relations; and the Law Amending the Law on the Sale of Apartments with an Occupancy Right), which came into effect on 4 April 1998, should be a significant improvement. The accompanying Instruction was adopted on 30 April 1998 and came into force on 7 May 1998, after its publication in the Federation Official Gazette. However, implementation of these laws has proven to be extremely problematic and frequently obstructed, particularly with regard to the claims process. In many municipalities, claimants are inappropriately asked to provide extra documentation or required to pay fees for the processing of their claims. Cases of misinformation, refusal to issue the proper claim form or deliberate confusion with other procedures have also been reported. The development and the application of criteria for decision-making in cases where exceptional circumstances will allow a new permanent occupancy-right holder to remain in a claimed apartment is also a problem. The phenomenon of multiple occupancy, that is, when members of a single household previously living in one dwelling occupy several apartments, also needs to be tackled more effectively in the larger urban centres, such as Sarajevo and Tuzla. The Sarajevo Declaration of February 1998 requires the Cantonal authorities to provide information on 2,000 illegally occupied dwellings by 30 June 1998. Up to now, a mere 160 cases have been identified.

2.6 In the RS, the Law on the Use of Abandoned Property is in violation of the terms of the GFAP. However, the recently established RS Government Working Group on Property, in consultation with the Office of the High Representative (OHR) and UNHCR, is currently preparing a draft law which will comply with the GFAP, for submission to the RS Government. The RS authorities are being encouraged to continue this process, with a view to passing new legislation in compliance with Annex 7 of the GFAP and in harmony with the Federation laws and regulations (by the Peace Implementation Council deadline of 31 August 1998).

Citizenship Legislation

2.7 Effective citizenship[7] is key to the exercise of human rights and fundamental freedoms. There is an urgent need for prospective returnees to be able to regularise their citizenship status, where this is unclear. The State Law on Citizenship of Bosnia and Herzegovina entered into force on 1 January 1998 and was supposed to be applied from 1 March 1998. However, the accompanying regulations, which were to be adopted sixty days after the entry into force of the Law, have not yet been gazetted. Moreover, both Entities still need to take urgent steps to adopt and implement their respective Entity Citizenship Laws consistent with the principles and provisions of the State Citizenship Law, as well as international law and standards relating to statelessness and nationality.

2.8 The drafting of this new law has already begun in the Federation and a similar process must also take place in the RS, where the current practice directly conflicts with the State Law and international standards. In particular, both Entities need to ensure that the respective procedural rules and rules of evidence do not leave any administrative gaps resulting in problems of nationality and/or statelessness.

Amnesty Laws

2.9 Article VI of Annex 7 of the GFAP provides for a grant of amnesty to all those who evaded the draft, deserted or refused to answer a military call-up during the conflict. This is essential for safe and dignified return.

2.10 The current RS Amnesty Law[8] is still not in compliance with Article VI of Annex 7 of the GFAP. On 23 March 1998, the RS Ministry of Justice proposed the amendments necessary to grant amnesty to RS citizens for the offences of draft evasion, desertion and refusal to respond to a military call-up. However, to be fully compliant, the amendments must also cover those who have already been sentenced and those who are prosecuted under the provisions of the current Law. In addition, the period for the application of the Law should be extended to 22 December 1995, to cover the last seven days of the conflict.

2.11 The Federation authorities must ensure that only the Federation Amnesty Law of 30 June 1996[9] is applied in the Federation, and not the previous amnesty laws of the then Republic of Bosnia and Herzegovina and the so-called 'Herzeg-Bosna' authorities.

Legislation on Displaced Persons and Returnees

2.12 An adequate legal framework covering the treatment and return of refugees and displaced persons, as well as its full and fair implementation are necessary for their protection and the promotion of durable solutions. In co-operation with UNHCR, the RS Ministry for Refugees and Displaced Persons and the Federation Ministry for Social Affairs, Displaced Persons and Refugees have recently drafted new legislation in this area, with a view to ensuring consistency with Annex 7 of the GFAP and relevant international standards.[10] However, both Entities still need to finalise and pass this legislation, as well as consistent accompanying regulations. The current discussions concerning a State-level draft legislation in this area also need to be completed urgently.

2.13 In February 1998, the Federation Ministry for Social Affairs, Displaced Persons and Refugees passed an Instruction on the Method of Organising the Return of Displaced Persons and Repatriates to/within the Territory of the Federation of Bosnia and Herzegovina which requests all Cantonal and municipal authorities responsible for return issues to use a common and standardised Voluntary Return Application Form and follow procedures linked to property assessment and exchange of information on the registration of displaced persons. The mechanism, which is linked to a database system, is intended to support and facilitate return but should in no way impede spontaneous returns. By the end of May 1998, the RS Ministry for Refugees and Displaced Persons adopted a similar Instruction for the purposes of ensuring a harmonised approach throughout Bosnia and Herzegovina. The Ministry of Civil Affairs and Communication, in co-operation with UNHCR, is currently working on a State Instruction in this area, to facilitate inter-Entity returns and repatriation from abroad. These are positive developments. However, the implementation of the Instruction has already proven to be difficult in some parts of the Federation and has not yet started in the RS.

Reform of the Criminal Code and of the Criminal Procedure and Functioning of the Judiciary and Other Human Rights Institutions

2.14 The current criminal legislation and procedures applied in the Entities were taken over from the legal framework of the former Socialist Federal Republic of Yugoslavia, and do not comply with international standards of due process of law.[11] Key international organisations[12] have undertaken to reform the criminal legislation in both Entities and to provide training to judges, lawyers and prosecutors to bring their practice in line with international standards and, specifically, with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the Federation, the revised codes were finalised and have recently been submitted to the Parliament for adoption. In the RS, a first draft of the criminal code was finalised and submitted for review to an expert team of the Council of Europe. The final version is expected to be ready by mid-September 1998.

2.15 The completion of this task is crucial for the respect and effective enforcement of human rights in Bosnia and Herzegovina. The reports of the domestic human rights institutions demonstrate that complaints concerning the functioning of the judicial system are almost as numerous as those concerning property rights violations. The most common abuses relate to the denial of access to effective remedies, the length of the proceedings, detention and the right to a fair trial. Moreover, the issues of judicial appointments,[13] availability of qualified legal staff and financial resources also need to be addressed urgently to ensure effective protection of civil and political rights.[14] Nine of the ten Cantons of the Federation adopted laws on courts and laws on prosecutors. In May 1998, to overcome the deadlock in Canton 7, the High Representative even had to adopt a decision on the establishment of municipal courts in the Canton. However, the functioning of the judicial system remains based on ethnic and political criteria. Several reports indicate that cases involving members of minority constituent peoples are not dealt with in an appropriate manner, particularly when related to property or other civil rights.

2.16 The Commission on Human Rights was established in accordance with Annex 6 of the GFAP. It consists of the Human Rights Chamber and the Office of the Ombudsman, which are an integral component of the new Bosnian domestic legal system. However, both institutions face enormous difficulties in the fulfilment of their mandates due inter alia to the absence of State and/or Entities' agents and the lack of will by the authorities to enforce the decisions of these human rights institutions.[15] OHR is currently working on enforcement legislation.

b. The Administrative Framework

Safety and Police

2.17 Under the GFAP, the Parties are required to provide a safe and secure environment for all persons in their respective jurisdictions. Potential returnees regard security in the pre-conflict place of residence as vital when considering return.[16] The local police forces have in many instances not effectively protected members of the minority constituent peoples, nor respected human rights standards. Furthermore, an estimated 750,000 mines and unexploded ordnance remain in some 30,000 separate areas in Bosnia and Herzegovina.

2.18 The following examples illustrate a widespread pattern of threats to the personal safety of returnees and show that the local police is not always able, or willing, to extend protection to members of the other constituent peoples. In some cases the police remained passively standing by whereas in others they actually participated in the violence: In the Federation, in February 1997, during the Bajram celebration (Aid El Kebir), a peaceful group of Bosniacs visiting their graveyards in Mostar West (Bosnian Croat) were shot at by the Bosnian Croat police forces. In August 1997, an angry mob in Jajce burnt down several UNHCR-reconstructed houses, in an effort to prompt the departure of Bosniac returnees. On 30 August 1997, two Bosnian Croats were shot in the village of Nula (Travnik). On 10 September 1997, a Bosnian Croat died after a violent dispute with the Bosniac owner of his home. On 26 October 1997, two murders were committed in Nula. On 21 March 1998, a visit by some 80 Bosnian Croats to the village of Bukovica was disrupted when two Bosniacs beat several Croats. Unidentified individuals also burnt several Bosnian Croat homes in the village. In April 1998, two Bosnian Croats returning to clean their homes in Bukovica were seriously wounded by an explosion; among the injured were members of a group of 30 displaced Bosnian Croats carrying out assessments visits. In May 1998, two off-duty Croat police officers were fired upon in the village of Han Bila, and an explosion damaged a Bosnian Croat house in the village of Gavrince Kuce. In Drvar, the murder of a Bosnian Serb couple on 16 April 1998 was followed on 24 April by a violent demonstration orchestrated by Bosnian Croat extremists.[17] The elected Bosnian Serb Mayor of Drvar was injured and several buildings were set on fire, including offices of international organisations (such as IPTF and UNHCR). These events led to the departure of approximately 225 Bosnian Serb returnees. At least 61 arsons are reported to have occurred in Drvar since January 1998 and approximately 40 in Stolac, often aimed at preventing return and intimidating returnees. Houses were blown up in Jablanica[18] and Capljina during the first half of 1998.

2.19 In the RS, a number of serious incidents demonstrate that the RS local police is equally reluctant to intervene to protect members of minorities. On 8 April 1998, a well-organised angry mob of about 60 to 70 Bosnian Serb displaced persons prevented 500 Bosniacs from visiting their graveyards in Bosanski Novi/Novi Grad. Stones were thrown and buses blocked the road. Even though no injuries were reported, this incident was intended to send a clear message to potential minority returnees. On 23 April 1998, in spite of prior guarantees that the local police would provide security, a Catholic ceremony in Dervanta was disrupted by a crowd of approximately 1,500 to 2,000 demonstrators, preventing 600 Bosnian Croats from reaching Derventa. On 25 April 1998, a crowd of 200 displaced Bosnian Serbs prevented displaced Bosnian Croats from Slavonski Brod from attending a mass at Plehan monastery near Derventa (RS). SFOR reported the presence of four more road blocks between Dugo Polje and Plehan. On 26 April 1998, in Svjetlica near Doboj (RS), five Bosnian Serbs harassed a group of Bosniacs who had returned to their homes. A confrontation ensued, resulting in the establishment of roadblocks on both sides of the Inter-Entity Boundary Line. The Doboj local police has now taken a hard line stance, undermining freedom of movement and return in that area.

2.20 In the Bonn 1996 Agreement on Restructuring the Police of the Federation, the Federation authorities committed themselves to creating police organisations that are structured and operate according to generally accepted international standards for policing and guarantee respect for internationally recognised human rights. To assist the authorities in the implementation of this agreement, one of IPTF's objectives[19] is to strive for joint policing and promote multi-ethnicity in the police forces. To varying degrees, police restructuring has been implemented in the Federation Cantons, except for Cantons 8 and 10.However, police officers of different constituent peoples continue to answer to separate chains of command, which undermines the efficiency of joint policing.

2.21 In the RS, the authorities accepted the principles of the UN IPTF restructuring on 24 September 1997.Police officers underwent training offered by IPTF, but outside of Brcko, no joint police forces have so far been established.

Residence Registration and Issuance of Identity (ID) Cards

2.22 Legally, persons who registered their permanent residence in any municipality before the conflict should be able to re-establish their residence in that municipality and receive the relevant Entity ID Card which is essential for exercising basic rights (e.g. access to social welfare, health care, humanitarian aid, food) and for administrative purposes.

2.23 In practice, however, the RS authorities refuse to register minority returnees as residents and consequently, do not issue them RS ID Cards, particularly in areas such as Brcko,[20] Bijeljina, Prnjavor and in the Zone of Separation. The RS authorities link registration and the issuance of RS ID Cards to the applicant's ethnicity or to conditions not in accordance with the Law on Identification Cards, such as requiring all draft-age males to show proof that they have registered with the military authorities or demanding payment of 'war taxes'.[21]

2.24 The majority of municipal authorities in the Federation register those who cannot return to their pre-conflict place of residence if they can provide proof of accommodation, but are not in a position to assist them in identifying any accommodation. Issuance of a displaced person's card, which must be submitted for access to food, medical and other assistance, also depends on registration as to residence and hence, accommodation.[22] In some Federation municipalities, returnees who cannot yet repossess their property face difficulties in obtaining ID Cards since they do not yet live at their permanent residence. In other cases, minority returnees face enormous bureaucratic hurdles in obtaining required documentation.

Recognition of Public Documents

2.25 Public documents issued by judicial, administrative and other agencies and institutions in one Entity are frequently not recognised by the corresponding bodies of the other Entity, thus hindering sustainable return and successful reintegration.

2.26 The Federation Law on Recognition of Public Documents on the Territory of the Federation of Bosnia and Herzegovina, which entered into force on 26 February 1998, provides for the recognition of public documents issued by the authorities of the then Republic of Bosnia and Herzegovina and the so-called 'Herzeg-Bosna' authorities during the period between 6 April 1992 and either 14 October 1997 or 25 February 1998 (the Law is unclear as to the relevant period but the Ministry of Justice interprets it as being the longer period). Although illegal, public documents with 'Herzeg-Bosna' seals are still issued.

2.27 The Federation Ministry of Justice interprets Article 6 of the above-mentioned Law to mean that recognition of public documents issued by the RS must be regulated by the State and not the Federation Law. Although some courts in the Federation recognise certain RS public documents (e.g. Municipal Courts I and II in Sarajevo Canton) and similarly, some courts in the RS recognise certain Federation documents, this situation must be remedied formally and consistently for the sake of legal security and to facilitate sustainable returns.

2.28 With the support of OHR, the Entity Governments signed a Memorandum of Understanding on Inter-Entity Legal Co-operation on 20 May 1998.[23] This document regulates legal assistance in civil, criminal and administrative matters, the harmonisation of legislation concerning the legal practice, the exchange of judicial and administrative acts, a review of the situation and exchange of public records, the exchange of personal documentation and other similar matters. The Memorandum entered into force on the day of its signature. During the first session of the Commission on 3 June 1998, the members agreed that legislation in both Entities must allow for lawyers to practice on the entire territory of Bosnia and Herzegovina and that laws must be passed concerning the recognition of the respective Entities' public documents. These laws must be adopted no later than 30 June 1998.

Access to Documents

2.29 In both Entities full access to personal records and documents, such as birth, death, marriage and divorce certificates, and employment, educational, medical, insurance, pension and property documents, has not yet been secured, not least because registers were frequently destroyed or have disappeared. Furthermore, the retrieval of such records and documents is often subject to excessive bureaucratic procedures. In some instances, returnees are overcharged when asking for personal records or other official documents.[24]

Freedom of Movement

2.30 Article I (4) of the Constitution of Bosnia and Herzegovina guarantees the right to freedom of movement. Freedom of movement is especially important to potential returnees and displaced persons as it enables them personally to assess the situation in their home areas, and then to move back to their homes when and if they feel they are ready to do so.

Illegal Checkpoints

2.31 UNMIBH (IPTF) has developed a checkpoint policy to prevent the establishment of illegal checkpoints by the local police, which often lead to the harassment of motorists of other ethnic groups. UNMIBH (IPTF) has reported, in particular, the continued failure of the Sarajevo Cantonal police to abide by the checkpoint policy.

UNHCR Bus Lines

2.32 In 1996, UNHCR, in order to promote the right to freedom of movement, established a series of inter-Entity bus lines to compensate for the lack of public and commercial transport from the Federation to the RS and vice versa. For many people, this was the only way to visit the other Entity, friends, relatives and homes.

2.33 Between March and May of 1998, a disturbing series of violent incidents took place, ranging from the stoning of the Kladanj-Vlasenica UNHCR bus by a group of 50-75 Serbs to the physical assault and/or robbery of a number of Bosniac passengers from Sapna (Federation) visiting Zvornik (RS). In Zvornik, when victims approached the local police for help, the common response was that they were attacked by a gang operating in the area and that the victims should not return in the future. It is suspected that the "gang" are actually members of a military unit stationed in Kozluk. Another incident took place in the town of Piskavice, outside of Vlasenica (RS), and involved a group of approximately 12 Bosniac women, five of whom were verbally and physically assaulted whilst visiting their pre-conflict homes and the local graveyard. These incidents often take place in the presence of international organisations such as UNHCR, when perpetrators would be expected to be the least bold.[25]

2.34 While these types of incidents are not a daily occurrence, they happen with enough frequency to indicate that tensions are high and that freedom of movement in Bosnia and Herzegovina is still not assured.

War Taxes

2.35 The expression 'war taxes' is defined as any amount of money which returning refugees[26] have to pay directly or indirectly to the local authorities upon return because of their stay abroad during the conflict. Article I(3)(a) of Annex 7 of the GFAP provides that all discriminatory administrative obstacles to return must be removed. Since war taxes affect only those returning to Bosnia and Herzegovina from abroad, they clearly have a discriminatory effect on refugees. Both Entities passed laws and regulations for the collection of taxes for the reconstruction and the restoration of their respective territories.

2.36 In the Federation, war taxes are not levied on the basis of Entity legislation but on the basis of municipal decisions. During the conflict, several municipalities in the Federation passed decisions with a view to providing financial means for their defence. Most of them have not repealed those decisions, which still constitute the basis for levying war taxes on returning refugees.[27] War taxes are to be paid by refugees who worked while abroad[28] and, in some municipalities, by returning displaced persons.[29] This illegal practice continues to occur within certain municipalities.[30]

2.37 In the RS, the Law on Tax for the Reconstruction and the Restoration of the RS was passed in June 1996[31] and the accompanying Instruction was adopted by the then Minister of Finance in August 1996.[32] This legislation requires RS citizens who worked or are working abroad to pay a tax which consists of a fixed amount of money to be paid on a monthly basis. The obligation to pay the tax is not subject to statutory limitations. Individuals returning to the RS have to pay retroactively for the entire period they worked abroad.[33]

2.38 In both Entities the payment of war taxes is often a pre-condition for obtaining documents, being included in reconstruction projects or ensuring connections to phone or electricity networks. Moreover, war taxes are levied either at border entry points, where passports can be confiscated until the tax is paid, or by municipal officials in charge of registration or of the issuance of identification documents. The amount is often determined arbitrarily, without reference to the rates established by the respective laws.

c. The Social Framework

Access to Social Services and Health Care

2.39 In both Entities, access to public health, medical care, social security, food aid[34] and pension is subject to prior registration of residence with the local authorities and obtaining of the Entity's ID card. UNHCR's surveys reveal that returnees and relocatees face considerable difficulties registering their permanent and temporary residence with the municipal authorities. The impossibility to register results in the denial of access to such services. These practices affect not only minority returnees but also returnees of the majority constituent people.  Both Entity authorities need to issue identity cards to returnees without discrimination to enable them to have access to essential social services. They should also rescind the requirement for returnees to provide de-registration papers from other countries.

Education System

2.40 The education systems and curricula are dominated by ethnic bias, discrimination and segregation, thus inhibiting the return of families. Foreign textbooks are used in the RS and Bosnian Croat-administered areas of the Federation.

2.41 On 18 May 1998, the Federation and the RS Ministers of Education agreed to establish two expert teams (one in each Entity) whose task will be to remove offensive material from textbooks. The expert teams will meet in order to share their findings and make recommendations to their respective Ministers, who will then implement these recommendations.

2.42 In an effort to promote tolerance, the Federation authorities have established a Commission for a Uniform Curriculum to develop a core curriculum. However, the deadline[35] for developing such a uniform curriculum was not met because of the lack of expertise of the involved parties. OHR intends to ask UNESCO to provide the necessary assistance. The RS has not yet taken such an initiative.

Employment [36]

2.43 The rate of unemployment in Bosnia and Herzegovina is high,[37] and based on reports by international agencies and other institutions, the limited employment opportunities are affected by wide-spread discrimination based on ethnicity.[38] Discriminatory dismissal or recruitment on an ethnic basis is especially prevalent in public enterprises, the legal profession, the medical field, schools and universities. Members of the minority constituent people and members of opposition parties are reported to have been dismissed from municipal and Cantonal administrations, particularly before but also after the signing of the GFAP. In addition to political obstacles, the current state of the economy often does not allow minority returnees to reintegrate into the employment market. It should be borne in mind that pressure on the employment market is already high since the Bosnian economy does not generate enough jobs to absorb all or even a substantial part of the available workforce. Large numbers of induced returns to the Federation or to the RS will therefore create further social and political tensions.

2.44 For example, the Helsinki Committee for Human Rights in Bosnia and Herzegovina reported in its Faxletter of 1 February 1998 that 50 Bosniac employees were dismissed from the Livno Bus Company in September 1997.Livno is a Bosnian Croat-administered municipality in Western Bosnia and Herzegovina. Moreover, the Director of the local Veterinary Station was also dismissed by the Mayor of Livno, because of his refusal to implement the ethnically based employment policy devised by the authorities.[39] However, after the implementation of the September 1997 municipal elections' results, the Mayor of Livno agreed to reintegrate 25 Bosniacs into their jobs in the municipal administration. The Helsinki Committee also reported the dismissal of 1,416 Bosniac workers from a Bosnian Croat-administered military factory in Vitez.[40]

d. Overall Assessment

2.45 The general political and human rights situation in Bosnia and Herzegovina has certainly improved in some areas since the signing of the GFAP in 1995. Progress is, however, slow and only possible because of the massive involvement of the international community. UNHCR's 'Open Cities' concept demonstrates that minority returns are feasible where there is political will, coordination between international organisations and appropriate allocation of funds. However, many of the barriers currently hampering minority returns in the country are also encountered in the Open Cities, such as the slow implementation of the property legislation, the lack of accommodation, the presence of large groups of displaced persons who cannot return home, and instances of discrimination or harassment upon return. UNHCR therefore reiterates its position that Open Cities, as well as other areas which are in the process of opening to minority returns, should not be considered 'safe areas' for the non-voluntary repatriation of refugees from abroad.

2.46 International organisations monitoring the human rights situation in Bosnia and Herzegovina continue to report a high rate of human rights violations. The UNMIBH Human Rights Office, which monitors the human rights situation, along with the Organization for Security and Co-operation in Europe (OSCE) and IPTF, has so far recorded a total of 905 human rights cases between 1 January and 3 June 1998. The sustainability and the irreversibility of even the changes to date are not yet guaranteed, as evidenced by the decision of NATO to extend the mission of the Stabilisation Force in Bosnia and Herzegovina beyond June 1998, and specifically the recent serious security-related events in Derventa, Doboj, Drvar and Stolac[41] and along UNHCR-run bus lines. A multi-ethnic local police force still needs to be established throughout the RS, while the various Federation police forces where this has been achieved have yet to carry out their duties in accordance with international standards. Police restructuring and reform are essential elements of the security framework, along with the establishment of effective and non-discriminatory policing practices. The housing, employment, education, social services and health care capacities in the pre-conflict places of residence need to be improved considerably for returns to become dignified and sustainable. Also, freedom of religion is not fully guaranteed, particularly not in the RS and in Bosnian Croat-administered areas of the Federation.

2.47 The inadequacy of the current legal, administrative and social framework is not conducive to the restoration of full national protection. As repeatedly stressed in reports of the UN Special Rapporteur of the Commission on Human Rights, the domestic mechanisms needed to ensure national protection are not yet fully effective. Important progress needs to be achieved in areas such as judicial co-operation between the Entities, judicial reform of the domestic legal framework and the functioning of the court system.[42] The lack of comprehensive citizenship legislation at the State and the Entity levels, as well as the weak operation of the central institutions obstruct the effective exercise of national protection by the authorities of Bosnia and Herzegovina at all levels. Moreover, the three main nationalist political parties remain in power in most of the executive positions in Bosnia and Herzegovina. Given their respective programmes and ideologies, these parties are not working to correct the consequences of the conflict.

2.48 Despite the promising formation of the new RS Government, a long list of unresolved issues remains. Absence of acceptable property legislation is an obvious example; others follow: i) there have only been very few Zone of Separation returns despite an agreed procedure (out of 3,742 approved applications,[43] only 276 families have effectively returned to the Zone of Separation); ii) the RS authorities have so far not developed any return plans; iii) the new Government has had little impact on the situation in Eastern RS in terms of creating conditions for return; iv)security incidents have been reported in Bosanski Novi/Novi Grad, Derventa, Doboj, etc., as well as continued hard-line occupancy of positions in a number of RS municipalities, particularly in Eastern RS; v) the RS authorities have so far failed to ensure the reinstatement of the 300 to 400 eviction cases in Banja Luka. The voluntary repatriation of the majority of the estimated 40,000 Croatian Serb refugees to Croatia, most of whom are currently staying in and around Banja Luka, will increase the prospects of minority returns in Western RS. But despite the pressure exerted on Croatia, particularly since the Banja Luka Regional Return Conference (28 April 1998), to allow unconditional return to homes of origin in Croatia of all refugees willing to return and to regularise their citizenship status, such returns have yet to materialise.

2.49 In the Federation, the adoption of the new property legislation is an important step forward after two and a half years of negotiations. However, its implementation is already impaired by problems and/or bad will on the part of the authorities. The official standard claim form for repossession has not been distributed to all the Federation municipalities, and sometimes returnees are illegally charged for the forms. While the legal position of owners and occupancy-right holders has improved, this does not mean that even if they obtain confirmation of their rights, they can immediately return to their housing units, as the laws provide for delays for the reinstatement into and repossession of property. Moreover, the authorities of both Entities have so far been reluctant to enforce lawful evictions and to provide alternative accommodation for those lawfully evicted.

2.50 Given these constraints, there may be pressures on persons in this category to return, but to a majority area. UNHCR is gravely preoccupied that the return and peace-consolidation processes are, and may continue to be, seriously undermined by induced repatriation to an area which is not the pre-conflict place of residence, but where the returnee will be part of the majority. Article I(1) of Annex 7 of the General Framework Agreement for Peace provides for the right of every refugee or displaced person to return to her/his pre-conflict place of residence. This recognises that the deliberate placement of groups of people into housing belonging to other national groups in order to secure ethnically-based control over territory and thus prevent minority return (hostile relocation), is unacceptable.[44]

3. Humanitarian Cases (Ex-Camp or Prison Detainees; Victims or Witnesses of Violence; Witnesses Testifying Before the International Criminal Tribunal for Former Yugoslavia; Severely Traumatised Persons; Individuals in Need of Special Care)

a. International Protection Because of Compelling Reasons Arising Out of Previous Persecution

3.1 Beneficiaries of temporary protection who can invoke 'compelling reasons arising out of previous persecution' for refusing to return to Bosnia and Herzegovina should be offered local solutions in their host countries.[45] Ex-camp or prison detainees, victims or witnesses of violence, as well as severely traumatised persons would fall under this category. It is presumed that such cases have suffered grave persecution, including at the hands of elements of the local population, and cannot reasonably be expected to return to Bosnia and Herzegovina.

3.2 Apart from strong humanitarian reasons, many of the persons directly responsible for their persecution are still at large in Bosnia and Herzegovina, sometimes even holding official positions in the administration. Witnesses testifying before the International Criminal Tribunal for Former Yugoslavia should equally be protected. These groups clearly require the option of long-term solutions elsewhere.

b. Individuals in Need of Special Care

3.3 The assessment of medical cases and socially vulnerable persons, such as handicapped persons or the elderly, should not be limited merely to the availability of treatment or special care requirements in Bosnia and Herzegovina. Several other factors play an equally important role in ensuring accessibility to treatment and special care. The financial resources of the concerned individuals must be taken into account, since the former social policy of free access to social services and health care, applied under the socialist system, has changed with the introduction of fees to access health care and social services. Vulnerable but impoverished returnees may not have access to proper treatment and to medical facilities. The health insurance system is still ineffective and the restructuring of the health care and social service infrastructure is far from complete. The new Federation legislation regulating these matters is in the draft. Its finalisation may well take some time since it must take into account the constitutional competencies of the various levels of government authority.

3.4 The ethnicity of a returnee will also affect her/his access to health care and social services (see problems with regard to registration).Therefore, the reintegration of members of minority constituent peoples might be further undermined by their vulnerability and their disability. Provided there are no other protection problems, the possibility of repatriation of individuals in need of special care should be assessed on a case by case basis. Consideration should be given to whether the community of origin or relatives can provide care and assistance or, alternatively, to whether the appropriate institutions are close to the place of origin so as to ensure proper reintegration in the place of pre-conflict residence, and finally as to whether funds are available to pay for services provided by a medical facility or through home care.[46] As in any repatriation, children separated from their families or traditional care-giver must be accorded special care and attention, particularly regarding their legal status and special protection needs.

4. Persons of Mixed Ethnicity or in Mixed Marriages

4.1 Many persons in mixed marriages continue to face protection problems and discrimination in accommodation, education and employment following return. The situation is worse where the head of household or person supporting the family is of a 'minority' constituent people in a given location. There are also increased reports with regard to domestic violence against women of a 'minority' constituent people and lack of protection on the part of the authorities. Persons of mixed ethnicity generally face similar problems to minorities, even if one of their parents belongs to the constituent people of the majority. There are clearly individual exceptions, such as when family members in the majority group are able to support the return, but these positive cases still remain relatively few in most areas.

5. Potentially Stateless Persons

5.1 Even though the State Law on Citizenship of Bosnia and Herzegovina was drafted with a view to avoiding situations of statelessness, the combination of the effect of citizenship laws of the other former Republics of Yugoslavia and the lack of adequate Entity Laws on Citizenship may leave certain individuals without, or with unclear, citizenship. These individuals may require continued international protection until their citizenship status is regularised.

6. Other Specific Protection Categories

a. Leaders of the Demokratska Narodna Zajednica ('Former Abdic Supporters')

6.1 Municipal elections were held in Bosnia and Herzegovina on 13 and 14 September 1997. The Demokratska Narodna Zajednica (DNZ) presented candidates both in Velika Kladusa and Cazin. With 62,5% of the votes in Velika Kladusa, the DNZ was granted 15 seats out of 24 in the municipal assembly, while in Cazin it obtained 16,66% of the votes and 5 seats out of 30.

6.2 However, the DNZ-led municipality in Velika Kladusa does not function effectively. The DNZ Mayor is facing difficulties in establishing his authority over the municipal organs. The Party of Democratic Action (SDA, previous, controlling party) uses its strong influence over the police forces, some segments of the population, the judiciary and the economic sector to undermine the political authority and the action of the new municipal leadership.[47] The SDA-led Cantonal authorities are also taking part in this process by depriving the municipality of some of its competencies. In this context, the political and former military leadership of the DNZ, as well as prominent former supporters of Abdic, are not assured effective national protection from the authorities, which justifies the need for continued international protection of this specific group.

b. Deserters and Draft Evaders of the Vojska Republike Srpske

6.3 Section II (a) of Annex 7 of the GFAP provides for the amnesty of those who evaded the draft, deserted, or refused to answer a military call-up during the conflict.[48] The current RS Law on Amnesty does not comply with this requirement and, therefore, denies amnesty to RS citizens, many of whom may therefore be prosecuted[49] upon return. Deserters and draft-evaders of the Bosnian Serb army, therefore, still need international protection.

c. Minority Members of the Armed Forces

6.4 Discrimination against persons who served in the armed forces controlled by a constituent group of which they were not a member continues to occur despite all three amnesty laws granting amnesty to persons who served in the enemy army.The individual circumstances of each case must be scrutinised carefully to determine whether or not it is safe for the person to repatriate.

d. Members of the Roma Communities

6.5 The situation of members of the Roma communities is critical.[50] They used to live in the Sarajevo, Zenica, Kakanj, Tuzla and North-Eastern Bosnia (Zvornik, Bijeljina) areas. Members of this group are even less integrated into the post-conflict Bosnian society than they were before. They lost most of their traditional sources of revenue, which stemmed from their work in state-owned companies. Their housing situation is precarious, since some groups who used to live in unregistered shacks now cannot substantiate their right to return with proper documentation or even dwellings to which to return. The right to education seems to be respected, even though some families do not have the necessary material resources to send their children to school. Bosnian society, the authorities, as well as the public, are indifferent to this minority group. Even though most of them are Muslims, religion is not the essential identification factor for this group and they do not necessarily attract the attention of their Bosniac coreligionists. They lack the political representation and organisation that would allow them to voice their problems with the authorities. Therefore, in a society dominated by nationalist politics, members of the Roma communities are often discriminated against in the enjoyment and the protection of their rights, particularly if they originate from the RS. Such discrimination requires, therefore, continued international protection, on cumulative grounds.

7. Conclusion

7.1 Clearly, the non-voluntary repatriation of refugees falling under the aforementioned categories is not appropriate. Nevertheless, given the very individual circumstances of members of the above categories, the return of some is already a possibility. However, numbers are as yet too small to draw any general conclusions. For those in these categories for whom voluntary return may be an option, the key remains access to objective and accurate information. In this regard, UNHCR welcomes the ongoing policy of many host countries to support widespread dissemination of information to refugees and assessment visits to their areas of pre-conflict residence.

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[1] See, for instance, the Resolution on Certain Common Guidelines as Regards the Admission of Particularly Vulnerable Groups of Persons from the Former Yugoslavia. Adopted by the EC Ministers responsible for immigration in Copenhagen on 2 June 1993.

[2] See UNHCR, A Regional Strategy for Sustainable Return of Those Displaced by Conflict in the Former Yugoslavia, Overview.

[3] For further discussion, see the Standing Committee document, Note on the Cessation Clauses, EC/47/SC/CRP.30 of 30 May 1997, para. 27.

[4] See UNHCR, Repatriation and Return Operation 1997 (document HIWG 97/2), pages 3-4.

[5] Definitions: When used in this document, "returnees" is a working term which encompasses both refugees and displaced persons returning to their homes of origin. The term "minority" is used to describe persons who are members of the current minority constituent people in their place of origin. Many minority residents and returnees were part of the majority constituent people in their place of origin according to the pre-conflict demographic situation.

[6] See the Report of the Ombudsmen of the Federation of Bosnia and Herzegovina, March 1998. 3,592 cases out of 5,454 for 1997 were related to property and the right to respect of one's home. See also the Report of the Human Rights Chamber for Bosnia and Herzegovina, March 1998, which reveals the same pattern.

[7] The Constitution of Bosnia and Herzegovina stipulates that there shall be a citizenship of Bosnia and Herzegovina and a citizenship of each Entity. All citizens of either Entity are thereby citizens of Bosnia and Herzegovina - hence the fundamental importance of the adoption of appropriate Entity citizenship legislation and accompanying regulations.

[8] Official Messenger of the Republika Srpska, No. 13/96.

[9] Official Gazette of the Federation of Bosnia and Herzegovina, No. 9/96.

[10] The proposed legislation will complete the domestic legal framework, regulate current voluntary repatriation movements and put in place an adequate return mechanism, as required by international standards, in particular Annex 7 of the GFAP.

[11] See Final Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Bosnia and Herzegovina, E/CN.4/1998/63.

[12] The Council of Europe, OHR, the United Nations Development Programme, the American Bar Association and the UN Mission in Bosnia and Herzegovina are involved in this process.

[13] See, for instance, ICG Report, Rebuilding A Multi-Ethnic Sarajevo, The Need for Minority Returns, dated 3 February 1998.

[14] See OSCE, Human Rights Report, December 1997-February 1998.

[15] See Annual Report of the Human Rights Chamber for Bosnia and Herzegovina, March 1998, and Second Annual Report of the Office of the Human Rights Ombudsperson, May 1997-April 1998.

[16] See the study prepared by the Commission for Real Property Claims of Displaced Persons and Refugees, Return, Relocation and Property Rights, December 1997.

[17] Drvar was nearly 100% Bosnian Serb before the conflict.

[18] Two houses were blown up in Jablanica in Doljani and Zukici on 19 May 1998.

[19] The International Police Task Force (IPTF) is a United Nations civilian police force created under Annex 11 of the GFAP. 

[20] This situation has prompted the Supervisor for Brcko to adopt a Supervisory Order on Identity Cards for Returnees to Brcko, according to which Federation ID Cards are considered valid in this area of RS territory.

[21] See UNHCR's survey on Registration of Repatriates in the Republika Srpska and Entitlement to Identity Documents, Food Assistance and Medical Care, October 1997 (currently being updated).

[22] See UNHCR's survey on Registration of Repatriates in the Federation of Bosnia and Herzegovina and Entitlement to Food Assistance and Medical Care, May 1997 (currently being updated).

[23] The exact title is: Memorandum of Understanding on the Regulation of Legal Assistance between Institutions of the Federation of Bosnia and Herzegovina and the Republika Srpska.

[24] For instance, in the municipality of Teocak (Federation).

[25]Additionally, SFOR reports 41 incidents related to the freedom of movement in the Federation and 45 in the RS since the beginning of 1998.

[26] Returning displaced persons are not usually subject to the payment of such tax. 

[27] The municipalities of Zavidovici, Banovici, Celic, Kalesija and Olovo have repealed the decisions adopted during the conflict. The municipalities of Gradacac and Srebrenik deny charging war taxes on repatriates, despite reports to the contrary.

[28] This is the most common practice.

[29] For instance, in the Gorazde Canton.

[30] See the letter sent by the Federation Minister of Justice to OHR on 24 September 1997.

[31] Official Messenger of the Republika Sprska, No. 15/96.

[32] Instruction No. 01-398/96.

[33] See Article 15 (2) of this RS law.

[34] Since September 1997, the World Food Programme (WFP) has provided food aid only to the most vulnerable individuals. Until March 1998, beneficiaries had to have a monthly income of less than 25 DM per person and belong to certain categories of vulnerable groups in order to be entitled to food assistance. Following the joint food aid needs assessment mission, new criteria have been set up to recategorise the most socially vulnerable beneficiaries. The income limit was increased to 50 DM and the categories of beneficiaries were reduced to the following four groups: i) Elderly (over 65 years for men and 60 for women) living alone and without family support, and with a pension below 50 DM per person per month and no possibility of additional income; ii) Physically and mentally handicapped incapable of working, and with a compound income (including invalid benefits) of less than 50 DM per person per month, and without another member of the household capable to work; iii) Single parents with a child or children below 15 years of age, without family support and with a compound income (including child benefits) of less than 50 DM per person per month; iv) Foster children or orphans in households with no members capable to work and with a compound income of less than 50 DM per person per month.

[35] 15 June 1998.

[36] As for the state of the economy, please refer to the Report: Bosnia and Herzegovina. The Priority Reconstruction Program: Achievements and 1998 Needs, prepared by the European Commission and the Europe and Central Asia Region of the World Bank, April 1998. This report observes that, as a result of the conflict, industrial production dropped down to 5-10% of pre-conflict levels. While production has rebounded during the past two years, Bosnian enterprises still suffer from: i) lack of working capital or access to financing; ii) obsolete, destroyed or looted plants and equipment; iii) lack of markets; and iv) disruption of pre-conflict trade links as a result of the breakdown of the former Yugoslavia. As for the state of agriculture, at the end of the conflict, wheat, maize and potato outputs were 60 to 70 percent of 1990 levels. Fruit production dropped by more than half. As much as 70% of the farm equipment and 60% of livestock was lost. Farm buildings and irrigation equipment were destroyed. Forest roads and harvesting equipment were heavily damaged. High-value orchards and vineyards were destroyed directly or through neglect during the conflict. Food marketing systems were disrupted. Some 15% of farmland and 20% of forests became inaccessible due to mines.

[37] According to the Federation Institute of Statistics, the unemployment rate was 40% in March 1998 in the Federation (352,205 employed, including 82,119 on waiting list; 233,402 unemployed). If one adds the number of unemployed persons with the one of those on waiting lists, the real unemployment rate probably amounts to some 54% of the workforce. The unemployment rate is estimated to be higher in the RS.

[38] According to the Report: Bosnia and Herzegovina. The Priority Reconstruction Program: Achievements and 1998 Needs, prepared by the European Commission and the Europe and Central Asia Region of the World Bank, April 1998, returnees and displaced persons rank among the most disadvantaged groups with the highest unemployment rates. They have reduced access to social networks and encounter more difficulties in finding employment.

[39] Helsinki Committee for Human Rights in Bosnia and Herzegovina, Faxletter, 15 April 1998.

[40] Helsinki Committee for Human Rights in Bosnia and Herzegovina, Faxletter, 1 June 1998.

[41] See Amnesty International, Bosnia and Herzegovina, All the Way Home: Drvar, Derventa, and Other Recent Cases of Violence Linked to Minority Return, EUR 63/08/98, 28 April 1998.

[42] See the Final Report of Ms. Elisabeth Rehn on the Situation of Human Rights in the Territory of the Former Yugoslavia, E/CN/4/1998/63 and E/CN.4/1998/L.86/Rev.1.

[43] One application per family unit.

[44] See UNHCR, A Regional Strategy for Sustainable Return of Those Displaced by Conflict in the Former Yugoslavia, paras. 7.9 and 7.10 for the circumstances in which relocation is considered acceptable.

[45] Such an approach would be consistent with the spirit of fundamental humanitarian principles, including those formulated in the 1951 Convention, in relation to situations where a person may have been subjected to very serious persecution in the past and therefore requires continued protection.

[46]Please note that in the Federation the average pension amounts to 138 German Marks (DM), while in the RS it is 58 DM.

[47] For instance, it is reported that the municipal authorities do not 'dare' to implement the new property legislation, since this would lead to the eviction of some displaced persons (mainly war veterans loyal to the SDA) and therefore, could destabilise the situation in Velika Kladusa.

[48] See paras. 2.9-2.11.

[49] The maximum penalty will vary according to the offence, from 10 years imprisonment to the death penalty. According to OHR estimates, some 30,000 people could potentially be affected.

[50] The pre-conflict population was estimated at around 50,000-60,000 individuals. These figures did not include those who declared themselves as 'Yugoslavs', Muslims or others. There are no updated figures of the post-conflict population.