September 1999

The Status of International Law in Domestic Legal System

The question of minority rights, as component of human and civic rights and freedoms, can be followed even from the time of the old Greek philosophers. Some go even further and say that the regulation of human rights and freedoms can be found in the Bible. But not until this century has the question of minority rights been treated on theoretical as well as on the legal and political level. Franklin Roosevelt said in 1938 that there were no democracy that could subsist long if it didn't accept as a basis for its existence the recognition of minority rights.

This century left behind many documents that regulate the field of human rights and freedoms. It is natural to start with the Universal Declaration on Human Rights, which the United Nations declared in 1948. Many other declarations and conventions from 1948 until today are based on this Declaration. It is necessary to emphasize the importance of the European Convention on Protection of Human Rights and Basic Freedoms from 1950, whose article 14 ensures equal rights and freedoms regardless of skin color, race and language, denomination, national background or belonging to a national minority.

If we focus only on the question of minority rights we are obliged to mention some international documents:

  • Document of the Copenhagen Meeting of the Conference on Security and Co-operation in Europe (CSCE) from 1990, (32) which states that "Persons belonging to national minorities have the right freely to express, preserve and to develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.”
  • Declaration on Rights of the Persons That Belong to National or Ethnical, Religious or Language Minorities from 1992. This Declaration guarantees minorities the right to “ their culture, denomination and right to practice their will and use of their language”, right to actively participate in “cultural, religious, social, economic and public life”, the right to “form and maintain their associations”, and the right to establish and maintain contacts with members of its own and other minorities, but also with citizens of other countries with whom they are connected through nationality, ethnicity, religion or language”.
  • The Framework Convention for the Protection of National Minorities declared by Council of Europe in 1995, which regulates the legal framework for the rights of the persons belonging to national minorities, but also for national minorities as a collective, that all the signatory states needs to comply.
  • The European Charter on Regional Languages and Minority Languages from 1992. With this Charter signatory states pledge to support regional and minority languages, as a way of expressing cultural richness, and the charter affirms the need for more active action in their preservation and improvement.
  • Declaration on Abolition of All Kinds of Intolerance and Discrimination on Basis of Religion or Belief, which was adopted by The General Assembly of United Nations in 1981. The Declaration includes all rights to freedom of thought, conscience, religion, or belief, but it also includes the obligations of signatory states that needs to be performed in order to prevent and abolish discrimination based on religion or belief.
  • Convention against Discrimination in Education which was adopted in 1960 by the General Assembly United Nations Organization for Education, Science and Culture. This Convention develops methods for neutralizing differences, exclusion, limitation or advantages based on race, color, gender, language, religion, political or other opinion, national or social background, which as a result may endanger equality in education.

The war in Bosnia and Herzegovina stifled all of this, and all other charters and declarations on human and civic rights. The same destiny faced minority rights. The possibility to work on their reaffirmation created the Dayton Agreement as a whole and especially Annex 4, Annex 6 and Annex 7 of the Agreement.

In the constitution of Bosnia and Herzegovina, which is a component of the Dayton Agreement (Annex 4), in its preamble, the signatories cite as inspiration “ Universal Declaration on Human Rights, International Laws on Civic and Political Rights and Economical, Social and Cultural Rights, and Declaration on Rights of National, Ethnical, Religious and Language Minorities, as well as all other human rights instruments.” The Agreement on Human Rights (Annex 6), which is a part of the Dayton Agreement, takes the obligation to ensure the highest level of internationally recognized human rights and basic freedoms, but also to neutralize discrimination on any bases, including gender, race, color, denomination, language, political or other attitudes, national or social background, or belonging to a national minority. The Constitution also undertakes, and that is elaborated in the Agreement on Refugees and Displaced Persons, the obligation of ensuring the right to a free return to their homes, as well as the right to return or compensation of the property which was deprived from them in 1991.

The field of human rights and freedoms was elaborated in the constitution of each entity. Both constitutions have adopted the obligations from the Bosnia and Herzegovina Constitution in almost identical form. Special articles of the Constitution guarantee to the citizens freedom of expressing national belonging and culture and the right to use their language, freedom of thought and appropriation, freedom of consciousness and belief, and especially the right of denomination.

Bosnia and Herzegovina Status as a State

In the Dayton Peace Agreement and in its Annex 4, Bosnia and Herzegovina is defined as a state. “Republic Bosnia and Herzegovina, which official title from now on will be “Bosnia and Herzegovina”, will continue its legal existence in international law as a state, within its today's internationally recognized borders.” Bosnia and Herzegovina will be a democratic legal state with free and democratic elections.” “Bosnia and Herzegovina will consist of two entities, Federation of Bosnia and Herzegovina and Republika Srpska.”

Bosnia and Herzegovina defined through this constitutional-legal position represents a kind of confederate regulated state, while the Federation BH, according to the legal provisions on local administration and territorial organization, is a federal entity, and Republika Srpska according to its constitutional definition is a unitary ordered entity.

Historical Development of the Country

Until the end of 1991 Bosnia and Herzegovina was a component of Yugoslavia, as one of its six republics. When Croats and Slovenians declared independence in June 1991, Serbs in other republics declared their loyalty to the remaining Yugoslavia. In Bosnia and Herzegovina, and in Croatia they formed a Serb Autonomous Region which led to a conflict. This conflict escalated after Macedonia declared its independence from Yugoslavia in November 1991. The deteriorating situation was reflected in Bosnia and Herzegovina as well. The negotiations between the different parties ended in a stalemate. Serbs formed the Serb People Assembly and in November 1991 they organized a referendum for Serbs in which they declared to stay in Yugoslavia. Almost all participants voted for staying in Yugoslavia, but in a similar referendum held in March 1992 the citizens of Bosnia and Herzegovina voted for secession. That same month Bosnia and Herzegovina declared its independence. And that same month conflict transformed into war.

Although Bosnia and Herzegovina independence was internationally recognized, first by the United States in April 1992, and than by the United Nations in May 1992, the conflict continued .Until May 1992, when Serbia and Montenegro declared themselves Federate Republic of Yugoslavia, Serbs in BH were in control of over two thirds of BH territory and they laid siege to Sarajevo. On May 30, 1992, the UN imposed economic sanctions against the FRY, which had not received international recognition. In June it mounted a humanitarian operation in Bosnia. The war took a new turn in July when a group of Croats, under the leadership of Mate Boban, formed a breakaway Croatian state called the Republic of Herzeg-Bosnia, with its own administration and security system.

In May 1993, conflict erupted between Croats and Muslims in central Bosnia. The fighting was associated with brutal ethnic cleansing and resulted in thousands of casualties.

In March 1994 fighting between Bosnian Muslims and Croats ended when the two groups agreed to create a joint federation to fight the Serbs and to ally the new federation with Croatia. The federation was based on cantons, and the new federation would coexist with the established government of the republic of Bosnia and Herzegovina, which remained under the guidance of President Izetbegovic.

A cease-fire between Bosnian Serbs and the Muslim-Croat federation was declared from January to April of 1995, but sporadic fighting continued. Fighting in neighboring Croatia also resumed in early May, bringing fears of a renewed regionwide conflict. In late May, aircrafts belonging to the North Atlantic Treaty Organization (NATO) bombed Serb-held positions in Bosnia. Events moved quickly during the summer of 1995. Serbian forces overran the so-called safe havens of Srebrenica and Zepa. NATO forces mounted a major air-strike campaign against Serbian positions to prevent further attacks, with the result that Muslim-Croat forces overran large areas of western Bosnia.

In August 1995 U.S. assistant secretary of state Richard Holbrook began a major campaign to forge a peace settlement between the three parties. Following lengthy negotiations, Bosnian president Izetbegovic, Croatian president Franjo Tudjman, and Serbian president Slobodan Milosevic initiated a comprehensive agreement on November 21, 1995, at the U.S. Air Force base near Dayton, Ohio; the agreement was formally signed in Paris the following month. The Dayton accord was intended to guarantee a lasting peace in Bosnia and to reconstruct the country as a single state consisting of two entities: the Federation of Bosnia and Herzegovina (also known as the Muslim-Croat federation), which would receive 51 percent of the territory, and the Serb Republic, which would receive 49 percent. Sarajevo was to be established as a unified city under the control of the central government. To ensure the peace, a SFOR implementation force consisting of 60,000 troops from more than 20 nations, including approximately 6,000 U.S. soldiers and large numbers of French and British troops, was placed in Bosnia in January 1996; the SFOR force was stationed primarily along the demarcation line between the Muslim-Croat federation and the Serb Republic.

As a result of the war in Bosnia and Herzegovina, between 100,000 and 200,000 people were reported killed and about 200,000 were wounded. An estimated 2.3 million people were displaced by the fighting to areas within and outside the country. The peace agreement that brought the conflict to an end in late 1995 provided an opportunity for the country to be reintegrated as a single, multiethnic state.

Demographic Situation in the Country

Bosnia and Herzegovina is a republic on the Balkan peninsula, bordering Croatia, Serbia and Montenegro. One of six former Yugoslav republics, Bosnia and Herzegovina has a territory of 51,129 sq. km.

Before the war, in 1991, Bosnia and Herzegovina had a total population of 4,364,574. By the time the war ended in late 1995, only about 3.4 million people were left in the country. Slavic Muslims constituted the largest ethnic group, with about 44 percent of the total population. Serbs constituted the second largest ethnic group before the war, with approximately 31 per cent of the population, and Croats made up 17 percent of the population. All three ethnic groups speak Serbo-Croatian, although Muslims and Croats use the Latin alphabet and Serbs use the Cyrillic alphabet. The rest of the country's inhabitants include Roma, so-called Yugoslavs (people of mixed Muslim, Serb, and Croat ancestry), and members of other tiny minority groups. The main religions are Islam, practiced by the ethnic Muslims; Serbian Orthodoxy, practiced by the Serbs; and Roman Catholicism, practiced by the Croats.

Nearly two-thirds of the republic's population lived in rural areas before the war.

More than 85 percent of the population over the age of 9 is able to read and write. All children between the ages of 7 and 15 are required to attend school, which is provided free of charge. Most children follow up this elementary education with secondary schooling at a gymnasium (general secondary school), vocational school, or other type of specialized school. The war seriously disrupted the educational system, as many school buildings were damaged or destroyed. However, many teachers continued to provide lessons in other public buildings and in private homes. The republic has four universities, which are located in Sarajevo, Banja Luka, Mostar, and Tuzla.

Part Two

The constitution of Republika Srpska incorporates all standards on minority rights that are provided in the European Convention on Human Rights and Basic Freedoms. The RS Constitution defines RS as the state of the Serb people and all its citizens. From this kind of formulation it is open who is considered to be a national minority in RS, and especially are of any significance the standards provided in International documents, that as a minority should be considered nation that participates up to 5% in total number of population. In the preamble of the BH Constitution arising from the Dayton Agreement, it is indicated that Muslims, Croats and Serbs are constitutive nations of the state of Bosnia and Herzegovina. However, Muslims and Croats are not constitutive nations in RS, and with this we open the question who is considered to be national minority. Presently there are proceedings before the BH Constitutional Court evaluating the compatibility of this definition in the RS Constitution with the BH Constitution and the Dayton Agreement.

Despite legal and declarative obligations of RS to ensure minority rights protection, in practice this is not being done.

Information regarding the number of Muslims in RS can not be specified, but there are estimates that the number is not bigger than 20,000, and that the number of Croats living in RS is only a few hundred. Data concerning the number of Roma varies according to the source. According to the 1991 Census the number was about 9,000, but representatives of Roma associations say that the unofficial number may be as high as 70,000. There are different reasons for this discrepancy in numbers:
- nomad way of life
- disinterest of Roma population in the Census
- the characteristic of Roma population to adapt to the environment in which they are living, in the sense of accepting customs, religion, language, and even national identification

Many Roma during the war and also today declare themselves members of the Muslim, or Serb nation, without mentioning their Roma origin.

There are no certain data about Roma sufferings in the past war, but according to our knowledge they have suffered a lot, and even today they are living in very difficult conditions. Before the war in the area of Bijeljina, there were 4,000 Roma, and now there are only a few hundred left. A significant number of Roma from the BH Federation left BH during the war. Among those who stayed, many were members of the RS Army, but they are so far left without any help from the state institutions.

It is a general and cultural characteristic of the Roma population in BH that they are tolerant and that they are willing to live together with people of other nationalities and religion. But in the winds of war, and due to the environment in which they were living, during the war a great number of Roma was in Serb or Muslim military formations. Characteristic is the case of the Roma village Jasenje in Ugljevik municipality, in which lived 500 Roma. During the war the village divided into confronting units. The larger part was in the RS Army, as at the beginning of the war the village belonged to the Serbs. Later this village became part of Federation BH and the Roma settled in abandoned Roma houses in Bijeljina. The problem now is that Bijeljina Roma are returning and demanding the return of their houses. Roma from Jasenje are forced to leave their temporary residence, but they do not have any other accommodation. They are asking local authorities to ensure accommodation for them and for their families. One of their demands is that Federation BH authorities pay for the recovery for their property. For the time being they are not expressing the wish to have their houses in Jasenje repaired. They would rather stay in RS as they are afraid of retaliation because of their involvement in the RS Army.

The Right to Return

The majority of Roma from the area of RS have left the republic, and many have gone to Germany and Italy. Apart from Bijeljina, where there are still about 200 Roma, in all other municipalities Roma have either completely left the area or there are just a few families left.

What is evident right now is that a great number of Roma refugees want to return. The biggest interest is for Bijeljina. Only in the area of Bijeljina town, Roma had about 800 houses in private possession, in each lived 7-8 members of families. Now Serb refugees or displaced persons are living in these houses. 500-700 Roma have recently returned to this town. The are staying with friends or relatives, or in other accommodation, but none of them have managed to get back to their own house. A much bigger number of Roma who are refugees from this area returned to Tuzla, Lukavac, Kalesija (area of Federation BH), visiting Bijeljina and displaying interest in the possible return to their homes. Here should be mentioned that, upon involvement from the Helsinki Committee for Human Rights in RS and the Center for the protection of minority rights, the Executive Board of Bijeljina Municipal Assembly, in April 1998, brought special conclusion about Roma return in this municipality area. The interest of Roma refugees from the area around Banja Luka (Banja Luka, Prijedor, Prnjavor, Srbac) to return from abroad is increasing. A problem is that only a very small number of Roma are left there, from whom they could get information or with whom they could stay. They are visiting municipal authorities or hiring lawyers, thus exposing themselves to very high expenses. Before the war a great number of Roma lived in these areas in solid conditions (they had good houses, land and other property).

According to the data that we have, the Roma population has completely left the area in which the Croat population is in majority.

Freedom of Movement

The right to freedom of movement is positively regulated in all legal acts and confirmed in the Dayton Agreement. According to those regulations all citizens should enjoy complete freedom of movement. Although there are some positive steps regarding the issue, these rights are still violated and the most affected are members of nonserb nationality. There are almost daily incidents; in Bijeljina, 24. June 1998 a group of Serb women refugees attacked a truck from Tuzla that was transporting the goods of one Roma family, which was returning to Bijeljina from abroad. The women threw some things out of the truck and tried to burn them down. Local police prevented further destruction of the truck and the goods.

The authorities are restraining the freedom of movement by not issuing personal documents (ID and passports) to citizens of nonserb nationality. This is especially expressed in the eastern part of RS, and without those documents the citizens are not able to move. The obvious discrimination of nonserb population is recorded in Modrica and Vukosavlje municipalities where the local municipal authorities charge 50 to 100 DEM for issuing certain documents to Muslims and Croats. For the same documents Serbs pay 3 to 6 DEM.

Citizen A.H. got ID after six months of waiting, and J.P. received hers after two months and intervention of her friend.

Freedom of Denomination

The right to denomination is endangered for the nonserb population. In the territory of RS there are no mosques, as all of them were destroyed during the war, and before the war there were several hundred. The freedom of denomination is endangered for the remaining Croats, Roma, Slovak and other minorities. An example of endangering religious freedoms is the devastation of the catholic church St. Ana and Joakim in Potkozarje, near Banja Luka (24 March, 1998). This act of vandalism was condemned by RS Ministry of Religion.

In Bijeljina a bomb was thrown onto the house of imam Okanovic. Imam Okanovic is just present at funerals of Muslims and he is not practicing any other service.

RS authorities are not allowing Islamic religious buildings to be built. That is why BH Islamic Community filed a complaint to the Human Rights House BH for violation of the right to denomination and for destroying 15 mosques and Islamic culture monuments in Banja Luka in 1993. The complaint refers also to deprivation of buildings and recovery of religious objects after the war.

In RS elementary schools, orthodox religious classes are obligatory, and these classes must be attended also by children of other religions. However, those children do not get marks for this subject.

The magistrates of different confessions have met several times and discussed how to overcome the problem. The first meeting on inter religious dialogue was organized by Helsinki Committee for Human Rights in RS in Bijeljina, when the magistrates of the Orthodox church and Islamic religious community from Tuzla and Bijeljina met. In order to reconcile different religions in Banja Luka, a second meeting was held 17 July 1998 on inter religious dialogue.

The Right to Work

Members of the nonserb population in RS are largely deprived of the right to work. No cases have been registered where members of the Muslim or Roma community, who had been dismissed from their jobs before or during the war, returned to their job in the public sector. This is especially true in institutions like schools, court and administration. Dismissal on ethnic grounds is still taking place. Two Muslim women, married to Serbs, were laid off from their jobs in a paper packing factory, with the explanation that there were not enough work for Serbs themselves. Muslims and Roma who want to start private business face difficulties in obtaining necessary work licenses.

A positive example is the employment of Muslims and Croats in police.

The Right to Home

A great number of RS citizens are deprived of their right to a home. The most deprived are members of Muslim and Roma nationality. In several towns, and especially in Banja Luka, Bijeljina and Brcko Muslims are deprived of this right. These are families of Muslim and Roma nationality who have spent the whole war in these cities. Most of them joined the RS Army, but during the war they were evicted from their houses and flats by refugees or local authorities. They have the past few years been living in low standard accommodation. The authorities still do not let them return to their houses and flats.

In the same position are the refugee families who are returning. Authorities, and the legislation are not letting them to go to their prewar homes.

The Right to a Fair Trial and Hearing

The state of the judiciary system is unordered and one may even say chaotic. The courts are still not independent and they are working under the influence of ruling parties. The right to a fair trial and hearing is regularly violated, and it is understood that the fastest and easiest way of obtaining confessions is through beatings, which has thus become a regular practice. The court, i.e. the judges, are in some cases behaving discriminatory towards persons who are not Serbs. On one occasion, the judge B.V. in Bijeljina Municipal Court said to a person of Muslim nationality S.B., who sued the firm for been thrown out from her apartment, that the plaintive was absolutely right and that she had all the laws on her side, but that a verdict in favor of the plaintive could not be brought, "because the plaintive belongs to the Muslim nation".

Regarding the position of prisoners in RS prisons, there are no serious complaints. The attitude towards the prisoners is correct and follows the legal framework.

Other Human Rights Violations

The discrimination that started during the war was intended to force persons of nonserb population to leave their homes. The authorities still haven't returned telephone lines that were illegally disconnected in 1994 to Muslims that stayed in Bijeljina and some other RS towns.

Persons who belong to minorities are not able to cultivate freely their historical, traditional and cultural rights. The minorities are not allowed to form cultural associations, and do not have the right or the opportunity to attend school and receive education in their mother tongue. Serb language is imposed on them, as are orthodox religious classes, Serb culture and religious customs.

Besides the unemployment, which causes large financial and social problems for Roma, their identity, culture and tradition are in great danger, also because of the characteristics of today's educational system, which is discriminating for those who are not members of the majority.

Through its legal service department, the Helsinki Committee for Human Rights in RS has in recent years given free legal aid to all RS citizens, but also to Federation citizens who come to us asking for help.
The legal aid is being given in two ways:
by giving free legal advise in these fields:
- infringed right to property
- infringed labor right
- infringed right to accommodation
- problems related to documents
- infringed freedom of movement
- other cases

The second way of legal aid is free legal advocacy in court.

A great number of those who come to us asking for help are Muslims, Roma and Croats, but also domestic and refugee Serb population. It is our wish and goal to help BH citizens to fulfill their human rights and freedoms, including the rights of minorities.

We find it very important to help Roma return to their homes and that their private property be returned to them. Living abroad, they are not well informed about their rights, and due to a limited willingness of the state authorities to show understanding, we find it also very important to help Roma to organize themselves. Today there are only one Roma association in RS, in Bijeljina. The main goal of the Association is to gather Roma and work for the fulfillment of their rights, primarily the right to return, as well as connecting to other similar associations in Federation BH.

Special attention should be given to young Roma, and especially to their education. They should be enabled to freely cultivate their culture, religion, language and other characteristics.

Today in BH we have a very special situation, that on the state level all groups are minorities in some regions. There are some initiatives for changing certain regulations in the constitution of Bosnia and Herzegovina, as well as in the entity constitutions, which refer to this question.

The problem of possible changes brings a number of risks, as there is an obvious politicization in solving the problem.

We believe the priority is a general democratization of society, reconstruction of infrastructure and strengthening European integration processes towards BH. Then we will have better conditions for solving a line of open questions, among which is the question of minority rights.

Daniela Stanojlovic
Secretary General of Helsinki Committee for Human Rights in RS

Tel/fax: ++381 76 472 851
Tel/fax: ++387 76 472 851
Tel/fax: ++387 56 472 851 126
Republika Srpska, BH