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ICG Bosnia Project, 24 November 1996
(part 2 of 2)
EXECUTIVE SUMMARY
REPATRIATION AND REINTEGRATION Repatriation and reintegration were ostensibly cornerstones of the DPA. Guaranteed in the constitution of Bosnia and Herzegovina as well as Annex 7 of the DPA, the return of refugees to their homes was already supposed to be under way by the 14 September elections. In the event, however, it was not. To date, out of more than 2.5 million displaced, less than 250,000 Bosnians have returned to their homes, almost all to municipalities in which they belong to the majority nationality. Yet at the same time, a further 90,000 belonging to minority groups have been displaced either under threat or due to territories changing hands from one entity to another, as was the case with the Sarajevo suburbs. The Parties to the DPA are refusing to comply with their commitments and consequently the UNHCR has been unable to start organising repatriation. UNHCR�s repatriation plan is a phased approach: first, the return of internally displaced persons (IDP) to their homes; and second, the return of refugees currently living outside Bosnia. UNHCR began by identifying 22 "target return areas" where resettlement could begin with the least difficulty because of minimal damage to housing and other basic infrastructure. As a first step, only returns by members of the local ethnic majority were under consideration. Specific UNHCR initiatives designed to promote or facilitate minority return have met with negligible success. These include buses which travel routes between major cities in the Federation, Republika Srpska, and Bosniac-Croat communities, organised visits facilitated by UNHCR which allow groups of displaced persons to arrange with local authorities to visit graveyards or property, and, most recently, a resettlement program specifically targeted to towns that are now located in the Zone of Separation, that was unfortunately suspended in November because of security concerns (see below). UNHCR has put significant effort into the success of its bus lines. Despite rough beginnings many of these lines are now functioning well and, judging by their popularity, providing an important service. Difficulties do exist, however. Certain lines have been forced to shut down for periods of time because of harassment or threat of violence. Due to the risky nature of the project UNHCR depends on the co-operation of IPTF and IFOR. Yet the nature of this co-operation has not been clearly defined. This is a major security concern, important to those who risk travel into regions controlled by another ethnic group. UNHCR�s facilitation of assessment visits to areas controlled by one ethnic group by members of another has had diminishing success. It has been a slow and painful process involving countless hours of negotiations with local authorities by UNHCR staff.. The vast majority of these have so far failed and they have been discontinued in some areas for lack of progress. Even more troublesome is the ailing program to encourage return to the Zone of Separation (ZoS). It was initiated because houses in the area are unoccupied (albeit in great need of repair) and the area itself is heavily patrolled by IFOR. Originally envisioned as a first step in implementing minority return, it has instead become the target of an organised campaign in which vacant houses owned by displaced minorities are systematically destroyed. More than 200 such houses have been destroyed recently - principally by Bosnian Serbs. Currently, resettlement in the ZoS has been suspended as a result of the most severe armed exchanges since the signing of the DPA. The return of refugees has also become a problematic issue. With refugee host countries overwhelmed by the burden of large numbers of Bosnians (320,000 in Germany), refugee return is beginning to take priority over resettlement of IDPs. Meanwhile, families who remained in Bosnia have occupied homes of potential returnees, are struggling in shared living arrangements, or have been forced into the harsh conditions of collective centres. Local economies and social services are already overburdened. The more refugees return from abroad, the fewer resources will be available to the families of internally displaced. In addition, reconstruction funds are earmarked for refugee assistance at the expense of IDPs which can provoke resentment and tensions.
The international community should consider creative ways to start the repatriation of the estimated 300,000 Serb refugees from Croatia currently living in the Federal Republic of Yugoslavia and Republika Srpska. These refugees are mostly from the Krajina region of Croatia who fled the August 1995 operation Storm of the Croat army. It is likely to be easier to break the repatriation logjam in Croatia than in Bosnia and Herzegovina. Housing to which Serbs can return in the Krajina region of Croatia is less of a problem than in war-ravaged Bosnia and since winter is generally milder in Croatia than in Bosnia and Herzegovina, it is not necessary to wait until spring to begin the repatriation. In addition, Croatia is more susceptible to international pressure: it is the newest member of the Council of Europe and, according to President Franjo Tudjman, fully committed to democratic principles. Moreover, an initiative which concentrates on the plight of Serb refugees should boost the Serb community�s confidence in the international community and generate momentum for repatriation within Bosnia and Herzegovina. The major impediment to the return of the displaced to areas of ethnic majority in Bosnia and Herzegovina has been the lack of resources to rebuild the economic and social infrastructures of communities destroyed by the war. In addition, the political ground must be prepared before any repatriation of minorities can realistically be expected to produce results. This preparation includes the apprehension of suspects indicted by he Tribunal and the full implementation of all aspects of the civilian provisions of the DPA. These are the inextricable links of a chain to support the repatriation and reintegration of displaced persons. Ignoring a link in this chain will unavoidably lead to the cornerstone of DPA remaining an unattainable goal.
During the war, the local authorities in the Federation and Republika Srpska housed people temporarily in homes abandoned by displaced persons. Following the end of the war, the entities confirmed these arrangements in law, in flagrant violation of the human rights protections set forth in the DPA. In addition, by giving property to members of their own ethnic groups, the authorities reinforced the results of ethnic cleansing. Protection of property rights is central to the return of refugees and internally displaced persons to their homes. Both the international Ombudsperson and the Office of the Federation Ombudspersons have reported that some 70% of all claims received concern property issues. It is estimated that more than 600,000 people may be affected by this problem. Restoring people to their pre-war homes or settling them in adequate accommodations where they now reside is one of the most difficult challenges faced by the Dayton implementation process. Adequate housing must be found for people whose homes have been destroyed or who cannot, owing to security concerns, return to their homes in areas now controlled by a different ethnic group. The right to adequate shelter in a safe environment for displaced persons may conflict with property rights of owners. The Commission for Real Property Claims of Displaced Persons and Refugees was established by the DPA (Annex 7) to effectuate the right of displaced persons to have their houses and apartments restored to them or else to receive compensation. The Commission has been slow to start functioning, primarily owing to a shortage of funds.
One of the greatest obstacles to reintegration is the lack of telephone communications between the Federation and Republika Srpska. While international organisations and the richer NGOs use satellite phones and call-back companies which route calls via the United States to communicate between the entities, ordinary Bosnians are unable to phone former friends and neighbours now living in the other entity. The obstacle is not technical but political.
A major impediment to freedom of movement throughout the country is the use in the three ethnic areas of different motor vehicle licence plates that indicate the entity, region and municipality of registration. Police frequently stop cars with plates from the "wrong" region when they cross an inter-entity or inter-ethnic line, on the pretext of checking for insurance or some other possible technical violation. In several municipalities, men driving vehicles with the "other license plates" are regularly detained on suspicion of war crimes, and on occasion are beaten or subjected to unlawful interrogation. Sometimes the police remove the licence plates, thus requiring the car to leave the region immediately and purchase a new plate. There is no law enforcement imperative for distinguishing plates by region; there are fewer than a million cars in the country.
UN IPTF: More Resources Needed UN International Police Task Force (IPTF) has deployed more than 1,600 policeman from 34 countries in more than 40 stations throughout the country whose primary mission is to advise and monitor the local police. They are authorised, under the DPA, to have access to all places and records of law enforcement and criminal justice. The IPTF Commissioner has considerable leverage over the Ministries of Interior of both entities owing to his influence with donors regarding aid to the Bosnian police forces. IPTF is to be commended for the way it has developed credibility with local populations in many areas of the country (less so in Republika Srpska owing to a greater lack of police co-operation); for its role in getting several police chiefs dismissed; for negotiating an agreement with the Federation police to supervise their restructuring and vetting; and for trying to reach a similar agreement with the Republika Srpska police. One way to increase IPTF�s effectiveness in protecting minority communities and property is to increase the resources at its disposal. IPTF was forced to close several offices, including in Ilidza, a Sarajevo suburb where Serbs, frequently the targets of intimidation, said they felt that IPTF�s presence had been a stabilising factor. Other stations have been so severely under-resourced that monitors have been unable to function at even minimal levels of effectiveness and their safety has been put at risk. It makes no sense to go to the expense of fielding 1,600 international police and then not provide them with the necessary vehicles, interpreters and communication equipment for them to be able to do their jobs.
Executive Authority to Investigate Crimes Currently, IPTF does not have executive authority. Its monitors may "monitor," "advise," "train," and "assist" the local police in the performance of their duties, and they may "investigate" police action or non-action, to ascertain whether the police are properly performing their jobs, but it is unclear whether IPTF monitors may investigate crimes directly and without the consent of the local police. Several observers of the security situation have suggested that IPTF should be allowed to carry weapons. ICG opposes this option for two reasons: (1) monitors will be at greater risk if the local police and criminals know (or think) they are armed because, when confronted, they are more likely to shoot to avoid apprehension; (2) their capacity to perform their jobs will not be substantially enhanced, since most of their functions depend on a measure of co-operation from the local police. While displaying weapons may, on a first time basis, gain access to police detention cells or records, the local police are likely to devise better ways to hide their prisoners or records in the future.
Republika Srpska Police: Ways to Enhance Co-operation Police chiefs throughout Republika Srpska have failed to co-operate with the IPTF in significant ways and certainly to a much greater extent than the Federation police. The Republika Srpska Minister of the Interior has been promising since at least May that he would enter an agreement with the IPTF Commissioner recognising the latter�s authority to supervise a process of vetting, restructuring and re-training the local police. The Minister has yet to conclude such an agreement. A similar agreement was signed by the Federation Minister in April. Unless and until that agreement is signed, IPTF has little leverage over the Republika Srpska police, as evidenced by the numerous occasions when the Republika Srpska police have barred IPTF monitors from places and access to records to which they are entitled, have refused co-operation or even have physically threatened them.
Currently, IPTF on its own is unable to provide security to minorities who are subjected to violence, intimidation or property destruction. To some extent, however, they have been able to reduce such violence by going on joint patrols through minority areas with the local police or IFOR. In order to provide adequate security to people at risk in these areas, what is needed are more armed patrols or even around-the-clock security. IPTF monitors do not have the capacity to provide security in areas where minorities are present even if they were armed.
COMMON INSTITUTIONS Despite advance planning for the post-election period by the Office of the High Representative and massive international pressure, the common institutions - the tripartite Presidency, the Council of Ministers, the House of Representatives, the House of the Peoples, Constitutional Court and Central Bank - have failed to come together in substance. As a result, the quick-start programme of legislation aimed at piecing Bosnia and Herzegovina back together and drafted by the Office of the High Representative is yet to be considered let alone implemented. Two and a half months after polling day the only common institution to have met is the Presidency which came together formally for the first time on 22 October after a 17-day Serb boycott. To date it has held eight meetings, though it has failed to agree even the number of ministers in the Council of Ministers, let alone the allocation of portfolios. That common institutions have failed to materialise for all practical purposes should come as no surprise to anybody who witnessed the electoral campaign. Particularly in Republika Srpska, the 14 September elections were fought on platforms which were clearly and deliberately inimical to the concept of a Bosnian state. Moreover, many of those who have now been entrenched by the fraudulent elections have staked their careers on, and have a vested interest in, the destruction of Bosnia and Herzegovina. As a result, even when common institutions do come together, they should not be viewed as a panacea. Here the experience of building the Bosniac-Croat Federation and also the European Union�s attempts to reconstruct the divided Bosniac-Croat city of Mostar offer some pointers. Formally, the Federation exists as one entity. The reality on the ground, however, is very different. The two houses of parliament met for the first time on 7 November and finally agreed a common flag and coat of arms - more than two and a half years after the Federation was officially created. Joint Bosniac-Croat institutions pre-dated the elections, yet progress at welding together territory under the control of the Bosnian Army with that under the control of the Croat Defence Council (HVO) has been painfully slow. Displaced persons have this year begun crossing former front lines to return to their homes, but at the same time, in areas run by hard-line authorities, members of minority communities are still being expelled from their homes every week. Mostar, where municipal elections took place at the end of June, makes for an especially troubling precedent. Just as at the national level, Mostar�s elections were supposed to bring two divided entities together and establish common city institutions. In practice, however, it took the personal intervention of US President Bill Clinton even to persuade the Croats to meet with the Bosniacs. And now, five months after polling day, the common institutions which have supposedly been created exist on paper alone. The importance of forming Bosnia and Herzegovina�s common institutions is often exaggerated. If they function in the same way as those of the Federation and Mostar, they will effectively be useless. Moreover, according to the constitution, their responsibility is limited to the following matters: (a) foreign policy; (b) foreign trade policy; (c) customs policy; (d) monetary policy; (e) finances of the institutions and for the international obligations of Bosnia and Herzegovina; (f) immigration, refugee and asylum policy and regulation; (g) international and inter-Entity criminal law enforcement, including relations with Interpol; (h) establishment and operation of common and international communications facilities; (i) regulation of inter-Entity transportation; and (j) air traffic control. The common institutions do not have the assets or authority which would enable them to rebuild a meaningful Bosnian state, especially taking into consideration the minimal and only grudging support for these institutions from Republika Srpska. This need not be the case, however, if the common institutions, and not the entities, were to succeed to Bosnia and Herzegovina�s share of the state-owned assets of the former Yugoslavia. International law suggests that the state of Bosnia and Herzegovina should succeed to these assets. Of course, the state can then decide to devolve these assets to the entities. However, despite the significant ramifications for Bosnia and Herzegovina of the succession to the former Yugoslavia�s state owned assets, the international community has avoided grappling with the issue. Based on the unexamined assumption that the entities are the direct successors to Bosnia�s share of the former Yugoslavia�s assets, the international community has proceeded with the drafting of privatisation laws.
The 14 September elections in Bosnia and Herzegovina were deeply flawed. The Parties to the DPA failed to create the minimum conditions for free, fair and democratic elections. The international community floundered at every step during the months preceding the elections. In the interest of ramming through elections according to the strict timetable set at Dayton, the Organisation for Security and Co-operation in Europe (OSCE) chose to pander to the nationalists, instead of challenging them. As a result, those nationalists were effectively able to dictate the terms on which the elections were waged - leaders indicted by the Tribunal were left free to influence the outcome, opposition and minority candidates had to campaign in an atmosphere of fear and intimidation, and the main media outlets catered to the ruling parties. Under such handicaps the elections were bound to confirm the effective division of the country on ethnic lines, which indeed is what happened. When back in June, the OSCE Chairman-in-Office Flavio Cotti certified that elections in Bosnia and Herzegovina could go ahead, he admitted that minimum conditions for holding a free, fair and democratic poll did not exist. Those conditions deteriorated further in the months between Cotti�s certification and 14 September polling day. Although that day passed with minimal violence, the event cannot be considered a triumph of democracy as the relative success or failure of the elections should not be viewed exclusively in terms of the level of violence on the day. Instead, it must be measured by the degree of genuine choice open to the electorate, that is the level of freedom and fairness involved in all aspects of the electoral process which influence voters� decisions on polling day. Moreover, it must be measured by the transparency of the vote counting process and the effective installation of the common institutions. Once the date for the poll had been fixed under considerable outside pressure, the OSCE had an enormous task to accomplish in a very short time. The OSCE did not have the institutional experience to meet this challenge; this deficit was exacerbated by the priority given to political considerations over merit in the selection of the mission�s top ranking officers, few of whom had experience with managing elections, let alone familiarity with the country�s politics. While many of the mission�s leaders were competent and had experience with aspects of election monitoring, public relations or politics, the mission was characterised by a decided lack of leadership, vision or talent. Good intentions, resources and even political will are no substitute for leaders who are willing and able to establish a climate of sound management, frank discussion, awareness of the national context, and accountability at all levels. Serious problems encountered by the organisation during the voter registration process, onerous security measures on polling day, and the absence of freedom of movement disenfranchised up to one quarter of the electorate. In addition, there was absolutely no check to discourage voters outside the country from voting twice: once by absentee ballot and again in person on voting day. The least the OSCE could have done would have been to flag the problem for international monitors. Instead, it kept quiet, hoping, perhaps, that no one would notice. Furthermore, the OSCE declined to impose any balance requirements on the memberships of the Local Elections Commissions and the Polling Station Committees (PSCs). As a result, in most areas of the Republika Srpska and Croat-controlled parts of the Federation, the PSCs were comprised entirely of ruling party members. They were able to exclude opposition party representatives for portions of the day and, owing to spotty coverage by international monitors, thus had the opportunity to commit all sorts of fraud (including allowing unauthorised voters to vote, excluding authorised voters, and filling out ballots). International monitoring of the vote counting process during the subsequent days was similarly inadequate. The result of such shortcomings was a suspiciously high voter turn-out figure suggesting widespread fraud, which the OSCE and the Provisional Election Commission (PEC) refused to investigate. While everyone expected a measure of fraud, the incompetence and know-nothing-do-nothing attitude of the OSCE was a crushing disappointment, permitting a far more fraudulent election than the people of Bosnia and Herzegovina had a right to expect. To add insult to injury, following election day and without notice to the parties, the PEC changed the formula for allocating seats for the assemblies of Bosnia and Herzegovina, the Federation, Republika Srpska, and the cantons, thereby cutting by at least ten the number of seats the opposition parties would have won under the original formula. Despite these serious shortfalls, the PEC certified the election results on 29 September and the UN Security Council terminated sanctions against Republika Srpska and the Federal Republic of Yugoslavia on 1 October. Rather than challenge the cover-up, the international community chose to keep its collective head in the sand. Had the elections not been certified and the sanctions lifted, the international community would now have been in a far stronger position to insist on full international supervision of the municipal elections. The consequences of this misguided approach are already apparent. Although elections were supposed to lead to the creation of common institutions in Bosnia and Herzegovina and thus help reconstruct a unitary State, those institutions still do not exist in substance more than ten weeks after polling day. Instead, emboldened by a mandate which derives from elections that catered to the nationalists and war criminals, the newly-elected authorities are systematically undermining the Bosnian State. Notwithstanding, the international community has another window of opportunity to improve conditions in the country, that is the twice postponed municipal elections now scheduled to take place next spring. Getting the municipal elections right will be difficult because of the mandates awarded to nationalists in the 14 September poll. It is critical that the international community retain charge of the municipal elections, i.e. that the mandate of the OSCE be extended. If municipal elections are left entirely up to the entities, the standards by which they are organised will be even lower than those at the national level. Such an outcome will surely spell the end of Bosnia and Herzegovina as a unitary State and may even plunge the country into a further round of war. To avoid this, the interval until next spring must be used to improve not only the technical preparation for the elections but also the political conditions:
Without these measures, municipal elections next spring are bound to confirm the power of the very same local officials who in many cases were responsible for ethnic cleansing and other war crimes in their respective municipalities, and the return and repatriation of displaced persons will remain an unobtainable goal.
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24 November 1996 Sarajevo |
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