Protection in conflict and peacebuilding: some lessons from Bosnia-Herzegovina
by Madeleine Rees May 2003

Thanks to massive international engagement, Bosnia today has the most comprehensive legal protection for human rights imaginable. Yet serious issues of protection, accountability and transparency remain.

When states descend into war, international humanitarian law (IHL) governs the conduct of the warring parties and the protection of non-combatants. The failure of the warring parties in Bosnia to comply with these laws of war caused the UN to establish the International Criminal Tribunal for the Former Yugoslavia in May 1993 (ICTY). Self-evidently, the need for such a tribunal, and for its counterpart body in Rwanda, indicates that the reality of protection in modern warfare is spurious, in fact if not in law; the fate of Yugoslavia is testament to the massive violations of human rights that occur in armed conflict. This article contends that the nature of the violations perpetrated in the conflict form the context for the post-conflict transition, and hence must inform the international community’s approach to peacekeeping and peacebuilding. In Bosnia, the conflict was particularly characterised by widespread and systematic use of rape as a method of war, massive displacement of people which, with executions and disappearances (still estimated at around 30,000), is now termed ‘ethnic cleansing’ and indicted in the Tribunal as genocide and crimes against humanity.

It is important to remember these in the light of the transition from war to peace, and the priorities established by the international community. This article looks at three areas of concern: issues related to conflict which continue into the present; the failure to anticipate and then to take seriously sexual exploitation and organised crime; and the tensions that have arisen, particularly since 11 September, over actions of the international community that have abnegated the very laws and principles that it is seeking to promote.

The post-war settlement and the role of the international community

At the end of 1995, the Dayton peace accords halted the fighting, if not the war, in Bosnia; that to a certain extent continues today, albeit in a different guise. In the rush to show that Bosnia could be a democratic state, the first elections were held just four months after the end of the conflict, in April 1996. The result enshrined in power the nationalist factions, giving them access to funds and institutionalising their power-base. In turn, those who had provided the ‘right’ kind of assistance – such as the racketeers who had brought into Bosnia arms, drugs and anything else that could be paid for – were rewarded. Only after elections in 2000 did a government with an ostensibly reformist agenda emerge. Just two years later, at least in part due to disillusionment at the lack of progress, fresh elections handed the nationalist parties another victory.

Since Dayton dealt only with the warring parties, it automatically excluded women from the negotiations. This meant that the voices of women were not explicitly heard in the talks that established, not only a peace treaty, but also the constitution of Bosnia. After the first elections in 1996, women constituted less than 6% of those in government; generally, those who were not part of the dominant nationalist parties were effectively excluded. Thirty per cent quotas for women candidates were adopted in subsequent elections, but the reversion to open lists has meant that the number of women in elected bodies has fallen dramatically.

Dayton handed a massive role to the international community. It created the Office of the High Representative to oversee the implementation of the accords. The High Representative has enormous and draconian powers, to impose laws and remove officials, overriding the country’s elected representatives if they are deemed to be in conflict with the terms of the accords. The UN was given responsibility to build up and train the police force, and NATO provided the military hardware and soldiers to keep the peace and to arrest war criminals. Elections were organised and run under the auspices of the Organisation for Security and Cooperation in Europe (OSCE), which has also worked on human rights and democratisation. Other actors include the UN High Commissioner for Human Rights (UNHCHR), the operational UN agencies and international human-rights and humanitarian organisations. By 1996, there were thought to be more than 60,000 internationals in Bosnia.

This plethora of international organisations has caused a number of problems. Some are internal, to do with creeping mandates and competition for funding and influence. But the key difficulty has been in the way that they interact with the Bosnian authorities. The protection of human rights is properly a role for the state. Bosnia has comprehensive treaty-based and constitutionally-guaranteed protection for human rights. Moreover, according to Dayton the European Convention for the Protection of Human Rights takes priority over every other law. In Bosnia, the state is subject to the writ of the international community. While the mandates of the various international agencies should complement the responsibility of the state, there have been tensions; as one minister has put it, ‘we are treated as children but with too many parents and we don’t know whom we should obey’.

Dealing with war crimes

Despite the ICTY’s success in bringing to justice some of the main players, notably Slobodan Milosevic, the majority of those who committed abuses are still at large. This is mainly the result of a lack of real commitment by those who have power in Bosnia, coupled with inadequate support and pressure from the international community to deal with this crucial issue. For the people of Bosnia, however, ‘normality’ can never be successful while the war criminal still lives in the village to which his victims wish to return. The lack of a coherent legal framework for prosecution within Bosnia itself has not been effectively addressed, and there is little likelihood that the ICTY will be able to transfer cases to Bosnia by the end of this year, as has been suggested. This is not least because of the absence of effective witness protection; the experience of the ICTY shows that, without this, there is little hope that justice can be done.

Missing persons and people trafficking

The question of missing persons has been marked by a great deal of prevarication on the part of Bosnia’s elected officials, and a lot of politicking between international organisations over mandate, funding, disclosure and responsibilities. Progress is finally being made, but many families still do not know the fate of missing relatives. As a result, they cannot get such things as pensions or insurance or take over property ownership, which are contingent on a declaration of the death of the person concerned.

One particular aspect of this wider problem is the trafficking in, and exploitation of, women for the purposes of sex. Although this began during the war, under the guise of ethnic cleansing and genocide, it has a peacetime manifestation. Trafficking and sexual slavery – which was defined as a war crime by the ICTY – has become conflated with prostitution – and hence something belonging in the private sphere, a matter of morality not law. The individuals who run the trade are the very same people who organised the smuggling routes during the conflict; they are well-connected, and hence untouchable. The implications are enormous for the women and children forced into sex work; the negative impact on the formal economy is significant, as is the corruption which is an integral part of such activities.

The international community has been loathe to deal with the involvement of peacekeepers in the sex trade, even though the market they represent has been a key factor driving the expansion of exploitation. Bosnia shows that simply sending guilty peacekeepers home is not enough; what is needed is a robust position from the very moment of deployment. The international community needs to take its responsibilities seriously, and not allow the immunity of international personnel to become impunity in practice.

By early 2003, the majority of users were probably from the local community. Yet the international community has given insufficient support to government attempts to draw up and implement a national plan of action to combat trafficking and assist victims. Indeed, while significant amounts of donor money are available to combat trafficking, international agencies have secured funding for themselves at the expense of the local organisations and government bodies best placed to provide a sustainable response. The results are obvious in the move away from addressing the needs of victims in favour of law enforcement through raids on brothels (which have not resulted in significant prosecutions of traffickers and have driven much of the trade underground), and the repatriation of women.

Bosnia and the implications of 11 September

Questions of accountability have also arisen in the wake of the 11 September attacks. It is not known what level of threat is posed by the Islamists who fought on the side of Bosnia’s Muslims in the war. What is clear, however, is that the international community’s response has fallen short of its legal obligations. 

Bosnia is one of a number of countries listed by the US State Department as having active cells of Osama bin Laden’s al-Qa’eda network, and several individuals have been detained by international forces (this is not a power found in Dayton). Some have then been handed over to local authorities. In at least one case, an individual was taken directly from an SFOR base to the airport, and removed to Egypt. Of singular importance is the case of the so-called ‘Algerian group’ of six individuals, who were arrested and detained in late 2001 on suspicion of being part of a conspiracy to bomb the US and British embassies in Sarajevo. Their Bosnian citizenship was removed from them. Although in January 2002 the Bosnian Supreme Court ruled that there were insufficient grounds for detention and ordered their release, and the Dayton-established Human Rights Chamber for Bosnia and Herzegovina issued an order for temporary measures to prevent their removal from Bosnian jurisdiction, they were kept in detention and handed over to SFOR troops. The men were later transferred to the US based at Guantanamo Bay in Cuba. In April 2002, the Human Rights Chamber ruled that the rights of four of the men had been contravened, and ordered action to be taken to establish their citizenship, protect their rights in Guantanamo Bay and, if citizenship was established, to ensure their return to Bosnia. However, since the jurisdiction of the Human Rights Chamber is limited to Bosnia, the case was brought against the Bosnian government which, given the pressure exerted at the time by sectors within the international community, had little choice in the matter of the men’s arrest.

Cases such as this have given rise to a significant amount of unease in Bosnia, where there is a legitimate expectation that bodies mandated to uphold the rule of law and protect human rights should not act with impunity. Indeed, the Bosnian government has been in dispute with SFOR over the latter’s detention of a Bosnian citizen for three months; no legal protection was afforded, and SFOR refused to hand the individual over to domestic authorities. Where international forces do not respect domestic law or international human rights standards, it is difficult to see what accountability can apply. In circumstances such as these, how can Bosnia guarantee the rights of its citizens?

Conclusion

Bosnia is a country of tensions, not only within the nationalist determinants of its politics and its impossible constitutional framework, but also in its relations with the international community. There is no doubt that these tensions are inimical to the enjoyment of human rights and the rule of law. By seeking to provide assistance, the international community’s behaviour has had many of the hallmarks of what could be called ‘collective imperialism’. Transparency and accountability are necessary not just within the Bosnian government, but also among its partners; while not always the easiest way of operating, there can be no alternative.

Madeleine Rees is Chief of Mission, Office of the UN High Commissioner for Human Rights (OCHCR), Bosnia. The views in this article are personal, and do not necessarily reflect those of the OHCHR.

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