Cases of group discrimination as a result of armed conflict

The situation in Bosnia and Herzegovina after the armed conflict was characterised by the fact that human rights, in essence, were generally complied with; however, compliance or non-compliance with human rights and freedoms was determined by ethnopolitical factors. People were not generally deprived of their rights but, as a rule, this occurred only in cases where nationalist holders of power were of another ethnic-origin than the persons concerned.

Discrimination was far-reaching. Immediately after the entry into force of the Dayton Peace Agreement, there were cases that involved even unlawful deprivation of liberty for the purpose of exchanging prisoners or persons deprived of liberty and, those persons, in principle, for discriminatory motives,

were subjected to forced labour, to inhuman or degrading treatment and their property was often subject to confiscation or looting.²²³⁶ In one case, the Human Rights Chamber established that the applicant had suffered discrimination in the enjoyment of his rights afforded by Article 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination.²²³⁷ After some initial difficulties in respect of insufficient evidence,²²³⁸ the Human Rights Chamber succeeded at a later stage, with support of international organisations working in the field, in establishing the discriminatory conduct in many cases by the parties responsible under Annex 6 to the Dayton Peace Agreement.

Systematic discrimination on the grounds of national origin was particularly severe in cases involving the “so-called” minority returnees, refugees and displaced persons involved in proceedings pending before municipal administrative authorities or before insufficiently independent courts.²²³⁹ In addition, in the post-conflict period, the legal situation concerning either socially or privately owned abandoned property was such to reinforce the results of ethnic cleansing; administration and courts, too, contributed in their way to the general atmosphere in which minority returns were denied.²²⁴⁰

At a higher level, the issue of discrimination against returnees has been mentioned in the comments of the cases dealt with by the BiH Constitutional Court, such as “ethnicised” names of towns,²²⁴¹ as well as the ethnic issue conditioned territorial symbols,²²⁴² wherein the BiH Constitutional Court always concluded that discrimination on grounds of ethnic origin or the instrumentalisation of social or religious or national symbols had a significant potential in preventing refugees or displaced persons from returning to areas in which another ethnic group constituted a majority.

Great attention was paid to the cases related to the “so-called” JNA- apartments of military officials who had served in the JNA armed forces during the armed conflict and who, afterwards, sought to be reinstated into their pre-war apartments located in the territory of the present Federation of BiH. By adopting special provisions within the framework Law on Cessation of the Application of the Law on Abandoned Apartments (Article 3a), the authorities of the Federation of Bosnia and Herzegovina wanted to prevent the return of such persons, considering them to be enemies or traitors par excellence. The Human Rights Chamber established that these provisions were implicitly discriminatory.²²⁴³ Although these provisions targeted real or presumed aggressors, which could, in some way be emotionally understandable, the concern arose from the intention to maintain in the post-conflict period “the achievements” of ethnic cleansing or factual movement of ethnic groups made during the armed conflict. The last category includes, for example, the cases²²⁴⁴ described above, involving disputes on the re-establishment of cultural and religious facilities destroyed during the armed conflict or relating to the closure of a Muslim cemetery in Banja Luka and the related disputes arising from the prohibition of religious funerals.

In the case of the Catholic Archdiocese of Vrhbosna, the Human Rights Chamber established that the Archdiocese of Vrhbosna and members of the Catholic Community, compared to the Islamic Community, had been subjected to an ongoing pattern of discrimination in the Travnik Municipality in respect of the right to freedom of religion. In the opinion of the Human Rights Chamber, the municipal authorities, with no objective justification, subjected to differential treatment the Catholic Community compared to the Islamic Community to the detriment of the former. Differential treatment was reflected in the municipal authorities’ dubious decision on temporary restitution (since there were no legal grounds to do so) of a considerable portion of nationalised property located in that area, which had been formerly owned by the Islamic religious community (a building of importance), while only a part of the property of the Catholic Archdiocese of Vrhbosna, which had been nationalised 40 years earlier, was returned in a manner that would not meet the real needs for religious education.²²⁴⁵

Another complex case related to employees who during the armed conflict were placed, either for economic or “security” reasons, on the “so-called” waiting lists or whose employment was terminated instantly. The affected persons could almost never be reinstated to their former employment and it often occurred that their employment was occupied by persons who were of another ethnic group, which was the majority in the relevant area. In this way, in the opinion of the Human Rights Chamber, the affected persons were discriminated against in the enjoyment of their right to work and to just and favourable conditions of work and, in some case, in the enjoyment of their right to equal pay for equal work (Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights).²²⁴⁶

The continuation of such a pattern of discrimination after the armed conflict, honestly, could be expected. For that reason, the prohibition of discrimination had a vital role in the post-Dayton legal order of Bosnia and Herzegovina. The prohibition on discrimination based on sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status is applicable in Bosnia and Herzegovina not only under Article 14 of the ECHR and the relevant provisions stipulated in other international mechanisms protecting human rights and fundamental freedoms. Actually, discrimination is explicitly prohibited by Article II.4 of the BiH Constitution and Article I.1(4) of Annex 6 to the Dayton Peace Agreement and it affords everyone protection against unjustified treatment in the enjoyment of all rights and freedoms under the BiH Constitution and Annex 6, including the rights and freedoms enumerated in annexes to these two legal acts. Pursuant to Article II.2(b) of Annex 6 to the Dayton Peace Agreement, the Human Rights Chamber, together with the Office of the Ombudsman for Bosnia and Herzegovina, shall particularly examine whether the Parties and signatories to Annex 6 to the Dayton Peace Agreement or their administrative- territorial units have acted in a discriminatory manner. The same task for the BiH Constitutional Court clearly follows from its constitutional obligation to uphold (“to protect”) the BiH Constitution (Article VI.3 of the BiH Constitution), which, per se, includes also the constitutional rights and freedoms under Article II of the BiH Constitution.