Standpoint of the Human Rights Chamber

The Human Rights Chamber was also obligated to give its opinion about the applications filed against the legal acts of the Stabilisation Force in BiH (SFOR). Those cases were related to private disputes initiated due to damage caused³⁴⁹³ by SFOR or trespass,³⁴⁹⁴ including the case of deprivation of liberty and several month-long detentions of a person who was considered a terrorist.³⁴⁹⁵

From the beginning, the Chamber declared itself not competent to deal with the mentioned cases for the reason that SFOR is not a contracting party that may be sued under Annex 6.³⁴⁹⁶ The Chamber merely confirmed this position thereafter. In cases where SFOR uses the appellants’ land for military training purposes only and where it does so directly on the basis of Article VI of Annex 1-A to the GFAP,³⁴⁹⁷ without a special permit from the appellant or without any kind of the appellant’s participation, the activities of SFOR cannot be attributed to a party against which the application was submitted (in the instant case it is the Federation).³⁴⁹⁸

Indications of a correction of the Chamber’s practice may be noticed in the Fijuljanin Case (CH/02/12499). American SFOR troops arrested the appellant under suspicion that he was planning an attack against their military base. Without any judicial intervention and without instituting criminal proceedings, the U.S. military troops kept him in detention for almost three months. Only after the protest of Amnesty International, the appellant was allowed to have limited contact with his lawyer. The Chamber adopted an interim measure whereby the Federation of BiH was ordered to address SFOR and formally request the handover of the appellant to the competent bodies of the Federation.³⁴⁹⁹ This request of the BiH Presidency was first rejected with an explanation that the investigation was underway. Two weeks later SFOR handed over the appellant to the Federation authorities. Despite SFOR’s disapproval and the fact that the investigation was underway, the Federation authorities released him immediately.³⁵⁰⁰

As to the merits of this case, the Chamber declared that a part of the application concerning the arrest operation conducted by SFOR was resolved.³⁵⁰¹ At the same time, the Chamber noted that the core issue was the question whether, according to the positive obligations of protection which were undertaken by the signatories of Annex 6, the signatories must undertake measures to protect the appellant’s rights even during the time of his detention in the SFOR military base. Given the fact that one of the signatory parties fulfilled its obligation from the Interim Measure and made a formal request to SFOR and was successful in handing over the appellant to the Federation authorities, the Chamber concluded that the major point of the complaint was already resolved.

In conclusion, this kind of practice constitutes a political compromise between the compliance with the provisions of its own competence on the one hand, and the necessity to intervene in the case of a flagrant violation of substantive law under Annex 6, on the other. SFOR is not subject to obligations under Annex 6. The measures that could be taken by SFOR have been placed within the exclusive legal frame of Annex 1-A to the GFAP, in other words these measures exceeded the frame of the Constitution and Annex 6. In view of the aforesaid, pursuant to Annex 1-A, SFOR has significant authorities which are additionally strengthened by valid resolutions of the UN Security Council as provided for under Chapter VII of the UN Charter. Such a special role of SFOR did not allow the Human Rights Chamber to call for the responsibility of signatory parties under Annex 6 due to the activities undertaken by SFOR. This is even more applicable after taking into account the judicial practice of the Chamber in similar cases under other Annexes of GFAP. Nevertheless, the Chamber could not be indifferent as to the situation where the appellant was practically kidnapped in the territory of Bosnia and Herzegovina and then kept in detention for months outside the reach of the legal state and where all domestic legal regulations were violated. At the same time, it could be almost rightly ascertained that SFOR acted in accordance with the law and applicable standards. The explanation for this perceptible contradiction is the fact that, during that specific period of time, two kinds of standards were applied in BiH: human rights standards according to the BiH Constitution and Annex 6 that were applied irrespective of the actual circumstances in the country and the war regulations under Annex 1-A which were applicable during the “crisis periods”. The sovereignty of Bosnia and Herzegovina and State responsibility were limited by Annex 1-A, both in functional and territorial terms. Individuals who, due to SFOR activities, had fallen into the gap exceeding the scope of the State sovereignty were not entitled to protection by domestic authorities. This principle was applied to the owners of land in the Hajder et al. Case, as well as to the Case of Fijuljanin, who was detained at the SFOR Eagle Base.

Therefore, the issuance of interim measures in the Fijuljanin case should not be misunderstood to mean that the Chamber called Bosnia and Herzegovina or the Federation to take responsibility for SFOR activities. It is rather that this measure was a kind of request addressed to the State to launch a political appeal to SFOR. The Chamber could not find a legal basis in Annex 6 for a possible formal action of the State in this case. If the signatory parties under Annex 6 cannot be held responsible for SFOR activities, then a conclusion follows that neither were they obliged to interfere with their activities. This Chamber’s act was the subject of fierce internal discussions, but in the end the desired aim was achieved.