The Dayton Peace Agreement: Human Rights Guarantees and Their Implementation

II. Human Rights Guarantees Under the Peace Agreement

A. Generally

That the safeguarding of human rights is a major focus of the Peace Agreement becomes clear on a reading of the document: the term `human rights' appears in it no fewer than seventy times. The Peace Agreement was signed on 14 December 1995, by the Republic of Bosnia and Herzegovina, the Federal Republic of Yugoslavia (`FRY') and the Republic of Croatia (collectively the `Parties'). In general terms, it divides the territory of Bosnia and Herzegovina into two entities, the Federation of Bosnia and Herzegovina<sup>4</sup> and the Republika Srpska (collectively the `Entities'), while preserving the federal State under the name of Bosnia and Herzegovina. Governmental powers are divided between the Entities and Bosnia and Herzegovina.

The Annexes deal with various matters relating to the implementation of the peace settlement, including protection of human rights. One annex deals broadly with a wide range of specific human rights (Annex 6); another provides the revised Constitution of Bosnia and Herzegovina and contains many guarantees of human rights (Annex 4); still other annexes deal with specific human rights in a functional context, for example, the right to participate in the democratic process (Annex 3) and the right to freedom of movement of refugees and displaced persons (Annex 7).

B. Annex 6: Agreement on Human Rights

Annex 6, entitled `Agreement on Human Rights,' provides at Chapter One that Bosnia and Herzegovina and the Entities shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, as detailed in the European Convention for the Protection of Human Rights and Fundamental Freedoms (the `European Convention') and its Protocols and various international agreements⁵ listed in an appendix (the `listed International Agreements'). Thirteen rights⁶ are set out in Article 1 of Annex 6 (and again in Article II (3) of the Constitution) and are to be enjoyed without discrimination.

Annex 6 states that the thirteen listed rights are included among the rights provided by the European Convention and the listed International Agreements. These rights roughly correspond to the rights provided in Articles 2-12 of the European Convention and in its First and Fourth Protocols. It is not clear why these thirteen rights are singled out. This may lead to the unintended perception that these thirteen rights are somehow of a higher status than those guaranteed but not enumerated, thereby weakening the guarantee of the non-listed rights. Furthermore, since only the rights themselves are mentioned and not the limitations provided alongside the rights in the European Convention,⁷ the interpretation that the limitations contained in the European Convention are not applicable may result. A further limitation contained in the European Convention is found at Article 15, which provides that certain rights are derogable in times of war or certain other public emergency situations. In view of the fact that the thirteen rights alone are set out in the Annex on Human Rights, and again in the Constitution, an arguably logical-though presumably unintended-interpretation would be that all of the listed rights are non-derogable.

At Chapter 3 of Annex 6, Bosnia and Herzegovina and the Entities agree, in very broad terms, to promote the activities of non-governmental and international organizations for the protection and promotion of human rights. They agree to give full access to such organizations to monitor the human rights situation in Bosnia and Herzegovina without hindrance. In addition, it is agreed that all competent authorities in Bosnia and Herzegovina will cooperate with `organizations established in this Agreement', any relevant human rights monitoring mechanisms, the supervisory bodies established by any of the listed International Agreements, the International Criminal Tribunal for the former Yugoslavia⁸ and any other organization authorized by the United Nations Security Council with a mandate concerning human rights or humanitarian law.

C. Annex 4: Constitution⁹

Article I(2) of Annex 4 provides that Bosnia and Herzegovina `shall be a democratic state, which shall operate under the rule of law and with free and democratic elections.' Article II(1) provides that `Bosnian and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms.'

Article II(2) of the Constitution provides that `[t]he rights and freedoms set forth in the European Convention ... and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law." (emphasis added) The importance of this provision cannot be overemphasized. It provides not only for direct applicability of the European Convention and its Protocols (without any specific act of incorporation) but also for their primacy over the legislative system of Bosnia and Herzegovina.

At Article II(3) the same thirteen rights specified in Annex 6,¹⁰ are enumerated. As noted above in the discussion of Annex 6, the enumeration of these thirteen rights may lead to unintended interpretations of Annex 6; the same may occur with the Constitution. Article II(4) is of crucial importance. According to it, all the rights and freedoms provided for in Article II, including the thirteen enumerated rights and the rights contained in the listed International Agreements, are to be enjoyed without discrimination on a number of listed grounds.¹¹

At Article II(5) the Constitution provides refugees and displaced persons with the right to return freely to their homes of origin. Article II(7) requires Bosnia and Herzegovina to become or remain party to the listed International Agreements (this list is identical to that in the appendix to Annex 6,¹² except it does not include the European Convention).¹³ Additionally, according to Article II(8), competent authorities are required to cooperate with and provide unrestricted access to certain human rights monitoring mechanisms, any supervisory body established by any of the listed International Agreements, the International Criminal Tribunal for the former Yugoslavia and any other organization authorized by the United Nations Security Council with a mandate concerning human rights or humanitarian law.

Furthermore, according to Article III(2)(c), the Entities are required to provide a safe and secure environment for all persons in their respective jurisdictions by maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards and respecting the internationally recognized human rights and fundamental freedoms referred to in Article II. Article III(5)(a) requires Bosnia and Herzegovina to assume responsibility for certain matters relating to human rights, including those provided for in Annex 6 (Human Rights) and Annex 7 (Refugees and Displaced Persons).

D. Annex 3: Agreement on Elections

Bosnia and Herzegovina and the Entities agree to ensure that conditions exist for free and fair elections, to protect the right to vote in secret without intimidation and agree to ensure freedom of expression, freedom of the press, freedom of association (including political parties) and freedom of movement. They further agree to guarantee universal and equal suffrage to adult citizens, the right to seek political and public office without discrimination, and a number of other rights¹⁴ intended to ensure that `the will of the people serves as the basis of the authority of government.'

E. Annex 7: Agreement on Refugees and Displaced Persons

Bosnia and Herzegovina and the Entities guarantee the right of all refugees and displaced persons freely to return to their homes of origin in safety and without discrimination or harassment. In addition they guarantee the right of refugees and displaced persons to have property restored to them and to be compensated for any property that cannot be restored.

F. Annex 11: Agreement on International Police Task Force

At Article I(1) the Entities and Bosnia and Herzegovina agree to maintain `civilian law enforcement agencies operating in accordance with ... respect for internationally recognized human rights and fundamental freedoms ...'. At Article III(3) Bosnia and Herzegovina and the Entities confirm their `particular responsibility to ensure the existence of social conditions for free and fair elections ...'.

4 This Entity is not to be confused with the State, known before the Peace Agreement as `the Republic of Bosnia and Herzegovina' and after it as `Bosnia and Herzegovina.'

5 The International Agreements listed in the Agreement on Human Rights are as follows: (1) 1948 Convention on the Prevention and Punishment of the Crime of Genocide; (2) 1949 Geneva Conventions I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I-II thereto; (3) 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Protocols thereto; (4) 1951 Convention Relating to the Status of Refugees and the 1966 Protocol thereto; (5) 1957 Convention on the Nationality of Married Women; (6) 1961 Convention on the Reduction of Statelessness; (7) 1965 International Convention on the Elimination of All Forms of Racial Discrimination; (8) 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; (9) 1966 Covenant on Economic, Social and Cultural Rights; (10) 1979 Convention on the Elimination of All Forms of Discrimination Against Women; (11) 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (12) 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; (13) 1989 Convention on the Rights of the Child; (14) 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (15) 1992 European Charter for Regional or Minority Languages; (16) 1994 Framework Convention for the Protection of National Minorities.

6 The following are the 13 listed rights: (1) the right to life; (2) the right not to be subjected to torture or to inhuman or degrading treatment or punishment; (3) the right not to be held in slavery or servitude or to perform forced or compulsory labour; (4) the right to liberty and security of person; (5) the right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings; (6) the right to private and family life, home and correspondence; (7) freedom of thought, conscience and religion; (8) freedom of expression; (9) freedom of peaceful assembly and freedom of association with others; (10) the right to marry and to found a family; (11) the right to property; (12) the right to education; (13) the right to liberty of movement and residence.

7 For example limitations on the right to private life under the European Convention are permitted so long as the limitations are i) in accordance with the law, ii) necessary in a democratic society and iii) for the protection of health or morals.

8 A discussion by John Jones of the interplay between the Peace Agreement and the International Criminal Tribunal for the former Yugoslavia can be found elsewhere in this issue.

9 Attached to Annex 4 is a Declaration of each of the Entities and Bosnia and Herzegovina to the effect that they approve the Constitution of Bosnia and Herzegovina. At Article V of the General Framework Agreement, the Parties endorse the Constitution and agree to fully respect and promote fulfilment of the commitments made in it.

10 See footnote 5.

11 The listed grounds are: `any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

12 See footnote 4.

13 The absence of the European Convention from this list does not mean it is of lesser importance; indeed, as noted, according to Article II(2) of the Constitution, it is to have priority over all other law.

14 As provided in paragraphs 7 and 8 of the Copenhagen Document of the Organization for Security and Cooperation in Europe.

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