Bosnia: New Rights Body Under Scrutiny

Tuesday, 6 September, 2005

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Nerma Jelacic

There are concerns that a new human rights commission, dealing with abuses committed since the end of the Bosnian war, will be unable to cope with the massive caseload it will inherit.

The locally-administered commission, which will be part of the constitutional court, is intended to replace the Human Rights Chamber, an internationally-sponsored court set up under the Dayton peace agreement.

A decision to close the chamber at the end of this year was taken in September, as part of a general policy of scaling down international control over the political and judicial processes.

But sources in the chamber have told IWPR they are deeply worried that the closure of the existing body is premature, and that its replacement, which starts work next year, will not have the powers, the funding or the staff to do the same job. Nor is its future secure, they say.

The Human Rights Chamber, set up in 1995 after the war in Bosnia ended, is an independent judicial body with procedures modelled on the European Court of Human Rights in Strasbourg. It can look at alleged abuses committed after December 1995, when the Dayton agreement was signed. Within its remit, it can order investigations, award compensation and stipulate a retrial where a local court's ruling is found to be flawed. It currently has about 10,000 cases on its books, many of them concerning property disputes arising out of the Bosnian war, and is likely to hand on most of them to its successor.

Pressure to wind the chamber down came from the international community, which wants to hand over more power to local institutions in Bosnia. The Office of the High Representative, OHR, recommended its closure in June this year, proposing that its responsibilities be passed to the constitutional court which also has a mandate to handle human rights cases.

The chamber was originally intended to run for five years, but its life was extended for another three years back in 2000. A further renewal would have been possible, but was ruled out because of the international community's exit strategy - and because the donor funding needed to keep such institutions afloat is shrinking.

In June, the chamber issued a formal objection to the OHR plan to close it down, saying, "The decision by the international community to abolish the chamber is based on the assumption that the Constitutional Court of Bosnia-Herzegovina can take over most of the chamber's current and future cases.

"This decision is legally incorrect and unrealistic in practice… [the court] is simply not in a position to take over the chamber's caseload, present or future."

The chamber said the proposed move would violate the Dayton agreement as well as Bosnia's own constitution.

Despite these objections, on September 25, the Bosnian authorities signed an agreement with the two entities, the Federation and the Republika Srpska, ending the chamber's mandate and establishing the new commission.

The existing body will continue working on its backlog of cases until the end of the year. But it will not take on new cases after October 1, and they will have to wait till the new institution starts work in January. That is likely to add about 500 new cases to the already long list of unfinished business.

The commission will form part of the constitutional court rather than existing as a separate institution, and unlike its predecessor it will be under domestic rather than international oversight.

Chamber sources have told IWPR that the replacement organisation may not be in a position to carry on where they left off.

It has been given a different, and some argue more limited, jurisdiction than its predecessor. "The chamber's competencies have not been carried over to the commission," a source close to the chamber told IWPR.

The body operates under Annex 6 of the Dayton agreement, which deals with human rights and cites the European human rights convention. In contrast, the commission's mandate will come from Annex 4, covering constitutional matters. What that means in practice is that the commission, like the court of which it is part, will be restricted to cases relating either to rulings made by other courts, or to the constitution itself, but not with other human rights issues currently covered by the chamber.

As well as more limited powers, the commission will have to operate under the constraints of reduced funding and staffing.

According to a source in the chamber, the funding prospects for the new body remain "uncertain".

"Not much money has been collected so far," the source told IWPR. "The commission has got around one million euro from the European Union… and is still waiting to hear whether anyone else will fund it. This is a tight budget which will pay for staff, utilities and about two sittings a month, but not much else."

Since speaking to these sources, IWPR has contacted the constitutional court but has been unable to ascertain whether more funding has become available.

The new body will have to function with a much smaller core of professional staff, many of them inherited from the chamber. While the chamber consists of 14 judges - six Bosnian and eight internationals - the commission will have just five members, two of them international. With overall staff numbers cut in half, insiders are asking how the commission is supposed to cope with a workload which overwhelmed its predecessor.

Even if the commission manages to overcome these problems, IWPR's sources said its future - and therefore that of human rights arbitration in Bosnia - is far from secure. It has been given a mandate of just one year, after which it is unclear what will happen to it.

One immediate consequence is likely to be a serious overspill of cases which the commission cannot deal with, for reasons of jurisdiction or sheer workload. That means more cases are likely to be taken to the European court. As the Human Rights Chamber said in June, that "cannot be in the interests of human rights protection in Bosnia and Herzegovina, or of the member states of the Council of Europe". And no one knows what will happen to cases which date from before July 2002, when Bosnia ratified the European convention on human rights.

Nerma Jelacic is IWPR project manager in Bosnia and Hercegovina.