The Online Journal & Network of ASPA’s
Section for Public Management Practice

Introduction

This article explores the challenges of achieving full civil and political rights for minorities living in post-conflict environments. That is to say, how to establish governance practices that include different segments of society and encourage the trust of newly established democratic institutions, thus making a renewed outbreak of intra-state violence less likely.

Background

Our prism for this discussion is a comparative case study of Kosovo and Bosnia and Herzegovina, as both countries offer a similar socio-political environment, have emerged from inter-ethnic violence during the 1990s and have been and continue to be guided by international state-building efforts. Also, the civil and political integration of minorities has been a priority in both emerging democracies from the start. However, the cases of Bosnia and Herzegovina and Kosovo are unlike each other where minority-majority relations is concerned – which is also manifested in the new state structures set up after the breakdown of the former Yugoslavia. While Kosovo has been founded by a unilateral declaration of independence by the overwhelmingly Albanian population living south of the Ibar river, adding de jure independence of Serbia – at least where Kosovo’s government and Kosovar Albanians are concerned – Bosnia’s structure came as a result of the Dayton Peace Agreement, which prohibited breaking up minority and majority populations into different geographic entities. Although governance and all aspects regarding the state have been driven by international state builders in both cases, results of established structures are very different for the two states. While it appears that Kosovo Albanians have been permitted to have their own state – in spite of overriding United Interim Administration Mission in Kosovo (UNMiK) proclamation 1244, which grants Kosovo extensive autonomy under the sovereignty of the Serbian state – Bosnians, Croatians and Serbs living in Bosnia and Herzegovina continue to be bound together by one state. Thus, it is important to take into account that the relationship between minority and majority populations is very different in each state. This does not, however, take away from the argument that it is imperative for both entities to establish a comprehensive legal framework and institutions granting all national minorities full civil and political rights.

Civil and Political Rights for National Minorities

The United Nations International Covenant on Civil and Political Rights (ICCPR) and its Protocols are the core documents that oblige signatory states to grant all their citizens civil and political rights irrespective of their “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Further, the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) demands that states provide the necessary conditions “for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them (Article 15).” While it is relatively easy for states to become a signatory state of international conventions and agreements, the challenge thereafter begins to incorporate rights into national law, establish appropriate institutions and endow these institutions with the necessary capacities for effectively combating discrimination or proactively fostering equality. The following discussion shows how well this has been done in two different state structures where the implementation of good governance principles has had a priority from the start.

The Challenge in Kosovo

Due to Kosovo not yet having the status of an internationally recognized state, it may also not sign international agreements like the ICCPR. However, the constitution of Kosovo confirms that besides the Universal Declaration of Human Rights and other core international agreements, the ICCPR is directly applicable in Kosovo. Pertaining specifically to minority rights, the constitution goes further by providing groups of the same national or ethnic, linguistic or religious identity specific rights that go beyond the human rights and fundamental freedoms. Already prior to June 15, 2008, when the constitution entered into force, the ICCPR was defined as applicable law by UNMiK Regulation 1999/1 and 1999/24, obliging all persons undertaking public duties or holding public office to observe this and other internationally recognized human rights standards.

With the inception of UNMiK in 1999, the creation of mechanisms for the protection of minority communities living in Kosovo has been a priority. Because of the preceding violent conflict and the unresolved status of Kosovo, the focus has been on the largest ethnic minority, Serbians, and less on even more disenfranchised people, such as Roma, Ashkali and Egyptian (RAE) communities. This uneven focus has been criticized frequently by these latter groups’ representatives and human rights groups in general.

Ombudsperson Mechanism

In 2000, the Ombudsperson Institution in Kosovo (OIK) was established with the mandate to investigate alleged human rights abuses by local public and UNMiK administrators. The Anti-Discrimination Law (ADL) of 2004 further endowed the Ombudsperson with the responsibility of receiving and following up on complaints concerning discrimination on the basis of core issues, including ethnicity and religion. In spite of the seemingly broad role of the OIK, the importance of the institution has been limited rather than expanded over time. Since the promulgation of UNMiK Regulation 2006/06, alleged human rights violations and discriminatory actions by international actors are no longer part of the OIK’s mandate. But already prior to 2006, local and international human rights groups have been criticizing the fact that the OIK lacks enforcement power as it is limited to non-binding recommendations. Thus, although the creation of OIK has been a consequential act of institution building for overseeing human rights violations, it lacks any muscle to tackle such offenses and additionally cannot act upon human rights violations committed by international administrators, which continue to have a strong presence in Kosovo. The Human Advisory Panel created in late 2006 was intended to fill the gap where potential human rights violations by international personnel are concerned by dealing with complaints of violations brought against UNMiK personnel. However, the Panel is limited to non-binding recommendations by three international judges brought forward to the UN Secretary General’s Special Representative (SRSG), who then has the final say about whether or not to act upon these findings.

The ADL enacted in 2004 complies with the EU Council Directive 2000/43/EC, advancing equal treatment irrespective of racial or ethnic origin, and Council Directive 2000/78/EC, which established a general framework for equal treatment in the realm of employment and occupation irrespective of one’s religion or belief, disability, age or sexual orientation. However, the ADL goes beyond this scope and prohibits discrimination on any ground, i.e. “sex, gender, age, marital status, language, mental or physical disability, sexual orientation, political affiliation or conviction, ethnic origin, nationality, religion or belief, race, social origin, property, birth or any other status.” For minorities living in Kosovo, equal treatment before courts and tribunals, personal security, participation in public life including the right to vote and be voted for and access to public places are especially important. Further, the freedom of movement and the free choice of one’s residence, which is guaranteed in Article 12 of the ICCPR, continue to be hampered in practice.

Human Rights Units

The Organization for Security and Co-operation in Europe (OSCE) has created Human Rights Units in almost all ministries on the national and municipal level, with responsibility for overseeing the adherence to human rights and good governance principles in government institutions. A persistent weakness of these units is that they lack adequate numbers of sufficiently trained and qualified civil servants, but also initiative and resources, in spite of past awareness-raising campaigns and training. The result is that only very few cases have been brought to court on the basis of the ADL.

Arguably one of most important principles in the ICCPR is laid out in Article 25, which guarantees the right to take part in public affairs, to vote and to be elected at genuine periodic elections that reflect the free will of the people. For ensuring an effective political participation of minority groups, a framework of minority consultative bodies was set up. On September 15, 2008, a Consultative Council for Communities was established under the authority of the president to enable minority representatives to be directly involved in the design, monitoring and evaluation of programs and legislation at the highest level and the earliest time possible. Other established minority consultative bodies include the Committee on Rights and Interests of Communities within the Kosovo Assembly and the Office for Community Affairs based in the Office of the Prime Minister. Although the approach of consultative bodies can be praised as an innovative method to involve minorities in high-level decision making, it has been found that these bodies have yielded only limited success, especially for the most disenfranchised communities such as the RAE. There are a host of reasons for this, among them a lack of resources, capacity and inter-institutional cooperation, but also political interference and a lack of commitment.   

Nonetheless, political involvement by minorities is guaranteed by the composition of the Kosovar parliament, which is made up of 120 seats, 10 of which are reserved for ethnic Serbs, and 10 for other smaller minorities, specifically in these numbers: Bosniaks-3, Turks-2, Gorani-1, Roma-1, Ashkali-1, Egyptians-1 and RAE as a group-1. The 2007 elections fulfilled this mandate and three other minority candidates were elected as well. In general, however, free voting is hampered by a number of non-systemic factors, including family voting in rural areas and vote buying in predominantly Serb areas.

The Challenge in Bosnia and Herzegovina

The ongoing crisis in Bosnia and Herzegovina (BiH) and the inability to form a government or reform the constitution reflects limitations of political arrangements established during the Dayton Peace Accords. Since then, international civilian agencies – such as the Office of the High Representative (OHR) – carry significant authority. However, in spite of prolonged international efforts to integrate one of the world’s most ethnically diverse countries, BiH’s citizens continue to be divided along ethnic lines in almost all aspects of life.

This is despite Bosnia and Herzegovina having fulfilled many of its legal requirements to protect its minorities and grant them full civil and political rights on a national level. As such, BiH has been a signatory state to the ICCP since September 1, 1993 and has submitted regular compliance reports since then. Also, Bosnia and Herzegovina is party to the FCNM, to which it did not issue any reservations when signing the framework. In 2003, BiH adopted the Law on the Protection of Rights of Persons Belonging to National Minorities - an important step in legally protecting national minorities (i.e., citizens of BiH who do not belong to the so-called constituent peoples, or Bosniacs, Serbs and Croats). The Law also provides for the establishment of the Council of National Minorities, an institution that has so far not become operational. When it does, it will be able to provide enhanced input on how best to protect national minorities in BiH. This would be an important step as until now there is no unified body, such as a supreme court, that has the mandate to uniformly apply the law across the whole of BiH. Instead, four different judicial systems exist – a phenomenon that stands in the way of unifying anti-discrimination mechanisms. Such changes, however, are expected to take some time as currently all attention is focused on resolving the political deadlock, which may among other consequences risk eventual BiH accession to the European Union (EU).

Ombudsperson Mechanism

Just as in Kosovo, there is an Ombudsperson Institution in BiH. But here too, it has had only limited influence in promoting real change, if even creating a greater understanding of the importance of minority rights. A necessary step for combating discrimination has also been the adoption of the ADL in August 2009. However, the ADL has been implemented in national law less than in Kosovo, and as in Kosovo the law is rarely referred to in court cases. Furthermore, whereas Kosovo’s ADL is extensive in regard to people it aims to protect, BiH’s ADL does not offer the lesbian, gay, bisexual and transgender (LGBT) community sufficient legal protection. This is an area that still needs reform, but is not yet a priority inasmuch as misunderstanding towards the LGBT community persists in all segments of society. This was demonstrated by reaction to the first Queer Sarajevo Festival in 2008. The event took place one day before local elections and was used to incite hatred and violence toward LGBT by local politicians and journalists alike. Nonetheless, it should be noted that such a festival was a one-of-its-kind event in the whole region. Serbia supported its first Gay Pride Day in 2010, and in Kosovo such an event has never been conducted, as it remains too politically and socially sensitive.

More Obstacles to Overcome

During the last three years, open political pressure and violent attacks on journalists and members of the press have been starkly on the rise despite the human rights annex to the Dayton Agreement and the constitution which formally guarantees freedom of the press. Moreover, political interference by Milorad Dodik of the Alliance of Independent Social Democrats (SNSD) toward the local office of Transparency International and the Federation’s state-owned TV station FTV during 2010 was criticized internationally as undermining freedom of expression and the press. Just as in Kosovo, corruption also remains one of the gravest problems in BiH.

Also, despite the international focus on justice reform, equal access to justice continues to be hampered in practice. This is partly due to insufficient resources, including the lack of sufficient judges qualified to interpret international human rights standards. Further complicating matters are incoherent legal provisions across BiH that relate to freedom of expression: While the Criminal Code of the Federation forbids hate speech, there are no such provisions in the Criminal Code of the Republic of Srpska.

As the last years have shown, BiH’s highly decentralized structure including the rotating three-member presidency renders national decision-making complicated and ineffective. But beyond that, the constitutional provision that only members of the three main ethnic groups are able to run and be elected for the highest political office is discriminatory according to the ICCPR and the Committee on the Elimination of Racial Discrimination (CERD), as it violates the right to free and fair elections of all people irrespective of their ethnic origin. Although the European Court for Human Rights (ECHR) ruled in December 2009 that the constitution was discriminatory for excluding smaller minorities (such as the Roma) from being able to run for the presidency or the House of Peoples, necessary reforms have so far not followed. And in October 2010, parliamentary and presidential elections took place without suggested changes having been implemented. One of the few positive recent developments has been the amendment of the Electoral Law, which now makes it possible for 17 national minorities to directly elect their representatives in the local elections of 34 municipalities.

Constituent Peoples and National Minorities

As has been noted before, part of the governance dilemma in BiH is the distinction between “constituent peoples” and “national minorities.” As persons belonging to the constituent people represent in some parts of the country the de facto numerical minority, they may be exposed to discrimination there, but until now cannot refer to the FCNM for protection. The Advisory Committee of FCNM has therefore suggested extending protection mechanisms to affected people without them having to lose their status as constituent people.

It has become apparent that while provisions favoring certain ethnic groups have made sense after the violent conflict and the break-up of Yugoslavia, in the long run forms of ethnic power-sharing tend to reinforce differences between ethnicities instead of bringing people closer together by emphasizing their commonalities. Without continued international pressure, it will remain difficult to reverse such constitutional provisions, due to intransigence among the constituent people and their fear of giving up privileges they currently enjoy.

Conclusion

The examples of the approaches to the protection of minority rights in Kosovo and Bosnia and Herzegovina serve as a bracing reminder to policy makers of the limitations of good governance principles in policy making. In particular in Kosovo, but also in Bosnia and Herzegovina, elaborate steps have been taken to introduce protection mechanisms for minorities into the legal and political framework, but with limited practical impact. As this discussion has shown, the particular form of government in BiH has systemic consequences for the protection of minorities, particularly in the realm of political and civil rights. While both countries are plagued by a lack of resources, poorly trained professionals, corruption and political interference, BiH also has to carry the burden of having an inherently discriminatory system of governance. In both countries, governance is ultimately the responsibility of international and local administrators, but this division of power and accountability creates its own problems. Since any attempt to foster full civil and political rights for minorities will depend on establishing in practice that violations of these rights have consequences, the system can at times be undermined by a lack of accountability of international actors operating within the system. Any future progress in moving beyond cursory steps toward protection of minority rights will depend on continued international support for further development of civil society. In the final analysis, citizens must embrace the protection of minority rights not merely because they are bound by law, but because it is widely accepted that diversity makes a democratic society more rich, vibrant and just.

Sarah Ringler earned her master’s degree in International Relations at Berlin’s Free University in 2010, writing her master’s thesis on the Vetëvendosje movement in Kosovo. She has worked throughout the Balkans as a consultant and intern for the Dutch NGO Spark and the OSCE, and has contributed to publications including the San Francisco Chronicle and the Ex-Berliner English-language magazine. She can be reached at: sarah.l.ringler@gmail.com.