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This article explores the challenges of achieving full civil and political rights for minorities living in post-
Our prism for this discussion is a comparative case study of Kosovo and Bosnia and Herzegovina, as both countries offer a similar socio-
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.
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-
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-
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-
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-
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 -
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-
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-
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-
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-
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-
Promoting Minority Rights in Kosovo and Bosnia and Herzegovina
By Sarah Ringler