Update of UNHCR's Position on Categories of Persons from Bosnia and Herzegovina in Need of International Protection

1. Introduction

As a result of the conflict in Bosnia and Herzegovina (BiH), some 1.2 million persons fled abroad, mainly to countries of the former Yugoslavia and Western Europe, while an additional 1.3 million people became internally displaced. BiH had a pre-war population of some 4.38 million people. Almost 60 per cent of the total population was affected by the conflict. As at end of May 2000 it is estimated that a total of 356,308 refugees from abroad, as well as 309,631 displaced persons within BiH have returned, whereof 143,380 are minority returns.

Most persons who fled abroad have now found durable solution to their plight in countries of asylum, however, according to UNHCR's estimates, at the end of 1999 over 306,000 refugees from BiH were still in need of a durable solution. Within BiH, up to 809,000 people remain displaced from their pre-conflict homes, of whom 473,500 are in the Federation of Bosnia and Herzegovina (the Federation) and 336,000 are in the Republika Srpska (RS). The country also hosts some 30,000 refugees from Croatia. Additionally, refugees from Kosovo began arriving in BiH during the course of 1998 (approximately 10,000), mostly to areas in the Federation. In early 1999 during the NATO air strikes over the Federal Republic of Yugoslavia (FRY), approximately 75,000 refugees from FRY entered BiH, and it is estimated that a total of 20,000 still remain in BiH, whereof 2,000 are accommodated in UNHCR funded refugee centres. The impact of the influx from FRY during 1999 was to slow down the return process in BiH, impede the swift implementation of the property laws, as well as lead to the evacuation of international staff from many areas in the RS.

It must be emphasized, that while the international community will need to continue to promote minority return opportunities for those wishing to return home in line with Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), other solutions will need to be found for those who, for valid protection reasons, are unable or unwilling to return, at least for the time being. It is only logical that, in the absence of a fundamental and durable removal of the causes of flight, certain categories of refugees from BiH will therefore remain in continued need of international protection.

UNHCR considers that five main categories of people are in continued need of international protection. Repatriation of these groups should only take place when the individual has decided to return out of her or his own free will and on the basis of an informed choice. The five categories are:

• Persons originating from areas where they would no longer be in the majority upon return, unless it can be reasonably assessed that they can return in safety and dignity;

• Humanitarian cases (e.g.-camp or prison detainees; victims or witnesses of violence, including sexual violence; severely traumatised persons; witnesses testifying before the International Criminal Tribunal for Former Yugoslavia; individuals in need of special care);

• Persons of mixed ethnicity or in mixed marriages;

• Potentially stateless persons;

• Other specific protection categories (political and military leaders of the Demokratska Narodna Zajednica, also known as, 'former Abdic supporters'; deserters and draft-evaders; members of the Roma communities).

2. Persons originating from areas where they would no longer be in the majority upon Return, unless it can be assessed that they can return in safety and dignity

This category includes all persons who would fall within a current minority constituent people in their area of pre-conflict residence. Due to the overall improved situation in BiH, it can no longer be upheld that belonging to a numerical minority group upon return per se renders a person in need of international protection. It is therefore necessary to assess the situation in the return municipality and to determine whether s/he can return there in safety and dignity.

The determination of safety and dignity would comprise the following elements: a) physical security, including protection from harassment, armed attacks, mine-free routes and if not mine-free then at least demarcated settlement sites; b) legal safety (e.g. amnesties; enabling legal, administrative and social framework; availability of redress mechanisms against discrimination); c) material security which includes access to habitable housing, land or any other means of livelihood. Return with dignity implies, among others, that there are no pre-conditions for return, non-discriminatory treatment and full acceptance by the authorities in the receiving municipality.

Members of minority constituent peoples who would be likely to experience systematic harassment, discrimination and violations of their rights upon return, continue to be in need of international protection, especially on cumulative grounds. Problems include the following: continued threats to the personal safety of returnees; inadequate legal and administrative framework conducive to safe, dignified and sustainable return, notably in the property and citizenship areas; major difficulties in the implementation of the property laws; absence of an effective human rights protection regime; denial of residence registration and/or issuance of ID cards, and thus access to essential social services; levying of arbitrary fees in administrative procedures; discrimination in the education and employment sectors;

The withdrawal of international protection in respect of this category can therefore only be recommended if the changes of the political, security, legal, administrative and social framework in the return area are sufficiently substantial to allow for their safe, dignified and sustainable return. In the absence of changes, repatriation to a specific minority area should only take place if the individual has made a free and informed choice as to her or his return.

The legal framework

Property legislation

While the basic legal framework for the filing of repossession claims had been established, the implementation of the laws was slow and difficult. This eventually lead to the final harmonisation of the property legislation in both Entities by the High Representative in October 1999. A month later, on 29 November 1999, the High Representative dismissed 22 public and housing officials who obstructed the implementation of the property legislation. During the first 6 months of 2000 the international community has redoubled its efforts directed at promoting and supporting the implementation of the property laws, in particular through an interagency working group, the Property Legislation Implementation Plan (PLIP) consisting of a central cell and focal points throughout BiH.

By the end of May 2000, some 220,280 claims for houses and apartments had been filed in the two Entities. However, a combination of open political obstruction, lack of political support, and insufficient allocation of resources has meant that processing of the claims is still very limited. The Federation issued decisions on approximately 44% of the claims (50,687), resulting in repossession by approximately 17% of the claimants (19,688). The RS issued decisions on approximately 20% of the claims filed in that Entity (21,137), resulting in repossession by approximately 7% of the claimants (7,514). Thus, in BiH, 33% (71,824) of the claims have been decided and 12% (27,202) of the claimants have actually repossessed their property. If continued at this pace, the implementation of the property legislation throughout BiH will take another 15 years.

While the implementation of the property legislation is more advanced in Bosniak-administered territory and evictions are now taking place, it is still not sufficient. In particular, there is a tendency to use the non-compliance in other areas as an excuse not to move forward. Implementation of the property legislation, including the enforcement of the decisions of the Commission for Real Property Claims (CRPC), remains extremely poor in Croat-administered municipalities. The main reasons can be found in: not fully functional housing offices (e.g. in the municipalities of Capljina, Mostar South-West, Mostar West, Mostar South, Tomislavgrad, Kupres, Glamoc); no enforcement of positive decisions; political interference. As for the RS, inappropriate staffing and provision of material resources for the housing offices, combined with political obstruction are the main reasons for the poor results in that Entity. Overall, throughout BiH, there remains a lack of will on the part of housing authorities to tackle multiple occupancy and other forms of misallocation of housing stocks. While shortage of accommodation remains a major practical problem in many places, responsible authorities have not made sufficient efforts to maximize their use of housing stocks, and/or create the necessary alternative accommodation to facilitate implementation of the property law.

Given the current state of the implementation of the property legislation, when deciding on the return possibilities of an individual it is necessary to determine whether this person has access to her/his home upon return or whether other accommodation is available for her/him, be it that s/he can live with relatives and friends or s/he has sufficient financial means to arrange for her/his own accommodation or the authorities in the return municipality have agreed to provide Interim Accommodation, which meets proper human standards.

Citizenship

Effective citizenship is key to the exercise of human rights and fundamental freedoms. The State Law on Citizenship of Bosnia and Herzegovina entered into force on 1 January 1998. Article 43 of the State Citizenship Law provides for the adoption of Citizenship Laws of both Entities (within 45 days after the passing of harmonised regulations). The passing of the Entity Citizenship Laws is a necessary precondition for an adequate functioning and full implementation of the whole citizenship regime, not least because, according to Article 42 of the State Citizenship Law, all laws and by-laws regulating citizenship became invalid with the entry into force of the State Citizenship Law. So far, only the RS has passed its Law on Citizenship of Republika Srpska. In the Federation it has, so far, been impossible for the various political parties to reach an agreement on a draft law. This lack of a legal framework in the Federation of BiH has prevented the overall implementation of the citizenship legislation in BiH. In particular, it currently denies the right of BiH citizenship to those former SFRY citizens living in the Federation of BiH who have been eligible for BiH citizenship as of 1 January 2000.

Amnesty legislation

Article VI of Annex 7 of the GFAP provides for a granting of amnesty to all those who evaded the draft, deserted or refused to answer a military call-up during the conflict. Since many, if not most male refugees fall within this category, the full implementation of this guarantee is essential for safe and dignified return.

A new Federation Law on Amnesty was published in the FBiH Official Gazette 48/99 on 3 December 1999 and came into force on 11 December 1999. The new law does not revoke the previous FBiH Amnesty Law (Official Gazette FBiH nos. 9/96 and 19/96), but merely expands the range of acts covered by the amnesty. The new Federation Law applies to almost anybody who committed a crime between 1 January 1991 and 22 December 1995 except for certain very serious crimes such as those against humanity and international law and those defined in the Statute of the ICTY, as well as specified crimes under the criminal code such as rape and murder.

In December 1999 the Judicial System Assessment Programme (JSAP) of UNMIBH issued its third thematic report which also included a brief survey of the implementation of the Federation Amnesty Law. The main findings of the report are, that within the Federation, the law is generally applied, but that there is a considerable delay in the granting of amnesty by the courts. The Federation Minister of Justice has taken steps to ensure that the courts apply the new law and it seems that the courts have, in fact, been doing so.

After considerable pressure by the international community, the Law on Changes and Amendments to the Amnesty Law of the Republika Srpska was eventually passed in the RS, and published in the RS Official Gazette no. 17/99 of 15 July 1999, and entered into force on 23 August 1999. Article 1 of the Amendment Law amends Article 1 of the 1996 Law and now grants amnesty to, inter alia, persons who in the period from between 1 January 1991 and 22 December 1995 deserted or evaded a draft call from the RS Army. This means that the law, contrary to the previous law, now is in line with the GFAP requirements regarding amnesty. The adoption of the RS amendments to the Amnesty Law in 1999 constitutes a significant step towards the formal removal of the remaining legal obstacles to return of refugees and displaced persons to the RS.

In 1999, in cooperation with OHR, IPTF and UNMIBH, UNHCR promoted the establishment of a monitoring framework in the RS, in order to assess the level of implementation of the new law. A monitoring exercise of 7 courts in the RS was eventually conducted in February and March of 2000 by the Judicial System Assessment Programme (JSAP) of the UNMIBH, and the findings were published in June 2000. Generally, the findings of the report are quite positive, as the general tendency is for the RS courts to actually implement the law, and grant amnesty to persons covered by the law. However, another finding of the report indicates that the judicial system in the RS is quite inefficient, and that the processing of cases is proceeding very slowly. The report recommends an increased funding of the judicial system in the RS as well as encouraging better co-ordination of the judicial institutions at all levels.

As such the report suggests that positive steps toward facilitating the return of draft evaders and deserters have been taken. It must, however, be emphasised that the findings of the report are not exhaustive, and that there is currently no sufficient evidence to suggest that the return in safety and dignity of draft evaders and deserters to the RS is completely assured.

Legislation on displaced persons and returnees

An adequate legal framework covering the treatment and return of refugees and displaced persons, as well as its full and fair implementation, is necessary for the effective protection and promotion of durable solutions.

In cooperation with UNHCR, the respective Entity Ministries (RS Ministry for Refugees and Displaced Persons; Federation Ministry for Social Affairs, Displaced Persons and Refugees) and the then competent State Ministry (Ministry for Civil Affairs and Communication) drafted new legislation in this area, with a view to ensuring consistency with Annex 7 of the GFAP and relevant international standards. The respective legislative bodies finally adopted the respective laws in 1999 and 2000. This provides a domestic legal framework which regulates current voluntary repatriation movements and puts in place an adequate return mechanism, as required by international standards, in particular Annex 7 of the GFAP. To fully apply the legal framework, the respective authorities (State, Entity, Cantons in the Federation of BiH) still need to adopt further by-laws and instructions. Further, it remains to be seen how the authorities will apply the relevant provisions. In particular, whether they continue to grant DP status only to persons with accommodation.

The security situation and freedom of movement

Safety and police

Under the GFAP, the Parties are required to provide a safe and secure environment for all persons in their respective jurisdictions. Potential returnees regard security in the pre-conflict place of residence as vital when considering return. There are still reports of some local police forces not effectively protecting members of the minority constituent peoples and cases of arbitrary detention and ill-treatment by the local police forces, both in the Federation and in the RS. Improvement has been seen over the reporting period, however, with a number of indictments having begun to be issued by judicial authorities against police officers for alleged human rights violations.

Of particular concern, an estimated one million mines and unexploded ordnance remain in some 30,000 separate areas in BiH. Only 50-60% of this total estimated number of minefields have to date been recorded. Mine contamination prohibits the use of over 290 square kilometres of land. Returnees are the most likely group to suffer a mine accident as they lack knowledge of the battle areas.

The insecurity which still prevails in some regions, as well as the impunity enjoyed by most of the perpetrators of criminal acts against minorities, demonstrate that local authorities are still experiencing difficulty in providing safety to all BiH citizens, in particular in minority return areas. An analysis comparing locations where minority returns occur with security incidents reveals a clear correlation, except for some areas where more sophisticated legal and administrative barriers are erected to prevent sustainable return. (See Annex 1 for a selection of security incidents)

Freedom of movement

Article I (4) of the Constitution of BiH guarantees the right to freedom of movement. Freedom of movement has substantially improved with the introduction of the new common license vehicle plates. Most of the areas of BiH have opened up for visits in 1999, including areas in eastern and south-eastern RS. Many visits are now either spontaneous or organised by refugee and displaced persons associations themselves without any involvement of the international community.

UNHCR continues to operate 20 inter-Entity bus lines which are intended to encourage inter-Entity movements and to compensate for the lack of security and the absence of public and commercial transport from the Federation to the RS and vice versa. The UNHCR bus lines provide a sense of security and are more frequently used by Serbs than by Bosniacs or Croats. UNHCR bus lines are flexible and often re-directed in order to follow return trends and identified axes of return. The number of security incidents reported during assessment visits in late 1999 and 2000 was almost non-existent.

The administrative framework

Residence registration of displaced persons and returnees and issuance of identity cards

In order to protect the rights of returning refugees and displaced persons to obtain an ID Card, the High Representative issued on 30 July 1999 a Decision on Identity Cards. Given the fact that returnees faced a myriad of obstacles to obtain their ID Cards and the lack of a legal framework in line with the GFAP, this interim measure imposed by the High Representative was a must. Under the Decision, all public documents issued by a competent body of the former SFRY and the former Socialist Republic of Bosnia and Herzegovina (SRBiH) are recognised as official proof of the facts stated therein and must be accepted by public officials at all levels, be it Municipalities, Cantons, Entities, or the State. Specifically, personal identity cards issued by a competent SFRY/SRBiH body, which were valid on 6 April 1992 may be exchanged until 5 April 2002, for new personal ID Cards as envisaged by valid laws and regulations.

Access to documents

In both Entities the situation regarding access to documents has improved. Nonetheless some persons continue to face difficulties accessing personal documents due to registers having been destroyed or records having disappeared. There are still cases of excessive or illegal fees being charged for accessing personal records or other official documents, although the incidents reported have largely decreased.

Recognition of public documents

The proposed Law on Public Documents in Bosnia and Herzegovina was again rejected by the BiH House of Representatives on 19 April, 2000. The draft Law recognises documents issued in the period after 6 April, 1992 until the entry into force of the draft Law as valid across the whole of the territory of BiH. There continues, therefore, to be no legal framework satisfactory to all sides to provide for the recognition of public documents.

In practice, the previous problem of one Entity refusing to recognise documents issued by the other Entity is now less apparent. There are still cases of judicial, administrative or other public body refusing to recognise a document issued by one Entity, although mostly such documents are now being recognised. There continue however to be difficulties of documents issued in the FRY being recognised in the Federation of BiH as no diplomatic relations exist.

The social framework

Access to social welfare, health care, pensions and public services

One of the key issues for displaced persons is access to social welfare, health care, pensions and other public services. In relation to social welfare assistance, while there exists in both Entities various levels of legislation, the reality on the ground reveals that implementation of such laws is very difficult. In the Federation, the Cantons have responsibility for implementing the Federation Law, as well as implementing their own correlative laws. At April 2000, only four Cantons had introduced complementary social welfare legislation and none had harmonised their laws with the September 1999 Federation Law. The most commonly paid amount of permanent financial assistance in the Federation is between 34KM per month to maximum 51KM for a four member family. Of a recent UNHCR study, of 30 municipalities surveyed, seven were not making any payments at all or only on an ad hoc basis. In the RS the situation is less satisfactory with 13 of 20 municipalities surveyed not making permanent financial payments at all. Of those making payments, there is a wide range of payments from 15KM per month in Rudo municipality to 220KM per month in Novi Grad and Derventa. There are also almost always delays in payments.

The current level of health care within BiH remains at an unacceptable level. While the respective laws in both Entities on health insurance provide health coverage to various groups of persons based on contributions, there are serious shortcomings. Health coverage is limited to one's geographically defined area of insurance, with no system of transfer of payments from one area to another or from one Entity to another. In addition, it is increasingly becoming a problem that insured persons are being asked to pay the full amount for treatment as their insurance fund has not made the contributions to the appropriate health fund. On 22 November 1999, the three health funds in BiH agreed to co-operate in order to improve health access, although little has so far changed on the ground.

There continue to be serious difficulties in obtaining pensions for returnees from abroad, part of which is related to the legal requirements to permanently reside in the area of one's pension fund coverage. On 27 March, 2000 the directors of the three pension funds (the Mostar Fund, the Sarajevo Fund and the Republika Srpska Fund) signed an Agreement on Respective Rights and Obligations Regarding Implementation of Pension and Disability Insurance which should overcome some of the longstanding problems of the pension system, although as at July 2000, pensioners continued to face the serious difficulties in accessing their pension entitlements.

Pre-conflict subscribers often encounter major difficulties in accessing public services, including water, electricity, telephone, garbage collection and mail delivery. They are often over-billed for periods during which they were displaced or for reconnection. There are wide discrepancies across the country for charges to be paid, which are often not transparent nor linked to the quality of services delivered. This affects in particular minority returnees

Education

Despite some progress having been made in the last twelve months, discrimination, segregation and ethnic bias continue to dominate education in BiH, prompting the High Representative in April 2000, to state that the educational systems effectively imposed a form of "educational apartheid".

Developments through the year have included the publication in August 1999 of the report of UNESCO's commission of educational experts and the November 1999 publication of a report undertaken by the Council of Europe, which surveyed and made a series of recommendations on improving the 'Governance, Finance and Administration of Education in Bosnia and Herzegovina'. A symposium was subsequently convened in February 2000 in Sarajevo which examined the possibility of solving some of the problems associated with education in BiH. Participants in the symposium included representatives of the two Entities as well as international experts. The representatives of the local authorities eventually agreed in principle on implementing a model of inter-entity and inter-Cantonal co-operation, which allows for a differentiated approach but at the same time containing strong common elements. These developments culminated recently in the signing by both, Federation and RS Ministers on 10 May 2000 of a Declaration and Agreement on Education in BiH. Implementation of the agreement as well as the review of textbooks and removal of offensive material remains, however, highly unsatisfactory. In many cases this prevents the sustainable return of minorities, as children will not have access to an acceptable educational facility.

According to the UNHCR's Returnee Monitoring Study: Minority Returnees to the Republika Srpska - Bosnia and Herzegovina of June 2000, 85% of the school age returnee children and adolescents were attending schools in the Federation. Only 5% were attending schools in the RS. Much of this is due to the lack of available schools in their communities (most of which were destroyed during the war) and the RS curriculum.

In addition, many parents simply feel that it is too soon to de-register from municipalities of their place of displacement and are taking more of a wait and see approach. Another reason for concern parents give is that they are afraid that their children might behave badly towards other ethnic groups and vice versa.

Employment

Despite continued international attention, however, unemployment rates throughout the country remain extremely high, and little changed from the previous year. In the Federation, unemployment has continued to stand at around 42%. In the RS, the figure is thought to be considerably higher, although for various reasons precise statistics are unavailable. In its current state, the Bosnian economy simply does not generate enough jobs to bring the unemployment rate down to a manageable level.

Against this backdrop of scarce employment opportunities, employment discrimination - particularly against members of minority groups - is rife across the country. Moreover, minority returns to areas already affected by high unemployment, and the increase in competition for jobs that results from such returns, can only create further social and political tensions. Efforts to bring this problem under control have so far focused on two fronts: the development and enforcement of effective anti-discriminatory legislation, and continuing market liberalisation, with the aim of minimising discrimination through an increasing demand for labour.

In the Federation, these two efforts resulted in the promulgation of a new Federation Labour Law in October of 1999. The law supports moves toward greater liberalisation and includes specifically anti-discriminatory measures. The latter provisions, however, have proved somewhat difficult to put into effect.

The situation in the RS, while legally clearer, is little better. The RS currently adheres to a Labour Law based on the former Yugoslav model, which is recognised to be incompatible with the free-market and anti-discriminatory principles evinced by the international community. On the basis of a preliminary examination by the international community, plans are being drawn up to undertake a full-scale review of this law.

As can be seen, employment discrimination - whether on political, ethnic or other grounds - appears to remain widespread in BiH. Foremost among the current concerns of the international community in tackling this is the development of legal frameworks in both the RS and the Federation which successfully take into account domestic political and economic factors, as well as considerations of internationally recognised economic and social human rights. It seems certain, however, that in the absence of appropriate and effective safeguards, sustainable return will continue to be hindered by the withholding of employment opportunities from members of minority groups.

Overall assessment

The Bosnian society is still strongly divided along ethnic lines, as a result of the war, as well as ongoing massive manipulation and intimidation, in particular through the media. The current constitutional framework is not conducive to ethnic reintegration and in fact it is used by those in power to pursue their narrow nationalist agendas and to consolidate territorial and other gains obtained during the war years. Essential legal reform work, including in the area of return and displacement, as well as the removal of obstacles to return, is seriously hampered by a highly decentralised constitutional regime, the continued existence of parallel structures and administrations, as well as an often unclear division of competencies between the State and the Entities, and within the Federation between the Federation level and the Cantons. The predominance of the ethnic factor as the primary power-sharing model is yet another complicating element in this complex web of different legal systems. Matters that would fall into the competencies of the Entities but would equally require inter-Entity co-operation are currently not subject to an effective mechanism to address and regulate such matters.

The various State actors often fall far short of providing effective national protection to all BiH citizens without discrimination, particularly minority returnees. Reforms of the legal and administrative framework in 1998 and 1999 were only possible due to massive international intervention and imposition, which demonstrates the lack of political will and commitment of the authorities fully to implement the provisions of the GFAP. The municipal elections held in April 2000 have confirmed the dominant role of the three nationalist parties in rural areas, whereas some political changes occurred in urban areas. The current electoral system de facto favours the population to vote along ethnic lines. Given their respective programmes and ideologies, these parties are not working to correct the consequences of the conflict but rather consolidate and aggravate them. In fact, minority return, reconciliation and ethnic reintegration run counter to their monoethnic agendas and interests to preserve their economic and political powerbase. Moreover, the State of BiH is undermined by the virtual absence of vertical and horizontal co-operation of its various institutions. Vertically, the central state institutions' authority over other administrative or institutional bodies is often rebuffed by the Entities, the Cantons or the municipalities. Furthermore, the functioning of the common institutions has been severely weakened throughout 1999 due to political obstruction from the various parties. Horizontally, there is little, if any, co-operation between the Entities on subjects of common interest.

Repatriation to situations of internal displacement

Given these constraints outlined above, there may be pressures on persons in this category to return, but to a majority area. The great majority of repatriations from abroad are now to areas other than the returnee's home. They are to areas where the returnee would be displaced but among the majority, while the returnee's home lies in an area where they would be among the minority. UNHCR is gravely preoccupied that the return and peace-consolidation processes are, and may continue to be, seriously undermined by induced repatriation to an area which is not the pre-conflict place of residence, but where the returnee will be part of the majority. Article I (1) of Annex 7 of the GFAP provides for the right of every refugee or displaced person to return to her/his pre-conflict place of residence. This recognises that the deliberate placement of groups of people into housing belonging to other ethnic groups in order to secure ethnically-based control over territory and thus prevent minority return (also referred to as hostile relocation), is unacceptable.

Induced repatriations to situations of internal displacement which is not sustainable aggravate existing problems and are increasingly counterproductive for ongoing efforts to implement the GFAP, and specifically to promote minority return opportunities generally. This is widely recognised by OHR, OSCE, SFOR and others concerned. In situations of internal displacement, people are relocating to the homes of others (minorities) and as the option of returning to their own homes does not yet exist, they are not exercising a free choice.

3. Humanitarian cases (e.g.-camp or prison detainees; victims or witnesses of violence, including sexual violence; witnesses testifying before the International Criminal Tribunal for Former Yugoslavia; severely traumatised persons; individuals in need of special care)

International protection because of compelling reasons arising out of previous persecution

Persons who can invoke compelling reasons arising out of their past persecution for refusing to return to BiH would be in need of continued international protection. This category would include persons who have suffered grave persecution, including at the hands of the local population, and cannot expect to be reasonably integrated into society. Such persons are often suffering severe trauma and post-traumatic stress disorder, both conditions which are likely to be exacerbated by current conditions in BiH. These persons may face extreme challenges to reintegration, including internal displacement, lack of family or community support, limited available and adequate accommodation (many such persons are accommodated in collective centres, some for many years), and lack of any form of viable social assistance (psycho-social services in BiH are inadequate to deal with this type of war trauma). It is not only the lack of integration potential due to resource and service deficiencies but moreover, the real potential for re-traumatisation (and victimisation) caused by return to the site of traumatic experiences, which can invoke devastating psychological reactions.

In addition, the potential threat of indicted war criminals, many of whom are still living freely in BiH, is also a very real fear for many persons belonging to this category. It is crucial that traumatised persons, especially ex-camp or prison detainees, victims of sexual violence and torture, and other traumatised persons, are offered durable solutions. Return to BiH can lead to devastating psychological reactions which will probably remain untreated, thus preventing them from being fully integrated into society. Persons who have testified before the International Criminal Tribunal for Former Yugoslavia (ICTY) are included in this group, as they are very likely to face persecution and harassment upon return after having testified, and it unlikely that they will be in position to find adequate national protection. These persons are clearly in need of a lasting solution elsewhere.

Persons in need of special care

The assessment of medical cases and socially vulnerable persons, such as (mentally and physically) handicapped persons or the elderly, should not be limited merely to the availability of treatment or special care requirements in BiH. Several other factors play an equally important role in ensuring accessibility to treatment and special care. The financial resources of the concerned individuals must be taken into account, since the former social policy of free access to social services and health care, applied under the socialist system, has changed with the introduction of fees to access health care and social services. Vulnerable but impoverished returnees in general do not have access to proper treatment and to medical facilities. The health insurance system is still ineffective and the restructuring of the health care and social service infrastructure is far from complete. The reform of the Entities' legislation regulating these matters may well take some time since it must take into account the constitutional competencies of the various levels of government authority.

The ethnicity of a returnee might also affect her/his access to health care and social services. Therefore, the reintegration of members of minority constituent peoples might be further undermined by their vulnerability and their disability. Provided there are no other protection problems, the possibility of repatriation of individuals in need of special care should be assessed on a case-by-case basis. Returnees without prospects of reintegration run the risk of ending up in collective centres, which the local authorities and UNHCR are trying to phase-down by providing solutions to the displaced residents. Consideration should be given to whether the community of origin or relatives can provide care and assistance or, alternatively, to whether the appropriate institutions are close to the place of origin so as to ensure proper reintegration in the place of pre-conflict residence, and finally as to whether funds are available to pay for services provided by a medical facility or through home care. The reintegration of elderly persons without family support can prove particularly difficult. The elderly in BiH represent close to 11% of the total population as opposed to the 1991 figure of 6.5.%. UNHCR discourages the creation of new institutions for vulnerable persons, because they do not take into account their needs of independence and socialisation and because they often represent an expensive model of care for which the authorities in BiH do not provide the necessary funds to sustain. As in any repatriation, children separated from their families or traditional care-givers must be accorded special care and attention, particularly regarding their legal status and special protection needs.

4. Persons of mixed ethnicity or in mixed marriages

Although the situation in BiH has improved since the signing of the GFAP in December 1995, there are still many areas where mixed marriages and persons of mixed ethnicity will face harassment and discrimination on account of their mixed ethnicity. In many areas mixed couples and persons of mixed ethnicity will face discrimination in employment and access to housing and education possibilities for their children. The fact that the local police in all areas are predominantly staffed with members of the majority ethnic group, often with previous military or police officials responsible for past violence and persecution, means that many minority persons are unable to avail themselves of police protection or are afraid to seek such assistance. The return of these persons to certain areas can be confronted with violence or harassment, uncertainty, instability and also invokes the real possibility of re-traumatization. It is thus UNHCR's position that special attention has to be given to persons or families who claim they cannot return on account of their mixed ethnicity, and that the assessment of the possibility for the return of mixed marriages or persons of mixed ethnicity will have to be conducted on a case by case basis.

5. Potentially stateless persons

Even though the State Law on Citizenship of BiH was drafted with a view to avoiding situations of statelessness, the combination of the effect of citizenship laws of the other former Republics of Yugoslavia and the lack of an adequate Federation Citizenship Law may leave certain individuals without, or with unclear, citizenship. These individuals may require continued international protection until their citizenship status is regularised.

6. Other specific protection categories

Leaders of the Demokratska Narodna Zajednica ('former Abdic supporters')

Although the return to BiH of supporters of Demokratska Narodna Zajednica (DNZ - also referred to as supporters of Fikret Abdic) has been largely successful, and the return of this category is generally possible, certain persons having played a politically significant role during the war might still, in view of the current volatile political situation in BiH, face protection problems upon return. In the absence of fundamental changes, the political and former military leadership of the DNZ, as well as prominent former supporters of Fikret Abdic, might not be assured effective national protection from the authorities, which justifies the need for continued international protection of individual cases falling in this group. It should be stressed that this is valid not only for the leadership of the DNZ, but also to Abdic supporters in general, if they can invoke compelling reasons for not being returned. In the absence of fundamental changes, the political and former military leadership of the DNZ, as well as prominent former supporters of Abdic, are not assured effective national protection from the authorities, which justifies the need for continued international protection of this specific group.

Deserters and draft evaders

Since both Entities now have passed amnesty legislation in line with the requirements of GFAP, the legal framework providing for the protection of deserters and draft evaders is in place. As mentioned above, although some positive steps in the implementation of the amnesty laws in both Entities have been noticed, there is currently no information available which would suggest a consistent and across the board implementation.

UNHCR therefore recommends that special attention be given to deserters and draft evaders who claim a need for international protection, and that cases should be considered on a case-by-case basis, taking into consideration the particular concerns each individual may put forward. It is important to point out, that even if the amnesty legislation are actually enforced by the relevant authorities, deserters and draft evaders might, in some instances, be faced by discrimination and harassment on the part of other individuals, without the assurance of effective national protection.

Members of the Roma communities

The situation of members of the Roma communities in BiH remains critical. Before the conflict many Roma lived in the Sarajevo, Zenica, Kakanj, Tuzla and North-Eastern Bosnia (Zvornik, Bijeljina) areas, but many of those who were displaced from what is now the RS are living abroad or are displaced in the Federation.

Members of this group are even less integrated into the post-conflict Bosnian society than they were before the conflict as they have now slipped even more into "political invisibility", since their interests are not being represented by any existing political party. Bosnian society, including authorities, continue their traditional discrimination and marginalisation of this minority group. Even though most of the Bosnian Roma are Muslims, religion is not the essential identification factor for this group and they do not necessarily attract the attention of their Bosniac coreligionists. In April 2000, the BiH Helsinki Committee reported that in Banovici (near Tuzla) SDA members attacked a group of Roma because they were thought to have voted for the SDP at the municipal elections.

The discrimination against the Roma manifests itself in subtle forms. Within the Roma community, discrimination, as well as lack of political and economic support networks have resulted in an amplification of post conflict themes, such as unemployment and lack of housing, with which other Bosnians are presently coping. In particular, the approach devised by the International Community to promote return to contested space (Property Legislation Implementation Plan/PLIP) seems to be particularly problematic for this group, as many Roma did not have legal entitlements to housing before the war. Extreme poverty and lack of education seem to be the Roma communities' greatest handicaps.

In 1999, UNHCR conducted a Returnee Monitoring Framework (RMF) study in Tuzla Canton. A total of 226 interviews were conducted with Bosnian repatriates from abroad, 23% of which were Roma. One of the conclusions of the study is that Romas, who were a marginalised group even before the conflict, face particular difficulties. They face all the same problems as other repatriates along with the tradition of discrimination against Roma. Especially worrying is the low level of participation in schools, which gives little hope for a brighter future. In particular, it will make it more difficult to break out of the cycle of poverty and lack of education which many of them live in.

In early March 2000, some 56 Bosnian Roma were deported from abroad to Sarajevo. This is the first time that such a large group has been deported and UNHCR is concerned that this might be the beginning of a trend. Some of the deported persons were Moslem Romas from Vlasenica, RS, and had lived abroad since 1992, when they were expelled from their homes. The pre-conflict houses of some are currently occupied by Bosnian Serb Displaced Persons and their possibility to return has proven difficult which resulted in their further displacement in Kladanj. Another group is now living near Sarajevo in very difficult conditions. The deportation included medical cases and resulted in splitting families.

Although some instances of relatively successful return of Roma might have taken place in some areas of the Federation of BiH, the situation of Roma in BiH cannot be generalised. As such the assessment of every individual case remains a fundamental element in the final analysis determining whether a Roma family or individual might be in need of continued international protection, often on cumulative grounds.

7. Other categories of persons at risk

The aforementioned categories of persons in continued need of international protection have been analysed primarily from the perspective of a previously recognised need of international protection. However, it should be noted that other categories of persons from BiH might be at risk and in need of international protection. It is UNHCR's position that persons from BiH, who lodge an asylum applications today should, like all other asylum seekers, be afforded full access to regular status determination procedures, for consideration of their applications on a case-by-case basis.

8. Conclusion

On the basis of the foregoing analysis, UNHCR concludes that the non-voluntary repatriation of refugees falling under the aforementioned categories is not appropriate. Nevertheless, given the very individual circumstances of members of the above categories, the return of some is already a possibility. For those in these categories for whom voluntary return may be an option, the key remains access to objective and accurate information. In this regard, UNHCR welcomes the ongoing policy of many host countries to support widespread dissemination of information to refugees and assessment visits to their areas of pre-conflict residence.

For those for whom return is not a viable option and given the fact that some may now be in their eighth year of displacement, appropriate action in this regard would include granting long-term residence or other durable protective status. UNHCR therefore encourages host countries to give serious consideration this year to regularising permanently the stay of those BiH refugees who are, in UNHCR's view, considered to be in continued need of international protection.

Annex 1 Security

Selected Security Incidents in the Federation:

• On 3 July 1999, the Canton 10 Croat Minister of Interior issued an instruction to all police stations, informing them to expel all returnees (overwhelmingly of Serb nationality) who failed to de-register from their place of displacement, register with the local authorities, and obtain their identification cards within 10 days. At the same time, it was the authorities themselves who had obstructed the ability of the returnees to comply with the ID card requirement. Local police authorities refused to implement a July 30 Decision of the High Representative requiring them to issue new ID Cards to returnees, in exchange for pre-war ID cards.

• In early July 1999, a series of violent incidents occurred in Drvar. Allegations of an attack/rape by a Serb man on a Croat woman led to "spontaneous" protests by the Croat population, and demands for an end to returns to the area. A series of attacks against the Serb returnees followed. Responding to the danger of a potentially deteriorating security environment, SFOR has increased its presence in the area. Three elderly Bosnian Serb returnee men were beaten by Bosnian Croat displaced person's on the 22nd of August. Although police were on the scene at the time of the incident, the suspects were permitted simply to leave the site, while the victims were taken to the police station to provide statements. This continues the pattern of violence against returnees to the municipality by the local DP population.

• On 12 October 1999, a bomb explosion destroyed a Bosniak house in Kablici, Livno municipality. The house had been reconstructed by UNHCR/UMCOR.

• A serious security incident took place on 26 December in the village of Krcevine in Capljina, when 4 unknown persons forced their way into a collective accommodation, harassed the returnees, smashed the furniture and caused minor injuries to a person. The returnees moved out of the accommodation and the village out of fear.

• The organized visit of 35 Bosnian Serb displaced persons to Zivinice on 11 December 1999, triggered off violent reactions from Bosniak displaced persons from Srebrenica, apparently as a result of the broadcasting of a documentary on the fall of Srebrenica on television the previous night. Despite the serious incident, it appears that the authorities of Zivinice are committed to minority returns and some action was been taken to deter further incidents.

• In January 2000, UNHCR released a study of the conditions of returnees to Canton 3 (Tuzla Canton) targeting in particular recent repatriates (both returnees and displaced persons), predominantly displaced from the RS, transit centre inhabitants and Roma. The report documents many areas of concern with respect to the sustainability of return, including a high level of mistrust, especially among the Roma, towards the police and complaints of inaction.

• In April 2000, UNHCR (assisted by the OHCHR) issued a report on the current situation and specific obstacles to return and integration faced by displaced and returnee women. The study focuses on female-headed families, single women and extremely vulnerable women, from all ethnic backgrounds. Consistently, personal security was stated as a principle concern. Specifically, being without male support or protection as well as community support meant that many women were not prepared to return. Linked to personal safety is security of children, and several women said they could not risk putting their children in situations of discrimination, prejudice or harassment, without male support. Other issues, such as satisfactory gender and ethnic composition of local police forces were also reviewed as factors affecting return and/or integration potential.

• On 19 June 2000, in Drvar, a Bosnian Serb police officer was shot and killed while on duty. The incident occurred when the victim and his colleague, a Bosian Croat police officer tried to take a Bosnian Croat DP, to the police station for an interview. The DP killed the minority police officer and wounded the Bosian Croat officer. The deceased was survived by his pregnant wife, their two minor children, one of whom is severely handicapped.

• On 18 June 2000 in Bihac, a male Bosniak threw an explosive device on the house of a Serb returnee. Nobody was injured. There were also several arson attacks on homes during the same month, suspected to be linked to intimidation of returnees.

Selected Security Incidents in the RS:

• In June 1999, serious incidents took place in the village of Tarevci (Modrica municipality, RS), where previously peaceful house cleaning visits were targeted by violent protests in late June. These incidents came at a time when the return process in Modrica had been going slowly but steadily, and approximately 20 Bosniak and Croat families had returned to the village. The incidents included rock-throwing and the throwing of a hand-grenade. Eight people were injured in the incidents. Local police action in response was inadequate and no action was taken against the perpetrators. The setback to the return process was significant.

• On the 13 August 1999, a Bosniak returnee to Kozarac shot two Serbs at a café bar, killing the leader of the Ostanak association, as well as another Bosniak recently converted to the Serb Orthodox faith. The perpetrator later committed suicide.

• On 7 October 1999, a Bosniak deputy municipal secretary in Srebrenica (Eastern RS) was injured by unknown masked men in a lavatory in the Srebrenica municipal building. Immediately following this event, eight other councillors left Srebrenica.

• Some tension possibly affecting the Zvornik return areas was caused in late October when the SNS President of the Executive Board made a number of inflammatory statements against Bosniak return on local TV. As a precaution the international community recommended temporarily slowing the return process.

• Some incidents targeting minority returnees (Bosniak and Bosnian Croats) were reported in Derventa (Northern RS) in November 1999. The local police were notably slow to investigate.

• Tensions were on the rise as return movements picked up in Eastern RS and reached areas previously closed to returns. In February, UNHCR reported increased tensions in Zvornik, in Janja (Bijeljina municipality) and in Koraj (Lopare municipality). In Koraj, security conditions deteriorated and resulted in several incidents. In Janja, there were grenade throwing and other incidents in February 2000, followed by serious tensions between the Bosniak returnee community and displaced Serbs.

• In March 2000 several incidents against Bosniak returnees were reported in Prnjavor. On 12 March a Bosniak shop was blown up; on 12 March a house owned by a returnee was blown up; on 21 March a grenade exploded when returnees were cleaning their property, and on 26 March a Bosniak house was stoned. The local police initially placed the blame on the "arrogant and provocative attitude of the returnees," but in April the local police arrested 3 young persons, who apparently confessed to have been involved in the incidents, and were later on released.

• Several security incidents were directed at minority properties during the month of April. The front door of one minority house in Pale urban area was set alight. One returnee, who had just moved back from Sarajevo to assess the security situation, received threatening phone calls during the night. In another incident directed at minority returnees in Pale rural area, a hand-grenade was thrown approximately 300 metres from a returnee's newly reconstructed house and a shotgun was fired through the roof of the house. All incidents are being followed-up by IPTF and local police.

• On 9 April 2000, in the early morning, an explosive device was thrown at the Merhamet (a local NGO) in Kotor Varos, damaging the facade as well as the new Merhamet vehicles. Nobody was injured.

• On 10 April 2000, the Head of Bijeljina OMI (RS Office of the Minister for Refugees and Displaced Persons) was stabbed and seriously wounded in his left hand. Investigations have prevailed that the assailant was a DP from Tuzla who was dissatisfied with the way the OMI had dealt with his case. The DP was arrested and sentenced to 60 days prison. In May, the OMI office in Janja, a suburb of Bijelejina was broken into four times. Some of the files were destroyed, allegedly in the process of looking for inventory lists, which are being used in the reinstatement procedure. Without inventory lists it is far more difficult to press charges against temporary occupants looting the accommodation prior to reinstatement of owners.

• In June 2000, UNHCR issued a report on minority returns to Republika Srpska. Between 1 March 2000 and 18 May 2000, there were approximately 73 reported, but not necessarily confirmed, security incidents in the RS directed against minority returnees or between minority returnees and Serbs. These range from written and verbal harassment to explosions and shootings. Encouragingly 72% of returnees said they felt they could trust the local police, with many expressing satisfaction at the professionalism and attention paid to them by the local police forces. They state, nonetheless, that they would feel more secure with the inclusion of more minority police officers.

• On 13 June 2000, in Janja, a suburb of Bijeljina Municipality, a former Bosniak municipal councillor, returnee to Janja was beaten up, and on 26 June a bomb was thrown on to a truck belonging to Bosniak family who was on the verge of being reinstated into their property. The tensions has agitated the displaced community of Bosniaks from Janja presently in Tuzla municipality. Meanwhile, in the Srebrenica area, following the arson of 2 houses in late May, 2 more houses were reported to have been damaged in the beginning of June.

• On 25 June 2000, a male Bosniak in Zvornik complained to IPTF that he and his wife were assaulted by several Serbs, who are occupying their houses. At the same time, near Mostar, a Bosniak family complained that their house had been stoned following several similar incidents in which the local police had failed to protect them.

• On June 26 2000, due to the arrest in Prijedor of Dusko Sikirica, indicted for war crimes, UNMIBH Security Alert Stage was upgraded to precautionary with additional movement restriction throughout the Republika Srpska.

• On 9 July 2000, a hand rocket launcher was fired through a window into a house owned by a male Serb in Banja Luka; while in Gradiska, an explosive devise was thrown against two vehicles. In both incidents nobody was injured.

• On 26 July 2000, the security situation in the RS town of Janja deteriorated when a crowd of local residents began protesting the eviction of a Serb illegal occupant in favour of its former Bosnian owner. Over the next two days three houses and three cars belonging to Bosniaks were destroyed by arson. A further nine fire attacks took place against Bosniak homes and haystacks. Seven persons were injured with reports of four assaults. Approximately 50 houses were damaged, mostly from rock throwing. Local police report that 11 individuals were deployed, but reports from the field suggest that they were passive in handling the crowds. A further 50 police officers from Zvornik PSC and 30 from Bijeljina were on standby but were not deployed.